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.

The Olympics have been amazing. Great athletes, amazing venues, wonderful organization. The Chinese have much to be proud of. But whatever goodwill that the Olympics have engendered in me is quickly being lost based on their treatment of dissent. The Chinese are being utterly hypocritical in promising to afford opportunities for dissent but not making good on those promises. Demonstrators require permits, but permission is never granted. If you try to procure a permit you will fail in that attempt, as Nicholas Kristof recently reported. But then if you protest without a permit you will be arrested. Five American students are now being detained for unfurling a Free Tibet banner for about twenty second last night at midnight. Twenty seconds of dissent gets you thrown in jail or deported? This could have been prevented had the IOC established appropriate contractual obligations and penalties for violating representations and warranties in the Olympic selection process. IOC President Jacques Rogge strongly supports a rule preventing “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or areas.” But he should be just as adamant that promises to allow demonstrations in designated areas be enforced.

Opinio Juris is pleased to announce a panel of international sports law experts as guest bloggers during the Beijing Olympics. Throughout the Olympic Games they will discuss international sports law and provide expert commentary on any Court of Arbitration for Sport (CAS) arbitrations that take place. Matt Mitten, Maidie Oliveau and Antonio Rigozzi are all leading experts in the field of international sports law. It is an area that may not be familiar to most of our readers, but it has been growing in importance ever since the establishment of CAS in the early 1980s. The establishment of arbitration under the CAS ad hoc divisions for the Olympic Games beginning in 1996, UEFA Cup in 2000, and the FIFA World Cup in 2006 has played a major part in making the Court of Arbitration for Sport the most important international sports law institution in the world….

That, in essence, is the surprising argument that the Coast Guard raised in a recent administrative law decision involving regulation of shipping traffic to protect an endangered species. In Defenders of Wildlife v. Gutierrez, the D.C. Circuit was presented with the question of whether Coast Guard action implementing “traffic separation schemes” constituted “final agency action” within the meaning of the Endangered Species Act. North Atlantic Right Whales are critically endangered, and ship strikes are the greatest source of known deaths. Defenders of Wildlife argued that the traffic rules failed to take sufficient account of the need to protect this species. The Coast Guard argued that it was simply following the orders of the International Maritime Organization, an agency of the United Nations, and therefore its conduct was not final agency action subject to judicial review. In short, the Coast Guard was arguing that we’re just traffic cops following the orders of an international agency, so federal courts have no jurisdiction to second guess how we implement the scheme of global governance established by the IMO. The district court agreed, but the D.C. Circuit wasn’t buying it….

One’s peaceful childish images are shattered by a visit to the fragile town of Bethlehem. “The reality of life in Bethlehem today confounds the traditions of the Christmas story: How could the shepherds, abiding in their fields beyond the wall, visit the Christ child? And what about the Magi? Would they have the proper travel documents to enter Bethlehem? Would their gold, frankincense and myrrh be confiscated at a checkpoint? In the troubled “little town” of Bethlehem, the angels’ song of “Peace on Earth” seems faint indeed.” My host is a highly-educated Palestinian Christian who is actively engaged in interfaith peace negotiations. His charge was twofold: provide a private tour of the holy sites and offer his unadulterated version of the impact the security barrier has had on the people of Bethlehem. I left Bethlehem feeling that the town was broken. Here are some of the highlights….

Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats.

The Israeli Supreme Court has just ruled on the lawfulness of the Israeli Internment of Unlawful Combatants Law in the case of Anonymous v. State of Israel. Here are the ten principles of detention as articulated by the Israeli Supreme Court that I think are relevant for consideration of any future U.S. detention law….

As I write, I am sitting on the balcony of the Castle in Karem Maharal, a few miles north of Caesarea and a few miles south of Haifa. I look out over my balcony at the vineyards drinking Tishbi wine, which has been grown here in Zichron Yaakov for decades. To my left the sun is setting over the Mediterranean Sea. The family cat is asleep on the patio and the neighborhood dog is asleep on the picnic table. A partridge slowly walks the lawn. Dogs are barking in the distance. Horse hoofs on pavement echo quietly below. One can hear a shepherd leading his flock home from pasture. Children are playing in the local playground. The stores in the village are quickly closing, as the Sabbath is fast approaching.

My accommodations could be highlighted in Architectural Digest. The rooms feature stones, high ceilings, exquisite tilework, and the art work of Udi Stuler, owner and operator of the castle. He has owned the place for almost three decades, and we talked about how the price of real estate in this region has gone through the roof in the past decade. In a word, it is peaceful here, as peaceful as one would expect from a weekend visit to the countryside in Italy or Switzerland.

From where I sit, I am looking north. Fifty kilometers (30 miles) to the north is the Israeli border with Lebanon. Hezbollah controls the southern part of Lebanon. During the Lebanese war in 2006, missiles landed a few kilometers from here. This is the other face of Israel, the face that you read in the papers….

The Seventh Circuit last week rendered the most unusual foreign non conveniens decision I have ever read. The case presents a cautionary tale about the impact that foreign judicial corruption can have on domestic litigation.

Mañez v. Bridgestone Firestone involved a tort action against Bridgestone Firestone filed in Indiana after José Samuel Mañez-Reyes died in a “rollover” car accident in Veracruz, Mexico. The district court dismissed the action based on forum non conveniens. But the surprising twist came when the Mexican court ruled that it did not have jurisdiction over the case, despite the fact that Mañez-Reyes’ death occurred there. If the Mexican court could not hear the case, this opened the door to return the case to the Indiana federal court. Smelling something fishy, Bridgestone raised serious questions as to the Mexican court’s actions. The district court conducted an evidentiary hearing, and concluded that dismissal by the Mexican court was procured by fraud. The court fined…

One of the most interesting aspects of the ICJ’s recent order in Avena pertains to the Court’s finding of jurisdiction under Article 60 of the Statute.  Mexico filed the case as a request for interpretation about the meaning of the Avena judgment because the United States withdrew from the Optional Protocol.  Thus, the only way for the ICJ to have jurisdiction is to find a dispute between the parties as to interpretation.  There is just one little problem:  the United States indicated in its written briefs and oral presentations that it fully agrees with Mexico’s interpretation of the decision.

By a vote of seven to five, the ICJ ruled that there was a dispute as to interpretation and upheld its jurisdiction.  Here is the key language from the majority…

It makes no sense.  Israel has traded five brutal militants for the bodies of two dead soldiers and the assorted body parts of other Israeli soldiers.  I am in Israel now teaching with a Whittier/Pepperdine study abroad program and coverage of the prisoner exchange is ubiquitous.  I attended a special class session with our students of a presentation by Major Aharon Mor, an Israel Defense Force spokesman, to try to understand the logic.  But it fails me.  When asked why Israel would make this trade, Mor quoted his superiors as saying, "We have a responsibility for all of our soldiers, those who are alive and those who are dead."  But it is patently obvious that if Israel will exchange the likes of Samir Kuntar for the bodies of soldiers, then this plays directly into the hands of Israel’s enemies.  It creates little incentive for Hezbollah to keep other prisoners alive.  And if there is any incentive, it is to up the ante of any future exchange.  If you can get five militants for two bodies, how many can you get for a real live captured soldier?  That will be the question Israel will now face with demands for more prisoners in exchange for Gilad Shalit, who is being held in Gaza.  Hamas is demanding "thousands of prisoners" in exchange for Shalit.   

In an editorial in the Jerusalem Post today, Herb Keinon writes that "no other country in the world would have made such a deal."  He argues that the exchange really is about the Holocaust and the the communal obligation of doing everything possible to protect a Jew in danger.  But in reality it only encourages Israel’s enemies to place Israeli soldier’s in greater danger.  This asymmetrical exchange emboldens Israel’s enemies and makes Israel appear to be a weak negotiator.  It just makes no sense.