In association with the International Commission of Jurists

September 2012

30 Sep

Upcoming Events The Levin Center of Stanford University is hosting the International Public Interest Lawyering Symposium: Advancing Gender Equality through Human Rights, October 11-13, 2012. To register, click here. The American Bar Association (in cooperation with ASIL) will host the 2012 Fall Meeting from October 16-20, 2012 in Miami Beach, Florida. More information found here. The American Society of International Law has its third-annual Midyear...

|
29 Sep

This week on Opinio Juris, one of us was facing a legal challenge of his own. You can read Kevin Jon Heller's account of Chevron's subpoena for 9 years of IP-logs for his gmail-account here. Ken Anderson is back to blogging, and discussed the leading issues at this week's opening of the UN General Assembly in a post that also reflected on whether a...

|
28 Sep

Since June 2012, there has been a new addition to the international legal blogosphere: Armed Groups and International Law. The blog is edited by Katharine Fortin of Utrecht University and Rogier Bartels at the Netherlands Defence Academy and the University of Amsterdam. The blog's two main purposes are information sharing and community building between individuals and organizations working on issues related to armed groups....

|
28 Sep

According to a Kenyan military spokesman, Kenyan forces have captured the Somali port city of Kismayo, a bastion for Al-Shabbab fighters. At the UN General Assembly, China's foreign minister accused Japan of stealing the disputed Senkaku/Diaoyu islands. Palestinian president Mahmoud Abbas has said he will seek a vote on an upgraded status for Palestine to non-member state, like The Vatican, from the UN General Assembly. At...

|
27 Sep

Benjamin Netanyahu is being suitably mocked for the Wily E. Coyote-like picture of a bomb he used at the UN to describe Israel's "red line" concerning Iran's purported efforts to build a nuclear weapon.  There's no need for me to pile on; even right-wingers are horrified, with Jeffrey Goldberg -- Jeffrey Goldberg! -- tweeting earlier today that "Netanyahu's bomb cartoon...

|
27 Sep

[Polina Levina is a masters in international law candidate at the School of Oriental and African Studies and Kaveri Vaid is an Institute for International Law and Justice Scholar at New York University School of Law.] Overview Recently, Human Rights Watch released a report detailing systematic practices of capture, torture, and rendition of members of the Libyan opposition by the United States Central Intelligence Agency.  At least...

|
27 Sep

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. I would like to thank David Landau, William Partlett, Brad Roth, and Joel Colón-Ríos for their kind words and insightful comments about my article, The Democratic Coup d’Etat, 53 Harv. Int’l L.J. 291 (2012). These scholars have been instrumental in enhancing our knowledge of constitutional transitions, and I very much appreciate the time they have taken to share their thoughts on my article. In this reply, I will first provide a brief summary of the article’s central claims and then respond individually to the comments. The article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy. This article challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.
|
27 Sep

[Brad Roth is Professor of Political Science & Law at Wayne State University.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. Ozan Varol’s article, “The Democratic Coup d’Etat,” performs a crucial service in reorienting assessments of extra-constitutional changes in government so as to emphasize substance over form. He refutes the commonplace idea – most recently championed by Richard Albert – that coups are inherently and inevitably undemocratic and illegitimate, “Democratic Revolutions,” forthcoming Denver U. L. Rev. 89:2 (2012), at 20, and demonstrates that under some conditions, seizures of power by military elites may lay the groundwork for the establishment of liberal-democratic participatory processes. He does so without any naïveté about coup-makers’ agendas, fully acknowledging the distortions that even “democratic” putschists introduce into post-coup constitution-making processes in order to entrench prerogatives for the military and/or its favored constituencies. But as he notes, the coup leaders may actually fail at engineering such reserves of power – especially when they attempt it directly and overtly – because, as in the Portuguese case (and, one might hope, in the current Egyptian case), they set in motion democratic dynamics that they cannot contain. Varol’s account, however, replaces one exaltation of form over substance with another, reducing democracy itself to a narrow set of institutions and procedures that a coup may or may not work to promote. Such ascription is hardly unique to Varol – empirically-oriented political scientists tend to favor reducing democracy to elements that the tools of social science research can operationalize – but it neglects both the normatively loaded nature of the term and the extent to which competing conceptions of democratic ends animate political conflicts. See, e.g., Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, Okla.: Univ. of Oklahoma Press, 1991), 5-13. Relatedly, Varol refers repeatedly to “the regime,” “the military,” and (most problematically) “the people” as unitary actors, whereas competing players frequently act in the name of these entities. (Instructive on the divisions within these groups is a book that Varol himself cites: Giuseppe Di Palma, To Craft Democracies: An Essay on Democratic Transitions (Berkeley: Univ. of Calif. Press, 1990), at 44-75.)
|
27 Sep

[William Partlett is an Associate-in-Law at Columbia Law School and a Nonresident Fellow at the Brookings Institution.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. The Democratic Coup d’Etat is an important article. First, and most obviously, this Article carries significant policy implications. The political transformations sweeping the Middle East and North Africa - known as the “Arab Spring” - have presented a wide range of conceptual challenges to policymakers and political scientists. Varol’s counter-intuitive argument that self-interested militaries might facilitate democratic transition in order to preserve their own position within the political system provides an important perspective on Egypt’s transformation. Although it is far too early to tell if the Egyptian military will remain an agent of democracy, Varol’s article puts the military’s actions in sharp focus. Recent developments have also added additional texture to Varol’s concept of the “democratic coup d’état.” Most relevant is the alliance between the military and judiciary that was on show in June when the Supreme Constitutional Court disbanded Egypt’s Muslim Brotherhood-dominated Parliament. Reporting from this event suggests that the military was not simply using legal institutions to pursue its own interests. Instead, key members of the Supreme Constitutional Court had been in close contact with the Egyptian military from the very beginning of Egypt’s political transformation to address how they will handle the risk that the broad popularity of the Muslim Brotherhood will allow it to unilaterally shape the Egyptian state. Tahani el-Gebal, Egypt’s deputy president of the Supreme Constitutional Court, justified this alliance with the military based on the argument that “[d]emocracy isn’t only about casting votes; it’s about building a democratic infrastructure.” This burgeoning relationship helps us better understand the dynamics behind what Varol calls “institutional entrenchment.” In particular, it might suggest that institutional entrenchment is the product of a shared counter-majoritarian interest in curbing any rising electoral tide of political Islam.
|
27 Sep

Japan has promised that it will not compromise on the dispute over the Senkaku/Diaoyu islands, calling them an integral part to the country's territory. It did not take very long for China to react. The High Court of England and Wales issued an injunction against the extradition to the United States of Islamic cleric Abu Hamza al-Masri and Saudi-born Khaled al-Fawwaz...

|
26 Sep

[David Landau is an Assistant Professor and Associate Dean for International Programs at Florida State University.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. Professor Varol’s article “The Democratic Coup d’Etat” is an important piece of work and a key contribution to the newest wave of literature on democratic transitions. In addition, the piece is nicely crafted and carefully researched -- both Professor Varol’s theoretical foundation and his case studies are persuasive. Professor Varol rightly points out that the role of the military during democratic transitions is not uniformly negative, but in fact is complex, and uses a simple assumption, which is that the military will generally try to increase or entrench its own power during transitions, to explain military behavior during transitions. Finally, he presents a series of case studies across both time and place which would otherwise appear to have little in common (Turkey in 1960, Portugal in 1974, and Egypt today) to show that his assumption about military behavior seems to hold broadly. My comments here are not a critique of his central thesis, which I basically share, but rather build off of two of the major points in the piece. A first key finding is that “coups” are hard events to classify – contrary to conventional usage, they do not always have antidemocratic intent or effects. As Professor Varol shows, sometimes militaries engage in “coups” precisely in order to put in place or restore a democratic order. This raises a broader point: our vocabulary about democratic transitions remains pretty crude. Revolutions, as Richard Albert has argued in recent work, are not uniform events, but often have little in common; the same seems true of events we call “coups.” At the same time, these are loaded terms: to call something a coup is universally to condemn it. The term does not get thrown around in a neutral way, but is used by opponents to classify an event to which they are hostile. Meanwhile, supporters avoid the label like the plague. This is particularly true in regions, like Latin America, with long and largely (but not entirely) negative experiences with military involvement in politics. A recent example occurred in Honduras, where both sides following the removal of President Zelaya in 2010, as well as international institutions like the OAS, were obsessed with a fight over how to classify the event, even though there was agreement about most of the relevant facts. Supporters of Zelaya argued that the event was a classic coup because the military had taken Zelaya away, flying him to Costa Rica, without any legal authority. The proponents of the removal, in contrast, argued that it was a congressionally ratified action against a dangerous, undemocratic president. The sheer amount of energy put into the label suggests that it is obscuring rather than illuminating important questions. And I am uncertain whether adding the label “democratic coup” to the vocabulary does much to clarify things. Opponents of Zelaya would characterize the removal as a “democratic coup,” if a coup at all, because it had the effect of ousting a president who they argue was on a path to dictatorship and replacing him with another civilian regime that did not have such aims. Supporters of course would argue that it was undemocratic because it removed a democratically-elected president who was governing according to the popular will.
|