Author Archive for
Peggy McGuinness

Can Ex-Pope Benedict be Sued for the Sex Abuse Cases?

by Peggy McGuinness

Andrew Sullivan raises the stakes on the legal effect of the Pope’s retirement decision. As the Pope emeritus, can he now be sued in connection with his role in the sex abuses cases against the Catholic Church?  I can already see a lot of problems such a suit would present, and I am writing on the go today, but what do OJ readers think?  Does an ex-Pope retain head-of-state immunity?

For a full take on the canon law implications of the resignation, see my colleague Mark Movsesian’s analysis at CLR Forum here.

IntLawGrrls Says Goodbye

by Peggy McGuinness

I was saddened to read the announcement last week from Diane Amann — the indefatigable founder, editor, and voice of IntLawGrrls — that IntLawGrrls is closing its blog.  IntLawGrrls has been an amazing source of historical, topical and, at times, deeply personal discussions about international law and the role of women in law and global governance.  It is and will remain an important documentary source of the views of the leading female (and some male) voices in international law and international organizations of our time.  Of course, in the blogosphere, nothing really disappears, and scholars, students and practitioners will benefit from the wonderful contributions of Diane, Jaya Ramji-Nogales, Beth Van Schaack and the many, many other contributors (over 300!) to IntLawGrrls for many years to come.  Diane has been a great friend of Opinio Juris and we have enjoyed many collaborations, guest posts and cross-posts over the years.  We will miss you IntLawGrrls, but look forward to hearing from the contributors in other fora in the future.

 

ICC Prosecutor Names Diane Amann, Leila Sadat, and Patricia Sellers to Advisory Positions

by Peggy McGuinness

ICC Prosecutor Fatou Bensouda has announced the appointment of three distinguished experts in international criminal law to serve as special advisers to the OTP.  Diane Amann of the Univ. of Georgia Law School has been named Special Adviser on Children in and affected by Armed Conflict. Leila Sadat of Washington University Law School will serve as Special Adviser on Crimes against Humanity. Patricia Viseur Sellers, who is currently at Oxford University, has been named Special Adviser on International Criminal Law Prosecution Strategies. Jaya Ramji-Nogales has the full details over at IntLawGrrls here and here. All three bring a wealth of experience to their new posts, both as practitioners and as scholars of international criminal law, and we look forward to hearing more about their work with the Prosecutor in the coming months. Congratulations to all!

Stephen Walt’s Advice to Would-be Foreign Policy Wonks: Study International Law!

by Peggy McGuinness

With new students entering college and grad school, Stephen Walt posts here very sound advice on the “top ten things would-be foreign policy wonks should study.”   At number five he lists international law, but not for any reason that is likely to warm the heart of an international lawyer:

5. International Law. You might think that a realist like me would dismiss international law completely, but I took a course in the subject as an undergraduate and have always been grateful that I did. Among other things, it reaffirmed my suspicion that international law is a pretty weak instrument, especially when dealing with great powers. Nonetheless, states and other international actors use international law all of the time, and they certainly invoke it to try advance their own particular interests. So it’s good to have some idea what international law is, how it works, and what it can and cannot do.

One of the challenges for IR students is that not all political science departments offer international law on a regular basis.  Crossing campus to take international law at the law school is a good alternative, but beware that we law professors teach (and evaluate) our students as law students, not theorists.  The grad students who have taken my classes have often struggled with case reading — a skill that is old hat to 2 and 3Ls.  But once you get over that, you might learn some things about the law that will help you critique even a hardened realists like Walt!

Was the Pussy Riot Sentence Excessive?

by Peggy McGuinness

News sites and blogs are full of condemnation for what appears to be an excessive sentence for the political protest/stunt pulled by the Russian punk band Pussy Riot in an Orthodox church earlier this year. (Even President Putin had hoped the group would not be judged “too harshly.”)  Over at the CLR Forum, my St. John’s colleague Mark Movsesian, who knows more than a little about comparative approaches to religious liberty and protection of religious sites, agrees that the sentence may have been a bit harsher than the behavior merited. But he has a different take on whether the punk rockers chose a wise method (trespass and desecration) to make their point about Russian politics and the role of the Orthodox Church:

A Russian court today convicted three members of Pussy Riot, a punk band that stormed the altar of the Christ the Saviour Cathedral in Moscow last winter to perform a “punk prayer” to protest Prime Minister Vladimir Putin, of criminal hooliganism and sentenced them to two years in prison. By Western standards, it’s a harsh and disproportionate sentence. By way of comparison, when members of a group called ACT-UP disrupted a Mass at New York’s St. Patrick’s Cathedral in 1989, they received only misdemeanor convictions and no jail time. Similarly, in June, a New York court convicted Occupy Wall Street protesters of trespassing on property owned by Trinity Church; again, only misdemeanor convictions and no jail time.

But Russia is different. Before we get all sanctimonious about how much better we are in the West, though, it’s worth reflecting on a couple of things. First, as I’ve written before, the Cathedral of Christ the Saviour has a sad history. The Communists dynamited the first version of the cathedral as part of an anti-Christian campaign in the 1930s, and Christians remain very sensitive about it. Notwithstanding the politicization and corruption in the Russian Orthodox Church, many believers genuinely feel pain at the desecration of the cathedral and what they see as anti-Christian animus. (Right on cue, in response to today’s sentencing, a topless female protester got a chain saw and cut down a cross in central Kiev that commemorated the victims of Communism. Way to win people over to your point of view!). Second, the media’s selective outrage is a little hard to take. Putin’s human-rights record has been poor for a long time now. Many less well known protesters remain in prison. Yet not so long ago, bien-pensant types like Goldie Hawn and Sharon Stone gave Putin a standing ovation when he crooned “Blueberry Hill” at a charity fundraiser. So what’s so different now? It’s hard to avoid the conclusion that, had the members of Pussy Riot not been so telegenic, and had their target not been the bad old Orthodox Church, the media would have paid much less attention.

It is certainly the case that the politics of today’s Orthodox Church leadership may have led some to overlook or minimize the protection international human rights law affords to religious practice and sites.  Mark’s written about the case before, and has more on the legacy of Soviet persecution of the Orthodox Church here.

Is American Foreign Policy Christian? A Conversation with Andrew Preston

by Peggy McGuinness

Over at the St. John’s Center for Law and Religion Forum, my colleague Mark Movsesian has posted a fascinating conversation with Professor Andrew Preston (Cambridge), author of Sword of the Spirit, Shield of the Faith.  Preston’s book examines the role faith has played in the conduct of U.S. foreign and military policy over the course of our history.  In this review of the book, Mark discusses the religious theme in American foreign policy that Preston has identified as “Christian republicanism,”

 which Preston defines as “a blend of Protestant theology and democratic politics.” This worldview prizes religious liberty as the foundation of democracy and views it as the most important of human rights. Indeed, Preston shows how the protection of religious liberty abroad has been a constant theme in American diplomacy. In the nineteenth century, the State Department advocated for missionaries, including Mormons, with foreign governments, even though the Department often found the missionaries a nuisance. In the twentieth century, Henry Kissinger’s attempts to get Congress to grant the Soviet Union most-favored-nation status failed largely because Kissinger underestimated American sympathy for the plight of Soviet Jews.

Preston explains how religion influences the U.S. approach to international human rights:

CLR Forum: Sword of the Spirit shows that religion has had a complex influence on American foreign policy. Christian convictions have justified both isolationism and internationalism, sometimes in the thought of the same person, e.g., John Foster Dulles. Do you see these same tensions today? On what issues do the contemporary religious right and religious left disagree? On what issues do they agree? 

Preston: I think the religious right and left, and Protestants, Catholics, Jews, and others all agree that America should promote and protect basic universal human rights around the world. What is remarkable is the extent to which religious isolationism has more or less disappeared. Most religious communities agree that the United States should engage with the world to promote its ideals; they just disagree on how this should be done. Religious liberals are wary of military intervention, religious conservatives less so.

CLR Forum: Protestant missionaries were the first international human rights campaigners in American history. Of course, today’s human rights discourse is almost entirely secular. And yet you note that, just like the nineteenth-century missionaries, today’s secular human rights campaigners sometimes fail to recognize that their ideology is not really “universal.” Could you please elaborate on this? 

Preston: We often assume that because some things seem so abhorrent, revulsion for them must be universal. Yet often these practices are not only tolerated but embraced by other cultures. When Western reformers—be they yesteryear’s missionaries or today’s human rights NGOs—enter a foreign country and demand the cessation of certain practices, they are automatically engaging in a kind of cultural imperialism by changing local custom in the name of a universal ideal, even though the locals have never heard of this universal ideal. A good analogy would be between the anti-foot binding crusades by American missionaries to China in the late 19th century and anti-female circumcision campaigns by human rights advocates today. I happen to agree with the morality of both these causes, and I happen to find foot-binding and female circumcision morally repugnant, and I think most Westerners would agree with me. But putting our views into practice means obliterating local cultures around the world. The end result might be a more just world, but we shouldn’t fool ourselves into thinking that we aren’t practicing a kind of cultural imperialism by obliterating the local in favor of the universal. The irony is that many human rights campaigners today try to distinguish themselves from the supposedly aggressive missionaries of the past, but to me they seem more alike than different.

The full conversation is well worth a read, especially Preston’s (surprising?) conclusion that Obama is quite similar to FDR in his religious convictions, outlook, and policy emphasis on religious freedom.

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.

Call for Proposals: International Law Weekend 2012

by Peggy McGuinness

I interrupt this wonderful discussion of Tai-Heng Cheng’s new book for this important announcement from Professor Ruth Wedgwood, President of the American Branch of the International Law Association (ABILA) regarding International Law Weekend 2012, which takes place Oct. 25-27.  As a participant at ILW 2011, I can attest that Professor Wedgwood has injected new life and significantly broadened the sponsorship of this annual NYC event.  Here’s her announcement:

After last year’s gathering of the flock (with over 1400 attendees and some 40 co-sponsors), we’re ready to do International Law Weekend again, in a collaboration between the International Law Association’s American Branch and the International Law Student’s Association.

Dates are October 25-27, 2012, to be held at the Association of the Bar of the City of New York and at Fordham Law School.

Some key language from the call for proposals — with due date of April 13, 2012:

“The unifying theme for this year’s meeting is to explore the mechanisms of change in international law. Panels may focus on key regions undergoing particularly dramatic change, for instance in the Middle East or China, and subject matter areas undergoing rapid change, such as tariffs and trade, human rights and humanitarian intervention, immigration, labor, public health, sustainable development and the environment.

This year, we plan to have a broad array of public international law topics, but will also have dedicated tracks of private international law topics in each program slot. Thus, we welcome suggestions of cutting-edge issues in the international aspects of corporate, tax, securities, and investment law, as well as international arbitration and other forms of international dispute resolution.

Equally welcome are topics in public international law and institutions, including issues regarding the United Nations, human rights, peacekeeping, humanitarian intervention, arms control, the development of regional and sub-regional organizations, etc. We also encourage suggestions of varied formats, such as debates, roundtables, lectures, and break-out groups, as well as the usual practice of panel presentations.”

The full call for proposals here.  Deadline to submit is April 13.

Global Convergence in Settlements (the Class Action Kind!)

by Peggy McGuinness

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

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

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

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

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

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

What if Nuclear Proliferation Reduces the Incidence of War?

by Peggy McGuinness

Political scientist James Fearon has posted (complete with graphs) the results of his own study of whether nuclear states are more or less likely to engage in war in the years following their acquisition of  nuclear weapons.  Here’s his bottom line:

[F]or each of the nine states that acquired nuclear capability at some time between 1945 and 2001, their yearly rate of militarized disputes in years when they didn’t have nukes, and the rate for years when they did. Note that for the US we have no data on dispute rate without nukes in this period since we got them in 1945; the rate for non-nuclear years for Russia/USSR is only for 1945-1948; the rate for South Africa (SAF) is for 1982-90; and the dispute data only goes to 2001.

China, France, India, Israel, Pakistan, and the UK all saw declines in their total militarized dispute involvement in the years after they got nuclear weapons. A number of these are big declines. USSR/Russia and South Africa have higher rates in their nuclear versus non-nuclear periods, though it should be kept in mind that for the USSR we only have four years in the sample with no nukes, just as the Cold War is starting.

Now it could be that getting nukes means that other states become more likely to initiate a dispute with you, rather than you becoming more aggressive.

* * *

What happens if you control for other stuff, like aggregate GDP (a proxy for total military capability) or secular change over time for all states, in a statistical model? I’ve done some of this, with a panel data approach using country and year fixed effects and clustering the errors by country. I get that states see on average about one half fewer disputes per year when they have nuclear weapons, an amount that is close to “statistically significant” at p = .10. For various reasons I wouldn’t put a lot of weight on this but it does suggest that the patterns seen above don’t go away, and in fact might be somewhat strengthened, when you control for aggregate capabilities and time trends.

Obviously the fact that the other members of the nuclear club generally didn’t get much more aggressive in their foreign policy behavior after they tested doesn’t mean that Iran won’t.

Interesting results, which tend to support what some IR scholars have been arguing for decades:  the presence of more deadly weapons raises the stakes of war, lowering the likelihood states will risk initiating conflict.  Others, of course, argue the destabilizing effects of proliferation. So what to do? Fearon hedges his bets a bit on the implications for the debate over preventive war against Iran:

To be clear, I’d strongly prefer that the Iranian regime not get the bomb, mainly because of the risks of further proliferation in the region and attendant risks of preventive war and loss of control of weapons. But attacking Iran seems likely to guarantee pursuit till acquisition, to more effectively license future attacks on Israel, and to greatly increase popular support for the current Iranian regime and a course of nuclear self-defense. (Netanyahu is reported in this NYT article to believe that an attack might actually “be welcomed by Iranian citizens.” If that’s his true view and not purely strategic talk, then sheesh, it looks delusional in light of the historical record on that one.) On the other side of the ledger are vague, weak, or barely developed arguments and claims about terrible things Iran would do if it got nukes.

We’ve heard these same concerns before, regarding Stalin’s USSR, Mao’s China, Kim Jong-il’s North Korea, and about the mortal mutual enemies of India and Pakistan. All these cases have been very scary, and it’s understandable that the prospect of a nuclear Iran is incredibly scary for Israelis. But so far, in none of these prior cases do the more extreme fears look historically justified.

My own question is what does or should this mean for lawyers? Do quantitative studies of this sort — backward-looking, somewhat limited by their own size, with heavy caveats and resulting in some incidents (outliers?) proving the hypothesis– justify shifts in efforts to penalize proliferation? Or are we headed for the same unresolvable arguments about international nuclear proliferation that we hear in U.S. domestic debates over gun control?

Live from “L” Event, Thursday, Feb. 23: U.S. Legal Advisers to Discuss The Arab Spring

by Peggy McGuinness

The ABA Section on International Law is co-sponsoring with ASIL and GW Law School the second “Live from ‘L’” event. “L,” for the uninitiated, is the U.S. State Department Office of the Legal Adviser. State Department Legal Adviser Harold Koh, along with several other lawyers from L, will be leading the discussion at GW Law School on “The Arab Spring and International Law.” GW Professor Sean Murphy will be moderating. You can attend in person or catch the discussion on a live webcast.  Students can register for the webcast free of charge.

Full information here.

Opinio Juris Seeks Assistant Editor

by Peggy McGuinness

Opinio Juris seeks candidates for the position of Assistant Editor. Responsibilities include monitoring international law developments, liaising with permanent contributors to organize special events, working with guest bloggers and partner publications on submission of posts and commentary, and other administrative duties. It is anticipated that the assistant editor will work ten to twenty hours a week. The ideal candidate will have a J.D. (or equivalent) with an international law background and be comfortable with blog and other social media technology. Opinio Juris will pay competitive market rates. The assistant editor also will have the opportunity for his/her own byline on posts that regularly update our readers on international law news developments. Please submit your inquiries to Peggy McGuinness (mcguinnm – at – stjohns – dot – edu) and Roger Alford (ralford – at – nd – dot – edu). Please include a CV and a paragraph describing why you are interested in the position. The deadline for submitting applications is January 31, 2012.