Author Archive for
Peggy McGuinness

How the U.S. and Other Democratic States Can Fix the Human Rights Council

by Peggy McGuinness

Paula Schriefer of Freedom House makes a compelling argument about the central failings of the UN Human Rights Council and how they can be overcome in this piece over at Foreign Policy.  It is not, as many argue, the mere presence of bad actors on the Council or the ability of those states and their friends to run the place and deflect attention from their appalling human rights records that weakens the Council.  The core — and fixable — problem is the failure of the bloc of democratic states to stop this bad behavior in its tracks:

The council’s primary weakness is not that the world’s most repressive societies manage to get themselves elected and then run roughshod over the council’s other members, but rather that the majority of the world’s democracies let them do it. There are more democracies than dictatorships in the world today; yet curiously, it is the despots who focus their diplomatic energies on the council.

[Snip]

Despite the fact that democracies outnumber nondemocracies on the council by a ratio of nearly 2-to-1, only a handful of the council’s 47 members can be counted upon to vote consistently in accordance with human rights priorities. It will take enormous diplomatic effort to turn this around.

Schriefer argues that it will take a concerted effort by the U.S. to move the Council in the right direction, but it is well within the capacity of the U.S. to do so:

The Obama administration has already achieved one laudable success in helping to secure, in June at the last council session, passage of a resolution to continue examination of Sudan. The resolution passed, albeit just barely, because of significant behind-the-scenes U.S. lobbying that helped break down the council’s debilitating tradition of bloc voting by securing the yes votes (or in some cases the abstentions) of important African and Latin American democracies. Efforts like these require U.S. diplomats to travel to key capital cities and engage in genuine discussions with their counterparts, listening to concerns and making acceptable compromises or trade-offs.

Although the Sudan resolution marked a rare and unexpected success, it will require even greater effort to bring other council members around on fundamental human rights issues, such as protecting freedom of expression or censuring the world’s most egregious rights abusers, issues on which the council has so far failed miserably. In the coming year, the United States will have its work cut out for it in ensuring the continued mandates of special rapporteurs for countries like Somalia and Burma and in defeating the annual resolutions that attempt to criminalize speech critical of religions or religious practices.

I largely agree with her immediate “to do” list for the Obama administration:

(1) Get the Assistant Secretary for Democracy, Human Rights and Labor confirmed and in place; (2) appoint an ambassador to the Council, rather than have the Geneva representative (a slot that is also unfilled right now) cover the Council as part of a larger UN portfolio; (3) staff up both positions in Washington and Geneva so that the U.S. can do the diplomatic leg-work necessary to move the Council toward more effective oversight.

Update:  The Freedom House “The Human Rights Council Report Card: 2007-2009″ can be accessed here.

The Generals Dress Down Former VP Cheney

by Peggy McGuinness

Two former U.S. military commanders took on the former VP for his ongoing support of torture in this scathing op-ed in last week’s Miami Herald.  Generals Krulak and Hoar took this unusual step because they felt “duty-bound” to “repudiate his [Cheney's] dangerous ideas.”  Hat tip to Tom Ricks, who calls it “the best article I read on the 8th anniversary of 9/11.   Here’s an excerpt:

What leaders say matters. So when it comes to light, as it did recently, that U.S. interrogators staged mock executions and held a whirling electric drill close to the body of a naked, hooded detainee, and the former vice president winks and nods, it matters.

The Bush administration had already degraded the rules of war by authorizing techniques that violated the Geneva Conventions and shocked the conscience of the world. Now Cheney has publicly condoned the abuse that went beyond even those weakened standards, leading us down a slippery slope of lawlessness. Rules about the humane treatment of prisoners exist precisely to deter those in the field from taking matters into their own hands. They protect our nation’s honor.

To argue that honorable conduct is only required against an honorable enemy degrades the Americans who must carry out the orders. As military professionals, we know that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. Moral equivocation about abuse at the top of the chain of command travels through the ranks at warp speed.

On Aug. 24, the United States took an important step toward moral clarity and the rule of law when a special task force recommended that in the future, the Army interrogation manual should be the single standard for all agencies of the U.S. government.

The unanimous decision represents an unusual consensus among the defense, intelligence, law enforcement and homeland security agencies. Members of the task force had access to every scrap of intelligence, yet they drew the opposite conclusion from Cheney’s. They concluded that far from making us safer, cruelty betrays American values and harms U.S. national security.

OLC on Congressional Attempts to Control Diplomacy Through Foreign Appropriations

by Peggy McGuinness

Charlie Savage has a piece in today’s NY Times on the OLC’s recent memo advising the State Department that it may ignore congressional constraints attached to the 2009 foreign appropriations bill that purport to prohibit U.S. diplomats from attending meetings led by officials from states designated as state sponsors of terrorism on the ground that such constraints unconstitutionally limit the president’s foreign affairs authority.  John Elwood discusses the memo over at Volokh here.   As several of the professors quoted by Savage note, this is not a new practice — nor was it new under President George W. Bush.  Administrations going back to Gerald Ford have pushed back on what they view as unconstitutional encroachments by Congress (typically through the foreign appropriations process) on the president’s foreign affairs authority. I am working on a longer article on this topic and will have a bit more to say in the coming weeks.  But it is worth noting that the change in administration has (rather unsurprisingly) not resulted in a change in legal advice about the core foreign affairs powers of the president.  (Julian discussed Obama’s early approach to foreign affairs signing statements here.)

The U.S. Rejoins the UN Human Rights Council

by Peggy McGuinness

Excellent Human Rights Course Supplement by Professor Weissbrodt, et al.

by Peggy McGuinness

I normally wouldn’t post on a document supplement to a casebook, but the publication of Selected International Human Rights Instruments and Bibliography for Research on International Human Rights Law, by David Weissbrodt, Fionnuala Ni Aolain, Mary Rumsey, Marci Hoffman and Joan Fitzpatrick (4th Ed. 2009 Lexis/Nexis 2009) is worth a shout out. It is by far the most up-to-date course supplement, including, e.g., the new UN Disabilities Convention and the Migrant Workers Convention. But it also includes important UN institutional directives and rules that typically elude these kinds of compilations, e.g., Security Council Resolution 1325 (mainstreaming gender issues in the Council’s Chapter VII operations) and the procedural rules for the  UN Human Rights Council.  Most important for students is the extensive bibliography for “Research on International Human Rights Law,” which covers research in human rights instruments, case law, books, periodicals, blogs and websites, and a whole host of U.S.-based governmental and NGO materials.

I generally don’t recommend that students spend money on supplements that simply reprint treaties and texts that are available free of charge on the web.  This compilation offers much more than simply selecting and reprinting official materials.  It adds real value in providing research sources and methods, making it a thoughtful and useful supplement and guide. I wholeheartedly recommend it to students and teachers alike.

For students enrolled in a human rights research seminar this semester (attention my students!), the Univ. of Minnesota Law Library has a terrific guide to researching international human rights that can be accessed here. It’s a great place to start thinking about a research project.

Structuring a Peace Process

by Peggy McGuinness

I am a big fan of Laura Rozen’s work over at The Cable blog on foreignpolicy.com.  She posted a piece late Monday, “Getting to Yes on Middle East Peace Talks,” which offers a brief but fascinating peek into the art and science of mediating protracted conflicts — a topic I have written about here and here. I was particularly struck by the comments by both insiders and outside observers on how the substantive questions interplay with the issues of structuring and sequencing the overall process and identifying the appropriate parties (and, of course, the location of the yet-to-be-announced peace conference):

Aaron David Miller, a veteran Middle East peace negotiator for six secretaries of state, said Sunday that the Obama administration is planning to produce, “in late September or October,” either a conference or an announcement of a plan for a peace process — Madrid Plus, as he called it — involving at least three components:

  • A relaunch of Israel-Syrian and Israeli-Palestinian negotiations, as well as a track for resuming formal multilateral relations between Israel and other Arab states
  • An agreement with the Netanyahu government on a settlement freeze that goes further than any other Israeli government has ever gone, and one that would “grandfather in a large number of discreet units and quiet understandings on Jerusalem”
  • The resumption by Arab states — with or without the Saudis, but including the Bahrainis, other Gulf states, Tunisians, and Moroccans — of liaison offices or interest sections with Israel.

“And they are going to wrap the whole thing in an event — a conference or an announcement,” Miller, now with the Woodrow Wilson Center, said. It’s not clear if or where such an international conference or talks launch would take place. Western diplomats have told The Cable that both Russia and France are keen to host such a conference.

Some officials and Middle East hands have suggested that an announcement of the administration’s plan for how to proceed in the Middle East could come around the time of the U.N. General Assembly opening session in New York later next month, along with several Middle East and Iran related announcements.

Miller is effusive about the scope and significance of the prospective settlement freeze agreement the Obama and Netanyahu governments may be poised to strike, which he described as unprecedented.

* * *

But Miller remains pessimistic about the outcome of prospective negotiations between the Israelis and the Palestinians. “Can they reach a conflict-ending agreement right now? That’s a bridge too far,” Miller said, citing the gaps between Israeli and Palestinian positions on the issues of borders, Jerusalem, security, and the right of Palestinian refugees to return to ancestral homes in Israel. He also said negotiations will be hampered by the lack of a really representative Palestinian government.

“That is the point,” agreed Cohen, the director of the Institute for Middle East Peace and Development and author of a new book, Beyond America’s Grasp: A Century of Failed Diplomacy in the Middle East. The United States is “acting as if there is a strong state” among the Arab states, he said. “But there is no leader who can make a decision who can carry the day. [Similarly], there is no strong leader in Palestine who can make a decision.”

“Essentially there is an impasse that can only be broken if the U.S. proceeds to publish a ‘peace plan’ or coerce the two sides into some dialogue,” a former senior Israeli official told The Cable. “So now the U.S. has to craft a policy that is comprehensive in scope (i.e., incorporates the Arab League Plan and the Syrian track) but one that is balanced between Israel and the Palestinians. The big carrot [on the Obama side]: ‘Let’s deal together with Iran.’ The big stick: ‘If you’re not on board, we’re out to lunch for 1-2 years. Otherwise, [there are] more pressing things to do.'”

In the meantime, no big news out of the Mitchell/Netanyahu meeting in London today, apart from announcing the need for “meaningful talks” and that officials will meet with Mitchell in Washington next week.  So the ball is moving, but it’s unclear whether Mitchell is gaining yardage.  It is, I think, a very good thing from the U.S. perspective that other news stories are crowding out Mitchell’s diplomacy. It gives all the parties some breathing room and keeps the day-to-day pre-negotiations about the later talks off the president’s public agenda.

It’s a Bad Month to Be Ban Ki-moon

by Peggy McGuinness

The success of a UN Secretary General is largely dependent on two things:  (1) the charisma and personal drive of the office holder; and (2) his (to date, they have all been men) ability to lead and work well with the Secretariat.  On both dimensions, recent evidence suggests Ban Ki-moon appears to be in real trouble.  Unless he turns things around, he is beginning to look like a one-term SG.  While a low-key, largely absentee SG might have been exactly what the Bush administration was looking for, none of this is good news for the Obama administration, which is looking for a more robust partner in the UN on a whole host of foreign policy issues. As some are speculating, Ban’s recent turn of really, really bad PR may benefit UNDP Chief and former New Zealand Foreign Prime Minister Helen Clark, rumored to be in the running to fill the seat should Ban not be reappointed.  Perhaps it takes a spectacular failure to path the way for the first woman SG!  Stay tuned….

John Barton, RIP

by Peggy McGuinness

I just learned the sad news of the passing of Professor John Barton of my alma mater, Stanford Law School. The Stanford Law press release can be found here.  John was a dedicated and learned scholar, a wonderful mentor and a delightful man to be around.  He will be greatly missed.

I was fortunate to get to know John during my first year of law school when he invited me to join a team of law and political science graduate students he had assembled to conduct a study on international conflict mediation for the Carnegie Commission on Preventing Deadly Conflict.  It was my first “professional” academic project, and I was excited to be part of something that connected what lawyers do to the problems of the real world.  As I got to know John better, I came to understand that the ideas that lawyers should first and foremost solve problems animated all his work.  And it was an impressive body of work, which drew from his training and experience as a research engineer and from his love of the law, and bridged science, technology, intellectual property, globalization, and justice.

As our mediation project evolved, John invited me to serve with him and Melanie Greenberg (then of the Stanford Center for International Security and Cooperation) as co-editor of the final book.  It was an act of generosity by a senior scholar and teacher to a rather green law student, and one which it is fair to say altered the trajectory of my career. In the course of finishing the book, I picked up several of John’s very useful research and writing habits – many of which I maintain to this day (e.g., if you have trouble with a paragraph, type in “MORE TO COME HERE” and move on).  I have one particularly vivid memory of the project:  Delivering the final research findings to the Carnegie advisory group at a meeting in New York.  It was an impressive — and for me, intimidating! — group, co-chaired by Cy Vance and David Hamburg, and including, among others, Abe and Toni Chayes, Hans Corell, Theodor Meron, Oscar Schachter, and Paul Szasz.  That group asked tough questions, bringing together the weight of their collective experience and academic expertise, forcing us to rethink our early conclusions and reframe parts of our approach to the dynamics between law and mediation.  John taught me a great deal during the following months about responding to critiques (always graciously, even when you disagreed with them) and molding our empirical data and case studies into a coherent and useful framework for understanding how and when law does (or does not) facilitate conflict resolution.  He also taught me how to cabin and present findings.  He hoped — as we all did — that our book would be helpful; that it would provide some lessons learned about past mediations and some theoretical structure for future mediation efforts. It was a modest goal but at the same time was motivated by the best idealist traditions of lawyers:  That we can make a difference and improve the world.

I am grateful to have known and worked with John and sad that we lost him so soon.

Ambinder Interviews Glenn Sulmasy on the National Security Courts

by Peggy McGuinness

Marc Ambinder over at the Atlantic has posted his interview with Professor Glenn Sulmasy, whose new book The National Security Court System: A Natural Evolution of Justice in an Age of Terror has just been published by OUP.

Ambinder summarizes the central arguments and proposals of Sulmasy’s book:

Sulmasy expands on what he calls a “hybrid” approach to the quandary of prosecuting terrorists.  He would create a national security court, run by civilians, that exists outside the federal court system envisioned in Article III of the Constitution. The standards of evidence would be changed to reflect the realities of counterterrorism, but every detainee would be presumed triable. They’d have to be tried within a year of being captured. Three-judge panels would use a “reasonable doubt” standard for convictions, and two of them must agree before a detainee could be found guilty. Those detainees found not guilty would be detained until a suitable place for them to go can be found. Detainees would be housed on U.S. soil in prisons built on military bases. The death penalty would only be applicable if the detainee’s home country has legalized the practice. The President would retain some thin authority to detain those found not guilty under extreme circumstances, but there would be strict safeguards on the exercise of this power, and its exercise would be public. In recent weeks, Sulmasy has added a new provision: he believes that the legislation establishing the courts should sunset after five years, which would add a measure of review to the process and give Congress and the President the ability to see what has worked and what hasn’t.

There is much to be unpacked, discussed and critiqued here, but it is worth checking out the q and a with Sulmasy, someone who has spent a lot time thinking deeply about these issues.

Book Discussion: Kal Raustiala’s “Does the Constitution Follow the Flag?”

by Peggy McGuinness

Opinio Juris is pleased to be hosting over the next three days a discussion of Professor Kal Raustiala’s new book, “Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law” (OUP 2009). Professor Raustiala is a professor of law at UCLA and also director of the UCLA Ronald W. Burkle Center for International Relations. He has written broadly in both international law and international relations, and this outstanding new book reflects his deep engagement in both fields:

In this novel history of territoriality in American law and foreign policy, Kal Raustiala traces the evolving concept from post-revolutionary American to late-nineteenth century imperialism, the Cold War, and our own era of globalization. He closes with a powerful explanation of America’s attempt to increase its extraterritorial power in the contemporary world. As American power has grown, its understanding of extraterritorial legal jurisdiction has expanded too. Throughout, Raustiala focuses on how the legal limits of territorial sovereignty have been tweaked to accommodate the expanding American empire.

In addition to the OJ regulars, the discussion will be joined by three commentators: Professors Bill Dodge (UC Hastings), David Golove (NYU) and Tim Zick (William & Mary). We look forward to a lively discussion and hope that our readers will join the conversation in the comments section.

John Bellinger Gets it Right on Consular Convention Implementing Legislation

by Peggy McGuinness

John Bellinger, who served as the Bush administration Legal Advisor to the State Department (in which capacity he famously guest blogged at Opinio Juris!), has an op-ed in today’s last Saturday’s NY Times calling for legislation to override the Supreme Court’s decision in Medellin v. Texas and to give effect to the ICJ’s 2003 decision in Avena. The legislation would overcome any state procedural bar rules to permit review of the convictions of the 51 Mexican nationals at issue in Avena who were denied their consular notification rights in violation of the Consular Convention.  As Bellinger notes, until such review takes place, the U.S. remains in non-compliance with the ICJ decision and the UN Charter.  Moreover, the Supreme Court indicated in Medellin v. Texas that legislation, not to assertion of executive powers, is the only path to compliance with Avena – short of the individual states independently choosing to comply (an option rendered impossible following Texas’ execution of Jose Medellin last August).

Bellinger rightly emphasizes the reciprocal nature of the Consular Convention and the protections it affords to Americans overseas, and notes that although the Obama administration has embraced the idea of enforcing  international legal obligations it still faces a dilemma on this issue:

President Obama now faces the same challenges as Mr. Bush in 2005: an international obligation to review the cases of those Mexicans remaining on death rows across the country; state governments that are politically unwilling or legally unable to provide this review; and a Congress that often fails to appreciate that compliance with treaty obligations is in our national interest, not an infringement of our sovereignty.

The Obama administration’s best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter.

From closing Guantánamo to engaging with the International Criminal Court to seeking Senate approval of the Law of the Sea Convention, President Obama is confronting the recurring tension between our international interests and domestic politics. But reviewing the Mexican cases as the international court demands is not insincere global theater. On the contrary, complying with the Vienna Convention is legally required and smart foreign policy. It protects Americans abroad and confirms this country’s commitment to international law.

A statute aimed more broadly at Consular Convention compliance was proposed during the last congressional term but languished in the shadow of the presidential campaign and a lame-duck administration (see the proposed bill here.)  Whether the statute is more narrowly tailored as Bellinger suggests, or sweeps more broadly to preempt state procedural rules to achieve compliance with the Convention going forward, Bellinger is right that this should be a priority for the Obama State Department and Congress.

Welcome to Guest Blogger Greg Gordon

by Peggy McGuinness

We extend a warm welcome to Professor Greg Gordon of the University of North Dakota Law School, who will be guest blogging with us over the next two weeks. Professor Gordon specializes in international criminal law, and brings a wealth of actual experience as a war crimes prosecutor at the ICTR and the U.S. Department of Justice to his work on genocide, international criminal due process and questions of post-conflict justice. We look forward to his posts and, as always, to a lively discussion with our readers. Welcome!