Last month the Supreme Court rendered its latest installment on the issue of judicial supervision of national security. Winter v. NRDC has received surprisingly little attention, but it strikes me as an important example of judicial deference to the Executive Branch in military affairs.

The deference accorded to the Executive Branch in Winter was “great.” The actual review by the Court of the military’s declarations was perfunctory, essentially one sentence concluding that “[w]e accept your assertions.” No second guessing, no clarification.

Balanced against these military considerations were “serious” interests in protecting the NRDC’s ability to study and observe whales. But according to the Court the question was not even close. Unlike Boumediene, where the Court was at pains to highlight the fundamental nature of the competing interest—unlawful and arbitrary detention—the NRDC’s concerns fared poorly. So too did the interests of those who favor strong judicial supervision of the exercise of military power.

Moreover, the Executive actions appeared to be plainly inconsistent with NEPA—the federal statutory requirement that the military conduct an environmental impact statement (EIS) prior to rather than after engaging in the military exercises. Nonetheless, the Court easily rejected NRDC’s request for preliminary injunctive relief. Without even mentioning Youngstown, the Court ruled that if the Executive asserts military necessity to take action inconsistent with statutory obligations, so be it.

Perhaps Winter will only be a footnote in the extensive commentary on executive power in the age of Boumediene. But it bears emphasizing that where the Executive asserts that the military interest is great and the competing interest is of a “serious” but lesser value, then Winter may be the norm rather than the exception. Is, for example, the balancing of interests with intelligence surveillance closer to Winter or Boumediene?

That’s the interesting argument raised in this cert. petition in Abbott v. Abbott.

Although certiorari is warranted based solely on the conflict among the federal courts of appeals, certiorari also should be granted because the Fifth Circuit’s holding conflicts with the interpretation overwhelmingly adopted by the foreign courts that have addressed this issue. In construing the terms of a treaty, “the opinions of our sister signatories [are] entitled to considerable weight.” Air France v. Saks, 470 U.S. 392, 404 (1985) (quotation omitted). But the Fifth Circuit effectively ignored th[is] virtual consensus….

Although I am skeptical about constitutional comparativism, I think the argument presented in Abbott deserves serious consideration. Considering the policy justifications for avoiding circuit splits, could one not argue that similar policies are implicated when a circuit court interprets a treaty provision inconsistent with the consensus understanding? Justice Scalia stated as much in his 2004 ASIL lecture:

When federal courts interpret a treaty to which the United States is a party, they should give considerable respect to the interpretation of the same treaty by the courts of other signatories. Otherwise the whole object of the treaty, which is to establish a single, agreed-upon regime governing the actions of all the signatories, will be frustrated. Thus, in a recent case [Olympic Airways v. Hussein] I dissented from a decision of the Court that rejected what seemed to me a perfectly reasonable (though not necessarily inevitable) interpretation of the Warsaw Convention that had been arrived at by the courts of two other signatories. “Foreign constructions,” I wrote, “are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently.”

So perhaps we will begin to see more petitions arguing, and the Supreme Court granting, certiorari based on a concern for “treaty signatory splits.”

Within the context of our roles as part of a research group at Princeton’s Center for Theological Inquiry, Mary Ellen and I have had many wonderful conversations about natural law as a source for international law. My sense is we both share the view that natural law could be such a source, and we have discussed various instances in which that might occur. Let me briefly summarize the three most obvious possibilities.

First, natural law might be relevant to identify and define jus cogens norms. Second, natural law might be relevant to identify and define crimes that justify national court assertion of universal jurisdiction. Third, natural law might be relevant to bolster arguments for the establishment of positive international law….

I was in Miami for the weekend speaking at a conference sponsored by the American Bar Association and the International Bar Association on the topic of mass claims in developing countries. Many lawyers in the room were defense counsel for prominent corporations subject to new claims for violations of international or foreign law. There were also plenty of plaintiff lawyers, which made for interesting discussion.

One of the issues that I discussed in my presentation was “reverse forum shopping.” Here is what appears to be happening with many of the cases. Cases are being filed in the United States against corporations because plaintiffs prefer this forum over any other in the world. The United States offers almost everything a plaintiff could dream of: contingency fees, liberal personal jurisdiction standards, no loser pay rule, broad discovery, unusual FSIA exceptions, punitive damages, class actions, international law causes of action, civil jury trials, default judgments, etc. Plaintiffs are forum shopping, and the preferred brand bears the United States moniker.

But defense counsel immediately respond with their own version of forum shopping. Call it reverse forum shopping….

Amidst all the global celebration regarding the election of Barack Obama there is stark news that Moscow is emerging as a serious resurgent threat to the United States. Within hours of Obama’s election Russian President Dmitry Medvedev ordered the redeployment of missiles on the Polish border. A few United States papers are covering the story, but this report offers the fullest picture:

The President failed to congratulate Mr Obama or even to mention him by name during the 85-minute address televised live across Russia.

In a criticism directed at the US, Mr Medvedev said: “Mechanisms must be created to block mistaken, egotistical and sometimes simply dangerous decisions of certain members of the international community.” He accused the West of seeking to encircle Russia and blamed the US for encouraging Georgia’s “barbaric aggression” in the war over South Ossetia in August. He also gave warning that Russia would “not back down in the Caucasus”.

“The August crisis only accelerated the arrival of the crucial moment of truth. We proved, including to those who had been sponsoring the current regime in Georgia, that we are strong enough to defend our citizens and that we can indeed defend our national interests,” Mr Medvedev said.

“What we’ve had to deal with in the last few years – the construction of a global missile defence system, the encirclement of Russia by military blocs, unrestrained Nato enlargement and other gifts . . . The impression is we are being tested to the limit.” The outgoing President Bush insists that the missile shield is aimed at rogue states such as Iran, but the plan has infuriated Moscow, which argues that it threatens Russia’s security.

Mr Medvedev said that Russia had been forced to cancel its plans to withdraw the intercontinental ballistic missiles, which have a range of 6,200 miles (10,000 kilometres). He said: “We want to act together. But they, unfortunately, don’t want to listen to us.”

Mr Medvedev blamed the US for the global financial crisis, saying that the rest of the world had been “dragged down with it into recession”. He said that the era of American dominance after the collapse of the Soviet Union was over. “The world cannot be ruled from one capital. Those who do not want to understand this will only create new problems for themselves and others,” he said.

I spoke with a career State Department official who just retired and his words were ominous. “I know these bastards and they remind me exactly of my early years at State.” I fear that Russia will be as serious a threat to the Obama Administration as Iran or Islamic terrorism. Welcome to the Big Chill.

The General Assembly and Security Council have just announced the election of two current and three new members of the International Court of Justice. Here is the key excerpt of the press release:

The General Assembly and the Security Council of the United Nations yesterday elected five Members of the International Court of Justice (ICJ) for a term of office of nine years, beginning on 6 February 2009. Judges Awn Shawkat Al-Khasawneh (Jordan) and Ronny Abraham (France) were re-elected as Members of the Court. Messrs. Antônio Augusto Cançado Trindade (Brazil), Christopher Greenwood (United Kingdom of Great Britain and Northern Ireland), and Abdulqawi Ahmed Yusuf (Somalia) were elected as new Members of the Court.

The biographies of Judges Al-Khasawneh and Abraham are available here and the biographies of Messrs. Cançado Trindade, Greenwood and Yusuf can be found here. Kudos to all.

Great speech. Amazing day. Whether or not you supported Barack Obama, one cannot deny the achievement America made last night. Martin Luther King has always been one of my heroes and I cannot help but wonder what he would have said had he lived to see this day. If there are tears of joy to shed in heaven, King is weeping right now.

For our community of readers, of course, the international angle looms large. Both Obama and McCain gave us reason to be proud last night.

To all those watching tonight from beyond our shores, from parliaments and palaces, to those who are huddled around radios in the forgotten corners of the world, our stories are singular, but our destiny is shared, and a new dawn of American leadership is at hand.

To those — to those who would tear the world down: We will defeat you. To those who seek peace and security: We support you. And to all those who have wondered if America’s beacon still burns as bright: Tonight we proved once more that the true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals: democracy, liberty, opportunity and unyielding hope.

That’s the true genius of America: that America can change. Our union can be perfected. What we’ve already achieved gives us hope for what we can and must achieve tomorrow.

Kudos to McCain for such a gracious concession speech. He fully understood the historic nature of the election:

A century ago, President Theodore Roosevelt’s invitation of Booker T. Washington to dine at the White House was taken as an outrage in many quarters.

America today is a world away from the cruel and frightful bigotry of that time. There is no better evidence of this than the election of an African-American to the presidency of the United States.

Let there be no reason now … Let there be no reason now for any American to fail to cherish their citizenship in this, the greatest nation on Earth.

It is too early to hazard precisely how the election of Barack Obama will change our position in the world. But I think it is safe to say that the world will never perceive us quite the same again.

Article XX(a) of the GATT allows countries to violate WTO rules if doing so is “necessary to protect public morals.” The “public morals” exception is notoriously elusive, with only one WTO case—the US-Gambling Services case—clarifying the scope of the exception. So in a real sense we don’t really know when “public morals” can or cannot be invoked. According to the Panel report in that case, “the term ‘public morals’ denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.” (Para. 6.465). Okay that really clears things up.

So if one cannot discern public morals based on WTO case law, how about analyzing what countries are actually doing. By good fortune, one of my students just finished working as an account manager at UPS and he informed me that the UPS website provides a handy service that identifies all “restricted or prohibited commodities” in every country in the world. From my perspective this list gives international trade scholars a pretty good sense of what type of products are prohibited in particular countries based on factors such as public morals.

Of course there are some political restrictions, such as a dozen Islamic countries that prohibit the importation of any Israeli products. And there are plenty of products one would expect to be restricted, such as alcohol, drugs, tobacco, weapons, etc. But beyond these categories there also were numerous other prohibited items that took me by surprise. Here is a sample of the kind of products that apparently offend public morals in different parts of the world:

One of the most important Alien Tort Statute cases has begun in California that will test the scope of corporate liability under international law. The facts are hotly disputed but either version is truly bizarre. Over 100 Nigerians seize a Chevron oil platform on May 25, 1998. Plaintiffs argue that it was a peaceful nonviolent act of civil disobedience. The Defendants argue that Chevron employees were being held hostage and some of the hijackers engaged in violence against employees. After a three day standoff, Chevron called the Nigerian Government Security Forces. The Nigerian military retake the platform and allegedly engage in various human rights violations against Bowoto and other protesters.

Bowoto sued Chevron under the ATS alleging, among other things, that Chevron through its subsidiary Chevron Nigerian Ltd., aided and abetted human rights abuses committed by the Nigerian military authorities, including torture and cruel and inhuman treatment. The attacks by the Nigerian authorities allegedly were with Chevron-leased helicopters and with the cooperation of a Chevron-crisis management team. Chevron alleges that it requested the Nigerian authorities to conduct the hostage rescue mission in a peaceful manner. The only protesters who were killed allegedly were attacking the military.

After numerous legal challenges a federal court in the Northern District of California dismissed all claims except for a few ATS claims. Obviously the case is fact intensive, and whether violations of international law occurred will depend on the jury’s factual determinations. According to one version, a corporation through its surrogate aided and abetted the death, torture, and inhumane treatment of innocent, peaceful protesters by military personnel acting in concert with Chevron employees. According to another version, the facts establish that a company simply reported criminal conduct where it was doing business and was seeking assistance from the government to help rescue its workers who were being held hostage.

It’s rare for ATS cases to get this far. I will try to update you as I hear of developments.

I appreciate the remarks of Ken, Greg, and Anne. Just a few quick thoughts by way of response. First, I like the way Greg and Anne describe the teleology of the Nobel Peace Prize. I think that is an accurate way to put it. There are undeniable themes that wax and wane in the history of the prize, and they are fairly consistent with the evolution of international law. Each period builds on the other, and slowly the edifice of international law took shape. Indeed, one of the reasons the Nobel Peace Prize has been accused of mission creep is because so much of the original agenda of the prize has been achieved.

Regarding the comment that the Pacifist Period and the Statesman Period are hard to distinguish from one another, I agree that the themes are largely similar during the two periods, but I do not agree that the periods are indistinguishable. The norms prohibiting offensive war and establishing a permanent international judiciary emerged during the Pacifist Period but cascaded during the Statesman period. Meanwhile the dream of the complete abolition of war died a painful death. And the Pacifist Period’s vision of interstate arbitration as the alternative to war was overtaken by the emergence of a permanent international judiciary during the Statesman Period. In addition, some norms, such as international human rights, only began to emerge with any force during the Statesman Period. In short, the life cycle of international norms transcends the specific periods, but history does reveal an undeniable shift in emphasis among Nobel Laureates in different periods.

Regarding the wisdom of using the label “entrepreneur” for a “norm emerger” like Bertha von Suttner, or a “norm cascader” like Frank Kellogg, or a “norm internalizer” like Desmond Tutu, I rather like the call for descriptive clarity you suggest. Different Laureates undoubtedly serve different purposes, and “entrepreneur” may be too generic a term to provide real explanatory value.

As for the question of who is the real entrepreneur, the Laureates or the Nobel Committee, it is a question that has not escaped my consideration. I think the answer is that both are entrepreneurs. I have no doubt that most Laureates are “norm entrepreneurs” with or without the prize. One can name dozens of individuals who have been effective entrepreneurs without the honor. But the power of the Nobel Committee to anoint someone with the honor of receiving the most prestigious prize in the world certainly empowers that person. As Desmond Tutu put it, as soon as he received the prize everything changed. He became an oracle of wisdom whose every word was received with awe, despite the fact that the words he spoke were the same before and after the prize. I have little doubt that the Nobel Committee is acutely aware of the impact its action have in promoting certain norms.

Turning to Ken’s comments regarding campaigns for the prize, I do not think that history has been unkind to the Nobel Committee in this regard. I have looked at the archives of nominations in Oslo and I have seen numerous “campaigns” that failed, including repeated nominations of individuals who deserved the prize, such as Mahatma Gandhi and Eleanor Roosevelt. In other cases, some Laureates have received the prize despite intensive campaigning for another candidate, such as the awards to the then-obscure Shirin Ebadi in 2003 and Wangari Maathi in 2004, despite the fact that everyone thought the aging Pope John Paul II was a shoe-in. And sometimes a “campaign” is necessary to highlight the life of a worthy candidate who has spent her life toiling in obscurity, as was the case with the BBC’s Malcolm Muggeride’s efforts to honor Mother Theresa.

As for Ken’s comment that an ill-timed prize can adversely effect the recipient, I agree. But Laureates recognize the moral authority that is placed upon them when receiving this prize, and by and large they admirably attempt to live up to the challenge. Sure there is fallout within an campaign when one leader is honored and another of equal stature is not. But I’m not sure how frequently that occurs. The counterexample to your illustration is the award to Muhammad Yunus and Grameen Bank, with the Yunus the undeniable leader of the microfinance movement. I would also add that ill-timed awards have been among the most controversial, such as the 1994 award to Yasser Arafat, Shimon Peres, and Yitzhak Rabin in the hopes that it would spur peace in the Middle East. I disagree with the notion that individuals or organizations engage in good works with the hopes of achieving the prize. Almost no one “deserves” the Nobel Peace Prize, and even the rare individuals who do sometimes don’t receive it. Only the most self-congratulatory organization or individual could actually believe that their deeds would merit such an honor.

Everyone knows about the Nobel Peace Prize, but virtually no one studies it. We all assume that Nobel Laureates are influential, but seldom do we try to gauge that influence. My article does both, arguing that Nobel Peace Prize Laureates have been influential norm entrepreneurs who have dramatically shaped the face of modern international law.

The foundation for the article is a theory of international relations known as constructivism. Constructivism is a theory that posits the rather obvious point that state interests are not fixed but ever changing. It further posits that norm entrepreneurs play a significant role in the emergence, cascading, and internalization of international norms. There have been numerous articles that have provided support for this proposition, but to my knowledge no scholar has attempted to systematically analyze the history of modern international law from the perspective of constructivism. This article is the first step toward such an analysis.

In order to test the hypothesis, the article does two things. First, it tags every single Nobel Lecture ever delivered by a Nobel Peace Laureate and identifies every major topic addressed in every Nobel Lecture. This was no mean feat.

Second, the article systematically analyzes every single Nobel Peace Prize Laureate with an eye toward their contribution to the development of international law. It was one of the most enjoyable and difficult experiences of my professional life. What emerges is a clear and unequivocal picture: the story of international law is the story of hundreds of individuals and organizations who have slowly, patiently, and successfully built this edifice of the law of nations that appears so familiar to us today.

This weekend the Nobel Peace Prize was awarded to Martti Ahtisaari for his role as an international mediator assisting in the resolution of international conflicts. The press release emphasized that throughout Ahtisaari’s life he has worked for peace and reconciliation, with particular emphasis on his work in Namibia, Indonesia, Kosovo, and Iraq. Compared to last year’s prize to Al Gore and IPCC, this year’s prize represents an extremely safe, uncontroversial, and some would say uninspired choice. But it also is one of those choices that honors an individual who works in the trenches to resolve conflicts, rather than inspires the international community with lofty words, breathtaking visions, or sacrificial deeds….

I have spent a fair bit of time the past couple days reviewing the Supreme Court’s docket for the upcoming term with an eye for any cases that might be of particular interest to our readers. Here is my list of the most important cases that are germane to our discipline. The big issues are (1) senior government officials’ immunity for detainee abuse; (2) the nexus between military exercises and endangered species; (3) the eligibility of the persecutor to claim asylum for fear of persecution; (4) the ability of terrorist victims to attach a judgment lien against Iranian assets; (5) the impact that a congressional apology for the overthrow of the Kingdom of Hawaii has on the rights of indigenous Hawaiians; and (6) whether uranium enrichment can be subject to an antidumping duty under our trade laws.

Thou shalt not incite public curiosity. It is perhaps the most curious of international obligations. But there it is, expressly required in the Geneva Conventions: prisoners of war “shall be protected … against insults and public curiosity.” How does one abide by this commitment? That, in essence, was the question in the recent Second Circuit decision of ACLU v. Department of Defense.

The ACLU filed a FOIA request for release of 21 photographs depicting abusive treatment of detainees by United States soldiers in Iraq and Afghanistan. While much of the decision focuses on the privacy exception to FOIA, the final section of the opinion addresses whether the FOIA privacy provisions should be read in light of the Geneva Conventions. The United States relied on Charming Betsy to argue that FOIA should be read consistent with the United States’ obligation to comply with the public curiosity requirements of the Geneva Conventions. The United States argued that even if the photographs were redacted to eliminate identifiable information, they nonetheless are so humiliating that the dissemination of such photos opens the detainees to public curiosity.

The Court disagreed. It noted that the United States position was not always thus, and that during World War II the United States championed the use and dissemination of German and Japanese concentration camp prisoners to hold perpetrators accountable. The Court also concluded that release of the photos will further the purposes of the Geneva Conventions by deterring future abuse of prisoners. “To the extent the public may be ‘curious’ about the Army photos, it is not in a way that the text of the Convention prohibits… Heightened public awareness of events depicted in the Army photos … would serve to vindicate the purposes of the Geneva Conventions without endangering the lives or honor of detainees whose identities are protected.”

I think the decision raises troubling questions. I am not suggesting that the Court reached the wrong conclusion. I just think the manner in which it reached the result is, well, curious….

The Seventh Circuit in Osagiede v. United States earlier this month ruled that an attorney’s failure to provide information as to the client’s Vienna Convention rights may constitute ineffective assistance of counsel.

Effective performance by counsel representing a foreign national in a criminal proceeding is reasonable performance “under prevailing professional norms.” … Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 [of the VCCR] and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” The Government does not contest the fact that it failed to notify Osagiede of his right to contact his consulate. This failure to notify violated Article 36 of the Vienna Convention, as well as federal regulations promulgated to ensure compliance with Article 36. The law was on the books; the violation was clear. Simple computer research would have turned it up.

The Government argued however, that ineffective assistance was unavailing because the Vienna Convention does not create a private right of action. The Seventh Circuit disagreed. “[A] reasonable Illinois lawyer would have known that this Court has never held that Article 36 did not create individual rights; instead, we have always assumed that it did. Thus, it was clearly established across the country that either the Vienna Convention created individual rights or courts would proceed as if it did.”

Significantly, the Court relied upon the ICJ’s determinations in LaGrand and Avena to reach this conclusion. “[T]he International Court of Criminal Justice [sic] issued two landmark decisions holding that Article 36 did, in fact, provide the detained foreign national with individual rights. The dramatic legal and political developments that led up to the LaGrand and Avena cases drew widespread attention at local, national and international levels.”

It looks like this is where we are headed with the VCCR. Criminal convictions may not be thrown out using straightforward arguments of VCCR violations, but the ineffective assistance of counsel argument may just have legs.

This past month I received an email sent to over 60 law professors inviting us to join an amicus brief. The case is before the D.C. Circuit and involves the important issue of corporate responsibility for human rights violations under international law. The email was sent at approximately midnight on Monday night and invited a distinguished group of over 60 law professors to add their names to the brief. According to the email, no significant comments were welcome, and any law professor who wished to join the amicus brief had one business day–34 hours to be exact–to decide whether he or she wished to join the brief. I did not join because I do not believe in signing my name to a brief that I had no role in drafting.

Now to be clear, I do not have any objections to law professors filing amicus briefs. I have little doubt that law professor amicus briefs can assist the court in resolving complex legal issues that are within their professional expertise. Such briefs may be “friends of the court” in the best sense of the word. But the current fashion of “me too” law professor amicus briefs strikes me as counterproductive. I clerked on the D.C. Circuit over a dozen years ago and I don’t recall a single law professor amicus brief, much less any of the “me too” variety. What’s changed in the interim? Do other law professors in other disciplines do this? Are these briefs the product of human rights clinics where students do the yeoman’s work of writing the brief, but they feel they need the gravitas of distinguished names to give the brief heft?

Of course, no judge or law clerk believes that all those law professors who sign onto the amicus brief actually played a role in drafting it. Wouldn’t it be more productive to get a half-dozen big name law professors to sign the brief, to at least give the court the (false) impression that each helped draft the brief? I would suspect that there is an inverse relationship between the impact of the amicus brief and the number of law professors who sign their name to the brief. Obviously there are plenty of law professors whom I greatly respect who are willing to sign “me too” amicus briefs, so I must be missing something. I just don’t know what it is.

I had the pleasure this past Friday to moderate a conference at Pepperdine on social entrepreneurship that featured Matt Flannery, co-founder of Kiva, one of the leading microfinance organizations on the Internet. There is so much I could say about Kiva and Flannery’s remarks, but let me just highlight a few points that were raised by his discussion.

First, the Internet is radically changing the way we do human rights. Flannery’s vision was to use the social networking phenomenon to empower people to do good. Kiva links micro-borrowers with micro-lenders and allows both of them to create community. Each micro-lender has a portfolio of borrowers that tells a story of his or her venture philanthrophy and each borrower has a photo and short bio that tells potential lenders why they should lend them $100 bucks to start their business.

Second, money and age are not obstacles. When Matt and Jessica Flannery started Kiva four years ago in their late twenties, they had nothing to start with other than a wonderful idea, a certain skill set, some good contacts, and a passion to bring their dream to reality. Money and experience were not at their disposal. Matt spent countless hours at a donut shop writing code hoping his idea would bear fruit. Four years later, Kiva has facilitated over 40,000 micro-creditors to loan over $40 million to over 5,000 entrepreneurs throughout the developing world.

Third, ignore the naysayers. The lawyers, the venture capitalists, and the mainstream banks all dismissed Kiva. Matt said he lost months of time launching Kiva because he listened to them and was unduly cautious about implementing his idea. If you are wildly successful, as Kiva has become, you can always hire the lawyers and accountants to help you backfill what was missing when you began….

Opinio Juris is pleased to welcome Daniel Seidemann as a guest blogger this week to address the Israeli-Palestinian conflict. Daniel is the founder and legal advisor for Ir Amim, a non-profit, non-partisan association dedicated to an equitable, stable and sustainable Jerusalem. Ir Amim (“City of Nations” or “City of Peoples”) was founded in order to actively engage in those issues impacting on Israeli-Palestinian relations in Jerusalem and on the political future of the city. Ir Amim seeks to render Jerusalem a more viable and equitable city, while generating and promoting a more politically sustainable future. Bearing in mind the symbolic and actual status of Jerusalem as a city of two peoples and three religions, as well as the city’s pivotal role in reaching a political agreement, Ir Amim aspires to a stable Jerusalem, equitably shared by the two peoples; a city that ensures the dignity and welfare of all its residents and that safeguards their holy places, as well as their historical and cultural heritages.

Seidemann has been a practicing attorney in Jerusalem and since 1994 he has participated in Track II talks on the future of Jerusalem between Israelis and Palestinians. In 2000-2001, Seidemann served in an informal advisory capacity to the final status negotiations; serving as a member of a committee of experts commissioned by the Prime Minister Barak’s office to generate sustainable arrangements geared to implement the emerging political understandings with the Palestinians.

I had the privilege to hear Daniel speak when I was teaching in Israel this summer and after hearing him speak I immediately invited him to join us as a guest blogger. My impression is that Daniel Seidemann speaks as one who cares first and foremost about a stable and peaceful Jerusalem, recognizing that both Israelis and Palestinians have legitimate needs and expectations that must be reconciled if Jerusalem is to become a stable and peaceful city.

We welcome Daniel for a week of thought-provoking and provocative discussion about the future of Jerusalem.

Let me begin the discussion by addressing one of the most important issues addressed in Farer’s book: combating terrorism consistent with the Charter. Farer presents the issue of the permissible options for the United States if it discovers that terrorist organizations or individuals are active in country X and planning an attack on American targets. If the country is hostile to those terrorist elements, the issue is one of joint cooperation in its suppression. But if the country is reluctant or unable to act because the terrorist organization is part of an important ethnic constituency or are located in a remote part of the country where there is virtually no governmental presence. In this scenario Farer argues that there are two options: the United States must obtain the other state’s authorization to act as its proxy or it must seek authorization from the Security Council. Farer reasons that “since all Permanent Members regard transnational terrorism, particularly Islamic terrorism, as a threat to their respective national interests, if the United States can offer persuasive intelligence of the group’s aims, the Council is likely to … authorize preventive action.” (p. 77). As for the third option of taking unilateral action to remove the terrorist elements without the permission of the state or the Security Council, Farer is equivocal. He suggests that repeated violations of the territorial integrity of states would result in the progressive collapse of cooperation on a whole range of issues including non-proliferation….

That essentially was the question the Ninth Circuit had to address in the recent case of United States v. Liu. The question arose out of a criminal prosecution by the United States against defendant for running a brothel in Saipan. Defendant argued that the United States had no authority to prosecute her under the commerce clause or the territorial clause. The surprising conclusion of the Ninth Circuit was that, to the extent the applicable treaty did not preclude Congress from regulating pursuant to the commerce clause, Congress had the constitutional authority to do so. Thus, the treaty trumps the Constitution in that it limits the application of constitutional provisions in a United States territory.