On the eve of President Obama taking the chair at the Security Council, David Bosco takes on a few of the common assumptions about the Council over at Foreign Policy. I largely agree with Bosco’s quick (and yes, Ken, “breezy” – it seems to be a quality FP is promoting these days!) take on the central themes: (1) the Council does a lot more and is a great deal busier than the average observer gives it credit for, and despite the demands of deliberation, moves much faster now than during the Cold War; (2) Obama may (or may not) rely on the Council more than Bush (this point is largely contingent on the success of Obama’s broader reengagement with the UN; (3) the question of “legal” powers of the Council to regulate the use of force is largely irrelevant; (4) the question of reforming the veto is also irrelevant since the veto is here to stay; and (5) expansion of Council membership will not necessarily increase its legitimacy.
Bosco is, of course, right about the effect that daily consultation and deliberation among the world powers has on maintaining peace and security. This is a “talk is good”/constructivist view of the Council:
[P]lenty of the council’s frenetic efforts have required tortuous negotiation, but as it turns out, talk is an important aspect of what the council does. Achieving consensus among the council’s five veto-wielding permanent members — the United States, Britain, France, Russia, and China — is rarely easy. Each power has a unique set of interests and relationships that it seeks to protect. Even when the permanent five (P5) members can agree, they have to convince at least four of the elected council members in order to take formal action. Frustrating though it can be, that process — of the major powers talking to each other day after day — is one of the council’s principal contributions to international stability. Through sheer repetition, the Security Council has instilled a culture of great-power consultation and compromise that may be as important to international peace as any peacekeeping mission, sanctions regime, or war crimes investigation.
I was also struck by Bosco’s take on the question of legitimacy, legality and the politics of the use of force, which I have written about here and here:
Major powers (and plenty of minor ones) have taken military action again and again without the council’s approval. Plenty of these actions have been misguided, but others have been necessary. The United States itself used force without council approval under the Bill Clinton administration when it launched airstrikes in 1999 to force Serbia to relinquish the disputed province of Kosovo. Earlier this month, President Obama sent commandos into Somalia to hunt down suspected terrorists without stopping to ask for a council debate and resolution on the subject. Certain purists may insist that all these actions were illegal and illegitimate, but the actual practice of international relations matters more than legal doctrine. The Security Council is an important avenue to international legitimacy, but certainly not the only one. Regional organizations like NATO, the European Union, and the African Union will often be alternatives. The Kosovo operation, for example, was endorsed by NATO rather than by the Security Council.
I would add that the “actual practice of international relations” can become international law. Bosco’s formulation of politics/international relations as separate from international law reflects, perhaps, some of the doctrinal walls that still exist between the two academic disciplines. In the wake of these recent examples of non-UN-authorized operations, the struggle for both disciplines is finding an appropriate framework through which to reconcile “legitimacy” and “legality” of the use force.
My sympathies are with those who have to drive anywhere in Manhattan this week as the General Assembly gets underway. In past years I have experienced the privilege of being inside the security cordon and also the inconvenience of being outside it. But now we can all experience being inside the main public events through the UN Webcast! The link is here (real player installation needed). If you are wondering what to watch for, Mark Leon Goldberg has a useful guide over at Foreign Policy. His top five: The climate change meeting today; President Obama presiding over the Security Council’s Thursday meeting on non-proliferation (the U.S. holds the SC presidency this month); Obama’s address to the GA on Wednesday; Muammar Qaddafi’s appearance at the GA (for antics-watching value, but also to see how Qaddafi fills Libya’s seat on the Council this week); and Hu Jintao’s presence at — indeed, the ubiquity of China’s engagement in — all the events of the week.
President Obama will be watched particularly closely, as it is his first UN GA meeting and the first full roll out of the administration’s UN policy. The “scene-setter” from U.S. UN Ambassador Susan Rice outlining U.S. objectives for the week and the administration’s re-engagement with the UN is here. Ban-Ki Moon can also expect to be watched closely by both his critics and supporters — particularly for any signs of success at the climate change meeting, an issue on which he has staked a great deal of his political capital.
As Churchill famously said, it is better to “jaw-jaw” than “war-war.” And there will be plenty of jaw-jawing this week — from the climate meeting, to the GA plenary, to the many bilateral, trilateral and multilateral meetings on the “margins” of the GA, to the G-20 summit opening in Pittsburgh on September 24. One of the core strengths of the admittedly flawed institutional architecture of the UN is its role as the global diplomatic forum. There is no place in the globe or a date on the calendar that offers the U.S. — or any other state — the ability to engage more efficiently in the art of face-to-face, high-level diplomacy than the General Assembly week.
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.
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.
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.
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.)
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.
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.
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….
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.
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.
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.