Archive for
May, 2012

The Very Mild Fallout from the NYT Expose on US Drone Strikes

by Julian Ku

Will there be a serious legal blowback to the NYT’s article on US Drone Strike war, detailing President Obama’s personal involvement in the “kill list”?  The Iranian propaganda machine is already revving up its engines, but is there going to be a more serious legal and moral reaction akin to the Bush Administration’s war on terror interrogation and surveillance policies?

To be sure, there have been some severe criticisms from the international law academy.  Most notably, Prof. Mary Ellen O’Connell of Notre Dame has been the leading academic international law critic of the policy outside of Afghanistan and Iraq. Glenn Greenawald has been consistently critical in his public writings, and the libertarian right is beginning to stir as well.  But I somehow doubt professors will sign letters seeking to disinvite the President from visits to their universities, etc. in the same way they did against President Bush.

For the most part, the commentary on the NYT piece has been largely political and not legal. Conservatives like my friend John Yoo are concerned that the policy is being micromanaged from the White House, and hence it is unlikely to be very effective.  Leading human rights groups like Human Rights First have been measured, raising questions about the policy’s execution but not taking a wholesale critical approach.

All of this discussion is old news to Opinio Juris readers, who have followed the legal issues related to drone strikes (mostly by Ken and Kevin) for years.  But the article, and the relatively mild fallout, suggests to me that the legal framework for the US war on terrorism is becoming increasingly solid. I don’t see any evidence that the President will back off his current approach, and if he is not re-elected, just wait for the inevitable flood of “Even President Obama authorized this…” statements that will emanate from a Romney Administration.

VJIL Symposium: Jason Webb Yackee Responds to Bjorklund/Litwin and Wong

by Jason Webb Yackee

[Jason Webb Yackee is an Assistant Professor of Law at the University of Wisconsin School of Law.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

It’s a pleasure to receive such thoughtful (and in Professor Wong’s case, humorous) feedback on my short VJIL Essay, and I greatly appreciate their engagement with the piece.

I intended the Essay to be provocative but not absurd in its policy recommendations. My main suggestion (that states should think seriously about incorporating “corruption defense” in their investment treaties) is, I think, not inconsistent with the views of either commenter. Neither is my more basic suggestion, which is that even in the absence of corruption-specific BIT language, the fact of an investor’s involvement in public corruption related to its investment is likely to be of legal relevance to the investor’s ability to fully access the procedural and substantive protections of BITs. In other words, I think that we would all probably agree that there is already a viable “corruption defense,” and also that it might be useful to better specify the contours of the defense through explicitly corruption-related treaty language.

Where we primarily differ is on the desirable contours of the defense. My scheme is self-consciously pro-state. It imposes serious consequences on the investor who engages in corruption. It is, as Professor Bjorklund accurately points out, supply-side in its focus, just as are the U.S. Foreign Corrupt Practices Act and its non-U.S. equivalents. This supply-side focus bothers Professors Wong and Bjorklund. It seems unfair to them to exclusively punish investors when corruption, by its nature, takes two to tango. It doesn’t bother me as much to sanction one partner and not the other. My premise — unstated in the essay, I admit — is that the supplier of corruption (here, the investor) is probably in some meaningful sense the “least cost avoider” of corruption. The tort law equivalent is a liability regime that places the full cost of compliance on the person who throws a banana peel on the sidewalk, rather than on the inobservant pedestrian who slips on it and falls.

My sense (and it is just that at this point) is that it is comparatively difficult for developing countries already afflicted with corruption to prevent it, let alone to eradicate it. It is hard for states to monitor and control the actions of their agents, or to adjust incentive structures to discourage corruption. In contrast, corporations have an advantage in implementing effective training and compliance programs, in disciplining corporate actors who violate corruption laws, and in rewarding those who abide by corporate anti-corruption policy. Indeed, corporations are already spending heavily to implement effective corruption-prevention programs in order to avoid violations of or liability under the US and UK anti-bribery statutes, the penalties for violation of which can be immense. I would suggest, in effect, that the BIT regime should piggyback on these efforts by imposing on companies whose compliance systems fail the additional cost of the loss of their BIT privileges, rather than insisting that the high-cost avoider — the state — be expected to successfully duplicate the already expensive anti-corruption investments of multinational corporations.
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VJIL Symposium: Jarrod Wong Comments on “Investment Treaties and Investor Corruption”

by Jarrod Wong

[Jarrod Wong is an Associate Professor of Law at the University of the Pacific McGeorge School of Law.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

This intriguing Essay by Jason Yackee proposes that host states may well have a corruption defense against claims brought by investors under bilateral investment treaties (BITs) based on underlying investment contracts that, while facially unobjectionable, have been procured by bribing public officials. The argument extrapolates nicely from the denial of claims in an arbitration, decided in 1963 by Judge Lagergren, involving a politically well-connected Argentine seeking to enforce a “commission” contract guaranteeing some percentage of state contracts awarded by Argentina to the foreign investor, and in the World Duty Free ICSID case, in which the investor sought compensation for expropriation by Kenya of a concession acquired by bribing the then President of Kenya. While neither claim arose under BITs, both were denied on grounds of violating international public policy, which one — or least these tribunals — might conceivably extend to BIT claims.

However, I wondered whether Yackee, in his determination to clear a path to the promised land, sufficiently acknowledges the perils on the road. For instance, neither tribunal above was expressly authorized to apply international law; indeed, ICSID tribunals — which determine many BIT claims — are to apply “applicable” international law only “in the absence of [the parties’ agreement on applicable law].” While noting this fact, Yackee was prepared to interpret the willingness of both tribunals to invoke (with how much deliberation?) international law as indicating an inherent authority to do so, rather than question the assumption. All the more troubling when the supposed “rule” of international law applied is of the nebulous variety conveniently labeled “international public policy.” (The wry among us might freshly inquire as to how this description differentiates other international law rules.)

Shouldn’t we require such policy to crystallize into something akin to customary international law before permitting its application under these tenuous circumstances? Further, should the host state bear no responsibility when a state official accepts the bribe and is equally culpable? The World Duty Free tribunal neglected to weigh this fact in the context of international public policy, although it considered the issue under applicable national laws, only to hide behind Latin maxims —- the in pari delicto and ex turpi causa principles — in refusing to calibrate the equities more precisely. (Really? The President of Kenya walks off with $2 million, and the best the Tribunal’s got is a dead language?) Would the World Duty Free outcome not perversely incentivize host states to encourage bribery behind dummy anticorruption legislation since this gives license to flout BIT obligations?
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VJIL Symposium: Andrea Bjorklund and Daniel Litwin Comment on “Investment Treaties and Investor Corruption”

by Andrea K. Bjorklund and Daniel Litwin

[Andrea K. Bjorklund is currently the Visiting Professor (Guest of the L. Yves Fortier Chair in International Commercial Arbitration), McGill University Faculty of Law; she is also a Professor of Law at the University of California, Davis. Daniel Litwin is a B.C.L./LL.B. Candidate, McGill University Faculty of Law.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this series of discussions. We are very happy to participate.

Jason Yackee’s Essay takes what might be described as an orthodox position on corruption. It rests on a long line of international commercial arbitration precedents whose focus has consistently been on the “supply” side of corruption and not on its “demand” side. (We are grateful to McGill student David Rapps for this nomenclature). This focus on the “bribe payer” (supply side) is reminiscent of the approach taken by the US Foreign Corrupt Practices Act and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Professor Yackee adopts this same focus in suggesting that an investor’s corrupt or fraudulent behavior should prevent it from taking advantage of the protections afforded by any applicable investment treaty.

Yet experience in the fight against drug trafficking suggests that seeking to limit supply without eradicating demand will never be successful. The UK apparently takes this view: its recently-adopted Bribery Act penalizes both bribing (supply side) and receiving bribes (demand side). The same even-handed approach to fighting corruption is present in the anti-bribery laws of Germany and of China. We too believe that if both an investor and a host state engage in corrupt behavior, sanctioning both is the best way to achieve the goal of eradicating corruption that has animated the international community (at varying levels of enthusiasm) for the past several decades.

Like Professor Yackee, we agree with the position taken by the tribunal in World Duty Free v. Republic of Kenya that corruption is properly viewed as a violation of transnational public policy or truly international public policy. We cannot, however, agree with his refusal to adopt a balanced approach that would proportionally ascribe blame to all parties involved in a corrupt exchange. Penalizing only the party actively committing the wrong is reminiscent of the approach taken in the investor misconduct cases cited by Professor Yackee. But in both Inceysa Vallisoletana S.L. v. Republic of El Salvador and Plama Consortium Ltd. v. Republic of Bulgaria the investors were guilty of misrepresentation, a unilateral offense involving a single guilty party. Since corruption is normally bilateral, any parallels between cases involving misrepresentation and corruption should be properly nuanced.
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VJIL Symposium: Introducing “Investment Treaties and Investor Corruption”

by Jason Webb Yackee

[Jason Webb Yackee is an Assistant Professor of Law at the University of Wisconsin School of Law.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Thank you very much to the Virginia Journal of International Law and Opinio Juris for facilitating this discussion on my recent VJIL Essay, “Investment Treaties and Investor Corruption: An Emerging Defense for Host States?

In 2007, Siemens AG, a prominent German multinational electronics and engineering firm, won an impressively large arbitral award against Argentina. A tribunal formed under the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID) awarded the company over $200 million for Argentina’s unlawful expropriation of the company’s investment in the design and construction of an information technology (IT) system commissioned by the government. Argentina’s loss in Siemens was one of its several recent ICSID defeats. The country has faced an onslaught of investor lawsuits since its financial crisis in the early 2000s and has suffered awards for damages totaling well over half a billion dollars. Although Siemens’s claims did not arise from the financial crisis, and while the case, unlike the other Argentine arbitrations, did not involve the sensitive issue of the scope of a “necessity” defense under international law, Argentina was still not eager to honor the award. Five months after the award was rendered, Argentina filed a petition for annulment, the sole mechanism of review available under the ICSID Convention. While occasionally ICSID annulment committees have annulled awards, the grounds available for successful annulment are quite limited. There was little in the Siemens award itself to suggest that Argentina had much, if any, chance of convincing the committee to annul the award.

Bilateral investment treaties (BITs) are famously asymmetric. They grant investors rights but not obligations, while imposing upon states obligations unaccompanied by rights. Recent cases suggest, however, that BIT tribunals are poised to recognize a defense to state BIT liability that, in effect, imposes upon investors the obligation to avoid involvement in public corruption in the course of making a treaty-protected investment. In this Essay, I sketch out the contours of this emerging defense, focusing on the recent investment treaty arbitration between Siemens AG and Argentina. Although Siemens was awarded over $200 million for Argentina’s expropriation of its investment, it voluntarily abandoned the award in response to post-award revelations that Siemens had procured the investment through the systematic bribery of Argentine officials. While the Siemens tribunal never had the chance to rule on the legal consequences of the bribery allegations, jurisprudential trends suggest that it would likely have used the fact of corruption to either decline jurisdiction or to otherwise refuse to recognize Siemens’s substantive treaty-based rights. I nonetheless argue that the specific contours of this emerging corruption defense are uncertain, and I suggest model investment treaty text for states that wish to secure their reliable access to it.

Thank you again and I look forward to the discussion.

Weekday News Wrap: Thursday, May 31, 2012

by Jessica Dorsey

Plaintiffs Seek to Enforce Ecuadorian Judgment Against Chevron in Canada

by Roger Alford

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron’s far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and a questionable commitment to the rule of law. The good news is that the Plaintiffs have chosen, at least for now, a highly reputable forum–the Ontario Superior Court in Canada–for adjudicating the recognition and enforcement of the judgment. Here’s a key excerpt:

11. The Judgment of the [Ecuadorian] Appellate Division is a final Judgment in Ecuador and is exigible against the assets of Chevron in whatever jurisdiction any may be found, including Canada.

12. All the facts, findings and conclusions of law stated in the Judgments and Clarifications in Ecuador are res judicata as between the parties.

13. As a consequence of the Decision of the Supreme Court of Canada in Beals v. Saldanha and subsequent jurisprudence, Chevron is estopped from challenging any fact, finding or determination of law in the Ecuadorian Decisions on the merits. Further, Chevron is restricted from challenging the Ecuadorian Decisions on the basis of fraud unless it can demonstrate that the allegations are new, not the subject or prior adjudication and were not discoverable by the exercise of due diligence.

Significantly, the plaintiffs are trying to attach the assets of Chevron Canada Ltd and Chevron Canada Financial Ltd, two wholly-owned subsidiaries of Chevron. Given that Chevron itself has few assets in Canada, the choice is somewhat curious. We know from the Invictus Memo that the Plaintiffs are seeking a jurisdiction that is “flexible” on veil-piercing, including what they call the “rare” case of “reverse veil-peircing”, holding the subsidiary liable for the parent’s judgment debt. (see p. 23). I do not know whether Canada would fall into the category of a flexible jurisdiction on reverse veil piercing.

The other key question, of course, is how Canadian law treats fraud as a defense to the enforcement of foreign judgments. As reported here, according to one Canadian scholar, Canadian courts “tend to take a somewhat narrower view of what might constitute fraud than some courts would.” I would be curious if others in the know agree or disagree.

It would appear that the Plaintiffs are confident enough in the merits of their position to avoid the mistake of filing in a court of dubious distinction, but not sufficiently confident enough to subject themselves to the jurisdiction of U.S. courts and the resulting counterclaims that would inevitably follow. As Chevron put it in a statement today, “If the plaintiffs’ lawyers believed in the integrity of their judgment, they would be seeking enforcement in the United States – where Chevron Corporation resides. In the U.S., however, the plaintiffs’ lawyers would be confronted by the fact that seven federal courts have already made findings under the crime/fraud doctrine about this scheme.”

The Statement of Claim makes no mention of the investment arbitration, nor the injunction against Ecuador to take action to prevent enforcement proceedings anywhere in the world.

A copy of the Statement of Claim is available here.

Taylor Sentenced to 50 Years Imprisonment

by Kevin Jon Heller

So reports The Guardian:

Liberia’s former president, Charles Taylor, has been sentenced to 50 years in jail for being “in a class of his own” when committing war crimes during the long-running civil war in neighbouring Sierra Leone.

Judges at a UN-backed tribunal in The Hague said his leadership role and exploitation of the conflict to extract so-called “blood diamonds” meant he deserved one of the longest prison sentences handed down so far by the court.

Taylor, 64, was found guilty last month of 11 counts of aiding and abetting war crimes and crimes against humanity, when supporting rebels between 1996 and 2002 in return for conflict gems.

The offences included murder, rape, sexual slavery, recruiting child soldiers, enforced amputations and pillage.

Delivering the decision at the special court for Sierra Leone, Judge Richard Lussick said Taylor’s crimes were of the “utmost gravity in terms of scale and brutality”.

He added: “The lives of many more innocent civilians in Sierra Leone were lost or destroyed as a direct result of his actions.”

Taylor was “in a class of his own” compared with others convicted by the court. “The special status of Mr Taylor as a head of state puts him in a different category of offenders for the purpose of sentencing.”

Prosecutors had asked the judges to impose an 80-year prison term. Lussick said such a long term would have been excessive as Taylor was convicted of aiding and abetting which “as a mode of liability generally warrants a lesser sentence than that imposed for more direct forms of participation”.

Definitive analysis will have to await the sentencing judgment, but the length of the sentence appears troubling — particularly in light of Judge Lussick’s comments. It is difficult to see how Taylor received a “lesser sentence” than the direct perpetrators of the crimes in question, given that his 50-year sentence is as long as any of the convicted defendants in the AFRC case (and five years longer than Brima Kamara’s) and is only two years shorter than the longest sentence imposed in the RUF case (52 years for Issa Sesay) and considerably longer than the two other sentences (40 years for Morris Kallon and 25 years for Augustine Gbao).

The comparison with Gbao is particularly revealing. Unlike Taylor, Gbao was convicted of participating in a joint criminal enterprise to commit “unlawful killings, sexual violence crimes, physical violence crimes, enslavement, the crime of pillage and acts of burning.” The Trial Chamber justified Gbao’s lesser sentence (compared to his co-defendants) on the ground that, although he had participated in the JCE, “he did not have direct control over fighters,” was “not a member of the AFRC/RUF Supreme Council,” “remained in Kailahun during the Junta regime,” “did not have ability to contradict or influence the orders of men such as Sam Bockarie,” and “was not directly involved and did not share the criminal intent of any of the crime committed in the Bo, Kenema, or Kono Districts.” The Trial Chamber also emphasized that Gbao’s role in the RUF enterprise was “not at the policy making level nor was it at the ‘fighting end’ where the majority of the actual atrocities were committed.” Indeed, the Trial Chamber accepted the Defence’s submission that Gbao “has not been found to have ever fired a single shot and never to have ordered the firing of a single shot.” Taylor and Gbao thus seem similarly situated, the primary difference between them being that, unlike Taylor, Gbao was not convicted solely on the basis of aiding and abetting. Taylor’s 50-year sentence, therefore, seems significantly disproportionate to Gbao’s 25-year sentence. If a member of the RUF enterprise who had no direct involvement in atrocities deserves a 25-year sentence, how can someone — even a head of state “in a class of his own” among aiders-and-abettors — who not only had no direct involvement in atrocities but was not even a member of any JCE deserve a sentence twice as long?

In a previous post, I expressed my fear that the work the Trial Chamber put into the 2,499 page judgment would affect its sentence determination. That seems to have happened. I look forward to the sentencing judgment — and to Taylor’s appeal.

ADDENDUM: I should add, for the record, that my problems with the sentence are unrelated to my personal view of Taylor’s culpability. Having followed the trial relatively closely for the past few years, I think the Trial Chamber’s judgment understates — perhaps seriously — Taylor’s responsibility for the AFRC and RUF’s crimes. In particular, although I agree with the Trial Chamber’s rejection of ordering and command responsibility, I would have had no problem convicting Taylor for many of the charged crimes via JCE. My problem with the sentence is that, although the Trial Chamber refused to convict Taylor on the basis of JCE or ordering, it has imposed a sentence that seems to require viewing Taylor as much more than an aider and abettor. I view him that way — but the Trial Chamber cannot, given its judgment. And his sentence needs to reflect that fact.

VJIL Symposium: Alvaro Santos Responds to Professors Howse and Lang

by Alvaro Santos

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

I am grateful to Professors Robert Howse and Andrew Lang for their comments on my Article. I am an avid reader of their work and am honored for the opportunity to have this exchange.

My Article argues that contrary to the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy, there is still flexibility in the system for countries to carve out regulatory space and pursue heterodox domestic economic policies. The Article seeks to show that often the biggest obstacles to experiment in domestic economic policy are not the trade legal obligations but the beliefs that assign to the WTO a specific form of trade liberalization. These habits of thought assume a determinate meaning in what constitutes a trade distortion when these determinations are in fact the result of policy and value-laden choices. One concrete implication is that contrary to what is often assumed, the hands of the policy decision-makers in developing countries are not tied.
Both Professors Howse and Lang seem to agree with the Article’s thesis about the existence of greater policy flexibility in the WTO and raise important points about its implications. I would like to respond by highlighting three themes that stem from their comments: the role of technical expertise, the institutional strength of the WTO’s Dispute Settlement Body (DSB) and the conceptual scope of policy autonomy.

First, let me say a word about technical expertise. Professor Robert Howse’s work has been at the forefront of showing the wider range of policy choices available under the WTO agreements. In his response Howse provides an excellent example of narrowing down of policy flexibility using the TRIPs agreement. Although compulsory licensing is often interpreted as being available only in cases of emergency, it is indeed generally available.
Howse emphasizes the importance of independent expertise on WTO law for developing countries. A kind of expertise that does not take for granted the conventional wisdom prevalent in the global trade policy elite, the WTO Secretariat or powerful interest groups but that looks instead at how to serve the needs of developing countries. This point relates to the concept of “development legal capacity”, which I use to argue that knowledge and expertise can be deployed to contest dominant interpretations of WTO to experiment domestically with heterodox economic policies. Howse makes clear that different political, social and philosophical views animate different interpretations of what the WTO obligations mean. Here, as in much of his work there is an impetus for the democratization of the global trade regime and for a vibrant public debate about the values we want the system to embrace that I find compelling.

Similarly, Professor Lang notes that if developing countries are to be successful in advancing their economic agendas they ought to pay attention not only to their legal capacity in litigation but to the structural conditions that influence the receptivity or the impact that their arguments will have on legal interpreters. I agree and indeed regard countries’ developmental legal capacity as encompassing that kind of work. Lang points to the role of public criticism in the environmental cases. Similarly, one could see the access to medicines campaign in the context of the AIDS epidemic as another important example. Developing countries like South Africa and Brazil, as well as many NGOs, managed to reframe the understanding of TRIPs so that it could not be read to limit states’ rights to pursue their public health objectives. Thus, I agree that countries’ legal capacity and lawyering strategies can’t be limited to litigation. Countries need to devise strategies that would make their arguments gain traction in Geneva and among the trade policy network. This could include very visible work like public campaigns and forging political coalitions as well as the less visible and more gradual work of WTO committees, as Lang has examined elsewhere.
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VJIL Symposium: Andrew Lang Comments on “Carving Out Policy Autonomy for Developing Countries”

by Andrew Lang

[Andrew Lang is a Senior Lecturer in Law at the London School of Economics and Political Science.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

It is a pleasure to be asked to comment on Alvaro’s most recent paper on ‘Carving out Policy Autonomy for Developing Countries in the World Trade Organization’. I spent a happy few hours reading and digesting the thoughts that Alvaro offers in this paper, and am richer for the experience. I am in sympathy with essentially all of the starting points of the analysis: that WTO law is more ambiguous than is usually appreciated; that it therefore is potentially more flexible than is commonly acknowledged; and that law is not epiphenomenal to relations of power in global trade politics but rather partly constitutive of them. And I appreciate the importance of what I take to be the article’s core point: that building the ‘legal capacity’ of developing countries in the trade regime should mean more than just building their capacity to bring and win cases in the WTO, but more broadly to integrate developing countries’ WTO legal strategies much more closely with their development goals and policies, to shape the terms of their integration into the global trading order.

One thought that occurred is that if this project is to be successful, then work on building the ‘capacity’ of developing countries in WTO dispute settlement needs to be complemented by research into the ‘receptivity’ of the dispute settlement system to the arguments that developing countries make. The power to shape the interpretation of the law in WTO dispute settlement, in other words, is not just a function of the legal capacities of the parties to a dispute, but also about the structural conditions which make certain legal arguments appear more convincing, persuasive, institutionally appropriate, textually grounded, and so on to legal interpreters. Alvaro tells the story of the evolution of the law through US litigation of the Tuna and Shrimp disputes as an illustration of the winning strategies of Repeat Players, which might usefully be replicated by developing countries. But isn’t it also possible to explain the change in the law over the course of these cases as in part a response on the part of the regime to its greater public visibility and the rise of public criticism of the WTO? Presumably both play a role – the point is simply to say that building the capacity of developing countries to use the WTO dispute settlement system strategically would ideally be complemented by work on the conditions which make the dispute settlement system receptive (or not) to the strategies that developing countries thereby pursue.

A related thought has to do with the pressures that this project will place on the WTO dispute settlement system. Alvaro, and other writing in this area, are right to say that struggles over the interpretation of WTO law are likely to become an even more central aspect of global trade politics over the next decades, partly as a result of more and more Members building their legal capacity in precisely the way Alvaro describes. Is the dispute settlement system equipped at present to respond to the challenges that this will pose? Does it currently possess a sufficient set of juridical tools and techniques to carve out both a legitimate and effective role for itself as it finds itself ever closer to the centre of trade politics? One of the tasks for the next decade or so it to try to craft a way of ‘doing law’ in international economic governance which bears the weight that strategies such as those described in this article will necessarily place on it.
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VJIL Symposium: Robert Howse Comments on “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization”

by Robert Howse

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Professor Alvaro Santos’s Article brilliantly illustrates how developing countries can use effectively the WTO dispute settlement system not only to defend but to promote their chosen economic developing strategies, even where these (as in the case of Brazil) diverge considerably from the neo-liberal, Washington Consensus approach that is often assumed, partly erroneously, to be embedded in the WTO treaties. His Article raises the question of whether the policy space available under the treaties is inadequate or whether in fact developing countries have been in some cases overly-influenced by what elites with a neo-liberal orientation have told them the provisions in question mean.

To my mind, one of the clearest examples of the problem of who controls the understanding of what the treaty means is that of compulsory licensing under TRIPs. I hear it again and again suggested that TRIPs only allows compulsory licensing if there is some kind of emergency or crisis. This is simply not so. The TRIPs agreement merely imposes fewer conditions in the case of an emergency. But it makes compulsory licensing generally available.

In some countries, there is no independent expertise about WTO law. The government and the people only hear the views of officials who have been more or less inducted into the global trade policy elite, or those of the WTO Secretariat, or those of interests who are using the notion of WTO illegality to block a policy they oppose for other reasons. Today, however, NGOs are playing an increasingly useful role in entering policy debates and contesting interpretations that are particularly restrictive of policy space (ICTSD’s work on TRIPs is a good example). To be able to do this NGOs had to reposition themselves at least partly from being anti-globalization advocates trying to oppose and delegitimate the system to knowledgeable and shrewd lawyers who see the tensions, flexibilities, and balances in the existing norms that can be a basis for contestation within the legal framework as it stands. I am still struck by how journalists (many, though not all), who can be important in transmitting the meaning of WTO law in a domestic policy debate, will go to the same experts-mostly trade officials, lobbyists, or retired officials, and a few professors who are also consultants or closely connected to the WTO Secretariat-and take their views as the correct ones concerning the meaning of WTO law. When they are writing about questions of criminal law or constitutional law, journalists are much less naive: They often will try and get the views of experts with conflicting opinions, and they know that, at some level, political or social or philosophical views can matter to how one thinks the law should be interpreted and applied. In the case of trade law, they are often just looking for the conventional wisdom.
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VJIL Symposium: Introducing “Carving Out Policy Autonomy for Developing Countries at the World Trade Organization”

by Alvaro Santos

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

I would like to thank the Virginia Journal of International Law for the invitation to participate in this online symposium and to Opinio Juris for featuring my article and hosting this discussion.

In “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico”, I argue against the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy. Despite the presence of restrictions, I claim that there is still flexibility in the system for countries to carve out regulatory space for themselves. That countries can expand their policy autonomy means that governments of developing countries have more agency and responsibility than development scholars typically admit. At the same time, however, the asymmetry of power and resources between countries does affect their experience in the system and thus influences the outcomes to a greater extent than liberal trade scholars usually acknowledge.

This Article provides an account of how countries are creating policy space in a way that is currently underappreciated in existing academic literature. This space relies on the ability of countries, as repeat players (RPs), to make use of textual open-endedness in legal obligations, to seek out favorable rule interpretation, and to actively participate in the WTO system through strategic lawyering and litigation. To pursue this strategy, countries invest in “developmental legal capacity,” through which governments recognize the need to make gains in policy autonomy in order to pursue economic policy goals that may be in tension with the WTO’s free trade objectives.

This Article draws on two case studies to examine the availability of policy space within WTO obligations and the role of developmental legal capacity. It analyzes the trajectories of Brazil and Mexico in the WTO to show two different experiences of RPs. The divergent lawyering and litigation experiences of Brazil and Mexico reflect different attitudes towards the free trade regime inaugurated by the WTO. Mexico seems to have considered WTO membership — part of its trade liberalization policy — as a strategy for economic growth in itself. It has largely abandoned its powers to selectively promote specific sectors in which it may create comparative advantages with greater growth potential. In contrast, Brazil seems to have combined a strategy to promote market access for its exports with domestic measures to promote economic sectors it considers valuable. When other countries in the WTO have challenged those measures, Brazil has defended them and thus expanded its policy space within the system.
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Weekday News Wrap: Wednesday, May 30, 2012

by Jessica Dorsey

Gen. McChrystal’s Secret Yale Course (UPDATED)

by Kevin Jon Heller

Given my basic cynicism toward just about everything, I’m difficult to shock. But I was certainly shocked to learn that Yale University is allowing Gen. Stanley McChrystal to teach a course that enrolled students have to agree in writing not to discuss. Here is Gian Gentile, a professor at West Point, criticizing the course in The Atlantic:

Enter retired four-star Army General Stanley McChrystal. McChrystal, who formerly led special operations forces in Iraq and Afghanistan and later became a senior American commander in Afghanistan, now teaches a class at Yale’s Jackson Institute for Global Affairs, where he integrates his military experience with his studies on leadership. In the New York Times, McCyrstal is quoted as saying “the only reason I’m here to teach,” compared with “somebody who’s got a Ph.D., is because I’ve been through it.”

McChrystal must have been through something ominous because, according to Elisabeth Bumiller’s Times article, Yale University imposes restrictions on students who sit in McChrystal’s classes, demanding that they take notes on an “off the record” basis — i.e., not for attribution.

Yale’s extraordinary act seems drastically out of place with notions of academic and intellectual freedom. At the U.S. Military Academy at West Point, where I teach history, intellectual freedom is fiercely encouraged and protected. In addition, there is also accountability. No matter what I say in my history classes – either about history or my combat experience — cadets are free to tell it to the world, critique it, or reject it privately or publicly. Restrictions on cadets don’t exist even for an instructor with direct ties to the U.S. military. (I did two combat tours in Iraq, the second one in command of a combat battalion in West Baghdad at the height of Iraq’s Shia-Sunni civil war in 2006.)

Yale University’s readiness to impose special conditions — enabling a retired American four-star general with celebrity appeal to teach classes on his own terms — is puzzling. Why would Yale bend the dictates of academic freedom, especially knowing that McChrystal’s students have little personal knowledge of the true nature of the conflicts in Iraq and Afghanistan, much less of the officers who’ve decisively shaped their conduct? Have at least portions of the Yale faculty have been seduced by the “better war” myth — the notion that to win wars of occupation inside the Muslim World, the trick is to put the right general in charge and tweak the tactics of counterinsurgency with clever political science theories that win hearts and minds?

I don’t know what I find more distressing: Yale’s willingness to offer such a course or students’ willingness to take it. I just hope that the course finds its Bradley Manning — a student brave enough to let the world know what Gen. McChrystal believes is so sensitive that it cannot see the light of day. I also highly recommend Stephen Walt’s response in FP. The title to his post, “Yale Flunks Academic Freedom,” really says it all.

UPDATE: According to two students who took the course, reports by bloggers and the media that students were required to sign non-disclosure agreements are incorrect. If so — and I have no reason to doubt the students — then the concerns in the post are obviously misplaced.

That said, contra Roger, I do not believe that Chatham House rules belong in the classroom. They are certainly appropriate for meetings of organizations that require secrecy to function, but there should be no limits whatsoever on the free exchange of ideas in a university course.

Moreno-Ocampo To Investigate… Crimes Against Soccer

by Kevin Jon Heller

I originally thought it was a story in The Onion, but once again truth is stranger than fiction:

Top international prosecutor Luis Moreno-Ocampo, best known for pursuing war criminals, has been nominated as chief investigator at FIFA, soccer’s scandal-plagued governing body, with a brief to probe match-fixing and corruption.

FIFA’s executive committee is due to discuss the appointment of a chief investigator within the next few weeks as part of a proposed clean-up following a string of graft cases.

In March, FIFA’s executive approved plans to split the ethics committee, which looks into wrongdoing by officials, into separate divisions with one to investigate cases and one to judge them.

Moreno-Ocampo, whose term as chief prosecutor at the International Criminal Court (ICC) in The Hague ends in June, has been nominated to head the investigations team, said Mark Pieth, a professor from the Swiss-based Institute of Governance.

I’m going to defer to Mark Kersten on this one, because I’ll say something snarky that I’ll regret. I will add, though, that FIFA was not Moreno-Ocampo’s first choice: according to sources at Harvard, he actively sought a Chair at Kennedy School’s Carr Center for Human Rights Policy, but was not offered the position — for reasons that are not yet clear.

VJIL Symposium: Andrew K. Woods Responds to Professors Baron, Haque, and Ohlin

by Andrew K. Woods

[Andrew K. Woods is currently a Climenko Fellow at Harvard Law School.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Let me begin by expressing my gratitude to the Virginia Journal of International Law (VJIL) and Opinio Juris for hosting this discussion, and to Professors Baron, Haque, and Ohlin for their thoughtful responses to my recent VJIL Article. Rather than address every point raised by the comments, I thought I would make a few related points.

Can It Still be Called Criminal Law?

I want to resist the idea that finding a just deserts approach to be sub-optimal (on a consequentialist account – as I say, this project says nothing about the deontological merit of a purely retributive approach) calls for abandoning the international criminal model wholesale. That is, one can reject retributivism without rejecting a “rule-governed legal process that defines crimes, determines responsibility, and imposes punishment,” as Haque puts it. Judges, and the prosecutors who launch international criminal inquiries, need not speak in retributive terms, and they need not speak in retributive terms on behalf of all people everywhere. As I show in Part III of the article, there are a number of decisions within the regime — such as who to indict, how long to sentence them, and with what sorts of sentences — that could be made so as to enhance the regime’s effect on international crime without undermining its “criminal law” nature. There may be a first order question of whether criminal law inherently requires finger wagging, but even if we concede that it does we still need to figure out who should be the subject of the finger wagging, why, and on whose behalf. These are design choices within (not without) the criminal law model.

I appreciate the point both Professors Ohlin and Haque make about aggregation: in theory, individual judgments need not be overtly consequentialist in order to maximize the overall utility of a particular tribunal. This is a key piece of the “utility of desert” argument, and disproving that argument in the abstract (or as it applies to domestic criminal law) was never the point of the project. Rather, the point was to evaluate what I think is an implicit and largely unacknowledged justification for retributivism in the international criminal system: the idea that just deserts for international crimes are not just right and true but will also serve the policy goals of international justice. In Part II, I gave reasons (six of them!) to think that a retributive system would cause a number of unwanted consequences, and my conclusion is that these consequences on balance will likely outweigh the aggregate benefits of a retributive approach. Scholars like Jonathan Baron and Cass Sunstein have shown how moral outrage can derail deliberative justice in domestic settings, and it seems that there are particular reasons to worry about this problem in the international criminal context. This is partly due to the politics of international justice, which I discuss below.
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VJIL Symposium: Jens David Ohlin Comments on “Moral Judgments & International Crimes”

by Jens David Ohlin

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Andrew Woods has done an admirable job tackling a truly foundational issue: the normative basis for punishment in international criminal law. This issue has engaged my thinking as well, and Woods is to be congratulated for moving the ball forward and asking the right questions.

Woods starts from the assumption that international criminal punishment is essentially retributivist. He then proceeds to harness the lessons learned from the domestic punishment literature and then applies them to the international context. In particular, Woods invokes the well-known work by criminal law scholars Paul Robinson and John Darley. In a series of well-known articles and books, Robinson and Darley have argued that there is a utility to moral desert. In other words, (1) individuals have retributive sentiments regarding misbehavior; and (2) designing a system of punishment that tracks those sentiments will, as a whole, produce better consequences.

This is one particular way of integrating retributivism and utility into a single coherent theory. For Robinson and Darley, the empirical fact of the matter is that people have retributive sentiments (step 1). At a normative level, however, what makes the system morally justifiable is that these sentiments have beneficial consequences (step 2) – hence the utility of desert. So the theory starts with a description of moral desert at the individual and wraps it in a normative argument at the institutional level that sounds in consequentialism.

Woods then proceeds to apply these lessons to international criminal law. In short, he concludes that there is no similar utility of desert for international criminal law.

While I think there is much to admire in Woods’ analysis, I take some issue with the first step of the argument: his assumption that international criminal law is fundamentally retributive. If he means this statement as a descriptive claim about the state of the field, I think he is wrong. I myself have argued that international tribunals ought to be far more retributive, so why am I complaining? Because I think that ICL ought to be more retributive, precisely because I think that ICL isn’t sufficiently retributive at the moment.
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Americans and Our Military

by Deborah Pearlstein

Of all the items to capture blogospheric attention this Memorial Day weekend – one of the few times a year in the States when more than a handful of popular news outlets focus on what it means for our military and our country that we have been at war for more than a decade – MSNBC pundit Chris Hayes’ remarks on the nature of heroism seem to have risen to the top. Here’s Politico’s summary of the remarks, the backlash, and the subsequent apology; the actual 12-minute video clip of the conversation is here.

In essence, the controversy surrounds Hayes’ questioning of whether it was appropriate to use the word “heroes” to describe every member of the military who died in combat. The idea was inartfully expressed (and laden with caveats and hesitations), but it amounted to the notion that calling all members of the military heroes was a form of rhetoric that tended to obscure more complicated questions of the justness/unjustness of the particular war. Hayes’ idea was then embraced and expanded upon by the other pundits at his roundtable. Not so by the blogs.

Several things. First, Hayes deserves enormous credit for devoting his program to the wars and in particular their effects on veterans and their families. Immediately before the panel discussion, he interviewed US Marine Lt. Col. Steve Beck, one of the soldiers responsible for telling family members that their loved one had been killed. Immediately after the panel, he interviewed Mary Kirkland, whose son Army Specialist Derrick Kirkland was diagnosed with PTSD and committed suicide at age 23. Their stories are, of course, excruciating to hear – which may well be part of the reason why we don’t hear them often enough. Hayes was, it seems clear, trying to remedy the more typical lack of focus on these issues – made possible in part by what a tiny fraction of Americans it is who actually serve, and by the many ways (some of which I noted last week) in which the American public has become less able and less inclined to check the conduct of war.

Second, Hayes is hardly alone in wondering about whether the term “hero” is always the right one to use. Here, for example, is Iraq vet Phil Carter writing in the L.A. Times in 2006:

America’s deepening civil-military divide crystallized for me two weeks after I had returned from Iraq, while sitting at a Starbucks in the San Fernando Valley. I looked around the cafe and saw a dozen people ordering coffee, talking, reading and studying, while the baristas were busily serving drinks. All of a sudden, it hit me. Even though we are a nation at war, the war does not really seem to exist here in America. Frequently over the last two months, my friends have referred to me and other veterans of Iraq and Afghanistan as “heroes.” This has disturbed me a great deal, forming another sort of alienation that is likely to become particularly acute this Veterans Day. American society venerates all soldiers as heroes, yet we in the military reserve that label for those who truly go above and beyond the call of duty. To us, the ordinary soldiers who merely served in harm’s way, the label feels like a garish shirt — it neither describes us well nor fits us comfortably…. I judge myself by the code of a warrior. That ethos demands selfless service, not aggrandizement. It praises the team, not the individual. And it saves its highest accolades for those who distinguish themselves through extraordinary acts of valor. As veterans, we know the real heroes among us; many of them did not come home. Awarding this distinction to everyone cheapens the accomplishments of those who earned it — and makes the rest of us feel guilty that we have somehow stolen recognition from the worthy.

Which brings me to a final point for now. The Hayes discussion seemed ill-handled in a variety of ways. Among them, Lt. Col. Beck participated in the show (not the group discussion) by satellite. The only folks at the actual table talking about heroism were a group of journalists, none of whom were introduced as having any record of military service (or, oddly, much visible knowledge of military affairs). Is it possible to have a real conversation about civil-military affairs without a member of the military participating? Of course it’s possible. But I think such discussions are inevitably poorer – and predictably more alienating – for their exclusions. Still, however I might’ve designed the discussion differently, the worst outcome of all here would be not having such discussions at all. As Hayes and others have noted, the country has been living in remarkable silence about the wars this past decade. But inattention and best wishes have done us no favors. What they have done is left us with a nation in which 80% of us “support the troops.” And 90% of us are unable to locate Afghanistan on a map.

VJIL Symposium: Adil Ahmad Haque Comments on “Moral Judgments & International Crimes”

by Adil Ahmad Haque

[Adil Ahmad Haque is an Associate Professor of Law at the Rutgers School of Law-Newark.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

I want thank Andrew Woods, the Virginia Journal of International Law, and Opinio Juris for the opportunity to respond to such a rich and provocative Article. I could probably write 600 words on any single section of Andrew’s paper, but for present purposes I’ll confine myself to some big-picture issues.

Reordered somewhat, Andrew’s core argument works like this:

1. The apparently retributive features of international criminal law often interfere with the maximization of various good consequences including conflict prevention, conflict resolution, and reconciliation. In particular, moral condemnation and retributive attitudes interfere with consequentialist reasoning. (Part II.B)

2. In the domestic context, similar contra-consequentialist features might be justified by ‘the utility of desert’: departures from lay intuitions of justice (‘empirical desert’) seldom deter much crime and may even increase crime by undermining the moral credibility of the law and with it voluntary compliance. (Part I).

3. However, international criminal law cannot effectively harness the power of empirical desert, leaving the contra-consequentialist features undefeated. (Part II.A).

4. Therefore, international criminal courts should deemphasize moral condemnation and depart from empirical desert when this will produce better consequences. For example, courts should consider imposing higher or lower punishments to avoid local backlash; alternative sanctions such as public hearings, naming and shaming, revoking professional licenses, and lustration; paying rebels to disarm; granting amnesties; ordering restitution; economic development; and forward-looking conflict prevention. (Part III).

My sense is that accepting many of Andrew’s proposals would make “the international criminal regime” (Andrew’s phrase) either no longer a criminal regime or no longer a legal regime. For this reason, his arguments are best understood as arguments against deploying the international criminal regime in the first place and using other means to prevent, resolve, and respond to conflict.
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VJIL Symposium: Comment – Second Party and Third Party Punishment

by Jonathan Baron

[Jonathan Baron is Professor of Psychology at the University of Pennsylvania.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Thank you to the Virginia Journal of International Law for inviting me to participate and to Opinio Juris for hosting this discussion.

I found this Article to be interesting and informative. It all makes sense to me, and I have no major criticisms. I would like to mention a different approach.

An important distinction not mentioned (made in experimental economics and other fields) is that between second-party and third-party punishment, abbreviated as 2pp and 3pp. In 2pp, the victim punishes the injurer. In 3pp, a third party does. In experiments it is often simply another subject in the experiment. In real life, it is often the state, or someone given the power to punish in order to enforce the rules of a group, although it may be simply an uninvolved third person.

Roughly, the rise of government over human history coincided with the replacement of 2pp by 3pp. Modern governments, when they can assert their authority, usually forbid 2pp, calling it “taking justice into your own hands” or “vigilante justice” (which can also include 3pp but may also be 2pp by an offended group). The norms of 2pp tend to be based on retribution, although of course this is correlated with (at least specific) deterrence, so that both rationales can be used at once, whichever is primary. (“I’ll teach that SOB not to mess with me anymore. And, anyway, he deserves what he’s going to get.”) The norms of 3pp arise less from the idea of retaliation, since the punisher is not the victim, and are thus more open to other rationales, such as the standard utilitarian rationales of deterrence, incapacitation and rehabilitation, although explicit recognition of these norms came long after state power was well consolidated around the world.

In general people tend to see the replacement of 2pp by government-controlled 3pp as a reform. Culture moves from feuds and warring gangs to a more orderly state of affairs.
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VJIL Symposium: Introducing Moral Judgments & International Crimes

by Andrew K. Woods

[Andrew K. Woods is currently a Climenko Fellow at Harvard Law School.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this online discussion on my recent VJIL Article, “Moral Judgments & International Crimes: The Disutility of Desert.”

The international criminal regime exhibits many retributive features, but scholars and practitioners rarely defend the regime in purely retributive terms – that is, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist grounds that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars and practitioners implicitly adopt a behavioral theory known as the “utility of desert,” a theory about the usefulness of appealing to people’s retributive intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this gap and argues that whatever its merits in the domestic realm, there are special reasons to be skeptical about the “utility of desert” claim in the international context. Moral intuitions as heuristics for moral judgments are error-prone, and the international criminal regime has a number of extraordinary features that may increase the likelihood and cost of these errors. These features include the complexity of the crimes; the diversity of stakeholders who possess heterogeneous intuitions; and the regime’s multiple goals, some of which may be inhibited by moral condemnation. After examining these differences, the Article outlines the implications of the analysis for regime design. Some of these design implications accommodate the international criminal regime’s current retributive approach, and some are fundamentally incompatible with retributivism.

Thank you again to all those involved in putting this discussion together. I look forward to the upcoming exchange.

Introduction to the Virginia Journal of International Law/Opinio Juris Online Symposium for Issue 52:3

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law (VJIL) is delighted to be partnering with Opinio Juris this week to host a series of discussions on recent scholarship published by VJIL. This week will feature articles from the third Issue of Volume 52 of the Journal. The complete Issue 52:3 can be downloaded here.

On Tuesday, we begin our discussion an Article by Andrew K. Woods (Harvard Law School) – “Moral Judgments & International Crimes: The Disutility of Desert.” In this excellent Article, Professor Woods comprehensively examines the “utility of desert” theory and argues that there is reason to be skeptical about the theory’s application in the international context. Excellent commentary will be provided by Jens David Ohlin (Cornell Law School), Adil Ahmad Haque (Rutgers School of Law-Newark), and Jonathan Baron (University of Pennsylvania).

On Wednesday, we continue with Alvaro Santos’s (Georgetown University Law Center) Article, “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Mexico & Brazil.” Santos contends that developing countries in the WTO can use strategies of lawyering and litigation to influence rule interpretation to advance their own interests. He uses the experience of Mexico and Brazil to illustrate the different strategies that have been employed and discusses the different results. Robert Howse (New York University School of Law) and Andrew Lang (London School of Economics and Political Science) will respond.

Finally, on Thursday, Jason Webb Yackee (University of Wisconsin School of Law) will discuss his thought-provoking Essay, “Investment Treaties & Investor Corruption: An Emerging Defense for Host States?” Yackee brings attention to the recent trend by host nations of using investor corruption as a defense to liability in ICSID arbitration. In his Essay, Professor Yackee suggests a model framework for dealing with this new trend. Responding to his piece will be Jarrod Wong (Pacific-McGeorge School of Law). Andrea K. Bjorklund (UC-Davis School of Law) and Daniel Litwin (McGill University) will also offer a joint response.
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Weekday News Wrap: Tuesday, May 29, 2012

by Jessica Dorsey

NYT Must-Read on Obama, Counterterrorism and Targeting

by Deborah Pearlstein

I’ll look forward to digesting today’s lengthy, front-page article along with my colleagues. In the meantime, one snippet:

It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.

This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia.

The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

“‘Twas a Famous Victory”

by Roger Alford

On past Memorial Day weekend celebrations I have posted various speeches and photos in memory of our fallen heroes. For this Memorial Day weekend, I thought I would offer you a different perspective and present one of the best anti-war poems ever written.

The poem “The Battle of Blenheim” by Robert Southey was assigned in my younger son’s English class, along with a more traditional poem extolling the valor of war.

It has been a regular in English Anthologies since it was published in 1798, presenting the story of the futility of war, the foolishness of elders, and the wisdom of children. As one 1909 anthology put it, “Its call is to the people of the coming generations more than to ours, for it seeks to arouse feelings and attitudes just beginning to be felt among civilized people. Its cry is the rising voice of humanity; the protest against the senseless slaughter of war.”

It was a summer evening,
Old Kaspar’s work was done,
And he before his cottage door
Was sitting in the sun,
And by him sported on the green
His little grandchild Wilhelmine.

She saw her brother Peterkin
Roll something large and round
Which he beside the rivulet
In playing there had found;
He came to ask what he had found,
That was so large, and smooth, and round.

Old Kaspar took it from the boy,
Who stood expectant by;
And then the old man shook his head,
And with a natural sigh,
“‘Tis some poor fellow’s skull,” said he,
“Who fell in the great victory.

“I find them in the garden,
For there’s many here about;
And often when I go to plough,
The ploughshare turns them out!
For many thousand men,” said he,
“Were slain in that great victory.”

“Now tell us what ’twas all about,”
Young Peterkin, he cries;
And little Wilhelmine looks up
With wonder-waiting eyes;
“Now tell us all about the war,
And what they fought each other for.”

“It was the English,” Kaspar cried,
“Who put the French to rout;
But what they fought each other for
I could not well make out;
But everybody said,” quoth he,
“That ’twas a famous victory.

“My father lived at Blenheim then,
Yon little stream hard by;
They burnt his dwelling to the ground,
And he was forced to fly;
So with his wife and child he fled,
Nor had he where to rest his head.

“With fire and sword the country round
Was wasted far and wide,
And many a childing mother then,
And new-born baby died;
But things like that, you know, must be
At every famous victory.

“They said it was a shocking sight
After the field was won;
For many thousand bodies here
Lay rotting in the sun;
But things like that, you know, must be
After a famous victory.

“Great praise the Duke of Marlbro’ won,
And our good Prince Eugene.”
“Why, ’twas a very wicked thing!”
Said little Wilhelmine.
“Nay … nay … my little girl,” quoth he,
“It was a famous victory.”

“And everybody praised the Duke
Who this great fight did win.”
“But what good came of it at last?”
Quoth little Peterkin.
“Why, that I cannot tell,” said he,
“But ’twas a famous victory.”

Weekday News Wrap: Monday, May 28, 2012

by Jessica Dorsey

The Real Story Behind the Conviction of the Pakistani Doctor

by Kevin Jon Heller

I’ve been meaning to blog about the 33-year sentence that Pakistan recently imposed on Shakil Afridi, the doctor who secretly worked with the CIA to locate bin Laden. The United States is predictably up in arms over the sentence, with Leon Panetta recently claiming that “[i]t is so difficult to understand and it’s so disturbing that they would sentence this doctor to 33 years for helping in the search for the most notorious terrorist in our times… This doctor was not working against Pakistan, he was working against al Qaeda.”

Putting aside the ridiculous hypocrisy of the United States criticizing another government for an unfair treason prosecution, Panetta’s statement is profoundly misleading. As the inestimable Glenn Greenwald has explained, Afridi was convicted not because he passed along useful intelligence to the CIA (which is itself debatable), but because he obtained that intelligence by running a CIA-created fake vaccination program for Pakistani children:

What Dr. Afridi actually did was concoct a pretextual vaccination program, whereby Pakistani children would be injected with a single Hepatitis B vaccine, with the hope of gaining access to the Abbottabad house where the CIA believed bin Laden was located. The plan was that, under the ruse of vaccinating the children in that province, he would obtain DNA samples that could confirm the presence in the suspected house of the bin Laden family. But the vaccine program he was administering was fake: as Wired‘s public health reporter Maryn McKenna detailed, “since only one of three doses was delivered, the vaccination was effectively useless.” An on-the-ground Guardian investigation documented that ”while the vaccine doses themselves were genuine, the medical professionals involved were not following procedures. In an area called Nawa Sher, they did not return a month after the first dose to provide the required second batch. Instead, according to local officials and residents, the team moved on.”

That means that numerous Pakistani children who thought they were being vaccinated against Hepatitis B were in fact left exposed to the virus…

Upcoming Events: May 27, 2012

by Jessica Dorsey

Calls for Papers

  • The University of Seville Faculty of Law and COST Action are hosting a conference in Sevilla, Spain, October 26-27, 2012 entitled: Standard of Review in International Courts and Tribunals Rethinking the Fragmentation and Constitutionalization of International Law. The call for papers can be found here. Abstract submissions of 250-500 words are due June 15.
  • The AALS section on International Human Rights has issued a call for submissions for Human Rights in Times of Conflict: New Voices in Human Rights (Word document) for the 2013 AALS meeting, taking place January 4-7, 2013 in New Orleans, Louisiana. This opportunity is open to AALS members only, who are newcomers to the academy, AALS or to human rights, offering a chance to present new scholarship and receive commentary. Submissions must be in before September 4, 2012.

Upcoming Events

Last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Weekend Roundup: May 19-25, 2012

by An Hertogen

This week on Opinio Juris, we continued last week’s book discussion of Laura Dickinson’s Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, with Laura’s post on the role of organizational structure and institutional structure as a mechanism of accountability and constraint, and her response to Steve Vladeck and to the other commentators.

In a guest post, David Sloss proposed a rule to resolve conduct-based immunity defenses in cases under the Alien Tort Statute and/or the Torture Victim Protection Act.

Until he found a searchable version, Kevin Jon Heller was floored by the Special Court for Sierra Leone’s 2499 page judgment in the Charles Taylor case, and asked whether the length would affect the length of Taylor’s sentence. Kevin also commented on Mauretania’s indictment of former Libyan spy chief al-Sennusi, and he wrote about his proposal for a new book entitled A Genealogy of International Criminal Law.

Julian Ku posted a video link to the US Senate Foreign Relations Committee’s hearings on the UN Convention on the Law of the Sea that took place on Wednesday, but reportedly ended in a decision to postpone the vote until after the November elections. UNCLOS was also the theme of Peter Spiro’s post on the use of the term “sovereignty” by the American Sovereignty Campaign advocating ratification.

Peter Spiro also discussed how non-state actors are increasing their influence in international organizations, including formally intergovernmental ones such as the WTO and the ITU.

As every week, we also provided a list of upcoming events and the weekday news wrap.

Have a nice weekend!

Reclaiming “Sovereignty” (the Word) and Wrapping LOST in the Flag

by Peter Spiro

Supporters of US ratification of the Law of the Sea Treaty now have a network home, curiously called “The American Sovereignty Campaign.” It seems to be a serious undertaking, counting the US Chamber of Commerce and the Pew Charitable Trusts among its members, running this polished ad in the print media.

What of the use of “sovereignty” here?  From the coalition’s website:

Here you will find the supporting documents and testimonials that demonstrate the overwhelming support for immediate ratification of the Law of the Sea Treaty.  As you will see, the need for action is greater than it has ever been in order to protect and expand America’s sovereignty and national and economic security.

And from that ad (quoting John Negroponte):

With ratification, America would secure international recognition of the greatest expansion of resource sovereignty in its history, gaining exclusive access to resources in a region larger than the area of the Louisiana Purchase and Alaska combined.

So UNCLOS is pro-sovereignty because it literally (littorally) and legally recognizes US jurisidiction over huge swathes of the ocean.  You have to admire this PR attempt to meet opponents on their own rhetorical terms, which is NOT to predict that this novel use of “sovereignty” will have political legs.

States Front for Cigarette Makers in the WTO (and Google Will Surely Find Its Way Into the ITU)

by Peter Spiro

Ukraine and Honduras have initiated complaints at the World Trade Organization against Australia with respect to the latter’s plain cigarette packaging rules.  Neither country has much trade with Australia.  (Ukrainian cigarettes? Doesn’t sound very appealing!)  So why bother?  Because the cigarette companies are fronting legal costs.  From Reuters:

Both complainants have “requested consultations” with Australia, the first step in the WTO legal process. The first round of negotiations was held in the past month, she said.

“Our belief is that some people in the meeting were British American Tobacco lawyers,” she told Reuters, adding that she wasn’t aware of any date for a second round.

A spokesman for British American Tobacco confirmed to Reuters that the company had provided assistance for the WTO challenges but could not confirm that BAT lawyers were directly involved in the talks.

One could imagine tobacco companies actually paying countries to bring such claims (or paying them off, with offers of direct investment) – otherwise why annoy a medium power like Australia.  Would there be anything WTO non-compliant about that?

It goes to show that international organizations, even when formally intergovernmental, are increasingly subject to non-state penetration. (Another example: Greenpeace’s paying membership dues for minor states in the International Whaling Commission – see pp. 80-81 of this interesting paper.)

Perhaps that’s the answer to Vincent Cerf’s op-ed in today’s NY Times, sounding the alarms with respect to a possible UN power grab over internet governance.  Who knew the obscure International Telecommunications Union could play global governance bogeyman.  Cerf issues a call to the virtual barricades against intergovernmental regulation:

the I.T.U. creates significant barriers to civil society participation. . . .I encourage you to take action now: Insist that the debate about Internet governance be transparent and open to all stakeholders.

The point is surely well taken – the legitimacy (however defined) of such processes depends on the participation of civil society and corporate actors.  I suspect, though, that Google and other powerful interests will enjoy channels of influence, one way or another, so no need to fret about world (internet) government just yet.

Weekday News Wrap: Friday, May 25, 2012

by Jessica Dorsey

Weekday News Wrap: Thursday, May 24, 2012

by Jessica Dorsey

Book Discussion “Outsourcing War and Peace”: Laura Dickinson responds to Stanger, Pearlstein, Walker, Horton and Borgen

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the final day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

Thank you all for your insightful comments and for engaging in such a productive debate about this difficult issue.  I have just a few additional thoughts.  Allison Stanger raises the important question of whether we can truly have public values in a world in which private sector employees are performing work that civil servants used to do.  This challenging issue requires a deeper philosophical debate to do it justice.  But I do think that certain core values, such as respect for human dignity, are public-regarding in their aims, and that therefore private actors can (and indeed sometimes have an obligation to) protect such values.  Moreover, given that privatization is likely here to stay, I think we have an obligation to keep engaging on the issue without assuming that there is no opening for public values.

Deborah Pearlstein emphasizes that privatization is just one part of a new era of watered-down checks on the war power, an era that perhaps began with the demise of the citizen-soldier.  I largely agree with this point, though I suspect that privatization is distinct in the degree to which it reduces transparency and accountability.  For example, the Department of Defense still can’t even give us an accurate tally of the number of contractors in Afghanistan (to be sure, that’s partly because State and USAID don’t provide comparable information to the SPOT database).  Outsourcing arguably exponentially enhances inter-agency coordination problems.

Jeffrey Walker notes that agencies rarely terminate for default, and I agree that termination and debarment are potentially important parts of the contracting toolkit and must be used more if such contracts are to protect public values.   Scott Horton points out that the weak accountability regime for contractors has gummed up the SOFA negotiation process.  I would add that this weakness has interfered with more than SOFAs in U.S. bi-lateral relationships.  For example, when former U.S. soldier Raymond Allen Davis reportedly killed two armed men on the streets of Lahore in 2011, the fact that he was a contractor played into fears of outsourcing prevalent among Pakistanis.  Yet those fears perhaps would hold less sway if, in cases of extreme abuse, contractors were more frequently subject to punishment.

Finally, Chris Borgen muses that the executive branch may not have an interest in improving oversight of contractors because outsourcing expands executive power.  It is undoubtedly true that increasing the leeway of the executive branch may be one of the motivations for outsourcing.  I argue in the book that the administrations of Presidents Clinton, Bush, and Obama have all found in contracting a way to reduce the political costs of war.  But at the same time, I suggest that it is also the underlying politics of privatization—the dominant political narrative that the private sector can perform tasks more cheaply and efficiently than government employees—that is the main driver of outsourcing.  In some cases, contractors may in fact be more efficient, but we have turned to contractors in the foreign affairs arena in many cases without doing the math.

All of this means that it will be very hard to roll back outsourcing, but I don’t believe that requires us to give up on the possibility that public values can be brought to bear on the process.  Instead, I think we must continue to explore, and insist upon, new models for protecting these values in an increasingly privatized world.

Senate Will Delay UNCLOS Vote Until After November Election

by Julian Ku

So says the WSJ’s account of today’s hearing on US ratification of UNCLOS. I still haven’t found the 193 minutes I would need to watch today’s UNCLOS hearing, but it seems like there is still some Republican opposition (remember it only takes 34 votes to block the treaty).

Wednesday’s hearing demonstrated the continued skepticism among Republicans toward the treaty. Sen. Robert Corker (R., Tenn.) said he hadn’t made a decision on ratification, but questioned how the Obama administration, which has been critical of the oil industry, could cite oil exploration in support of ratification. “My antennae are up,” he said.

Other Republicans said they suspected the treaty would impinge on American sovereignty, for instance, by forcing the U.S. to agree to international emissions controls to comply with treaty provisions on pollution over the oceans.

Sen. James Risch (R., Idaho), argued the treaty’s royalty-sharing provisions would essentially tax companies exploring the seabed, sending proceeds to developing nations and ceding American taxing authority to the United Nations. “My problem is with sovereignty,” he said. “If we give up one scintilla of sovereignty the country has fought for… I can’t vote for it.”

Sen. Jim Inhofe (R., Okla.) predicted the U.S. would have to give up more than $70 billion in royalties. “For the first time an international organization, in this case the United Nations, would have taxing authority over the U.S.,” Mr. Inhofe said.


U.S. Senate Foreign Relations Committee Hearing on the UN Convention on the Law of the Sea

by Julian Ku

Here is the website for the U.S. Senate Foreign Relations Committee with a (very long) video of the hearings on UNCLOS and the written testimony of Secretary of State Clinton, Defense Secretary Panetta, and Gen. Dempsey.

I am in grading hell right now, so I haven’t had time to go through the hearing video.  It looks, from my quick glance, to be the same exact arguments that have been made over the past 20 years on UNCLOS. (Did Sen. Lugar give that same statement back in 2002? Hard to say).   To move the ball along, we are organizing (for mid-June) an online debate on US ratification of UNCLOS between experts on the treaty.  Stay tuned!

Weekday News Wrap: Wednesday, May 23, 2012

by Jessica Dorsey

Searchable Version of the Taylor Judgment

by Kevin Jon Heller

Evelyne Schmid, a lecturer in law at Bangor University in Wales, has taken it upon herself to convert the 2,499 page non-searchable PDF into a searchable (but, alas, still 2,499 pages) text file. She has made the file available here. We all owe her our thanks!

New Book Project: A Genealogy of International Criminal Law

by Kevin Jon Heller

Readers will recall that I followed the progress of my book on the Nuremberg Military Tribunals on the blog, from proposal to finished project. I received a great deal of positive feedback on those posts, as well as some very useful feedback on the project itself. (Also a couple of complaints that I was just being narcissistic, but you can’t please everyone.) So I thought I would do the same thing with my next book, which I will start working on full-time in a few months. Its somewhat pretentious title is A Genealogy of International Criminal Law, and it will be published by Oxford University Press in 2014 or early 2015. I can’t say enough good things about publishing my first book with OUP — John Louth, Merel Alstein, and their crew were an absolute pleasure to work with. They were unfailingly helpful, supportive, and (above all) understanding. As long as they were willing to have me, I wasn’t going to even consider a different press.

The new book hopes to provide the first comprehensive historical-theoretical study of the process of international criminalization.  Here is the introduction to the proposal I submitted to OUP:

It is an article of faith among international criminal law scholars that certain acts are directly criminalized by international law.  We no longer speak, as Georg Schwarzenberger once did, of “internationally prescribed municipal criminal law” or “internationally authorized municipal criminal law.”  Instead, we talk about “international crimes” – aggression, war crimes, crimes against humanity, genocide.  And we have a 63-page treaty, the Rome Statute, that not only defines those crimes, but also explains how individuals can be held criminally responsible for their commission and specifies the defences that they can raise when accused of them.  There is thus no longer any real doubt that international criminal law exists in the “strict” or “true” or “material” sense.

Needless to say, it matters whether an act is criminal under international law or under domestic law.  Because we now have “international crimes,” not simply municipal crimes that are prescribed or authorized by international law, defendants accused of such crimes cannot argue that their actions were legal under domestic law or were taken in their official capacity, entitling them to immunity from prosecution.  In the words of the Nuremberg Tribunal:

Individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.

Nor is that all.  Because there are international crimes, international law permits, and sometimes even requires, states to prosecute them no matter where, by whom, or against whom they are committed – conditional universal jurisdiction.  Because there are international crimes, states are likely obligated to prosecute or extradite suspects in their custody who commit them – aut dedere, aut judicare.  And, of course, because there are international crimes, there are international criminal tribunals that have the authority to prosecute them.

Despite the importance of the “international” in the concept of an “international crime,” scholars have almost completely ignored the mechanics of the international criminalization process.  What does it mean to say that an act is directly criminalized by international law?  How does that transposition of the municipal to the international occur?  One looks almost in vain for answers to these questions in the scholarly literature.  No book-length analysis of international criminalization exists, and the number of articles dedicated specifically to that issue can be counted on two hands – the most notable examples being Georg Schwarzenberger’s “The Problem of an International Criminal Law,” published in 1950, and Robert Cryer’s superb “The Doctrinal Foundations of International Criminalization,” published in 2008.

This book will fill that lacuna

Book Discussion “Outsourcing War and Peace”: Laura Dickinson responds to Steve Vladeck

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the sixth day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

Steve Vladeck’s post focuses on the interesting question of whether prosecutions of contractor employees abroad under MEJA might sometimes result in indictments for activities that are sufficiently unrelated to the US military mission that they are either unconstitutional or at least unwise.  Steve’s concerns are certainly worth taking seriously (though I confess to thinking that the far bigger problem related to contractors is how little prosecutorial activity there has been to date).  Nevertheless, I’m not sure I agree that the activities described from the Brehm case are so unrelated to the US governmental mission that it would necessarily be problematic to prosecute.  Indeed, as my post from yesterday indicates, one major problem of using private military contractors is that there is an insufficient rule of law culture among employees of these firms.  If that is true, then we might think that it would be beneficial to subject contractor employees to broad US governmental authority while in theater, even for acts that are unrelated to their job duties.  This extension of authority could help cement a psychological tie to the US and help develop a greater culture of compliance with US constitutional and statutory norms of behavior.  In any event, given that contractors work directly for the US Government to carry out fundamental governmental initiatives, I think it is not such a stretch to apply US criminal law to their activities, even if such activities are not directly related to the mission to be performed.

Weekday News Wrap: Tuesday, May 22, 2012

by Jessica Dorsey

Al-Senussi Indicted in Mauritania

by Kevin Jon Heller

So reports ABC News (and multiple other news outlets):

The man who ran Libya’s extensive spy network and was considered one of the closest confidants of ex-leader Moammar Gadhafi was indicted in Mauritania on Monday and transferred to a public jail, according to a justice official.

Abdullah al-Senoussi, Libya’s former head of intelligence, is wanted by the International Criminal Court, as well as by France and Libya for crimes allegedly committed during his time at Gadhafi’s side.

The judge in Mauritania is indicting al-Senoussi on a technicality, after the ex-spy chief tried to enter Mauritania disguised as a Tuareg chieftain, said the official who requested anonymity because he is not authorized to speak to the press.

On the run since the fall of Tripoli last year, al-Senoussi attempted to enter the Nouakchott airport in March on a fake Malian passport, after boarding a flight from Morocco. He attempted to cross the passport control wearing the elaborate headdress and the flowing robes associated with the Tuareg nomads, an ethnic group that was closely allied with Gadhafi and who live in the band of countries including Mali located at the base of the Sahara Desert.

Al-Senussi’s indictment significantly undermines Libya’s admissibility challenge under Article 19 of the Rome Statute.  If Mauritania intends to try al-Senussi itself, Libya cannot satisfy Article 17(3), which deems a state “unable” to prosecute a suspect if it is “unable to obtain the accused.”

The indictment also supports my belief that the ICC should interpret Article 95 of the Rome Statute to require a state to surrender a suspect pending resolution of its admissibility challenge.  As I have pointed out, the ICC has nothing to gain by considering Libya’s admissibility challenge regarding Saif, because Libya has indicated that it has no intention of complying with an adverse decision.  The same problem exists even more acutely in situations in which multiple states challenge admissibility, as permitted by Article 19. It makes no sense for the ICC to risk alienating member-states by resolving competing admissibility challenges when the custodial state will simply refuse to extradite the suspect should the ICC give the other state priority to prosecute.  That is not exactly the situation with al-Senussi, of course, because Mauritania is not a member of the Court and is not obliged by SC Res. 1970 to cooperate with it.  If it were, though, Libya might think twice about its insistence of keeping Saif in custody while it challenged admissibility.  If it won’t surrender a suspect in order to ensure that the ICC can enforce its admissibility decisions, why should any other state?

The Special Court for Sierra Leone Jumps Three Sharks and a Turtle

by Kevin Jon Heller

That’s my basic reaction to the release of the full judgment in the Taylor trial, which checks in at an utterly absurd 2,499 pages.  (The judgment is downloadable, assuming you have a very fancy computer, here.)  2,499 pages is clearly a new record for a judgment of an international tribunal, especially in a case with one defendant.  By way of comparison: the IMT judgment, which concerned 24 defendants, is little more than 100 pages, while all twelve NMT judgments, which concerned 185 defendants, run a little more than 3,000 pages.

I will have more to say after I’ve had time to read (some of) the judgment in detail, but I have one concern worth mentioning now: namely, my worry that the length of the judgment will have a direct impact on the length of Taylor’s sentence — an impact unrelated to the facts found by the Trial Chamber, the nature of the crimes of Taylor was convicted, and the mode of participation on which his convictions are based (aiding and abetting and planning, both forms of accessorial liability).  My initial and somewhat impressionistic sense is that Taylor deserves a sentence between 30 and 35 years, given (1) that the SCSL’s longest sentences to date have been 50 and 52 years, and (2) that the defendants who received those sentences were convicted as principals, not accessories.  That assessment puts me squarely in the middle of the experts I’ve informally polled about what they think Taylor’s sentence should be — some have gone as high as 40, others have gone as low as 25.  All agree, however, that the 80-year sentence requested by the prosecution would be completely disproportionate in light of the SCSL’s previous sentences.  It is nevertheless difficult to imagine the Trial Chamber imposing such a “lenient” sentence on a defendant whose judgment — for him alone — is almost 2,500 pages long.  The sheer mass of the judgment would seem to require a longer sentence, even if that sentence would be inconsistent with the facts and law found by the Trial Chamber.  I hope I’m wrong about that; I hope the judges will be able to separate the amount of work that has gone into the judgment from their objective assessment of Taylor’s culpability.  But I fear the former will bleed into the latter.  After all, judges are not machines.

We’ll see.

Common Law Immunity for Foreign Government Officers

by David Sloss

[David Sloss is the Professor of Law and Director of the Center for Global Law and Policy at Santa Clara Law School]

In Samantar v. Yousuf (2010), the Supreme Court directed lower courts to apply common law rules to resolve immunity defenses raised by individual foreign government officers, except in cases where a treaty provides the controlling rule. The Court remanded Samantar to the lower court to decide, in the first instance, the proper content of the common law rule. The Fourth Circuit heard oral argument on this issue last week.

The defendant in Samantar raised both a status-based immunity defense and a conduct-based immunity defense. This post focuses on conduct-based immunity defenses in cases, like Samantar, where plaintiffs raise claims under the Alien Tort Statute (ATS) and/or the Torture Victim Protection Act (TVPA). I propose a simple, straightforward rule that courts can apply to resolve conduct-based immunity defenses in such cases—use the same rule that courts apply when federal, state, and local government defendants raise qualified immunity defenses to domestic constitutional claims. Under that rule, which I call the Harlow rule, a defendant is entitled to immunity unless he or she violated “clearly established . . . rights of which a reasonable person would have known.” Harlow v. Fitzgerald (1982).

There are three reasons for courts to adopt the Harlow rule as the controlling rule for conduct-based immunity defenses in ATS/TVPA cases. First, U.S. courts are very familiar with the Harlow rule: they apply it routinely in 1983 cases and in Bivens cases. Hence, application of a similar rule in ATS and TVPA cases is likely to produce a consistent and coherent body of case law.

Second, the Harlow rule is substantially similar to the “Sosa test” that courts apply to determine whether a plaintiff has a federal common law cause of action under the ATS. See Sosa v. Alvarez-Machain (2004) (holding that plaintiffs can bring federal common law claims under the ATS only for violations of a sub-set of international law norms that have “definite content and acceptance among civilized nations”). In essence, Sosa instructed the lower courts not to recognize a federal common law cause of action for violations of international law unless the plaintiff alleges violation of a “clearly established” international norm. Thus, application of the Harlow rule in ATS cases would promote judicial efficiency because courts could apply essentially the same test to determine whether the plaintiff has a cause of action and whether the defendant has a valid immunity defense.

Third, application of the Harlow rule in ATS and TVPA cases would promote U.S. foreign policy interests. For the past few decades, a key goal of U.S. foreign policy has been to promote universal adherence to fundamental human rights norms. If U.S. courts grant immunity to individual defendants who violate clearly established human rights norms, the courts would undermine the longstanding U.S. policy of promoting universal adherence to those norms.

My proposal to apply the Harlow rule in ATS and TVPA cases is likely to provoke three principal objections. First, one might argue that the Constitution grants the executive branch authority to make immunity determinations in individual cases, and that courts are required to defer absolutely to the executive branch on these issues. This argument is not persuasive. As Professor Wuerth has shown, careful analysis of constitutional text and structure refutes the claim that the Constitution grants the President final authority to decide whether an individual defendant in a particular lawsuit is entitled to conduct-based immunity. See Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915 (2011). Moreover, Professor Keitner’s analysis of judicial decisions from the late eighteenth century shows that the Founding generation believed that resolution of immunity defenses in individual cases was a judicial function, not an executive function. See Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. xxx (forthcoming 2012) (available on SSRN).

Even if the Constitution does not require judicial deference to the executive branch, one could argue that a judicial policy of case-by-case deference to the State Department is desirable because it is likely to advance U.S. foreign policy interests. I respectfully disagree. For various reasons, the State Department has a deeply rooted institutional bias that privileges expedient, short-term goals over the nation’s long-term interest in promoting universal adherence to fundamental human rights norms. There are compelling separation-of-powers reasons why the courts should act as a check on this unfortunate, short-sighted bias of the State Department bureaucracy. The United States needs one branch of the federal government to adopt a long-term view, rather than a short-term view. The courts are well positioned to serve this function because they are insulated from short-term political pressures.

The final objection to the proposed Harlow rule is that it is inconsistent with customary international law. Some scholars claim that customary international law requires the United States to grant immunity to foreign government officials for all acts performed in an official capacity. See Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213. In my view, the customary international law rule is more indeterminate than some scholars have claimed. It is clear that customary international law requires states to recognize some form of conduct-based immunity for acts performed in an official capacity by foreign government officers. Moreover, customary international law may not preclude states from granting conduct-based immunity to government officers who violate clearly established human rights norms. However, the argument that customary international law requires states to grant conduct-based immunity—even when officers violate clearly established norms—is not persuasive. There is not sufficient evidence of state practice to support a claim that customary international law requires immunity in these circumstances. Hence, application of the Harlow rule in ATS and TVPA cases would not be inconsistent with the nation’s international legal obligations.

Book Discussion “Outsourcing War and Peace”: Outsourcing and Organizational Culture

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the fifth day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

In my previous posts, I have identified three mechanisms of accountability and constraint.  In this final post, I focus on a fourth such mechanism, one that is often ignored by legal scholars but one that might actually be the most important of all:  the role that organizational structure and institutional culture play in creating a context where public values are likely to be internalized within groups.

To illustrate what I mean, consider one of the uniformed military lawyers I interviewed shortly after he returned from being embedded with a combat brigade.  This lawyer told me how important it is that “lawyers sit in the room” when combat decisions are made.   He emphasized that, “when there’s a military decision-making process in place, the lawyer should be there.  If you are involved, everyone can see the value added.  The staff and the commander see you as part of the team rather than a weenie lawyer.”  Another lawyer recounts, “My brigade commander was brilliant, and he expected alternative views … If an IED [improvised explosive device] went off, and we were going to respond, he wanted to know, ‘Is it a good shoot or a bad shoot? … [And if] I had concerns, he listened to me.”

These and other interviews I conducted with uniformed military lawyers illustrate the critical role that these lawyers play on the battlefield in supporting an organizational structure and institutional culture that fosters respect for core public values.  The existence of accountability agents, such as uniformed military lawyers, is important.   So too is the fact that these lawyers are integrated with operational employees (they comingle with troops and serve on the commander’s staff), they are committed to the core values at stake, they are at least somewhat independent within their own culture (a lawyer who doesn’t see eye to eye with a commander can seek “top cover” by talking to the lawyer assigned to that commander’s commander), and they can recommend that a commander invoke the military justice system in cases of abuse.

As I note in the book:
Continue Reading…

Weekday News Wrap: Monday, May 21, 2012

by Jessica Dorsey

Upcoming Events: May 20, 2012

by An Hertogen

Calls for Papers

  • If you want to participate in panels on R2P and on intervention in Africa at next April’s International Studies Association’s conference, a call for papers is closing tomorrow.
  • The Minerva Center for Human Rights at the Hebrew University of Jerusalem is organizing The 2nd Annual Minerva Jerusalem Conference on Transitional Justice entitled “Transitions In/To Democracy: Contemporary Chances and Challenges” on October 29-31, 2012 in Jerusalem. Submissions are due on 31 May 2012.
  • The Armed Forces Law Association of New Zealand and The New Zealand & Australian Armed Forces Law Review are organizing a colloquium on Military Discipline in the 21st Century: the challenges of a new era on August 31 and September 1, 2012, in Auckland, New Zealand. Abstracts are due on 15 June 2012.
  • The Whitney R. Harris World Law Institute at Washington University School of Law is holding The Inaugural Benjamin B. Ferencz Essay Competition. The essay, of maximum 6000 words, should address the following question: “Under what conditions may acts that constitute illegal use of armed force and that result in the widespread or systematic attack upon a civilian population be prosecuted as crimes against humanity by the International Criminal Court, pursuant to the Rome Statute?” Entries are due by 31 August 2012.
  • The Journal of National Security Law & Policy (JNSLP) has informed us about its new co-sponsor, Georgetown Law Center, which joins the Institute for National Security and Counterterrorism (INSCT) at Syracuse University. Their winter submission deadline is 30 September 2012.

Upcoming Events

Last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Weekend Roundup: May 12-18, 2012

by An Hertogen

This week on Opinio Juris, Chris Borgen posted about Peter Watts’ short story on the legal and ethical questions relating to the use of autonomous aerial combat drones; Julian Ku shared Cato Institute’s Walter Olson’s observations on the revolving door between the UN and the US legal academy; Kevin Heller gave an account of his PhD viva at Leiden; and Roger Alford made us guess which six countries were the focus of the AP Comparative Government this week.

Peter Spiro continued last week’s discussion on US taxation of US expats with a post about Eduardo Saverin’s renunciation of US citizenship shortly before Facebook’s IPO, and the implications thereof for his future travels to the US. Peter also discussed a legislative proposal in response to it, the ex-PATRIOT Act, and its legality under domestic law and international human rights law if it were to become law. Following Michelle Bachmann’s acquisition and subsequent renunciation of Swiss citizenship, discussed last week, he also asked why some progressives hate dual citizenship.

Leila Hanafi’s guest post discussed the role of the ICC in providing transitional justice in Libya. Further on Libya and the ICC, Kevin Heller discussed the contrasting, and counter-intuitive, motions of the ICC’s Office of the Prosecutor and the Office of the Public Counsel for the Defence on the issue whether Libya should surrender Saif Gaddafi to the ICC. Kevin also addressed the question whether the ICC can prosecute NATO forces for war crimes in Libya, and argued that UNSC Resolution 1970 which grants exclusive jurisdiction over the actions in Libya by nationals of non-ICC members to their home state is incompatible with the Rome Statute.

In another guest post, Ruti Teitel criticised Sam Moyn’s op-ed in last Sunday’s New York Times as unduly nostalgic about the past.

The main event this week was a book discussion on Professor Laura Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. The symposium, introduced here, addressed the implications of the rise of private military contractors for the protection of public values. Laura’s first post argued how public values are threatened. In her comments, Allison Stanger warned about the implications of the inevitable clash between market and civic values when important government functions are outsourced to the private sector. Deborah Pearlstein’s comments situated the issue of liability of private military contractors against the broader background of waning legal and political accountability in the use of American war power more generally. Scott Horton looked at how debates on the accountability of private military contractors complicated negotiations on Status of Forces Agreements in Iraq and Afghanistan.

Laura followed up with a post on the obstacles when trying to hold private military contractors accountable for their abuses through criminal prosecutions or civil tort suits. Steve Vladeck’s comments added to this by pointing to a series of recently decided or argued cases on contractor liability, included the lesser noticed United States v. Brehm, and questioned whether US jurisdiction might in some cases be too broad. Laura also posted about another suggestion from her book: to instill public values through government contracts. In his comments, Chris Borgen’s comments addressed the question of how to shift from the current lax contracting standards to new types of foreign affairs contracts that incorporate public law standards. Chris also provided a colorful example of the potential dangers with outsourcing. His St. John’s colleague, Jeffrey Walker, offered a view from practice on the feasibility of such contracts. Ken Anderson’s comments focused on the limits of contractual mechanisms in ensuring accountability.

Finally, our list of upcoming events and calls for papers can be found here, and our latest news wrap is here.

Many thanks to our guest contributors and have a nice weekend!

Can the ICC Prosecute NATO for War Crimes Committed in Libya?

by Kevin Jon Heller

Earlier today, Russia called on the ICC to investigate possible war crimes committed by NATO forces during its bombing campaign in Libya:

The International Criminal Court should look into all cases of NATO airstrikes in Libya that resulted in civilian deaths, the Russian Foreign Ministry said.

“We welcome the decision of ICC Prosecutor Luis Moreno-Ocampo to consider alleged violations of international humanitarian law,” Foreign Ministry human rights spokesman Konstantin Dolgov said in a statement posted on the ministry’s Web site. “We presume that the ICC will consider all cases of NATO bombing that caused civilian casualties.”

The issue of civilian casualties during the NATO Libyan campaign last year had been raised at the U.N. Security Council and the U.N. Council on Human Rights, RIA Novosti reported Friday.

“An impartial international investigation into the effects of NATO airstrikes during Operation United Defender in Libya is necessary to prevent such tragedies in the future,” the statement said.

David Bosco rightly points out at The Multilateralist that the practical likelihood of the ICC taking Russia up on its request is “vanishingly small” — international tribunals have consistently refused to investigate crimes committed by Western powers (the ICTY regarding Kosovo; the ICC itself regarding Iraq).  David also claims, however, that the ICC would be legally precluded from investigating crimes committed by nationals of non-member NATO states (such as the U.S.) by paragraph 6 of S.C. Res. 1970, which purports to exempt such individuals from the ICC’s jurisdiction…

Book Discussion “Outsourcing War and Peace”: Contractor Accountability as a Barrier to SOFAs

by Scott Horton

[Scott Horton is a Contributing Editor of Harper’s Magazine and a Lecturer-in-Law at Columbia Law School.]

This is the fourth day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

It’s useful generally to turn the accountability issue on its head and to view the question from the sovereign’s perspective.  Laura’s book takes a view of this question largely from the perspective of a single sovereign, the United States.  She’s done a remarkable job of developing that, recording the efforts to exercise accountability controls, the failures and the possible paths going forward.  But there are other sovereign players in the game, and their attitudes have significant ramifications.

Both Iraq and Afghanistan furnish good examples.  In Iraq, few decisions of the Coalition Provisional Authority proved more controversial or cast a longer shadow that CPA Order No. 17, which granted immunity from prosecution under Iraqi criminal law to contractors deployed alongside coalition troops.  That rule, issued on the last day of Paul Bremer’s service as America’s proconsul in Baghdad before power was officially surrendered to an interim civilian government, stayed in place for many years largely as a result of the dysfunctionality of the civilian government that took its place—Iraqi political figures pretty much across the board decried it as an act of colonialist hubris.

In both Iraq and Afghanistan, the United States encountered extraordinary difficulty in concluding a status of forces agreement (SOFA).  Iraq may furnish an interesting case-study. Public reporting about this process has been limited and focused largely on high-level political issues.  However, persons close to the negotiations on both sides have confirmed that the most contentious single issue related to the treatment of civilians and civilian contractors.  The Pentagon viewed both DOD civilians and contractors as an essential part of the force deployed; accordingly the United States insisted that both be covered by immunity provisions under the SOFA.  The Iraqis replied that they were essentially prepared to enter into a SOFA along the lines of those that the United States had concluded in the years following World War II—they would have concurrent jurisdiction with the United States over U.S. personnel stationed in country, and would expect to defer to the United States with respect to uniformed service personnel.  They also expressed willingness to compromise with respect to DOD civilians. As for contractors, however, Iraq held firm to the notion that their law should control and that contractors should be covered by it and subject to prosecution in Iraqi courts.  Continue Reading…

Weekday News Wrap: Friday, May 18, 2012

by Jessica Dorsey

  • Reuters reports that the G8 leaders are meeting today amidst further fears about the Eurozone crisis and the possibility of a “Grexit”. According to the Independent, UK PM Cameron will pressure German Chancellor Merkel to do more to save the euro. The Washington Post compares the opposing points of view of Germany and most other nations on how to improve growth in Europe. Over on Foreign Policy, Clyde Prestowitz argues why Germany should leave the euro.
  • Foreign Policy continues the discussion our own Peter Spiro has been writing about here and here (and a related issue here) regarding Eduardo Saverin and other Americans renouncing their citizenship for tax reasons.
  • The White House has eased sanctions on Myanmar and appointed an ambassador for the first time in 22 years.
  • The Washington Post describes brewing tensions between North Korea and China over North Korea’s capture of 29 Chinese fishermen for ransom. The Atlantic has a roundup of popular reaction to the news in China.
  • Reuters has a piece on the UN Security Council resolution demanding the unconditional and immediate withdrawal of Sudan from the disputed Abyei region.
  • AFP reports that Iran has summoned the Bahrain ambassador after its Foreign Minister told Iran to stop meddling in its internal affairs over a possible union with Saudi Arabia.
  • Reuters has an exclusive into the UN’s probing of alleged North Korean arms sales into Syria and Myanmar, despite bans.
  • The International Maritime Organization, an agency of the UN, has called for global guidelines for countries about the deployment of armed guards in piracy situations.

Book Discussion “Outsourcing War and Peace”: The Efficient Regulation of Private Security Contractors

by Kenneth Anderson

[This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.]

The dean-emeritus of US government law of war lawyers, Hays Parks, spoke in passing a year ago about private security contractors and the law of war at a conference in honor of Michael Walzer.  Parks noted that for better or worse there was no going back to a world in which even the use of force, let alone other matters, was confined to formal government military forces – that bridge had been crossed with such things as State Department security and much else.  But he expressed concern with the way in which it had come about, with insufficient attention to the issues of accountability.  And also regret, from the standpoint of the laws of war, that certain of these functions had ever been allowed to be privatized.

Because, as Parks says, the bridge has been crossed, I’m fundamentally in agreement with the concerns that Laura Dickinson’s splendid book raises about accountability.  Point being that one can be a government laws of war lawyer and share these concerns, as Parks does; and equally share concerns for establishing mechanisms that lie within the realistic possibilities of legal policy for addressing the accountability concerns.  Contractual mechanisms are a very important category of that, and the questions raised below are less about principle than cautions about the limits of contractual mechanisms.  Like Chris and several other OJers, my teaching day-job is in business, finance, contracts, and law and economics, and I also draw here on experience as the board chair and general counsel for several NGOs engaged in much cross border development finance and related contracting – microcredit and all that.  So let me run through a standard set of law and economics issues that might arise in these attempts to regulate via contract:

1. Might contract mechanisms under-deter or over-deter the use of private contractors for particular functions (or under some circumstances, might they do both)?  One of the things I most like about Dickinson’s nuanced approach to the possibilities and limits of contracting mechanisms is the awareness that contract enforcement in our civil court system is not well suited to the kinds of situations that would most concern us in the situation of private contractors, for example, using force in some foreign situation of high insecurity if not straight up conflict.  This is so, I think, for contract claims as well as tort claims.  For example, the possibility of wrongful death of a foreign national in some not-exactly-quiet-not-quite-war-zone by a security contractor is not very well suited to the social setting in which the US civil litigation system of wrongful death has meaning – which is a settled domestic legal system in which the participants all share certain expectations about what is okay and not okay in the circumstances.  Moreover, much of that settled, legitimate, domestic system has to do with situations of risk in which we as a society accept that there are crucial social benefits that lead us to accept risks to life and limb, even ones that implicate wrongfulness.

I am skeptical that those shared social assumptions, which deeply inform and legitimate our domestic civil legal system, can be applied well in all these other situations.  I doubt that the adjudicators think they can do so, either, even if tasked to do so.  The tendency is either to hold contractors to a stricter standard than one might think is efficient to the ends – ends, however, which in quasi-war zones are themselves contested – for which some modicum of force is justified.  In that case, contractors will be over-deterred once they understand the costs they must internalize.  Or else the adjudicatory system, concerned that it is being asked to apply purely domestic standards to highly contingent and fundamentally different conditions of conflict, will excuse too much, whether overtly or indirectly, for fear of penalizing unfairly something where command and control, and ultimately accountability, ought to have rested with the government agency, not the contractor. Continue Reading…

Book Discussion “Outsourcing War and Peace”: Intelligence Contracting and the Ballad of Dewey Clarridge

by Chris Borgen

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

Following-up on my earlier post on the difficulty of changing contracting practices by executive agencies, I thought I’d highlight a few quotes from a January 2011 NY Times article about Dewey Clarridge. Clarridge has had a long and storied career in and out of the CIA. He  (proudly) claims responsibility for having the idea to mine Nicaraguan harbors back in the ‘80’s (great quote appended at the end of this post).  He’s spent quality time with the Contras, was a CIA station chief, had plans to use special ops to oust Saddam Hussein in the 1990’s, and so on. Read his account in his autobiography.

Anyway, Clarridge popped back up into the public consciousness when the New York Times ran the story of an outsourced intelligence op in Afghanistan run by… you guessed it.

Read the whole article, it goes into much greater detail about Clarridge and intelligence outsourcing but here are a few choice quotes for our discussion. First, keep in mind that Pentagon contractors are not supposed to actually act as spies. That being said:

To get around a Pentagon ban on hiring contractors as spies, the report said, [the DOD official’s] team simply rebranded [Clarridge’s company’s] activities as “atmospheric information” rather than “intelligence.”

[The DOD official,] Mr. Furlong, now the subject of a criminal investigation by the Pentagon’s inspector general, was accused in the internal Pentagon report of carrying out “unauthorized” intelligence gathering, and misleading senior military officers about it. He has said that he became a scapegoat for top commanders in Afghanistan who had blessed his activities.

So why go to all the trouble of outsourcing actual intelligence operations in the first place?

The private spying operation, which The New York Times disclosed last year, was tapped by a military desperate for information about its enemies and frustrated with the quality of intelligence from the C.I.A…

As for what happened when the operation was discovered:

On May 15 [2010], according to a classified Pentagon report on the private spying operation, [Clarridge] sent an encrypted e-mail to military officers in Kabul announcing that his network was being shut down because the Pentagon had just terminated his contract. He wrote that he had to “prepare approximately 200 local personnel to cease work.”

In fact, he had no intention of closing his operation. The very next day, he set up a password-protected Web site,, that would allow officers to continue viewing his dispatches.

I can’t quite decide if this is an example of effective monitoring or not. They found the illegal op and the shady contract but Clarridge does not seem much deterred by this.

In any case, a colorful example of the problems of outsourcing intel operations.

Oh, and as for mining the Nicaraguan harbor? Here’s Clarridge’s recollection:

So I was sitting at home one night, frankly having a glass of gin, and I said you know the mines has gotta be the solution. I knew we had ’em, we’d made ’em outta sewer pipe and we had the good fusing system on them and we were ready. And you know they wouldn’t really hurt anybody because they just weren’t that big a mine, alright? Yeah, with luck, bad luck we might hurt somebody, but pretty hard you know?

Book Discussion “Outsourcing War and Peace”: A View from Practice

by Jeffrey K. Walker

[Jeffrey K. Walker is Assistant Dean for Transnational Programs at St. John’s University School of Law]

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

With Outsourcing War and Peace, Laura Dickinson did a remarkable job canvassing an area of the law that has received a significant amount of attention and scholarship since the publication of Peter Singer’s landmark 2003 book, Corporate Warriors. Laura has done the heavy lifting for those of us who haven’t been able to keep up with this burgeoning research, laying out a tightly crafted survey of the scholarship while adding a lot of value to the debate with her “now where do we go from here?” recommendations for change. So I loudly applaud her fine efforts.

Because Laura has bitten off a very big scholarship challenge with Outsourcing War and Peace, the work does suffer a bit at the margins from being overly broad in some areas that call for deeper and more nuanced analysis and discussion. For example, in discussing the possibility of broadening the tort liability of contractor personnel engaged in direct support of military activities, she comes down on the side of allowing Federal Tort Claims Act (FTCA) immunity for contractors, albeit with the narrower test for immunity proposed by the dissent in the D.C. Circuit’s Saleh case. While I agree that an overly broad definition of FTCA immunity is a mistake and the majority in Saleh got this dangerously wrong, I would have liked to have seen deeper discussion of the more fundamental issues at play here. Although contractors may appear to be “integrated into combat activities” as Judge Silberman claims in his majority opinion, how truly integrated can contractor personnel be when they are not subject to military command authority with the penal sanctions faced by military members for disobeying, can quit whenever they really don’t like something they’ve been told to do or not do, and ultimately do not enjoy combatant immunity for their otherwise criminal acts? Laura’s discussion would have benefited from drilling deeper here.

I was very pleased by her recommendations concerning enhancing the enforcement of the Military Extraterritorial Jurisdiction Act (MEJA) by establishing a DoJ entity specifically tasked with investigating and prosecuting MEJA cases. Let’s face it, these cases have no natural constituency among the notoriously parochial U.S. Attorneys unless they are generating a lot of press. In most cases, no U.S. Attorney wants the responsibility, trouble, or expense of a MEJA prosecution with its remote witnesses and evidence, expensive travel headaches, and translation difficulties. As a guy who, with the strong support of my then-boss, unsuccessfully proposed a plan to deploy collateral damage/war crimes/friendly fire investigation teams with the coalition maneuver forces in the 2003 Iraq invasion, I find her concern about the importance of investigative capacity on the ground to be absolutely spot on.
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Will Congress Move to Tax “Ex-Patriots”?

by Peter Spiro

We should have known that it would take someone on the Hill about ten minutes to go after Eduardo Saverin and tax renunciants. Charles Schumer and Bob Casey are introducing legislation entitled the Expatriation Prevention by Abolishing Tax-Related Incentives for Offshore Tenancy Act to make renunciants pay more dearly for their inconstancy. (Yes, that’s the “Ex-PATRIOT Act”. How about a moratorium on forced legislative acronyms? I hereby propose the Legislative Acronyms Mitigation and Elimination Act.)

From Schumer’s press release, the operative heart of the proposal:

If the individual has a legitimate reason for renouncing his or her citizenship, no penalties will apply. But if the IRS finds that an individual gave up their passport for substantial tax purposes, then it will prospectively impose a tax on the individual’s future investment gains, no matter where he or she resides. This would eliminate any tax benefit and financial incentive from renouncing one’s citizenship. The rate of this capital gains tax will be 30 percent, in keeping with the rate that is already applied on non-resident aliens for dividends and interest earnings.

So long as the individual avoids these taxes, they would be inadmissible to the United States forever.

In other words, pay up, indefinitely, or you’re never coming home again.  (This time, apparently, they mean it –  as I suspected below, the current exclusion provision is apparently not enforced.)

My instinct is that this isn’t going to become law, if only because it’s about enforcing taxes and Republicans in the House will be skeptical. (I wonder what Grover Norquist thinks.) If it did, I think it would pose an interesting international law question. Article 15 of the Universal Declaration of Human Rights asserts that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality,” a norm arguably reflected in customary law.  Would capital gains for life be “arbitrary”? Perhaps. There’s also this from US law. . .

Book Discussion “Outsourcing War and Peace”: Executive Power and Foreign Affairs Contracting

by Chris Borgen

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

On behalf of all of us at Opinio Juris, I’d like to thank Laura (and our guest bloggers) for joining us this week to do a discussion about her timely new book, Outsourcing War & Peace. As someone who teaches National Security Law and Contracts, I was particularly struck by an observation she made early in the chapter on contracting: “although typically conceived as the quintessential private law form, contracts… might be a tool to instill broader public values—in short, to ‘publicize’ the process of privatization.”

This is, as Laura notes, an inversion of the classic story that we tell about contracts: that they allow for private ordering among parties, setting new rules that might be different than “public” rules that apply to all. (I am thinking, for example, of Lisa Bernstein’s scholarship on the diamond industry.)

But Laura is looking at contracts as a means to apply public law rules on private actors that undertake quasi-governmental activities in foreign affairs. It is a suggestion that opens up many possibilities for better regulation of prvate military contractors, foreign aid providers, intelligence shops, and so on. Laura describes the details of the types of requirements that can be made via better contracting including the incorporation of human rights and humanitarian law standards, and baseline training requirements. She also tackles the difficult issue of how to monitor contractual compliance. But I want to focus on a different impediment: how do we shift from the current habit of lax contracting standards in foreign affairs contracting to this new form that incorporates international and domestic public law standards… [Continue reading via the link]

Book Discussion “Outsourcing War and Peace”: Government Contracts Can Be a Tool to Help Protect Public Values

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

While they are not often viewed in this way, government contracts can serve as a tool for implementing public values such as human rights or humanitarian law principles.  In the domestic setting, with privatized prisons, health care, and welfare-to-work programs, we actually have some experience writing public values into contracts and including them in the contract management and oversight regime.  In the book, I compare domestic contracts of this sort and foreign affairs contracts – and the foreign affairs contracts fall short.

The contracts, in my view, fail to specify with sufficient precision terms that would require appropriate and meaningful training in particular human rights and humanitarian law principles, as well as vetting of potential contractor employees for problematic human rights records and other issues.  In the wake of the Nisour square shooting, for example, a State Department report noted that while the U.S. Embassy in Iraq “provides comprehensive guidance on permissible uses of deadly force and the circumstances under which deadly force can be used,” that guidance is less explicit on how deadly force should be used.” (at 6).  The report emphasized the discrepancies in rules applicable to state department and defense department contractors.  And at the time of the Abu Ghraib prison abuse scandal, military reports emphasized the poor vetting and training of contract interrogators and translators. To be sure, since then the Bush administration and the Obama administration have made strides to improve the contracts.  A Memorandum of Understanding harmonized key differences in contract terms among the agencies.  Defense recently implemented a rule that laid out much better training requirements for security contractors.
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Book Discussion “Outsourcing War and Peace”: Too Much Jurisdiction? – Contractor Liability After Brehm and Ali

by Steve Vladeck

[Steve Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law.]

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

One needn’t look far for proof that the issues raised by Laura Dickinson’s Outsourcing War and Peace with regard to the absence of liability for military contractors are at the forefront of contemporary law and policy. If outsourcing is here to stay, then it seems only right to ask how we might ameliorate some of the concerns that such privatization raises. And although I think Deborah Pearlstein is exactly right to link the problems of contractor liability to the broader “waning public accountability for national security and military affairs more generally,” the specifics also matter, since a host of recent legal developments have focused on the case for (or against) contractor accountability as such. To that end, Professor Dickinson, who champions the need for greater civil and criminal liability, already noted last Friday’s decision by the en banc Fourth Circuit in the al-Shimari case concerning whether victims of torture at Abu Ghraib can pursue state law tort claims against the military contractors allegedly at fault (for now, they can). And we should hear soon from the Court of Appeals for the Armed Forces, which heard argument in April in United States v. Ali on the question whether the Constitution allows the military to court-martial civilian contractors accompanying U.S. forces in the field during overseas “contingency operations.”

But for all the attention that al-Shimari and Ali have received from observers like Professor Dickinson, I want to suggest in this post that we would do well to also consider United States v. Brehm—a less-noticed appeal argued yesterday before a three-judge Fourth Circuit panel—as a reason to search for nuance in the quest for a coherent approach to contractor liability.
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Weekday News Wrap: Thursday, May 17, 2012

by Jessica Dorsey

Book Discussion “Outsourcing War and Peace”: Private Security Contractors and Public Accountability

by Deborah Pearlstein

This is the second day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

One of the many things I like about Professor Dickinson’s book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson’s book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient.

Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.
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Book Discussion “Outsourcing War and Peace”: Too Many Gaps – The Need for a Better Accountability Framework for Private Military and Security Contractors

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the second day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

In my first post, I outlined four potential mechanisms of accountability and constraint that could be better deployed to try to ensure that foreign affairs contractors respect various public values.  The first such mechanism is the most obvious: pursuing criminal prosecutions or civil tort suits against contractors who commit abuses.

With regard to criminal prosecution, our current system of enforcement is seriously flawed in a number of respects.  To begin with, there are gaps in the Military Extraterritorial Jurisdiction Act (MEJA), the primary law that gives U.S. courts the power to try contractors when they are accused of committing serious abuses. That statute does not clearly govern contractors who work for agencies other than the Defense Department, such as the State Department contractors involved in the Nisour Square incident in which Blackwater employees allegedly fired into a crowd in Nisour Square in Iraq, killing 17 people.  It is vital that Congress close this gap, and efforts are underway to do so in the Civilian Extraterritorial Jurisdiction Act (CEJA), sponsored by Senator Patrick Leahy (D., Vt.), former Senator Edward Kaufman (D., Del.), and Representative David Price (D., N.C.), which is now languishing in Congress despite support from the administration and industry.

But perhaps even more significantly, we need to restructure our institutions of enforcement to build more expertise and set better incentives for pursuing these cases. For many years, responsibility for contractor abuse cases lay with U.S. Attorneys’ offices around the country, and lawyers there didn’t necessarily have the experience needed to bring forth these difficult cases or to treat them as a high priority. I argue that we need a more clearly designated office within the Department of Justice to focus on these types of cases, and that we should require this office to report regularly to Congress concerning its efforts.
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Weekday News Wrap: Wednesday, May 16, 2012

by Jessica Dorsey

Thousands of Kids Are Obsessed Today With What Six Countries?

by Roger Alford

Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, “The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes.” But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six–and only six–representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:
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Why Do Some Progressives Hate Dual Citizenship?

by Peter Spiro

NYT’s Room for Debate takes up the question of dual citizenship, with contributions from Ayelet Shachar, David Abraham, Mark Krikorian, Jose Itzigohn, and myself.  Krikorian is predictably and harshly disapproving, on the old “it’s like bigamy” model.  Ayelet, Jose, and myself are all more or less in favor.

In some ways, the most interesting contribution comes from David Abraham, a Marxist historian (I think self-identified as such) who teaches law at the University of Miami.  He points out that dual citizenship is all very nice for the globalized elites, but doesn’t do much good for the rest of the world.

It’s an equality argument that can’t be dismissed.  Someone with multiple passports (using them, as Abraham puts it, like credit cards) has an advantage over someone with just one, there’s no denying that.  I wonder, though, if dual citizenship isn’t getting distributed in a way that correlates less with class than territorial randomness.  The rich are obviously more likely to have the status, but there are a lot of non-elites from places like Mexico and the DR that have dual citizenship by accident of birthplace or parentage.

I’m less persuaded by Josh Marshall’s argument over at TPM, which plays off both the equality and (surprisingly) marriage riffs:

[A]t least at the level of principle, citizenship is unitary — you can’t be a citizen of two countries any more than you can be married to two people at the same time. Some people find this nationalistic or xenophobic. But it’s neither. To me it’s at the root of our equality as Americans. That’s why the Salvadoran immigrant to the woman whose ancestors came over on the Mayflower because they’ve both cast their lot as part of the same national community. If citizenship is purely transactional, the people who lack power are profoundly disadvantaged.

That romanticizes singular citizenship (really: singular US citizenship) in an almost weepy kind of way.  It ignores that forcing citizenship choices may compromise political rights and confine individual identities. It also suffers from a gaping middle: there’s a lot between conceiving of citizenship as marriage and conceiving of citizenship as a transaction.  Like: conceiving of citizenship as membership in an association, one with a rich history and intense pull, but not categorically different from other forms of association – most of which allow for multiple ties.

Book Discussion “Outsourcing War and Peace”: The Clash of Market and Civic Values and Its Implications

by Allison Stanger

[Allison Stanger is Russell J. Leng ’60 Professor of International Politics and Economics and Chair of the Political Science Department at Middlebury College. She is the author of One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy.]

This is the first day of our book symposium on Laura Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Related posts can be found below.

Laura Dickinson has written a compelling and thoughtful inquiry into the larger implications of the “profound shift in the way the US government projects its power overseas.” Her focus on the enormous threat that contracting poses to public values highlights an important consequence of this transformation that has too often gone unacknowledged.  Her discussion of the four potential mechanisms of accountability and control frames that core challenge in a highly fruitful way.  While Professor Dickinson is well aware of the potential obstacles to effective functioning of these mechanisms, I wanted to use my post to highlight one that is all too easy to overlook: the impact of excessive contracting on governance and public values themselves.

Decades of privatization mean that the business of government is increasingly in private hands, both in our foreign policy activities abroad and in domestic operations at home.  The basic pattern is striking.  In 2000, the Department of Defense spent $133.4 billion on contracts.  By 2010, that figure had grown to $367.8 billion, an almost three-fold increase.  In 2000, the State Department spent $1.3 billion on contracts and $102.5 million on grants. By 2010, contract spending had grown to $8.1 billion and grant spending had grown to $1.4 billion. In 2000, USAID spent $19.3 million on grants and $535.8 million on contracts.  By 2010, those figures had climbed to $8.9 billion and $5.6 billion, respectively. These explosive growth patterns are not confined to the national security realm.  For example, in 2000, the Department of Health and Human Services expended $4.1 billion on contracts. That figure had risen to $19.1 billion in 2010, a 366 percent increase.[1]  Contracts and contractors were also essential to both the Troubled Asset Relief Program [TARP] and the stimulus package. The operative rule of thumb for Republican and Democratic administrations alike has been to turn execution over to the private sector whenever possible.

This shift in and of itself does not disastrous consequences make.  But when it is combined with general public distrust of government, Pandora’s box opens.  One additional statistic speaks volumes on this transformation. The number of people on the federal government payroll today is roughly the same as it was in 1966, yet the federal budget in that same time period has more than tripled in real terms.  Contractors, in part, fill that enormous gap. The result is that our government is today but a shadow of its former self.  It is big in terms of the amount of money it spends but small in terms of the number of people it employs to oversee that spending.  Government has effectively been hollowed out.

There are obviously consequences for public values in this transformation.  As Professor Dickinson summarizes on page 10 of her book, “One of the core points of this book is that these public values ought to govern even when those acting are not governmental employees or representatives.”  One might legitimately ask, is this a realistic aspiration when government’s default option is to privatize whenever possible, often outsourcing oversight as well as implementation?  It is surely more challenging to uphold public values when government’s actions themselves undermine the public’s faith in the very legitimacy of public sector activity.  Moreover, do we really want to treat public servants and private employees as functional equivalents, or do we instead lose something very dear in blurring that line?  Who is to ensure that the public interest is upheld under such arrangements?
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Book Discussion “Outsourcing War and Peace”: The Rise of Private Military Contractors and the Importance of Public Values

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the first post in our discussion of Professor Dickinson’s book. Links to the related posts can be found below.

I want to thank Opinio Juris for offering me the opportunity to post on some of the central ideas contained in my recent book, Outsourcing War and Peace: Preserving Public Values in an Era of Privatized Foreign Affairs.

The book starts from the observation that, over the past two decades, the United States has dramatically changed the way in which it projects its power overseas by outsourcing foreign affairs functions to an arguably unprecedented degree.  At the high point of the combined conflicts Iraq and Afghanistan, the U.S. Government had hired roughly 260,000 contractors—more contractors than troops—to do everything from support tasks, such as delivering meals to soldiers, cleaning their latrines, and maintaining battlefield weapons systems, to more combat-related functions, such as guarding bases, diplomats, and convoys.  At times, contractors even conducted interrogations.  And contractors continue to play a significant role in operating the drones that have become a central tool in our efforts to combat terrorism.

All of this contracting poses an enormous threat to what we might call public values.  These values include the core value of human dignity as embodied in international human rights law, as well as the values embedded in international humanitarian law, such as the idea that the use of force is limited even during armed conflict.  In addition, other core values include transparency, democratic participation in decision-making, and accountability (sometimes referred to as the values of global administrative law).
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The OTP and the OPCD Spar over Libya’s Obligation to Surrender Saif

by Kevin Jon Heller

As readers know, Dapo Akande, Jens Ohlin, and I have been having a friendly debate over whether Article 95 of the Rome Statute requires Libya to surrender Saif to the ICC pending the Pre-Trial Chamber’s resolution of its admissibility challenge.  (See here and here.)  Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.

The motions are a study in contrasts.  The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court.  It’s a very underwhelming motion, and I don’t say that simply because I disagree with it.  Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.

The OPCD’s motion, by contrast, is 19 pages and offers a variety of very strong arguments in defense of its position that Libya must surrender Saif prior to resolution of its admissibility challenge.  The first section of the motion not only tracks my arguments very closely, it specifically cites the Opinio Juris post in which I argued that Article 89(2) actually supports a surrender obligation under Article 95, because the OTP’s interpretation renders Article 89(2) mere surplusage.  (An Article 89(2) postponement depends upon on Article 19 admissibility challenge, which is what supposedly triggers an Article 95 postponement.)  The motion also spends a good deal of time arguing that permitting postponement of Saif’s surrender would undermine the ICC’s ability to ensure that Libya lives up to its obligation to cooperate with the ICC under S.C. Res. 1970, because the Court will be powerless to force Libya to surrender Saif should it reject Libya’s admissibility challenge. I made a similar argument in my posts, and I continue to believe that the ICC should not be put in a position where it has to resolve Libya’s admissibility challenge even though it knows full well that Libya will simply ignore an adverse decision.

Interested readers will definitely want to check out both motions.

Weekday News Wrap: Tuesday, May 15, 2012

by Jessica Dorsey

Facebook Co-Founder, Patron Saint of Tax Renunciants

by Peter Spiro

Facebook co-founder Eduardo Saverin has given up his US citizenship in the run-up to the Facebook IPO.  Not that it didn’t cost him.  High net-worth folks like Saverin have to pay what is in effect an exit tax, under the mis-acronymed HEART Act.  Under this 2008 legislation, renunciation is treated like a tax event, at which point your assets will be valued for capital gains purposes as if they were sold at that time.  Saverin must have been presented with a hefty bill by way of getting his release (according to this excellent Bloomberg report on his renunciation, he can pay it on the installment plan).

[FYI: Here is the 1Q 2012 list (as published in the Federal Register) of “those who have chosen to expatriate.”  In addition to Saverin, the list includes a JFK relation, one apparently not interested in a political career here.]

Saverin doesn’t have a problem with the US – he doesn’t seem to be making any sort of political statement here – but the tax and regulatory burdens outweigh the benefit for someone in his bracket (see the posts on FATCA below).  That is, so long as he can still go to NYC.  Under 212(a)(10) of the Immigration and Nationality Act:

(E) Former citizens who renounced citizenship to avoid taxation.- Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is excludable.

Excludable, as in not getting into the country.

Obviously Saverin has capable lawyers who checked this out, and it appears to be the case that this provision has never been deployed since it was enacted in 1996.  The plausible theory here: since Saverin and his bracket in effect have to settle up when they renounce, they aren’t renouncing to avoid taxation.

In any case, Saverin may be at the leading edge of rich expatriate Americans for whom the nationality just isn’t worth it any more.  Like most other memberships, citizenship has a price point.

Book Discussion: Laura Dickinson’s “Outsourcing War and Peace”

by An Hertogen

This week Opinio Juris is hosting a discussion on Laura Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs.

Professor Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC. Her book addresses issues related to the increasing privatization of foreign policy functions of government. Here is the abstract:

Over the past decade, states and international organizations have shifted a surprising range of foreign policy functions to private contractors. But who is accountable when the employees of foreign private firms do violence or create harm? This timely book describes the services that are now delivered by private contractors and the threat this trend poses to core public values of human rights, democratic accountability, and transparency. The author offers a series of concrete reforms that are necessary to expand traditional legal accountability, construct better mechanisms of public participation, and alter the organizational structure and institutional culture of contractor firms. The result is a pragmatic, nuanced, and comprehensive set of responses to the problem of foreign affairs privatization.

Each day this week, Professor Dickinson will post about a particular topic addressed in her book. Comments will be provided by Professor Allison Stanger of Middlebury College, Scott Horton of Harper’s Magazine, Assistant Dean Jeff Walker of St John’s Law School and Opinio Juris’ own Deborah Pearlstein, Ken Anderson and Chris Borgen. Our readers are of course more than welcome to add to the discussion in the comments, and we certainly hope that you will!

Human Rights: Political Not Metaphysical

by Ruti Teitel

[Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School and the author of Humanity’s Law (Oxford University Press 2011).]

Sam Moyn, writing in this Sunday’s New York Times (“Human Rights, Not So Pure Anymore”)
claims the current relationship of human rights is compromised, and nostalgizes the past. As he puts it:

[T]he whole idea of human rights has lost some of its romantic appeal and moral purity. Today the issue of human rights is no longer just about limiting power in the global arena but also about how to deploy it.

Was human rights ideology ever disconnected from political struggle in the way that Moyn suggests?

For Moyn the heroic phase of the history of human rights is the time during the Cold War where human rights were a moral source of resistance by courageous dissidents to illegitimate or tyrannical state power. Yet as the Charter 77 movement illustrates, even in this period human rights were an impetus not just for resistance but for political reconstruction, providing a foundation of legitimacy for post-commmunist regimes. This has had important and salutary consequences for the shape of power in those post-communist countries where human rights not nationalism or religion have been the foundation for the new order (Moyn’s article is oddly accompanied by a photo of Solzhenitsyn whose anti-commmunism was of course based in reactionary religious nationalism not human rights thinking.)

The same has been true of the interaction between human rights discourse and political struggle against apartheid: human rights played an essential role not only in resistance to apartheid but in shaping the political transition in South Africa. Human rights thinking provided the central inspiration for the new South African constitutional order, where international law is an integral part of domestic constitutional norms.

Contrary to Moyn the experience of the role that human rights have played not just in resistance but in democratic state-building and political transition has only enhanced their moral force, just as the internet and social media have increased the ability of non-state actors to deploy human rights ideas as a unifying discourse. Thus recently, human rights-based claims were central to the demands for political change in the Arab Spring. Which is not to say that human rights has triumphed over competing transformative ideologies based in religion and/or nationalism.

In a passage that seems to have been written before the 2007-2010 economic and financial crisis and its aftermath, Moyn suggests: “for some dreamers, human rights mean ensuring citizen welfare in the form of economic justice both within and among states. Yet the idea of international human rights has become prominent in an era when many governments are turning away form the welfare state in the name of the free market”.

This elides the fact that the free market has been tarnished by recent events, and the reality that new high-growth nations such as Brazil have combined export-oriented development policies with expanded social welfare and activist industrial policy. Moreover, social and economic rights have altered the terms of important aspects of debates on globalization: access to medicines and intellectual property is one example and agricultural trade and food security is another.

Weekday News Wrap: Monday, May 14, 2012

by Jessica Dorsey

My Viva at Leiden University

by Kevin Jon Heller

My recent post on PhDs calling themselves “Dr.” led one of my e-friends, Martin Holterman, to remind me that I had promised to post about my dissertation defense — called a “viva” in the Netherlands — at Leiden University last year.  The viva was one of the greatest academic experiences of my life, so I’m happy to rectify my omission.

I’ll begin with a confession: I didn’t take the viva particularly seriously at first.  I knew I wouldn’t fail (any dissertation committee worth its salt will deal with problems long before a student defends); my dissertation was a version of my book on the Nuremberg Military Tribunals, which was under contract with Oxford University Press; and of course I already had a permanent academic position at Melbourne.  So I really just wanted to get the viva over with so I could put the diploma on my office wall.

My casual attitude didn’t last long — only until I began to put on my tuxedo, complete with tails, in the room in which candidates change.  My interlocutors for the viva, kindly known as “the opposition committee,” was changing on the other side of the room.  The solemnity of the occasion finally penetrated my thick skull — this was my rite de passage into an academic tradition that had been taking place in Europe for centuries…

The Revolving Door Between the U.S. Legal Academy and the UN

by Julian Ku

Walter Olson at Cato has a sharp observation here at the Daily Caller, on the revolving door between U.S. international law professoriate and various UN bodies.

Mr. Anaya, the U.N. rapporteur, was sent on his mission by none other than the U.N. Human Rights Council, notorious, as Doug Bandow has written, for being “dominated by human rights abusers and their enablers.” (Fidel Castro has a seat, as did Libyan dictator Moammar Qaddafi until his overthrow.) What you wouldn’t have realized from most of the news reports — an exception was Claudia Rosett’s — is that Anaya is not just parachuting in from some U.N. redoubt in Geneva or the Hague. He’s an American law professor based at the University of Arizona and active in particular in the school’s Indigenous People’s Law and Policy Program, which he drew on to support his U.N. probe (he’s due to report to the Council itself this fall).

There’s a wider story here, which I told at some length in Chapters 10 and 11 of my book “Schools for Misrule” last year. In the 1970s, with inspiration from the law schools and backing from the Ford Foundation and other liberal funders, some advocates began a sustained effort to resuscitate old Indian land claims (often in the process casting a cloud on the title of European-descended occupants who have farmed or ranched the land for one or even two centuries). After years of havoc and uncertainty of rights, the U.S. courts in the past decade came down against the tribal claims, ruling that they are grounded neither in the Constitution nor in applicable statutory law. As it became clear that the land-claim litigation would fail in U.S. courts, advocates launched a new strategy of involving the U.N. system and other international organizations on the grounds that to deny the tribes the right to reoccupy old lands would be to violate their international human rights. Very helpful in this process has been the advance of a document called the U.N. Declaration on the Rights of Indigenous Persons (UNDRIP), which the U.S. long opposed and then, in an Obama turnabout last year, decided to support.

I think Olson is on to something here. First, he is undoubtedly right that various UN human rights bodies have become a court of last resort for advocates who have failed in domestic U.S. proceedings. (See, e.g., the NAACP’s failed effort to block voter ID laws). Second, he is also right that U.S. law professors, and indeed other law professors, often have a deeply intertwined relationship with UN Bodies, like the UN Human Rights Commission, that appoint them to various positions.  I’m not sure there is anything nefarious about this, but I think he is right that the standards for recognizing particular legal claims are different, and much more generous, in an international forum than in a domestic one. And that the aura of international objectivity that some might accord to a UN probe is largely undeserved.

International Law and Literature: Peter Watts’ “Malak”

by Chris Borgen

Following on Ken’s most recent post on autonomous battlefield robots, I came across the short story Malak by Peter Watts (you can read it here). What jumped out at me was a short story that beginning with epigrams such as these:

“An ethically-infallible machine ought not to be the goal. Our goal should be to design a machine that performs better than humans do on the battlefield, particularly with respect to reducing unlawful behavior of war crimes.”

–Lin et al, 2008: Autonomous Military Robotics: Risk, Ethics, and Design

“[Collateral] damage is not unlawful so long as it is not excessive in light of the overall military advantage anticipated from the attack.”

–US Department of Defense, 2009

So, yes, a short story that touches on the legal and ethical questions of using autonomous—not just unmanned—aerial combat drones. The epigrams, by the way, are to real reports. The Lin study was prepred for the U.S. Navy’s Office of Naval Research by the Ethics + Emerging Sciences Group at California Polytechnic. (It is available in .pdf here.) The definition of collateral damage can be found in various places, included the Department of Defense Dictionary of Military and Associated Terms (Available here in .pdf).

Watts is a scientist whose fiction has gained some notice for its intelligence and for grappling with unpleasant aspects of the interactions of scientific revelation, technology, and society…

[More via the “Continue Reading” link]

Upcoming Events: May 13, 2012

by Jessica Dorsey

Last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Calls for Papers

Upcoming Events


Libya and the ICC: In the Pursuit of Justice?

by Leila Hanafi

[Leila Hanafi works as regional coordinator for the Middle East and North Africa at the Coalition for the International Criminal Court. This contribution is cross-posted at the Middle East Monitor.]

The ongoing post-conflict reconstruction process in Libya is reigniting a crucial debate among transitional justice advocates as to the role the International Criminal Court (ICC) can play in delivering justice and redress to victims of grave crimes. In the midst of the February 2011 revolution, the ICC opened an investigation into crimes allegedly committed in Libya, based on United Nations Security Council (UNSC) Resolution 1970. The Court has to date issued three arrest warrants for Saif Al-Islam Gaddafi, Abdullah Al-Senussi and Muammar Gaddafi. The warrant against Muammar Gaddafi was withdrawn following his death, while Al-Islam Gaddafi is currently detained in Libya and Al-Senussi in Mauritania. Neither has been turned over to the ICC. The Libyan National Transitional Council (NTC) has asserted that it wishes to try these men in Libya, while France has declared its intention to purse Al-Senussi’s extradition for earlier alleged crimes. However, the ICC, along with many human rights groups nationally and internationally, question Libya’s capacity to conduct fair trials against these high profile individuals.

Key Justice Concerns in Libya

In my capacity as regional coordinator for the Coalition for the International Criminal Court Middle East and North Africa (MENA), I recently spoke with several Libyan legal and civil society stakeholders who expressed the view that existing Libyan laws do not always conform to human rights standards and need to be repealed or amended. Although the recent adoption by the NTC of a transitional justice law has been a step in the right direction, the capacity of the Libyan legal system to deliver justice remains weak.

In its February 2012 report, the United Nations International Commission of Inquiry on Libya stated that Libya was marred by widespread human rights abuses and brutal repression under Muammar Gaddafi’s decades of autocratic rule. It is against this background of impunity that the call for rule of law and reforms in the justice system needs to be assessed. Members of the legal and judicial sectors played a decisive role in the 17 February revolution, with the independence of the judiciary one of their main demands. Although the law under Gaddafi provided for an independent judiciary, this was not the case in practice. The government used…

Weekend Roundup: May 5-11, 2012

by An Hertogen

This week on Opinio Juris, Kevin Jon Heller posted on Khalid Sheikh Mohammed’s refusal to participate in his Military Commission trial, on the censored time-delayed video and audio feed from the trial and on the irony of an op-ed complaining about “false information about the detention” in the media coverage. Deborah Pearlstein addressed the question whether things might have gone differently had a regular criminal court been the forum for this trial.

Kevin also wrote about moves by the Office of Public Counsel for the Defence to disqualify Prosecutor Moreno-Ocampo from the Saif case and posted about a new law passed by Libya’s National Transitional Council (NTC) granting blanket amnesty to pro-revolution rebels. The (aspiring) Law Professors or Law PhDs/JSDs amongst our readers will undoubtedly be interested in Kevin’s post on Doctors, Professors and (North) American exceptionalism.

The ongoing tensions around the Scarborough Shoal in the South China Sea were often featured in this week’s news wraps. Julian Ku analysed what the US’ reaffirmation of its 1951 Mutual Defense Treaty with the Philippines entails. He argued that the treaty’s obligations for the US may not be merely theoretical, following escalating Chinese rhetoric. Julian also explained why he does not find the arguments for and against the US joining the UN Convention on the Law of Sea compelling. He also posted a critique on the US Agency for International Development‘s efficiency.

Roger Alford posted an exchange of views on sovereignty in the age of globalization between John Yoo, John Cerone and himself over at the Liberty Forum. Roger also asked when an arbitral panel qualifies as an international tribunal for the purposes of Section 1782, the statute that authorizes US federal courts to order discovery in aid of proceedings before foreign courts and international tribunals.

Peter Spiro argued that his fourth grader learning about the Convention on the Right of the Child means that international law must be getting some traction… at least at “a lefty Quaker school in the Northeast”. He also discussed how dual citizenship is a fact of life in globalization, prompted by Michelle Bachmann’s recent acquisition, and subsequent renouncing, of Swiss citizenship. American citizens abroad are however increasingly renouncing their US citizenship to avoid the administrative burden and penalties under the Foreign Account Tax Compliance Act which taxes US citizens, even if they do not reside in the US.

Duncan Hollis was puzzled by a disclaimer on the UNIDROIT’s website prohibiting the unauthorised reproduction of treaties.

In a guest post, Doug Cassel described the different hurdles that Venezuela would have to clear if it decides to withdraw from the Inter-American Commission on Human Rights, and the influence it would have on other states.

Finally, we brought you an overview of upcoming events and calls for papers.

Have a nice weekend!

Irony Called. It Wants a Restraining Order.

by Kevin Jon Heller

Jose Rodriguez, the former CIA officer who describes the Bush administration’s systematic torture regime as people “putting their big boy pants on” and who personally destroyed 92 videotapes documenting the waterboarding of Khalid Sheikh Mohammed and Abu Zubaydah because “out of context they would make us look terrible,” has an op-ed for CNN today complaining about media coverage of the 9/11 military commission.  The best line:

It is good that these terrorists are now facing justice, but in the reporting of the case, it would be helpful if the media didn’t help them with their propaganda mission by unquestioningly repeating false information about their detention.

So the person responsible for intentionally destroying the best evidence of the conditions of the defendants’ detention is now complaining about reporters providing “false information” regarding the defendants’ conditions of detention.

You just can’t make this stuff up.

Will Chavez Remove Venezuela from the Inter-American Commission?

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

Venezuelan President Hugo Chavez on April 30 directed his Council of State (a policy advisory body) to study Venezuela’s “withdrawal” from the Inter-American Commission on Human Rights.  He asked for their recommendation within days, not weeks.  This is the latest move in the Bolivarian Republic’s long record of denouncing the Commission and the Inter-American Court of Human Rights as tools of US imperialism, supposedly biased against socialist Venezuela.

But the real reason for Chavez’ pronouncement, say human rights groups – in my view correctly – is that the Commission and Court hold the Chavista regime accountable for its systematic violations of the independence of the judiciary (1, 2), and of freedom of the press, (3, 4), as well as other serious violations of human rights (5, 6).

Chavez’ call was promptly cheered by other high officials in Caracas.  It seems a foregone conclusion that the Council will recommend withdrawal.  Since Chavez has already declared that Venezuela should have withdrawn a long time ago, he is all but certain to heed such a recommendation.

Withdrawing from the Commission, however, is not so simple. Continue Reading…

Should We Get Rid of the U.S. Agency for International Development?

by Julian Ku

My friend at the American Enterprise Institute, Michael Rubin, offers a fairly convincing critique of the effectiveness and efficiency of the U.S. Agency for International Development as its budget is taken up this week by Congress.

Take branding: Throughout the Middle East, especially in areas where anti-American sentiment is especially strong, the USAID refuses to put the USAID logo on its projects. To do so might lead insurgents to target USAID-funded schools, wells, or medical clinics. The problem is that skipping branding reduces to almost zero the benefit of the project. The goal of U.S. aid should not altruistic, but rather to bolster U.S. interests and influence. Diplomats talk about the need to win hearts and minds, but the multibillion dollar organization at the forefront of the battle too often surrenders before the fight. Nothing is more frustrating than to drive around Iraq and Afghanistan, seeing signs crediting Japan, Kuwait, the Badr Corps’ Shahid al-Mihrab Foundation or the Imam Khomeini Relief Committee for visible projects—gardens in traffic circles; housing projects; clinics; and electrical substations—but see no branding for USAID.

Compounding the problem is the fiscal irresponsibility of USAID. In Afghanistan, USAID would hire three times the local staff—drivers, cooks, and cleaners—instead of NGOs or contractors performing the same functions, and would spend more money on furniture, televisions, and equipment for offices. Rather than abide by the local market, USAID often would try to outbid contractors by offering landlords 300 percent more rent—a waste of taxpayer money that compounded itself as other U.S.-funded projects would have to keep up. Then, again, when the metric is money spent rather than results achieved, it’s easy to throw money around.

Rubin is not arguing against foreign aid, he is arguing against doing it through USAID.  Is it possible that the US is both cheap (in the amounts of foreign aid) and massively inefficient? Unfortunately, yes.

More from NYT on US Overseas Tax Reach: Will FATCA Fly? (Maybe.)

by Peter Spiro

Here’s yet another long-ish story in the NY Times on the Foreign Account Tax Compliance Act, or FATCA, and how it’s cramping American citizens abroad. (How many tax stories get this kind of play? NYT must have some reader traction on this.)  Remember: the US is the only country other than Eritrea that taxes its external citizens.

Dueling takeaways: More AmCits abroad are complying with related disclosure requirements (almost doubled in the last three years), so it is sticking. Or, the numbers of Americans abroad who are looking to renounce their citizenship is skyrocketing (one accountant says that her Middle-Eastern clients are “lining up to get rid of the US passport), so it’s bound to fail. . .

Weekday News Wrap: Friday, May 11, 2012

by Jessica Dorsey

China-Philippines Standoff: It Will Get Worse Before It Gets Better

by Julian Ku

The standoff between China and the Philippines over the Huangyan Island/ Scarborough Shoal (see the island marked 黄岩 on the Chinese map to the right) has continued to fester over the past few weeks. CFR’s Asia Unbound blog has a nice summary here of the latest. The bottom line: The Philippines has been calling for restraint in recent days, but the Chinese seems to be escalating the rhetoric.

On Monday, He Jia, an anchor on China’s state-run CCTV, mistakenly declared that “China has unquestionable sovereignty over the Philippines” rather than just over the disputed island. On Tuesday, Chinese Vice Foreign Minister Fu Ying warned a Philippine diplomat that China was fully prepared to do anything to respond to escalationDeep-water drilling has begun near islands in the South China Sea and Chinese travel agencies have reportedly suspended tours to the Philippines.

The Chinese Embassy in the Philippines is warning Chinese nationals to stay indoors during expected anti-China protests this weekend and most ominously, the Chinese military has been making bellicose noises:

“We want to say that anyone’s attempt to take away China’s sovereignty over Huangyan Island will not be allowed by the Chinese government, people and armed forces,” read the article in the official PLA Daily newspaper.

Finally, CFR notes that the dispute has also included Chinese hacking attacks on Philippines government websites, as well as Filipino retaliatory hacking.  This too is a front that could escalate since the Chinese government has shown no signs of trying to tamp down its own very nationalistic citizenry on this issue.  Things are not yet really bad, but, ominously, they are not getting better either. The U.S. should be thinking again about its obligations under the Mutual Defense Treaty. It is no longer a purely theoretical obligation.

Bachmann Renounces Swiss Nationality (Dual Citizenship is Still Here to Stay)

by Peter Spiro

Michele Bachmann couldn’t take a little bit of heat from a few restrictionists on the Right and has renounced her Swiss citizenship, apparently pursuant to article 42 of the Swiss nationality law.

It wasn’t clear that Republicans had such a big problem with her keeping it. Check out the comments to Mark Krikorian’s “Swiss Miss” column over at National Review Online, in which he accused Bachmann of “civic bigamy.”  Seems like a high level of dissent among the faithful.  First, there is a sort of libertarian argument that the (U.S.) government shouldn’t be able to dictate a person’s association with other states.  This resonates with an argument I’ve made that the maintenance of dual citizenship is protectable on a free association basis (among others).

Second, there’s the wackier riff that a second citizenship is defensible by way of a hedge against left-wing oppression here at home.  From one NRO commenter, this:

. . . she will be ready to head for the hills (no pun intended) should the US implode into massive civil unrest that will see the masses looking for heads like hers to roll in retribution.
The Swiss will be the economic and sane oasis in the ocean of the oncoming European disaster with mountains that make ingress easy to defend.
Remember too that military conscription remains in Switzerland and the military is modelled as a militia system. These soldiers keep their own personal equipment and guns at home.
I suspect her sons should they have taken Swiss citizenship would have to do their basic training at some time.

Bravo, Switzerland, where the Second Amendment can go into exile!

Bachmann’s about-face isn’t going to dampen the exploding incidence of dual citizenship on the ground, however useful a poster-child she would have been for it.

The Crime that Dare Not Speak Its Name

by Kevin Jon Heller

More follies from the Khalid Sheikh Mohammed military commission:

The video and audio feed from the war court at Guantanamo Bay is on a time delay so as to prevent accidental or deliberate disclosure of classified information during proceedings. As Khalid Sheik Mohammed and the other alleged 9/11 plotters were being arraigned last Saturday, the feed abruptly cut out.

Reporters and observers heard only white noise for a few moments because a military security officer censored one of the defense attorneys, Air Force Capt. Michael Schwartz, after Schwartz alluded to the torture of his client. Just before the military cut the feed, Schwartz used the phrase “big boy pants” to refer to torture, mockingly adopting the euphemism employed by former CIA official Jose Rodriguez in an interview two weeks ago.

Because fairness means pretending that you didn’t torture one of the defendants 183 times in a month.

US Sec. of Def. Panetta’s Not Very Compelling Argument in Favor of the Law of the Sea Treaty

by Julian Ku

U.S. Secretary of Defense Leon Panetta kicked off the U.S. Senate’s forthcoming debate on the UN Convention on the Law of the Sea yesterday with a speech pushing for ratification.  His comments were reinforced by General Martin Dempsey, chairman of the Joint Chiefs of Staff.  I am agnostic on whether the U.S. should join UNCLOS and the Panetta speech didn’t offer any particular reason for me (or anyone else) to get off the fence.

Essentially, Panetta (and the military) argue that UNCLOS “locks in” a system of territorial delimitation and maritime governance that benefits the U.S.  Without participating in UNCLOS, the U.S. rights to its continental shelf, its freedom of navigation, the Arctic, etc. would rest only on the foundation of customary international law.  And the U.S. would be unable to shape the development of the law without “a seat at the table.”

I guess I don’t really find this all that compelling.  As I understand it, if the U.S. stays out of UNCLOS, it could still assert all of the same rights that nations in UNCLOS could assert, albeit based on CIL, not treaty law. It seems to me the real disadvantage in staying out of UNCLOS is that the US loses access to UNCLOS procedures and UNCLOS entities.  For instance, it could not participate in the delimitation of the continental shelf under the Arctic.  But I don’t think a UNCLOS entity could force the U.S. to accept its determinations.  The U.S. could negotiate bilateral agreements with UNCLOS members to settle continental shelf delimitations.  It would be harder, but not impossible.

The bottom line for me is that I don’t find the need for the U.S. to join UNCLOS all that compelling.  On the flip side, I have never found the scary stories about the downsides of UNCLOS all that compelling either.  Joining will subject the US to binding arbitration, but that’s not a dealbreaker for me. The U.S. is stuck in binding arbitration in many different contexts. The concerns about funneling revenues derived from seabed exploitation through the UNCLOS Authority are real, but also relatively minor. This is not an “internal” tax on US domestic activities. It’s an external tax on US companies acting outside U.S. territory.

My main complaint about UNCLOS is somewhat more technical.  The provision obligating the U.S. to essentially give full faith and credit to judgments of the Seabed Disputes Chamber is of highly questionable constitutionality.  The State Department’s view that this is simply “non-self-executing” could be easily overturned in court, given the very clear language of the provision.  To be honest, this is still a mostly theoretical issue, since the Chamber has yet to even hear a single case, but it annoys me that this issue is being ignored and glossed over by both supporters and critics of UNCLOS.

In any event, expect lots of noise and grumbling this summer over UNCLOS. Like all debates, there will be lots of hype on both sides, and I will try my best to ignore it.

Weekday News Wrap: Thursday, May 10, 2012

by Jessica Dorsey

Doctors, Professors, and (North) American Exceptionalism

by Kevin Jon Heller

There is a friendly debate going on at Prawfsblawg about whether people who have PhDs or JSDs in law are entitled to refer to themselves as “Dr. so-and-so.”  Skepticism seems to be the order of the day; here are quotes from Paul Horwitz and Jeff Yates, respectively:

Although I think there’s a good deal to be said for obtaining JSDs or Ph.D’s in law, we might think about whether that trend represents a similar claim to authority and respect for law as an academic discipline; and if those folks start demanding to be called “Doctor,” we’ll know something’s up.

[I]s it appropriate to refer to yourself as “doctor” if you have a Juris Doctorate? A Ph.D.? This seems to bring up a number of concerns  — Who “earned” it? Is it misleading? Why do people need such titles anyway?

This debate is indicative of the insularity of American and Canadian legal academia.  Outside of the U.S. and Canada (and I’m not even sure about Canada), no one would ever question the right of someone who has PhD in law to call himself or herself “Dr.”.  Nor would anyone outside of the U.S. or Canada ever question whether law is an academic discipline.  If anything, the debate speaks to a certain professional insecurity in North America, where law school is professionalized in a way that it is not in most other countries, including English-speaking ones like the UK and Australia.  Not that I in any way blame North American legal academics, especially those in the U.S.: insecurity about whether law is an academic discipline is natural in a legal environment in which there is constant pressure on academics to produce “useful” — i.e., “non-academic” — scholarship.  If I felt disciplinary pressure to produce pedantic scholarship of immediate practical use to lawyers and judges, I’d probably begin to question whether law was an academic discipline, as well.  Fortunately, there are hundreds of American and Canadian legal scholars who resist that pressure and produce superb “academic” legal scholarship that not only increases our understanding of law as an intellectual discipline, but enriches legal practice, as well.  (You don’t have to be Derrida to know that the academic/practical binary is an unstable one.)

I also fail to see why JSDs should not call themselves “Dr.”, assuming that they have produced a dissertation that is equivalent to the one required by traditional PhD programs in law (80,000-120,000 words, the size of an average book).  I suppose it’s possible that JSD requirements are lower at some U.S. law schools, but that is certainly not true across the board.  My colleague Kirsty Gover — “Dr. Kirsty Gover,” according to her Melbourne name-plate — completed her JSD at NYU, and her brilliant dissertation on tribal constitutionalism was recently published by Oxford University Press.  She is every bit the doctor of law that a PhD in law is.

Finally, I’d like to turn the “Dr.” debate around and ask why Assistant Professors and Associate Professors in the U.S. and Canada (to say nothing of adjuncts and non-tenure-track legal instructors) should be entitled to call themselves “Professor.”  That is, of course, a uniquely North American phenomenon — in most other countries, particularly in the common-law world, “Professor” is a title reserved for scholars who have reached the pinnacle of legal academia, normally after years if not decades of work.  In such countries, it would be the height of arrogance for a lecturer in law to call himself “Professor” — something I’ve learned the hard way as I’ve had to adjust to being called “Dr. Heller,” “Mr. Heller” (before I obtained my PhD), or simply “Kevin” instead of “Professor Heller,” my title as a brand-new Assistant Professor at the University of Georgia.  At Melbourne, not even Associate Professors, a title that itself indicates substantial distinction in the field, call themselves “Professor.”  Unless you are a full professor, you’re a lecturer.  So isn’t the American and Canadian practice of title inflation simply questionable North American exceptionalism?

Readers —  North American and non-North American?

Michele Bachmann is Now Swiss, Too (Dual Citizenship is Here to Stay)

by Peter Spiro

That’s right, Michele Bachmann has acquired Swiss citizenship and is now a dual national. The news reports say she did it for her kids. (It doesn’t appear that her naturalization was necessary for her children’s, since her husband was already a Swiss citizen. For those interested in the finer points of Swiss nationality law, here is a primer. Note that although Bachmann could sign up through the marital tie notwithstanding the lack of any other substantial ties to Switzerland, many long-term Swiss residents are subjected to tough, even humiliating, hurdles to acquiring citizenship there.)

When an arch-conservative like Bachmann becomes a dual citizen, it takes the steam out of any putative effort to police the status.  Dual citizenship is not like illegal immigration.  It’s not about different looking people streaming across the southern border.  It’s about US and Irish dual citizens, US and Italian dual citizens, US and Israeli dual citizens, and apparently a few US and Swiss dual citizens.  (Of course there are also a lot of US and Mexico dual citizens – among them, pretty much all Mexicans who have naturalized since 1998, but there’s no principled way to single them out.)  An effort to criminalize the status through federal legislation (see this 2005 House bill) was a complete non-starter.

In other words, dual citizenship cuts across the political spectrum.  Nor does it give rise to any concrete problems, not even if you serve in Congress (the other poster child in the Republican camp for this is former governor Arnold Schwarzenegger, who is Austrian and American).  The number of people holding the status is exploding to the point where the status is commonplace among Americans.  It surely counts as among the most dramatic legal incidents of globalization.

US Reaffirms Defense Commitment to Philippines. What Does That Mean?

by Julian Ku

According to the Philippines Department of Foreign Affairs, the U.S. government has recently re-affirmed its obligations to defend the Philippines under the 1951 Mutual Defense Treaty.  This is a particularly sensitive time to re-affirm this commitment, given the ongoing tensions between the Philippines and China in the South China Sea.

But what exactly is the U.S. committing to here? Would the U.S. actually feel obligated to defend Filipino claims to disputed islands and territories in the South China Sea? Let’s go to the text of the treaty:

Article IV

Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Article V

For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.

This seems to include any attack on Filipino vessels in the South China Sea.  I don’t think there is a clear obligation to intervene, but it could certainly help legalize US intervention (under international law) in favor of the Philippines.  Notice how the U.S. is committed only to “act to meet the common dangers in accordance with its constitutional processes.”  I think that could mean a unilateral presidential action, depending on your reading of the US Constitution’s processes for warmaking.  In any event, it is a non-trivial guarantee, if a bit fuzzy, and China should beware.

When is an Arbitral Panel an International Tribunal?

by Roger Alford

When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to Prove Denial of Justice, what constitutes an international tribunal is not a simple question. It is also a critically important question, because the power to invoke federal court discovery in aid of foreign or international proceedings is one of the most effective evidentiary tools that any international lawyer can wield.

Ever since the Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc. that question has vexed lower federal courts. Although the Supreme Court did not address international arbitration directly, its reasoning appeared to support a broad interpretation that would encompass arbitral tribunals, which likewise act as “first-instance decision-makers” that render “dispositive rulings” subject to limited national court review. Moreover, in describing the scope of Section 1782, the Court found that Congress amended the statute in 1964 to “provide the possibility of U.S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad” and quoted scholarly commentary that defined the term ‘tribunal’ to include “investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.”

In the wake of Intel, federal courts have struggled to apply the Court’s liberal Section 1782 standards to the context of international arbitration. Lower courts are divided on the question of whether a contract-based private international arbitral panel satisfies the statutory definition of “international tribunal.”

A majority have concluded that arbitral tribunals established by private contract are “foreign or international tribunals.” As the federal district court in In re Babcock Borsig AG, 583 F.Supp.2d 233 put it, addressing a Section 1782 petition involving an ICC arbitration, “[t]here is no textual basis upon which to draw a distinction between public and private arbitral tribunals, and the Supreme Court in Intel repeatedly refused to place ‘categorical limitations’ on the availability of § 1782(a).” Under this analysis, the functional approach adopted by the Supreme Court in Intel suggests that contract-based arbitral tribunals are first-instance decision-makers that issue decisions both responsive to the complaint and reviewable in court. As the court in Roz Trading, 469 F.Supp.2d 1221 put it, “it is the function of the body that makes it a ‘tribunal,’ not its formal identity as a ‘governmental’ or ‘private’ institution.”

Other federal district courts have concluded that private arbitral tribunals are not “international tribunals” within the meaning of Section 1782. These courts focus on arbitration as an alternative to litigation, foreclosing a key element of Intel’s analysis: judicial review. “[T]he very narrow circumstances in which [arbitral] decisions may be subject to review does not allow for judicial review of the merits of the parties’ dispute,” opined the federal district court in Norfolk Southern Corp., 626 F.Supp.2d 882. “Accordingly, the ‘arbitral tribunal’ at issue here does not fall within the definition the Supreme Court embraced in its Intel dictum.” Moreover, according to some courts, the fact that the source of judicial authority is derived from private agreement likewise militates against classifying it as a foreign or international proceeding under § 1782. Finally, pragmatic concerns have loomed large in the analysis. As one court put it, “[i]nterpreting § 1782 to apply to voluntary, private international arbitrations would be a body blow to such arbitration, since it would create a tremendous disincentive to engage in such arbitration wherever, as here, such a reading would create substantially asymmetrical discovery obligations.”

Whatever doubts there may be about the application of Section 1782 to contract-based international arbitration, federal courts uniformly agree that an arbitral tribunal established pursuant to a bilateral investment treaty constitutes an “international tribunal” within the meaning of the statute. Since Intel, over twenty federal courts have considered motions to compel Section 1782 discovery in aid of proceedings before treaty-based investment arbitration tribunals. Not a single federal court has held that such arbitral tribunals fall short of the statutory definition of an “international tribunal.”

Rather than take a functional approach that analyzes whether the investment tribunal is a first-instance decision-maker rendering decisions subject to judicial review, these courts either assume that such arbitral panels are “international tribunals,” or focus on the fact that the arbitral tribunal has its origins in a bilateral investment treaty. Although the absence of judicial review in the investment context is even more pronounced than in private commercial arbitration, this factor has not featured in any of the decisions applying Section 1782 to investment arbitration. In short, federal courts take a functional approach in defining an “international tribunal” in the commercial arbitration context, and a formalist approach in the investment arbitration context.

Weekday News Wrap: Wednesday, May 9, 2012

by Jessica Dorsey

Surprise, the NTC Amnesties Its Own Crimes

by Kevin Jon Heller

So reports Mark Kersten in a blockbuster post at Justice in Conflict.  You have to read the whole thing; here is a taste:

While haggling between the ICC and Libya’s National Transitional Council (NTC) over the fate of Saif al-Islam Gaddafi and Abdullah al-Senussi continues, Libya quietly, but controversially, passed a blanket amnesty for pro-Revolution rebels.

According to Lawyers for Justice in Libya (LFJL), under ‘Law 38′, amnesty will be granted for any “acts made necessary by the 17 February revolution” and for the revolution’s “success or protection”. Earlier, reports suggested that the amnesty law was being drafted in order to appease Libya’s tribal leaders who presumably fear anti-Gaddafi rebels being held accountable for human rights violations committed during the uprising.

It is no secret that both sides of the conflict committed atrocities. In this context, it is notable that the need for amnesty is in itself an acknowledgement that crimes occurred – otherwise there would be no need for an amnesty in the first place.

Notably, the amnesty law was passed along with ‘Law 37′, which forbids “praising or glorifying Gaddafi, his regime, his ideas or his sons”. Rather precariously, the law claims that Libya is still in a state of war and allows for the imposition of a life sentence on anyone who “harms the state” in glorifying the Gaddafi regime. While, to my knowledge, Western states have remained entirely silent on the subject, LFJL and Amnesty International have harshly condemned the legislation, suggesting that they harken back to the brutal and draconian laws that restricted the freedoms of Libyans under Gaddafi.

Mark provides invaluable analysis of the new law, distinguishing between “good” amnesties and “bad amnesties” and pointing out that, by any measure, this is one of the bad ones. He also rightly adds, referring to Libya’s pending admissibility challenge at the ICC, that “Judges aren’t politically blind. They may not be able to rule that Libya is unable or unwilling to try Saif or Senussi on the basis of the country’s commitment, or lack thereof, to trying other perpetrators, but it certainly doesn’t give a good impression.”  I’d simply add that the amnesty foregrounds the importance of the OTP not limiting its Libya investigation to members of Gaddafi’s regime; it must also be willing to prosecute high-ranking rebel commanders who are responsible for serious international crimes during the revolution.  Recall what the Commission of Inquiry concluded in its most recent report:

The Commission further concluded that the thuwar (anti-Qadhafi forces) committed serious violations, including war crimes and breaches of international human rights law, the latter continuing at the time of the present report. The Commission found these violations to include unlawful killing, arbitrary arrest, torture, enforced disappearance, indiscriminate attacks, and pillage. It found in particular that the thuwar are targeting the Tawergha and other communities.

As the amnesty law makes clear, when it comes to accountability for the new Libyan government, it’s the ICC or nothing.

The “Unauthorised Reproduction” of Treaties?

by Duncan Hollis

As I mentioned a few weeks back, I’ve been collecting treaty clauses for my book, The Oxford Guide to Treaties, on everything from NGO participation in treaties to their denunciation.  In doing so, I tried to cast a wide net, sampling treaties from a wide variety of bilateral and multilateral contexts involving all sorts of States and all sorts of subjects.  As part of that effort, I’d wanted to include some treaties drafted under UNIDROIT‘s auspices.  But, when I went to do so, I encountered the following warning on UNIDROIT’s website for the Convention on International Interests in Mobile Equipment and its Protocol:

Unauthorised reproduction of these texts (other than for personal use) is prohibited: requests for authority to reproduce the texts should be addressed to the UNIDROIT Secretariat (info [at] unidroit [dot] org).

I’d never seen anything like this with a treaty instrument.  But I took the path of least resistance and e-mailed UNIDROIT for permission to sample some of the convention’s final clauses for the book.  I had a brief exchange with a UNIDROIT officer to clarify my request, which led to . . .  nothing. Radio silence.  Given other demands on my time, I decided the world could live without any UNIDROIT treaty clauses in my sample set, and I moved on to other treaties.

Still, looking back on it now several months later, I remain puzzled by the UNIDROIT pronouncement.  Was UNIDROIT asserting some sort of intellectual property in these treaties, and, if so, under what authority?  I know that, notwithstanding UN Charter Article 102, some States continue to conclude “secret” or “classified” treaties (both the US and the Netherlands have domestic statutes authorizing the practice), in which case readership is limited to only those within the respective State governments or IOs cleared to access them.  And, of course, there’s the idea that many treaties will not afford individuals the right to invoke the treaty in litigation, as opposed to treaties that do accord private rights of action.  But the UNIDROIT qualification is quite distinct from such issues.  It’s not that the treaty text is secret — indeed, you can download it on the UNIDROIT website.  And, the subject-matter of this treaty — international financing of mobile equipment — inevitably means that its terms regulate the rights and duties of not just States, but individuals and other non-State actors as well.

So, what does it mean for UNIDROIT to purport to prohibit “unauthorised reproduction” of this Convention and its Protocol?  There’s an exception for “personal use” but that confuses me too.  I can’t shake the image that it’s OK to print out a copy of the Cape Town Convention to display on my wall (because that’s the sort of thing I might do with a treaty, but really, who else would?).  But what if I wanted to reproduce a copy of it to provide to a client?  Or, what if I wanted to append it to a law review article on the Cape Town Convention itself? And, that’s not even getting into enforcement questions — namely, under what law is reproduction prohibited, and who would enforce it in case of a violation?

I’d be interested to know what others make of the UNIDROIT assertions of authority over distribution of treaties negotiated under its auspices.  Can UNIDROIT do this?  And, even if it can, is it a good idea to do so?

Weekday News Wrap: Tuesday, May 8, 2012

by Jessica Dorsey

OPCD Moves to Disqualify Moreno-Ocampo

by Kevin Jon Heller

Things are getting ugly at the ICC.  The Office of Public Counsel for the Defence, which has been appointed to protect Saif Gaddafi’s interests at the Court, has now moved to disqualify Moreno-Ocampo from Saif’s case on the ground that he “lacks the requisite impartiality to direct the investigations and prosecutions” because of his “repeated failure to respect the presumption of innocence and rights of the defendant under the Statute, and an objective appearance that [he] is affiliated with both the political cause and legal positions of the NTC government” (paras. 28, 29).  The motion is very long; here, I think, are the critical paragraphs:

39. On various occasions throughout the proceedings, the Prosecutor has given high profile media interviews in which he has described Mr. Gaddafi, without any qualification, as “lying”, having committed a “crime against humanity”, being “‘involved in the recruitment of soldiers from outside”, “personally hiring people […] financing the operations”, being “ready to crush the demonstration”, and “involved in the operation to kill the civilians on the street”, ‘threatening people’, and having personally committed crimes with his own hands through the execution of persons.

43. In many press statements, there is also no clear demarcation between the position of the ICC Prosecutor, and that of the Libyan authorities. For example, the Prosecutor has stated that “They will show they are able to prosecute Saif (al-Islam Gadhafi), who they believe is today the face of the old regime.” […]The rebellion in Libya started as a fight for justice, so they want to show they can do justice in the Saif case”. In so doing, the Prosecutor appears to endorse the narrative that firstly, the rebellion was a ‘fight for justice’, and secondly, that the present Libyan government is an extension of this rebellion, and ‘fight for justice’.

44.Subsequently, the Prosecutor observed that “it was critical for Libyans who fought against the injustices of the Gaddafi regime to now show they could “respect justice for a person like Saif.” Again, the Prosecutor appears to identify the current Libyan government and judiciary with the rebels, and to endorse their cause by describing it as a fight against “the injustices of the Gaddafi regime”. The phrase ‘a person like Saif’, in this context, appears to situate the defendant within his general description of the ‘injustices of the Gaddafi regime’.

48. Although there have been calls to investigate allegations of grave detention related violations allegedly committed by the Thuwar in Misrata, the Prosecutor did not indicate that he would investigate such allegations, instead appearing to excuse the plight of the thousands of detained persons (some of whom are alleged to have been tortured) as being ‘complicated’, on the basis that these persons were potentially responsible for crimes. Although the investigation had just commenced, the Prosecutor announced that he would focus on high level officials, who are outside of Libya (many whom, are potential Defence witnesses, seeking asylum from the Libyan government).

54. The Prosecutor has also repeatedly stated that if the case is referred back, the ICC would not monitor the fairness of the proceedings in Libya which appears to be abrogating the responsibility of the Prosecution to ascertain whether, during the course of proceedings in Libya, new facts may have arisen, which negate the initial finding of inadmissibility. Given that the Defence does not have the right to invoke Article 19(10) of the Statute, any potential abrogation of this responsibility can be extremely deleterious to the rights of the defendant.

I have mixed feelings about the motion…

You Know International Law Is Getting Some Traction When . . .

by Peter Spiro

. . . your fourth-grader is being taught about the Convention on the Rights of the Child.  Mine had a class last week in which the class was divided into groups, each one given a provision of the treaty, about which they had to develop responses and questions.  His group got article 27, recognizing a child’s right to an adequate standard of living, including with respect to food, clothing, and housing.  Their main question: why is it that the so many children don’t have these things even though the treaty says they should?  Good question!

My son goes to a lefty Quaker school in the Northeast; this kind of lesson plan is no doubt still unusual elsewhere in the US.  (The elementary school teacher that starts teaching the CRC, say, here, would probably be out of a job.)  But it may be a more routine part of primary schooling in Europe, and the UN is otherwise starting to make international law and human rights accessible to the junior set (check out this excellent short, for example).  It’s only one step from trick-or-treating for UNICEF to assimilating a kind of cultural familiarity with international law.  In a jokey sort of way, my son turned around that afternoon and claimed that the CRC gave him a right to an afternoon snack, in the same way that kids will sometimes claim they have a constitutional right to something that’s being (rightfully) denied them.  International law will grow up with this generation.

Yoo, Cerone and Alford Debate Sovereignty in the Age of Globalization

by Roger Alford

The Liberty Forum has just posted a debate on sovereignty in the age of globalization between John Yoo, John Cerone, and yours truly. Here’s a taste of the exchange, which I encourage you to read in its entirety.

From John Yoo’s post:

Globalization has led to (1) the explosive growth in international trade; (2) the swift creation of international markets in goods and services; (3) the easy movement of capital and labor across national borders; (4) the rise of major transnational networks, such as international drug cartels, international crime-fighting regimes, and international terrorism; and (5) the global effects of industrialization on the environment and global commons.

These profound changes present challenges to the American constitutional order because they give rise to international law and institutions that demand the transfer of sovereignty in response. To limit carbon emissions, proposed follow-ons to the Kyoto accords seek to regulate energy use throughout the world. To allow for the smooth movement of capital, nations must coordinate their regulatory controls on the financial industry. These multilateral treaty regimes seek to regulate private activity under the control of independent sovereign nations. They ask states to delegate lawmaking, law enforcement, or adjudication authority to bureaucracies, such as the United Nations, the International Court of Justice, or the World Trade Organization, that operate along undemocratic lines and remain unaccountable to any nation.

These efforts at global governance create tension with American constitutional controls on state power…. Many scholars of international law argue that globalization’s demands justify abnormal powers for the federal government. Treaties on global warming or the environment, for example, should have a reach beyond the Constitution’s normal limits on the powers of Congress. International institutions like the WTO or the ICJ should enjoy the power to issue direct orders in the U.S. legal system, overcoming contrary policies at the state or even federal levels. States should have no voice in responding to globalization. Courts, as the least democratic branch, should play a primary role in incorporating global governance at home without the intervention of the elected branches of government.

These efforts aim at nothing less than the erosion of American national sovereignty….

While relatively young, the new forms and orders of global governance should sound a familiar note to students of the American administrative state. Just as innovative international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm in Wickard v. Filburn. The new international courts and entities have their counterparts in the New Deal’s commissions and independent bodies, created to remove politics from administration in favor of technical expertise. These international bodies, to remain neutral, must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. The New Deal’s stretching of constitutional doctrine sparked a confrontation between FDR and the Supreme Court, which kept to a narrower and less flexible vision of federal power and the role of administrative agencies during FDR’s first term. Similarly, in the absence of a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law.

Like nationalization, globalization will inevitably call on us to reconsider the same fundamental questions: the proper scope of the federal government’s regulatory power; the balance of authority between the President and Congress; and the appropriate role of the courts. We may only belatedly realize the consequences of economic and social transformation on constitutional doctrine. The inability of international organizations to provide legitimacy commensurate with the scope of their delegated authority—when combined with the serious strains that their delegations place on the federal government’s own legitimacy—weigh strongly in favor of enforcing the Constitution’s formal processes for exercising public power. A formalist approach would confer the greatest possible level of political and popular acceptance because any consent to international law and institutions would then occur with the full extent of the Constitution’s legitimating force. Such an approach might require rejecting some delegations, but it would at least ensure the full measure of domestic political legitimacy to support those that survive.

From John Cerone’s post:

State sovereignty is the fundamental building block of the international legal system. International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty. At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so.

Today’s international legal system is a strongly positivist, consent-based system. In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to. While states have chosen to greatly expand the scope and substance of international law, most of its rules remain in the form of broadly formulated obligations that leave the manner of their implementation in the broad discretion of states.

The US has been a proponent of the development of international law since the founding of the country, and this is reflected in its constitutional order. The Constitution of the United States was not created in a vacuum. It was well understood by the framers that they were drafting the Constitution against the backdrop of international law. They consciously chose to buy into the international legal system because it was clearly advantageous to do so. They wanted recognition as a sovereign equal, and all of the rights and protections that international law provided to states.

The international legal system of that time was a system largely oriented toward co-existence, and was one of relatively few rules. Since that time, there has been a dramatic expansion in international law, driven largely by the need for international cooperation in tackling the world’s ills and in harnessing its opportunities. The United States has played a central and powerful role in this evolution. Successive US governments have consented to be bound by literally thousands of treaties, and have supported the creation of dozens of international institutions. The US also frequently engages in treaty negotiations even in situations where it is clear that the US will not become a party to the treaty being negotiated. The robust engagement of the US in this process results from the recognition that international law and international institutions are useful in serving US interests.

From Roger Alford’s post:

While there are legitimate concerns about a nascent global administrative state, one should recognize that treaties are rarely a threat to national sovereignty. Indeed, treaties should be seen as an expression of sovereign will to protect and advance our national interests.

Treaties are optional commitments, freely entered into by political actors in order to achieve mutually-beneficial results. Like contracts, the first principle of treaties is party autonomy.

Sovereign nations negotiate the terms of a treaty and ultimately decide whether or not to join a treaty. The United States, for example, was intimately involved in the drafting of the treaty establishing the International Criminal Court, but ultimately decided not to become a member because the final text included unacceptable terms. The same could be said of dozens of other treaties….

Even after signing a treaty, sovereign nations attach reservations, understandings, and declarations (RUDs) that condition, interpret, and limit the impact of a treaty. The United States quite often will include a RUD stating that the treaty is not self-executing, or stating that the terms of a treaty are coterminous with our constitutional obligations.

When a nation does sign a treaty, its obligations are rarely permanent. Treaties frequently allow for member states to withdraw from a treaty, and almost always permit suspension of treaty obligations in the face of a breach by another member state.

All of these tools are designed to preserve sovereigns’ prerogative to protect the national interest. But it is not simply the formation and termination of treaties that are designed to protect sovereignty. The performance obligations of treaties also are drafted to protect national sovereignty.

Most human rights treaties, for example, include Optional Protocols that require a nation to affirmatively opt-in to international adjudication of domestic behavior. The same is true of the compulsory jurisdiction of the International Court of Justice. The WTO and many bilateral investment treaties have incorporated self-judging national security exceptions, essentially rendering key questions of national sovereignty non-justiciable political questions beyond the purview of international courts. The WTO also designed the dispute settlement process in a manner that anticipates the possibility that member states will rationally decide to engage in an efficient breach of their obligations….

In conclusion, we have little to fear from treaties. Treaties are hardwired to protect national sovereignty. The process of formation, performance and termination of treaties was designed to advance sovereign interests. Occasionally there are unanticipated consequences that flow from adherence to treaties, but these risks to sovereignty are manageable. Widespread adherence to treaties reflects a political calculus that the benefits of membership outweigh the costs.

The Trial

by Deborah Pearlstein

Remarkably big news week last week in U.S. law and security matters – alas one that happened to coincide with the final week of our law school semester. So with apologies for belatedness, I wanted to catch up on a few things I missed, starting with the military commission trial of some of the accused conspirators in the attacks of September 11. I have yet to read an account of the opening day that thought it went at all well. Andrew Cohen’s description at The Atlantic I thought was well done.

So a friend poses the question – given the defendants’ intransigence, their determination to be disruptive, defense counsel’s many objections, the extraordinary public attention, the widely known fact that defendant Khalid Sheik Mohammed was tortured, and so forth – would things really have gone any differently had this trial been in a regular criminal court in, say, New York City. It’s a good and fair question. And I think the answer is – yes, things likely would have gone differently. And it has nothing to do with the differences in commission vs. criminal court rules.

Criminal defendants act out and/or refuse to participate in their defense with some regularity. In Article III courts, as in the Southern District of New York, where the Administration once planned to pursue the prosecution, judges have, and regularly use, a range of lawful tools to keep order in the courtroom. Federal judges are able to do this because they are aware such tools are available; their experience tells them they can work; their sense of the judicial role includes an understanding that their job is in part to help ensure the smooth administration of the process; and their confidence in the judicial system – and their knowledge of the public’s at least general confidence in the system – makes it possible for the judges themselves to feel confident in their own power to exercise a reasonable, constrained degree of professional discretion. I cannot picture a 13-hour arraignment in SDNY.

The presiding judge in the military commission trial, Col. James Pohl, has, according to press accounts, presided over previous military trials. I can completely believe in Judge Pohl’s good faith, and even assume every decision he makes is within the letter of the law. And I still come away thinking this trial is a bad idea. The policy argument against military commissions – that they’d never be perceived as just/legitimate given their deeply troubled past – is not just an argument about what the rest of the world thinks. It’s an argument about how the knowledge/fear of that perception is likely to skew everything that happens inside the courtroom. Col. Pohl is as conscious of this as the rest of the courtroom players. They all share an inescapable handicap. They all have something to prove.

Weekday News Wrap: Monday, May 7, 2012

by Jessica Dorsey

Upcoming Events: May 6, 2012

by An Hertogen

Last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Calls for Papers

  • Applications for the Helsinki Summer Seminar on International Law (August 21-30, 2012 ) on International Law and Capitalism: Exploring the Legal Architecture of the Global Political Economy close on May 11, 2012.
  • The ABA’s International Law Section has issued two calls for papers for International Law News. The Fall issue is on Information Privacy and Security (including Wiki law), and submissions are due on June 27, 2012. Submissions for the Winter Issue on  International Anti-Bribery Compliance and Investigation are due on October 22, 2012.

Upcoming Events


The International Bar Association is looking for one intern at its Human Rights Institute in London, between 2 July and 28 September 2012. Applications are accepted on a rolling basis. Other internships are also available later in the year.

Breaking: Khalid Sheikh Mohammed Won’t Participate in His Military Commission

by Kevin Jon Heller

So reports the media.  I, for one, am shocked: it’s almost as if KSM has concluded, having been waterboarded (read: tortured) 183 times in one month, that the U.S. might not actually be committed to the highest standards of fairness and justice now.

Come on, KSM.  Can’t bygones be bygones?  Heed Obama’s injunction: now is the time to look forward, not backward.

Weekend Roundup: April 28 – May 4, 2012

by An Hertogen

This week on Opinio Juris, Chen Guangcheng’s escape to the US Embassy in Beijing did not go unnoticed. In a first post, Julian Ku discussed how Chen would not get political asylum at the Embassy. Peter Spiro followed up with his thoughts on diplomatic asylum. After Chen’s departure from the US Embassy, Julian asked whether the US or China violated international law.

Julian also had a closer look at the content and legal status of the US-Afghanistan Strategic Partnership Agreement that Obama went to sign in Afghanistan.

Duncan Hollis posted three first impressions from a recent conference at the US Naval Academy on the Ethics of Military Cyber Operations. Further on novel military operations, Ken Anderson posted a summary of his recent article, co-authored with Matthew Waxman, on the Law and Ethics for Robot Soldiers.

Kevin Heller welcomed Communis Hostis Omnium, a blog on maritime piracy, to the blogosphere. He posted on Benjamin Netanyahu’s terrible week and analysed Libya’s challenge of the admissibility of the ICC cases against Gaddafi and Al-Senussi. He then addressed the question, raised in the comments by recent Opinio Juris guest contributor Mark Kersten, whether Libya is “able” to prosecute Gaddafi and Al-Senussi given that neither of them is currently in Libya’s custody. Kevin also discussed how the Nuremberg defense is popping up in the NFL’s bountygate.
Continue Reading…

Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?

by Peter Spiro

Quite possibly.  Here’s the Third Circuit’s merits opinion in United States v. Bond, involving a conviction under the Chemical Weapons Convention Implementation Act of 1998.  The court upheld the conviction against a Tenth Amendment attack, this after the Supreme Court last year found Ms. Bond to have standing to press the federalism claim.  After rehearsing the academic debates on Missouri v. Holland (many citations here to Curt Bradley, David Golove, and other lawprofs), Judge Jordan’s majority opinion concludes:

Whatever the Treaty Power‟s proper bounds may be, however, we are confident that the Convention we are dealing with here falls comfortably within them.  The Convention, after all, regulates the proliferation and use of chemical weapons.  One need not be a student of modern warfare to have some appreciation for the devastation chemical weapons can cause and the corresponding impetus for international collaboration to take steps against their use.  Given its quintessentially international character, we conclude that the Convention is valid under any reasonable conception of the Treaty Power‟s scope.

So, maybe not the best test case for Missouri?  Think again.  Judge Ambro, concurring, after acknowledging the act’s constitutionality under the precedent:

But if ever there were a statute that did test those limits, it would be [this Act].  With its shockingly broad definitions, [the Act] federalizes purely local, run-of-the-mill criminal conduct.  The statute is a troublesome example of the Federal Government‟s appetite for criminal lawmaking.  Sweeping statutes like [this one] are in deep tension with an important structural feature of our Government:  “The States possess primary authority for defining and enforcing the criminal law.‟

Both Jordan and Ambro expressly urge the Supreme Court to clarify Missouri’s boundaries.  Paul Clement for the petitioner!  Stay tuned!

Ian Hurd on Law and Diplomacy

by Peter Spiro

Ian Hurd has a very interesting essay on law and international relations, “Law and the Practice of Diplomacy,” which I’d strongly recommend to anyone with an IR/IL bent. It’s maybe the only piece of IR theory that I’ve read that really seems to get the dynamic element of international law. It also centers international law to what I suspect is an unprecedented extent, as both a “resource” for and a constraint on state actors. “[S]tates are limited in their agency by the legal resources that they find around them. Their strategic behaviour around diplomacy and international law is therefore tightly structured by the legal environment. This is not a domain of free choice.”

The piece also highlights the change element inherent in the international legal process, and the fact that although state try to put law to work to advance their interests

[t]he social nature of diplomacy ensures that these changes are never fully under the control of any single actor, and that the strategic direction of diplomatic activism is always uncertain. The meaning of precedents depends on how states and others choose to use them. As a social practice, diplomacy has these three formal qualities: sociality, statecentrism, and a productive effect.

With this emphasis on the IL’s dynamic element, Hurd gives the lie to the burgeoning field of IR/IL compliance studies. Insofar as a rule of international law is contested, “answering the question about compliance versus noncompliance amounts to taking sides in the substantive political content of the dispute.” Better, in true constructivist form, to “look at how the actors use the rules, and how the rules shape the actors and their possibilities.”

This is great stuff. Two quick thoughts in response. . .

Weekday News Wrap: Friday, May 4, 2012

by Jessica Dorsey

Brennan’s Speech: A Response to Bobby Chesney

by Gabor Rona

[Gabor Rona is the International Legal Director of Human Rights First. He first posted his thoughts  here about Monday’s counterterrorism speech by John Brennan.]

I’m grateful to Bobby Chesney, over at Lawfare, for taking the time to react to my post on the recent Brennan speech. As with so many of the more thoughtful defenses of U.S. counterterrorism policy, Bobby relies heavily on analogies to non-analogous facts and law to support conclusions that existing facts and applicable law do not support.

For example, he uses (a U.S. interpretation of) armed conflict detention authority to determine the rather distinct question of who may be extrajudicially killed. The “broad range of judges” Bobby refers to “who, in the context of the Guantanamo habeas cases, have repeatedly construed the AUMF to encompass al Qaeda as a whole rather than just the small number of al Qaeda members personally involved in the 9/11 plot” were, indeed, deciding habeas cases, they were not issuing death warrants. Bobby concedes that the AUMF requires a link to 9/11, but he says the link “can be supplied at the organizational rather than the individual level—and that is precisely how the AUMF has been interpreted for more than a decade now.” Yes, for detention, not for targeting. (Why the Bush administration chose the dumb label “enemy combatant” for anyone it wanted to detain is a different argument, but it might help explain why there’s so much improper conflation between detention and targeting in contemporary U.S. discussion. After all, what could be wrong with targeting an “enemy combatant?”)

Perhaps Bobby would respond that I’m mixing apples with oranges – that I’m talking about…

Is Libya “Able” to Prosecute Saif and Al-Senussi?

by Kevin Jon Heller

In the comments to my previous post, Mark Kersten (of the superb Justice in Conflict blog) asks an excellent question:

Saif remains in the custody of the former rebels in Zintan, not the NTC. Further, the rebels in Zintan have consistently reiterated that they would like to see Saif tried there and not in Tripoli. Yet the admissibility challenge is from the government of Libya – ie. the NTC. Should the Pre-Trial Chamber take this into consideration when ruling on the admissibility of the case?

The answer is yes.  Article 17(3) provides that “[i]n order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings” (emphasis mine).  I don’t think Article 17(3) requires Libya to actually have Saif or Al-Senussi in its custody, but it obviously has to have the ability to obtain them.  Does it?  The motion simply glosses the question (para. 96):

Libya is clearly “able to obtain the accused or the necessary evidence and testimony”. Mr. Gaddafi is under custody in Libya and an extradition request to Mauritania for Mr. Al-Senussi is pending.

I’m less confident than the authors of the motion…

Weekday News Wrap: Thursday, May 3, 2012

by Jessica Dorsey

Who Violated International Law in the Chen Case: The U.S. or China?

by Julian Ku

The Chen Guangcheng saga is not yet completed, and indeed, as the NYT puts it, “what briefly looked like a deft diplomatic achievement for Secretary of State Hillary Rodham Clinton [has] turned into a potential debacle.”  I do hope Mr. Chen will find safety and justice soon, but I am not optimistic.

Until we discover his final fate, I thought I’d comment on one of the most curious parts of the Chen saga, especially to many average Chinese citizens.  Here we have the government of the United States bargaining round-the-clock with the Chinese government to guarantee the protection and rights of a Chinese national who lives in China and, who further, has no connection whatsoever to the United States.   In the eyes of many Chinese citizens, this is almost unbelievable (so unbelievable that some suspect a CIA conspiracy).  And for traditional international law, this is exactly the opposite of how things are supposed to work.  The human rights revolution has certainly had an impact in this respect, by focusing countries on the rights of non-citizens in their home countries.

But the human rights revolution has some serious institutional weaknesses.  One notices that Mr. Chen did not sneak into the U.N. mission in Beijing or call upon protection from a still abstract “international community.”  He went to the United States, which is considered one of the few powers  that would not be cowed by the Chinese government, and which is committed enough to human rights that it would not simply sell him out for their national interests (whether this is still true about the U.S. remains to be seen).

Bountygate, the Nuremberg Defense, and Ordering vs. Physical Perpetration

by Kevin Jon Heller

The Nuremberg defense pops up in the strangest places.  As the NFL fans among our readers know, Commissioner Roger Goodell has suspended four New Orleans Saints players for their role in Bountygate — a program whereby Saints players would get financial bonuses for intentionally injuring other players on the football field, essentially the most heinous crime a football player can commit.  What is most remarkable about the reaction from sportswriters to the unprecedented suspensions is how many almost reflexively invoke the Nuremberg defense in order to minimize the players’ culpability. Here, for example, is Mark Kreidler at…

What Exactly Did President Obama Fly All the Way to Afghanistan to Sign?

by Julian Ku

President Obama went to Afghanistan today to sign The U.S.-Afghanistan Strategic Partnership Agreement. The Agreement is a classic agreement to have further agreements, but doesn’t really commit either side to many specifics.  The most important thing they agreed to do is to negotiate a Bilateral Security Agreement within a year.  But other than agreeing to seek funds in Congress for further support for Afghanistan, this agreement doesn’t commit the U.S. (or Afghanistan) to do much of anything (even seeking funds is a future commitment, not a guarantee). So this is purely symbolic agreement that commits neither side to do much of anything in particular.  That hardly seems to justify a state visit by the President (unless the symbol of his visit itself is the purpose).

Is it a treaty? Nope, there is no prospect of it being sent to the Senate. It is, the White House says, an executive agreement.  And given the fuzzy nature of its commitments, I doubt anyone in the Senate would object.  But what about the Bilateral Security Agreement? That will also probably be concluded as an executive agreement.  But that agreement could have some serious obligations attached to it, and it would be an obvious candidate for treaty status.  But I’m betting that the Obama Administration will follow the example of their predecessors, and bypass the treaty process to conclude a sole executive agreement in that context as well.  Duncan’s post here on similar Iraq agreements suggests that this would probably somewhat questionable, as a legal matter. I am guessing Congress has no stomach for weighing in here, but that doesn’t mean they shouldn’t do so.

Weekday News Wrap: Wednesday, May 2, 2012

by Jessica Dorsey

Thoughts on Brennan’s Speech

by Gabor Rona

[Gabor Rona is the International Legal Director of Human Rights First]

The Obama administration’s charm offensive on targeted killings continues in response to calls from a broad spectrum of political and legal observers for greater government transparency. The latest entry is Monday’s speech by John Brennan, the president’s chief counterterrorism advisor. Each successive speech by a government official brings some new tidbit, gloss or nuance into the public domain. Sometimes though, it appears that instead of being a deliberate and coordinated drip feed, the speeches by Brennan, by State Department Legal Advisor Harold Koh, by Department of Defense General Counsel Jeh Johnson and by Attorney General Eric Holder are the tips of competing icebergs, reflecting pitched battles within and across government agencies about the legality of targeted killings. For example, earlier this year, NY Times reporter Charlie Savage highlighted a dispute between Koh and Johnson about the scope of targetability under international laws of armed conflict. The latest Brennan speech has some new tidbits, but may also be a signal that Johnson’s expansive view of targetability has prevailed over Koh’s views that are more consistent with the limitations of international law.

Brennan’s says that  “(i)n this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.”  The use of the WW II analogy is not new, but Brennan’s sweeping and incorrect claim…

Libya Challenges the Admissibility of the Cases Against Gaddafi and Al-Senussi

by Kevin Jon Heller

Libya has now brought a formal admissibility challenge under Article 19 of the Rome Statute.  The motion, written by Philippe Sands, Payam Akhavan, and Michelle Butler, is a brilliant piece of work and stands a good chance of success.  I’ll have much to say about the motion in the next few days, but in this post I want to focus on two aspects of it that I think work at cross-purposes: (1) its insistence that the absence of due process in a national proceeding does not make a case admissible before the ICC; and (2) its quite savage attack on the integrity of the Office of Public Counsel for the Defence.

To begin with, I was surprised — and more than a little pleased — to see that the motion basically argues that Article 17 of the Rome Statute does not make the absence of national due process a ground for admissibility:

99. As noted by highly qualified publicists, “there is a danger that the provisions of Article 17 will become a tool for overly harsh assessments of the judicial machinery in developing countries.” It is not the function of the ICC to hold Libya’s national legal system against an exacting and elaborate standard beyond that basically required for a fair trial.  As other distinguished commentators (including drafters of the Rome Statute) have noted generally in regard to due process considerations,

“Arguments have been made that the Court is thus given a general role in monitoring the human rights standards of domestic authorities. The better view is that delay and lack of independence are relevant only in so far as either of them indicates an intention to shield the person concerned from justice. There does not appear to be anything in the Statute to make the Court responsible for the protection of the human rights of the accused in the national enforcement of international criminal law; the principle of complementarity addresses the particular aspects of the proceedings which are referred to in Article 17, whereas more general human rights considerations about the conduct of national prosecutions are more properly addressed by human rights treaties and bodies.”

As I have explained at length elsewhere, this is absolutely correct  The delegates to the Rome Conference specifically drafted Article 17 of the Rome Statute to prevent the Court from admitting a case solely on the ground that the national prosecution would be unfair.  Indeed, they rejected a proposed version of Article 17 (from Italy) that would have permitted the Court to consider whether “the said investigations or proceedings… were or are conducted with full respect for the fundamental rights of the accused.”  We can certainly lament that limitation, and I criticize it in my article.  But the proper remedy is to amend the Rome Statute, not for the Pre-Trial Chamber to rewrite Article 17 sub silentio

DSK Court Dodges Domestic Status of Customary International Law Question

by Julian Ku

As far as I can tell, the NY state court reached the right conclusion by rejecting former IMF Chief Dominique Strauss-Kahn’s claim for immunity under customary international law.  It is also worth noting that the Court wisely dodged the tricky question of whether and how customary international law would affect the state case. The Court noted that some scholars (e.g. Curtis Bradley and Jack Goldsmith) have the view that customary international law must be congressionally or constitutionally authorized in order to be applied in U.S. court, while others (e.g. Bill Dodge) see it as a general federal common law applicable in all cases.  It is worth noting that the Court does not read Sosa as necessarily resolving this question, and simply holds that a congressional statute would override any customary law anyway, which he found was the case here.

This seems like a sensible way to proceed, and the judge should get credit for not being wowed by the unusual customary law claim.  In theory, DSK could appeal to a federal court on the theory that customary international law creates a federal question.  But I doubt very much that would succeed, or even be tried.

Law and Ethics for Robot Soldiers

by Kenneth Anderson

Lethal autonomous weapons can be approached from two directions.  One is to look from the front-end – starting from where technology stands today, forward across the evolution of the technology, but focused on the incremental changes as and how they occur, and especially how they are occurring now.  The other is to imagine the end-state – the necessarily speculative and sometimes pure sci-fi “robot soldiers” of this post’s title – and look backwards to the present.  Starting with the hypothetical technological end-point – a genuinely “autonomous,” decision-making robot weapon, rather than merely a highly “automated” one – the basic regulatory issue is, what tests of law and ethics would an autonomous weapon have to pass in order to be a lawful system, starting with the fundamental law of war principles, distinction and proportionality?  What would such a weapon be and how would it have to operate to satisfy those tests?

This is an important conceptual exercise as technological innovators imagine and work toward autonomy in many different robotic applications, in which weapons technology is only one line of inquiry.  Imagining the technological end-point as law and ethics means, more or less,  hypothesizing what we might call the “ethical Turing Test” for a robot soldier:  What must it be able to do, and how must it be able to behave, in order to make it indistinguishable for its morally ideal human counterpart?  The idealized conceptualization of the ethically defensible autonomous weapon forces us to ask questions today about fundamental issues – who or what is accountable, for example, or how does one turn proportionality judgments into an algorithm?  Might a system in which lethal decisions are made entirely by machine, with no human in the firing loop, violate some fundamental moral principle?  All these and more are important questions.  The problem in starting with them, however, is that the technology driving toward autonomous weapons is proceeding in little tiny steps (and some important critics, their enthusiasm tempered by earlier promises of artificial intelligence that failed, question whether the tiny little steps can ever get to genuine autonomy) – not gigantic ones that immediately implicate these fundamental questions of full autonomy.

Indeed, the systems being automated first are frequently not the weapons themselves, but instead other parts of the system.  But they might eventually carry the weapons in train.  Thus, for example, as fighter aircraft become increasingly automated in how they are flown – in order to compete with enemy aircraft also becoming more automated – eventually important parts of the flight functions operate faster than humans can.  In that case, however, it looks irresistible to automate, if not make fully autonomous, the weapons systems, because they have to be integrated with the whole aircraft and all its systems.  We didn’t start out intending to automate the weapons – but we wound up there because the weapons are part of a whole aircraft system.

These facts about how technology of automation is evolving are important for questions of regulating and assessing the legality of new weapons systems.  In effect, they shift the focus away from imagining the fully autonomous robot soldier and the legal and ethical tests it would have to meet to be lawful – back to the front end, the margin of evolving technology today.  The bit-by-bit evolution of the technology urges a gradualist approach to regulation; incremental advances in automation of systems that have implications for weapons need to be considered from a regulatory standpoint that is itself gradualist and able to adapt to incremental innovation.  So, Matthew Waxman and I are pleased to announce a new short paper on this topic, Law and Ethics for Robot Soldiers, which takes as its premise the need to think incrementally about the regulation of evolving automation.

The essay’s takeaway on regulation is ultimately a modest one – a quite traditional (at least from the US government’s long-term perspective) approach to weapons regulation.  Grand treaties seem to us unlikely to be suitable to incremental technological change, particularly as they might seek to imagine a technological end-state that might come about as anticipated, but might develop in some quite unexpected way.  Sweeping and categorical pronouncements can re-state fundamental principles of the laws of war, but they are unlikely to be very useful in addressing the highly specific and contingent facts of particular systems undergoing automation.

We urge, instead, a gradually evolving pattern of practices of the states developing such systems and, as part of the process of  legal review of weapons systems, development through reasoned articulation of how and why highly particular, technically detailed weapons systems meet fundamental legal standards.  In effect, this proposes that states develop bodies of evolving state practice – sometimes agreeing with other states and their practices, but likely other times disagreeing.  This seems to us the most suitable means for developing legal standards for the long term to address evolving weapons technology.  Abstract below the fold.

Continue Reading…

NY State Court Rejects DSK’s Immunity Claim

by Peggy McGuinness

As Julian predicted a few days ago, Judge Doug McKeon of the Bronx Supreme Court (that is the trial court level, New York state) today rejected former IMF Chief Dominique Strauss Kahn’s claim that he was entitled to immunity from a civil lawsuit brought by a former maid at the Sofitel Hotel in New York for the same acts that caused the Manhattan DA to at first charge DSK with sexual assault, charges that later were dismissed.  The full opinion is here.

On a quick read, it looks like the judge rejected DSK’s claim that he was entitled to diplomatic or “status” immunity on the grounds that: IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunity; the U.S. is not a party to the Specialized Agencies Convention of 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if it the Specialized Agencies treaty was applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts.  DSK is not entitled to this official acts/functional immunity (as Chimene Keitner argued earlier here), since he was not carrying out official duties during his visit to the Sofitel.

The judge did not shy from the customary international law question here, i.e.,DSK’s argument that the Specialized Agency agreement has ripened to a customary norm through which absolute immunity is extended to all international agency heads.  Citing the ICJ North Sea Continental Shelf cases, that CIL “must have equal force for all members of the international community, and cannot therefore be subject of any right of unilateral exclusion exercisable at will by any one of them in is own favour.”  The fact that a large number of states have signed onto the Specialized Agency treaty does not, the judge correctly concluded, overcome the objections of certain key states — including the U.S. and Switzerland — to its provisions.  In the end, he concludes, the International Organizations Immunity Act of 1945, “with its official acts immunity, not customary international law, controls the nature of immunity relative to Mr. Strauss-Kahn.”  DSK’s lawyers now have the option to appeal immediately.  Maybe, as Julian points out, the State Department will weigh in at the appeals stage to let us know what it thinks of the CIL status of the Specialized Agencies agreement.

A Return to “Diplomatic Asylum”?

by Peter Spiro

Uri Feldman and Josh Keating have this excellent piece now up over at Foreign Policy on the history and mechanics of diplomatic asylum, as now possibly playing out in the case of Chen Guangcheng. This in the wake of Wang Lijun, who got the Bo Xilai ball rolling and spent 30 hours holed up in the US consulate in Chengdu.  In a different register — because it involved a US citizen — Sam LaHood sought refuge in the US embassy Cairo for four weeks against criminal charges relating to the NGO activities in Egypt before being allowed to leave the country.

I had always thought “diplomatic asylum” something of a misnomer, as often paired with the common misunderstanding that embassy premises are extraterritorial (as in, that the US embassy in Beijing counts as US territory, which in fact it doesn’t).  Turns out that the term has some historical traction, even though the its operation now appears to turn on the inviolability of diplomatic premises under the Vienna Convention on Diplomatic Relations and not any distinctive legal doctrine.  Much of that history played out in Latin America, where the revolutionary era of a century ago led to multiple accords regularizing the practice.  Feldman and Keating unearthed this definitive, lengthy 1975 report of the UN Secretary General on the subject, which makes for pretty interesting reading.

Are we about to see more of the same?  I doubt it.  The 1975 report documents what was a common practice.  As the FP notes, diplomatic asylum was also a recurrent thorn on the East Bloc’s side during the Cold War.  Today it just doesn’t seem that useful a tool; there is too much at stake in relations with countries like China, and human rights disputes are no doubt better managed without the high-theater that comes with these cases.

As Julian points out below, China is also unlikely to grant safe passage that would be required for these people to leave the country (the diplomatic premises are inviolable, but all bets are off once the person steps out into the street). It would be interesting to see what sort of instructions are being cabled out of the State Department on this, though — obviously it doesn’t look good to turn back dissidents to the lions.

Initial Reaction to Brennan’s Speech

by Michael W. Lewis

At least from the text, John Brennan seems to have positioned the speech that he delivered yesterday at the Wilson Center (that Marty linked to) as the capstone of the Obama Administration’s transparency campaign on drones and targeted killings in the conflict with al Qaeda. He made a point of referencing the string of other Administration figures that have addressed various aspects of this issue (Koh, Johnson, Holder and Preston) before expanding (albeit marginally) upon what had gone before.

There was little truly new in this speech, but it did in many instances confirm things that had previously been only obliquely referenced in a way that crystallizes the US position on a variety of matters. In contrast to his rather cagey discussion of drones several months ago at Harvard, Brennan conclusively acknowledged that the United States is using drones to conduct targeted killings in Afghanistan and elsewhere. Although he did not include an acknowledgement of the CIA’s drone program, this was a far more forthright discussion of drones and their role in counterinsurgencies than we have seen before.

Brennan also reiterated the need to respect international law and sovereignty that we first heard in Koh’s speech two years ago. He made it clear that these strikes are conducted either with the consent of the state on whose territory they occur or in cases in which the “host” state has proven unwilling or unable to incapacitate the threat. His lengthy description of the principles of necessity, distinction, proportionality and humanity made it apparent that the US views the law of armed conflict as the governing law applicable to such strikes based on an ongoing conflict with al Qaeda.

Building on Holder’s speech at Northwestern last month about the standards for targeting individuals, Brennan confirmed the importance of only targeting those with an operational involvement in al Qaeda and he emphasized that the “feasibility of capture” requirement is taken very seriously. Although he did note that feasibility of capture is determined not only by the physical/logistical difficulty in effecting capture but also with reference to the risks that our soldiers would have to face in completing the task.

Perhaps the most important amplification on previous positions that Brennan gave put the use of lethal force within the context of the larger goal, which is the defeat of al Qaeda. “We do not engage in lethal action in order to eliminate every single member of al-Qa’ida in the world.” Rather, he stated that on a number of occasions the opportunity to employ lethal force was passed up because it would not further that goal. This seemed to be the Administration’s way of telling critics that it takes the concept of blowback seriously and that each decision to employ lethal force is taken with the larger strategic picture in mind. But it also leaves no doubt that the Administration considers that decision to be one of Executive discretion.

The one piece of new ground that Brennan did cover was his acknowledgment that some form of post-action review is taken for every strike. This is something that a number of people, including myself, have said was a necessary component of any targeted killing program. Brennan did not provide details about the independence of such a review and others have led me to believe that it is not as independent or robust as many would wish, but the existence of post-action review has been confirmed.

My final overall observation is that this seemed to be a finale. We have had a four or five major speeches on this topic since the beginning of the year and my sense is that this was the last one for awhile. By referencing the other speeches and closing with an explicit discussion of the balance between transparency and national security (which Brennan claims to have struck by making all sides of the transparency debate uneasy) I believe he was signaling that this is as much as the Administration is willing to say for now on this issue.

Weekday News Wrap: Tuesday, May 1, 2012

by Jessica Dorsey