Marko Milanovic’s impressive treatment of the rapidly evolving jurisprudence of extraterritoriality of human rights treaties is a must read for anyone teaching or thinking about the international human rights system.  What is most significant for me is Marko’s systematic effort to put doctrinal and policy meat on the bones of the argument that has been developing over the last decade or so that human rights obligations are “everywhere.”  I agree with both the sentiment and policy objectives of arguing that the universality of human rights means that they belong to all humans without regard to nationality or location within a particular territory.   And Marko is correct in positioning his comprehensive analysis of the cases addressing extraterritoriality within the “humanization” of all dimensions of international law, the process Ruti Teitel has described nicely as “humanity’s law.”

This is a book fundamentally about treaty interpretation, and it leaves aside the development of customary international law of human rights or of norm transformation more generally. It is a work of formal law — and in that regard is a really welcome shift toward the doctrinal in these debates.  The central question Marko seeks to address is the scope of application of specific treaty obligations undertaken by states to observe human rights  – and whether and how those obligations are triggered when a state engages in extraterritorial political, law enforcement, military or intelligence operations. Globalization has expanded the availability of extraterritorial acts from beyond the traditional notion of sovereigns acting through territories, colonies or militarily occupied areas, to include myriad cross-border law enforcement and regulatory cooperation arrangements of states of varying sizes and power.  The potential for conflicts of law is dizzying; the potential for human rights abuses is depressing.

Because we are talking about treaty interpretation, it bears focusing on the method of interpretation that Marko employ and also on the problem raised by relying on judicial (or in the case of the ICCPR quasi-judicial) interpretation, rather than looking to the treaty makers themselves to clarify and better articulate the current morass of jurisdictional clauses in the regional and international treaties.

Professor Harlan Cohen of the Univ. of Georgia Law School will be guest blogging with us for the next few weeks.  Among his other achievements prior to joining the UGA faculty in 2007, Harlan was a Furman Fellow at NYU Law School and on the staff at Foreign Affairs.  He teaches and writes in international law in the U.S, international legal theory and history, and international human rights law.  Harlan is co-chairing the 2012 ASIL Annual Meeting.  We are delighted to have him back at OJ for a longer guest-blogging stint.  Welcome Harlan!

Congratulations to Kal Raustiala and Laura Dickinson, the masterminds who conceived and carried out the first Research Forum sponsored by the American Society of International Law.  The forum took place this past weekend in Los Angeles, together with the ASIL Mid-Year Meeting, which ASIL President David Caron has successfully moved out of Washington and out among broader constituencies of international practice here in the U.S.  This year added the inaugural Research Forum as a new tradition for the ASIL Mid-Year Meeting.  The forum included over 50 papers presented at 18 separate panels over two days.  I was fortunate to have the opportunity to present my own paper on congressional human rights mandates as a work-in-progress and was honored to sit on a panel with stellar colleagues and a sharp commentator, as well as to receive  insightful feedback from the participants.  The panels were well attended and packed with some very smart people from the U.S. academy and abroad — including some interdisciplinary mingling by IR scholars and historians.  You can find some of the draft papers and the full schedule here.  (Among the forthcoming books that were discussed that I am looking forward to reading:  Jeff Dunoff and Mark Pollack’s definitive volume on IL/IR scholarship and Ben Coates’ history of international legalism in U.S. diplomacy.)  I was particularly pleased to see fellow bloggers like Fiona de Londras — on this side of the pond! — and to meet new OJ readers.  Having the opportunity to hear keynotes from ICC Prosecutor Luis Moreno-Ocampo (in a candid mood, as Roger notes here) and ICJ Judge Joan Donoghue was icing on the cake.

Congratulations to Kal, Laura, the organizing and host committees, and all the staff at ASIL for a job well done!

CLR Forum is an impressive new entry to the law professor blogosphere has been launched by my St. John’s colleagues Mark Movsesian and Marc DeGirolami.  The CLR Forum is the official blog of the St.John’s Center for Law and Religion, a center which in just one year has put itself on the map hosting conferences and significant scholarly exchange in the area of religious legal theory, comparative law and religion, and religion and human rights.  Their coverage is global, and those of you interested in international and comparative perspectives on the intersection of law and religion will find lots to chew on here.  (See, for example, the proceedings of their “Laïcité in Comparative Perspective” symposium, and this discussion on “Christians in the Middle East: Contemporary Human Rights Perspectives.”)   The “Scholarship Round-up” is one-stop shopping for articles, essays, and books on law and religion and related topics. And the CLR Forum also includes useful posts by their research fellows on legal developments, such as this summary of the various anti-Shari’a laws around the USA.

Here’s Mark Movsesian’s [corrected!] recent response to a Ross Douthat op-ed on religion in the presidential election:

Ross Douthat  . . . argues that reporters are absolutely correct to ask candidates who “wear their religions on their sleeves” to explain how their beliefs would influence their policy decisions.  He cautions, though, that reporters should not assume that a candidate shares the most extreme views associated with his or her denomination, or apply a double standard.  If Barack Obama is not identical with Jeremiah Wright, Michele Bachman may not be identical with R.J. Rushdoony. She’ll have to explain.

I think Douthat is right on both counts, but what interests me is the use of the term “theocracy” in American public life. Traditionally, “theocracy” means government by clergy, the sort of thing that exists today in Shia Iran, and, I suppose, Vatican City.  But that is an extremely rare arrangement nowadays, and no one in America, including the overwhelming majority of conservative Evangelicals, would favor it.  I suppose “theocracy” could also mean a state in which religious law applies to civil matters. That arrangement is the norm in classical Islam, but classical Islamic states no longer exist (except in a place like Saudi Arabia), and it remains unclear whether contemporary Islamists will succeed in re-establishing them.  There is no large movement to govern America according to “Christian law” (what would that be, anyway?).  Rushdoony’s Recontructionists are absolutely a fringe movement, even among Evangelicals.

When critics use the term “theocracy” in America today, it seems to me that they mean “too much religion.” A “theocrat” is someone who makes religious arguments for political programs, uses religious imagery in political speeches, or allows religious beliefs to influence policy decisions.  By this definition, America is a theocracy, and always has been.  For example, American politicians on the left and the right have always used religious imagery to win support for their programs.  But if FDR was a theocrat, the word has no explanatory power….

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Welcome to the blogosphere!

Opinio Juris is pleased to welcome for an extended guest-blogging stint our friend and frequent contributor, John Dehn.  John holds the rank of Major in the U.S. Army and currently serves as Senior Fellow at the Center for the Rule of Law at the U.S. Military Academy at West Point.  John has taught international law, constitutional law and military law at West Point for several years, and is currently completing his JSD at Columbia Law School.  John brings a wealth of real-life experience to contemporary problems in international humanitarian law, problems which he also tackles in his scholarship.  He has written extensively on presidential war powers and the historical origins of the laws of war.  His SSRN page is here.  We welcome John for the next two weeks and look forward to a great conversation!

Friend of Opinio Juris and current President of the American Branch of the International Law Association, Ruth Wedgwood, passes along the following announcement for teaching opportunities at the Nanjing campus of Johns Hopkins SAIS. They are looking for visitors in political science, economics, and international law:

The Johns Hopkins University School of Advanced International Studies (SAIS) invites applications for one-year renewable positions as a Visiting Professor at its international and area studies graduate institute jointly administered with Nanjing University in Nanjing, China with the appointment to begin in September 2012.

Applicants must have a Ph.D. or J.D., strong theoretical and methodological training, significant teaching experience, evidence of scholarly productivity, and a commitment to advancing cross-cultural dialogue and intellectual exchange in this unique, joint Sino-American residential graduate school. Applicants should be prepared to teach two courses each semester and advise masters students on writing theses. International faculty teach in English and primarily teach Chinese M.A. degree-level students preparing for careers in international affairs.

Johns Hopkins offers a competitive salary and benefits package and
is an Affirmative Action/Equal Opportunity Employer.

Applications are due October 15, 2011 and may be downloaded at http://nanjing.jhu.edu/faculty/index.htm For further information, contact Carolyn Townsley, Director HNC Washington Support Office,
at 202-663-5802 or ctownsley [at] jhu [dot] edu.

The Transatlantic Academy is seeking young legal scholars to submit proposals for its 2012-2013 fellowship program. This looks like a great opportunity to partner with scholars in political science and economics in areas affecting the transatlantic relationship. Note next year’s theme is a broad view of the “Western Liberal Order”:

The Transatlantic Academy is seeking candidates to serve as resident Fellows for nine months for the fellowship year beginning September 2012. A joint project of the German Marshall Fund of the United States, ZEIT-Stiftung Ebelin und Gerd Bucerius, the Robert Bosch Stiftung and the Lynde and Harry Bradley Foundation, the Transatlantic Academy is located at the German Marshall Fund of the United States in Washington DC. The academy brings together scholars from Europe and North America to work on a single set of issues facing the transatlantic community. The academy is an interdisciplinary institution which is open to all social science disciplines, the humanities and the natural sciences. For more information on the Academy please visit our website a www.transatlanticacademy.org.  The academy welcomes applications from scholars working on the theme of “The Future of the Western Liberal Order.”

Though it produced hardly a ripple in the news (given all the other drama on Capitol Hill this week), Senator Leahy held a hearing yesterday on the legislation he has introduced to enforce the notification provisions of the Vienna Convention on Consular Relations (VCCR) at the state level.  The webcast of the hearing, aptly titled “Fulfilling our Treaty Obligations and Protecting Americans Abroad,” is here and the statements of the witnesses can be found here.  I’ll be posting some more commentary on this a bit later.

We now know that there is broad agreement that if Texas Governor Perry goes forward with today’s scheduled execution of Humberto Leal, he will be doing so in violation of law.  Who has said so?  Well, the U.S. government, the U.S. Supreme Court, at least three concurring judges on the Texas Court of Criminal Appeals, a significant number of members of the House and Senate, along with the United Nations, Mexico (and many other states) and, of course, the International Court of Justice.  The problem for Leal and others whose death penalty convictions were obtained following a clear and acknowledged violation of U.S. obligations under the Consular Convention is not a lack of clarity about consular law.  The problem is the domestic remedy.  There are only two institutions remaining that can provide one to Mr. Leal today:  The U.S. Supreme Court, if it accepts the very strong argument of Leal’s attorneys and the Solicitor General that the Court should invoke its power under the All Writs Act to stay the execution until the proposed jurisdictional and remedial statute (the Consular Notification Compliance Act) is adopted by Congress, or Governor Perry.  Given Perry’s failure to stay the execution of Ernesto Medellin in 2008 — nothwithstanding the official position of the Bush administration to comply with the 2004 Avena decision of the ICJ  — there is little about the Leal case to suggest that Perry will change his international law-breaking ways.

Perry’s most likely political calculation on the question is summed up nicely/depressingly by this post by Thomas Lane over at Talking Points Memo, in which he says of efforts by the UN High Commissioner of Human Rights to sway Governor Perry:

International Law professors and Current TV producers probably aren’t going to be voting in the GOP primaries. Looking online at the types of people who may be, the blog “One Old Vet” puts the prevailing sentiment most succinctly: “This is America and Mexican law, as well as other international law, can go straight to hell!” Similarly, a Fox News write-up about the U.N. intervention grins, “Perry apparently doesn’t plan to take his cues from the U.N.”

So, things look fairly bleak for Mr. Leal. Indeed, one might say that if Perry does delay the execution, thus bowing to international pressure, it could be the clearest sign yet that he’s not running for president.

But some things are different today than they were for Medellin in 2008.  First, there is the quite stunning concurrence by three judges of the Texas State Court of Criminal Appeals, which explicitly  adopts the concurring opinion of Justice Sevens in the Medellin v. Texas decision.  Stevens concurred with the majority’s decision in Medellin that the ICJ judgment did not create binding domestic law, i.e., it did not create a remedy.  Stevens noted, however, that it rested with Texas (a view Julian Ku enthusiastically endorsed here) to carry out the U.S. international legal obligation to provide the additional hearing ordered by the ICJ in Avena.  After concluding that that Texas law constrained them from entertaining his request for the stay, the concurring justices wrote:

This does not mean [Leal] lacks any state remedy at all. The Executive Department has the power, unfettered as ours is, to grant the applicant a reprieve. And it is precisely when the Judicial Department proves institutionally unequal to the task that the exercise of executive clemency is most appropriate. With the recommendation of the Board of Pardons and Paroles, the Governor may effectively stay the applicant’s execution until such time as legislation passes that finally implements our indisputable treaty obligations and provides a remedy for the applicant’s right under international law. By himself, the Governor can grant one thirty-day reprieve, affording the trial court an opportunity to delay re-imposition of sentence until such time as implementing legislation may pass.  In this way, Texas can still honor its duty under the Supremacy Clause to honor the treaty obligations of the United States, just as Justice Stevens has implored us to do.

The Board of Pardons and Paroles has not recommended a stay in this case.  But with pending federal legislation, there is a stronger argument than in 2008 for the GOP Texas congressional delegation to support Perry in a move to grant a reprieve.  It does not appear politically likely, but at least there is a relevant and compelling change in domestic legal circumstances here.

If neither the Supreme Court nor Perry grants a stay, the U.S. will once again be responsible for executing a foreign national in violation of international law.  And we can expect even tougher times ahead for American consular and human rights officials trying to convince other states around the world to obey well-established and broadly recognized international law.

As discussions over the legality of the May 1 killing of Osama Bin Laden by U.S. forces heated up and international law and law of war experts provided a range of potential arguments for and against the lawfulness of U.S. action, we thought it would help public discussion to present the official U.S. position on the legal dimensions of the raid and killing.  We are delighted to announce that the Legal Adviser to the U.S. State Department, Harold Hongju Koh, has accepted our invitation to address these issues and that he will be guest blogging with us tomorrow, May 19.

As many of our regular readers know, Koh came to the position of Legal Adviser in 2009 with a wealth of experience and deep expertise as a leading scholar in international law, a former Assistant Secretary of State for Human Rights, Democracy and Labor, and Dean of the Yale Law School.  We are honored to host him on Opinio Juris and look forward to what is sure to be a lively follow up discussion here and elsewhere.  I should note that Koh’s predecessor, John Bellinger, guest blogged with Opinio Juris in 2007, to address a range of questions relating to the U.S. legal policies on detention and counter-terrorism and the power of the president to interpret international law.  The opportunity to hear from the current Legal Adviser continues an important tradition of dialogue between government lawyers, the academy, and the general public.  It also represents the kind of transparency of legal policy necessary to effective and accountable governance in these challenging times.

The Council of Europe continues to monitor death penalty practices around the world and call out friendly states that fall short of full abolition.  Last week the Council passed a resolution (full text here) reiterating its support for abolition and calling on Belarus (as a potential member state), Japan and the U.S. to join the consensus of democratic, human rights regarding states by abolishing the death penalty.  Most interesting was the resolution’s focus on implementation of the ICJ’s Avena decision (Mexico v. United States) as a dimension of abolition. I have long argued that the Avena case and the domestic line of cases related to Avena were centrally about U.S. exceptionalism on the death penalty, and this resolution demonstrates that, at least from the European perspective, the death penalty is at the heart of the Consular Convention controversy.  It seems highly unlikely, however, that the U.S. Congress will respond to the Council’s suggestion.  Indeed, it’s perhaps more likely that a push from Europe that focuses on the death penalty will alienate some lawmakers. An approach emphasizing the value of enforcing the Consular Convention in all cases — as argued by John Bellinger — is more likely to win over Congress.

From the Council’s Resolution 1807:

1.       The Parliamentary Assembly reiterates its principled opposition to the death penalty in any circumstances. It takes pride in its successful contribution to ridding almost all of Europe of this inhuman and degrading punishment, by having made abolition of the death penalty a condition for accession to the Council of Europe.

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4.       As regards the United States of America, the Assembly:

4.1.       congratulates those American states which have recently abolished the death penalty (in particular, New Mexico, New Jersey and New York State) and invites others, as well as the federal jurisdiction, to follow their lead;

4.2. regrets that the arbitrary and discriminatory application of the death penalty in the United States and the public scandals surrounding the different methods of execution in use (lethal injection, electric chair, firing squad) have stained the reputation of this country, which its friends expect to be a beacon for human rights;

4.3. considers that, particularly in the present time of budgetary constraints, scarce resources are better used to improve crime prevention and to increase the rate of clearance of serious crimes rather than to fight protracted legal battles in order to put to death individual perpetrators.

5.       Also, as regards the Avena (Mexico v. United States of America) judgment of the International Court of Justice, the Assembly urges that:

5.1. the federal legislature pass legislation enabling those Mexican nationals condemned to death without having been provided with the consular assistance mandated by the Vienna Convention on Consular Relations to be retried following the correct procedures;

5.2. all judicial authorities in the United States be given the possibility to ensure that in future foreign nationals who may be subjected to the death penalty are provided with appropriate consular assistance, in compliance with the international obligations of the United States under the Vienna Convention.

Our friends at the International Law Association pass along the following registration information for the upcoming Asia-Pacific Conference in Taipei, which features a terrific line-up of speakersi:

The 2011 International Law Association (ILA) Asia-Pacific Regional Conference will take place in Taipei, Taiwan from May 29 to June 1, 2011. The conference theme is “Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges.”

The keynote speakers are Judge Helmut Tuerk (Vice President, International Tribunal for the Law of the Sea, ITLOS) and Professor David Caron (President, American Society of International Law). Other speakers include President Ying-jeou Ma (President, Republic of China), Lord Mance (Justice, Supreme Court of the United Kingdom), Professor Nicolaas Schrijver (President, International Law Association), Judges Albert Hoffmann, Jin-Hyun Paik and Shunji Yanai of the ITLOS, scholars and government legal advisors from various ILA branches. The ILA Research Committee on Recognition and Non-Recognition will also convene at the conference.

The tentative conference program is available at http://www.cils.nccu.edu.tw/ila2011tw/Program.htm. The registration deadline is May 10, 2011.