Last week, the U.S. and Canada reached an agreement to permit Canadian firms to bid on projects funded by U.S. stimulus money based on the legislation enacted last year. The confusing part is just how exactly this will occur.  According to CTV,

Canadian firms will be exempted from “Buy American” restrictions under seven of the stimulus programs, in 37 U.S. states that signed on to the World Trade Organization. Those states will be able to use American stimulus money to buy Canadian manufactured goods.

Apparently, the whole deal is being done via an executive agreement, an executive order, and some sort of subsequent agreement with some (but not all) of the states. (The USTR website confirms the report, but has no further details).

The interesting part of this agreement to me is my belated realization that only 37 of the 50 U.S. states are bound by the WTO procurement agreement.  I somehow didn’t know that, although I am all for foreign policy federalism.  Canadians seem to realize that this agreement with the U.S. government will only get them so far.  As one Canadian opposition leader notes (correctly).

“The American government machinery is so amorphous, that a deal signed with the administration in Washington is a long way away from applying to the municipal government in Cleveland, or in Bangor, Maine,”

It’s really not such a great deal for Canada. They are getting, one year later, the legal access (in 37 states) that they should have had a year ago. But I suppose you have to take what you can get.

Apparently, the Obama Administration has decided it will not seek ratification of the ICC Rome Statute.  There is still no official policy, as far as I know, but this is the latest from Assistant Secretary of State for War Crimes Stephen Rapp. This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.  This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.

The NY Times Opinionator has a nice roundup of lefty-blog reaction to the Obama Administration’s claim of the legal authority to kill and assassinate U.S. citizens abroad (and its admission to having already done so). Most lefty-blogs seem unconcerned about this policy, with the notable exception of Glenn Greenawald. From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance).  Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing?  Here’s why these assassinations/killings pose such a real legal problem, especially under their previously stated views of how U.S. law should work.

It is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal, that the U.S. is bound by constitutional requirements even when acting abroad in a war zone, and especially when it is acting against U.S. citizens.   But if one believes all of these things, then one cannot possibly believe that deliberately assassinating U.S. citizens is constitutional.  As I’ve said before, if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law), then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing.  Am I missing something?

As some of the commenters have pointed out, the nationality of the victim is not that important from the perspective of international law.  Under international law, the main question is whether there is legal authority to kill or assassinate anyone, much less one’s own nationals.  But even under international law, as readers of Ken Anderson’s posts here and at Volokh know, it is still not all that clear.   Indeed, there seems a more than plausible argument that certain kinds of assassinations, as currently executed by the Predator drones, could indeed constitute a violation of the law of war.

In any event, if the U.S. is going to pursue this policy, it should openly defend its legality.  As Stuart Taylor suggests, now might be a good time for Harold Koh to earn his keep over at the State Department and lead a robust legal defense of U.S. practice before the world community and in NGO circles.  And what better place to launch this defense do so than here at the Opinio Juris?

As Kevin notes, the ICC Appeals Chamber has overruled the Pre-Trial Chamber on the question of whether Sudan’s President Bashir can be charged with genocide.  In a very useful note, Chile Eboe-Osuji points out here that the Appeals Chamber did not in fact provide the Pre-Trial Chamber with guidance on what standard it should adopt to determine whether there was sufficient evidence of the “intent” to commit genocide to issue an arrest warrant.  As he puts it,

Curiously, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. This is not very helpful.

Read the whole post to see his best guess as to what the standard will be.  I would be curious to see if folks have different views than his.

I’ve been on blog-silence the last few months, but one of my students today made me feel a little guilty about my lack of blogging, so I’m back (at least for now).  So while not wanting to interrupt this great online symposium, I’ll just point our readers to this remarkable little exchange between U.S. Director of National Intelligence Dennis Blair and members of Congress.

“We take direct actions against terrorists in the intelligence community; if … we think that direct action will involve killing an American, we get specific permission to do that,” Director of National Intelligence Dennis Blair told the House Intelligence Committee.

Blair goes on to helpfully explain that such assassinations will not be for free speech, but for “engaging in action that threatens Americans.”

In fact, as the report goes on to point out, the U.S. Predator strike campaign has already killed a number of Americans in Pakistan associated with Al Qaeda.  So I guess this isn’t such a big deal. But as a legal matter, it is odd that the U.S. must grant substantial constitutional rights to citizens abroad, and it must even grant habeas rights to challenge their status to U.S. citizens held as enemy combatants, but it can target and deliberately kill Americans abroad without notice or a hearing.  Would love to see the OLC opinion (no doubt by Marty Lederman) on that one…

I don’t know what I think about this report by two Switzerland-based NGOs analyzing a number of popular video games for their consistency with rules of international humanitarian law (h/t kotaku).  Apparently, many video games encourage blatant and unrepentant violations of the laws of war.

In the scenes, there seems to be no assessment of proportionality in the attacks realised in civilian areas and we do not know whether precautionary measures were taken to minimize civilian casualties and damage to civilian objects. However, in a real life situation, one is often confronted with similar circumstances: regular armed forces and irregular armed groups are very unlikely to give any information about the planning of the preparation of military operations to international organisations or human rights bodies. Without such information, it is difficult to establish that a military operation was not proportional, in particular whether the attacker took all the precautionary measures necessary to avoid, and in any event to minimize incidental loss or civilian life, injury to civilians and damage to civilian objects.

In addition to the extensive destruction, some of the scenes portray the members of “Bad Company” taking gold and “treasures” found in the civilian houses they have just destroyed. Upon obtaining them, the players get points. These actions amount to pillage, which is strictly prohibited under IHL and thus have also been labelled as “strong”. This illegal action is confirmed in one of the scenes where you can hear a member saying that “Pillaging is an old war tradition.” Pillage is considered as a war crime both in international and non- international armed conflicts.

There is something to this. Check out this photo from Call of Duty 4. Looks like a war crime to me. Do we need international law requiring video game makers to follow international law in their video games?  Sure, as long as this resulted in lucrative consulting gigs for law professors….

James Comey and Jack Goldsmith provide here the best (although not completely convincing) defense of the decision to try KSM in New York.  I agree that the most defensible explanation is that military commissions remain constitutionally vulnerable, hence it makes sense to use the civilian courts for your most important cases. I don’t quite buy this, but I think this is the most sensible explanation of what seems otherwise a totally baffling decision.

OK, so France wins on a bad call by a referee.  And people in Ireland are mad.  And the Irish Prime Minister even brought it up with French President Sarkozy at a recent EU meeting.  But nothing quite captures the importance of soccer and the World Cup then riots, clashes, and the recall of ambassadors after Egypt defeated Algeria in a World Cup qualifier.  Maybe it’s a good thing that Americans could care less about the World Cup.

Cairo, Egypt (CNN) — Hundreds of angry demonstrators in Egypt’s capital fought with police near the Algerian Embassy early Friday, the Interior Ministry said.

The clashes in Cairo stem from tensions over Algeria’s victory over Egypt in a World Cup qualifier soccer match and earlier fights between soccer fans in the North African countries.

The ministry said 39 security forces were wounded in the clashes, and cars and stores were damaged in Zamalek, an island in Cairo on the Nile River. At present, there is a strong security presence in the area with truckloads of riot police and more than 1,000 security forces.

A series of clashes between Egyptian and Algerian soccer fans also has led to a diplomatic row between the two North African countries, with Egypt recalling its ambassador to Algiers on Thursday.

Husam Zaki, a spokesman for Egypt’s Foreign Ministry, said Cairo has asked its envoy to return from Algeria “for consultations” after a week of tensions over qualifying matches for the FIFA World Cup.

I’m fascinated by the mini-kerfuffle (on the Right at least) over President Obama’s propensity to bow when meeting foreign heads of state who are also royalty (see his super-bow to the Emperor of Japan to the right).  In the old days, this type of stuff was really important.  Students of Chinese history may recall that one of the first British emissaries to the Chinese emperor refused to “kowtow”(叩頭）as a matter of principle since it symbolized submission to the authority of the foreign sovereign.  These days, it is just amusing blogfodder.   I don’t know why the President feels a need to bow to royalty, since as this link shows, no one else who meets with the Japanese Emperor feels a need to do so. I guess he’s just overly polite.  But he’s the U.S. President. He bows to no one!

Richard Goldstone is getting lots of flak for his recent report on the conflict in Gaza.  Much of this flak is either undeserved or way over the top.  But the unreasonableness of some of his critics does not mean his report was actually good and wise and fair.   The basic problem, as I see it, was that Goldstone and his team was unable to determine crucial but contested facts with an even minimally acceptable level of reliability.  Yet the Report (and Goldstone should have known this) made a variety of official sounding “findings of fact” which are going to be used by anti-Israel propagandists for decades.  A fuller description of this critique is developed in great detail here by Trevor Norwitz, a partner at the well-known U.S. law firm of Wachtell, Lipton, Rosen, and Katz.  It seems like a sensible critique and one that folks like Goldstone should take to heart next time they are offered an impossible fact-finding mission.

Unless something rather dramatic happens, the Obama Administration is going to give up on its self-imposed January 22, 2010 deadline for closing prison facilities at Guantanamo Bay. The Center for American Progress, a reliable barometer of the Administration’s thinking, has also advised against meeting the deadline.

As a legal matter, it is not obvious that closing Gitmo would have made much of a difference.  In fact, current conditions at Gitmo are almost certainly better than the average U.S. prison. And it seems likely that Gitmo detainees will get almost all the same legal rights that they would have if held in the U.S. and probably more than if they were held in Afghanistan.  While such detentions may violate international law, these detentions would equally be problematic in the U.S. or in Afghanistan.

So closing Gitmo was almost a purely symbolic act and it is really hard to figure out how to close it effectively.  Obama knew or should have known this when he signed the closure order.  But he obviously screwed up, which is why he has apparently fired the  architect of this deadline, White House Counsel Gregory Craig. I guess someone has to take the blame.

The Yale Journal of International Law (YJIL) has announced the launch of its new website, http://www.yjil.org, featuring unique online content for the first time in its thirty-five year history. YJIL Online provides authors a forum for short analytical essays relevant to the furtherance of both scholarship and practice. The first issue includes a co-authored piece by State Department Legal Adviser Harold Hongju Koh and Aaron Zelinsky, and a piece by Yale Professor W. Michael Reisman and Brad Tennis. The third feature essay highlights the international Anti-Counterfeiting Trade Agreement by practitioners Eddan Katz and Gwen Hinze of the Electronic Frontier Foundation. The new website also has information about the 35th Anniversary YJIL Conference (Government Lawyering and International Law) and subscriptions to the Journal.

Following up on Ken’s post (whose views I totally endorse, by the way), I wanted to flag one UN budgetary issue of particular interest to our readers. As the NYT article details, UN budget negotiators will battle over whether each of the ICJ’s 15 judges should have a law clerk. They currently share nine.  Former ICJ President Roslyn Higgins made an argument for law clerks back in 2006 here.  As a budget item, this is not exactly a huge amount of money. So I can’t imagine the cost of six extra law clerks a year making a big difference, so why not spring for it? There are worse things the UN could spend its money on (like, say, $23 million murals).

But as an institutional matter, it is an interesting question.  Is judging on the ICJ, especially at a rate of four or five cases a year, a job that really requires law clerks?  Does it need full time clerks?  I am no ICJ expert, so I welcome thoughts from our readers on this question.

Maher Arar, a Canadian who was detained by the U.S. and the subject of an “extraordinary rendition” to Syria, has lost his bid to maintain his lawsuit in U.S. courts.  By a 7-4 vote, the U.S. Court of Appeals for the Second Circuit, sitting en banc, has voted to dismiss his suit against U.S. government officials for alleged violations of his constitutional rights (opinion can be read here).  The majority held that it should not create a cause of action for a violation of constitutional rights (a “Bivens” action) due to the “special factors” present in this case. Such special factors include the affect of private suits on the conduct of foreign policy and national security. Instead, the court says that such private causes of action should only be allowed if Congress does so by statute.   Essentially, the full court seems to have endorsed the panel appellate opinion and district court opinion in this case on this question.  And, although this is a close and agonizing case, I think this is the right call, as I explained when the panel opinion came down and a few years ago in the context of the original district court case back in 2006.

Raquel Rolnik

In a further display of the UN Human Rights Council’s sense of how to efficiently allocate its limited resources, its “special rapporteur on the right to adequate housing” has decided to conduct her next investigation in the United States, and in New York City in particular.  (h/t the Corner). I’m sure that New York housing is inadequate in some ways, but is it really the most effective place to allocate the special rapporteur’s efforts?

There’s also a strange legal problem: what is the legal obligation the United States is said to be violating?  Here is an excerpt of the original Council (then Commission) resolution creating the special rapporteur’s mandate.

To appoint, for a period of three years, a special rapporteur whose mandate will focus on adequate housing as a component of the right to an adequate standard of living, as reflected in article 25, paragraph 1, of the Universal Declaration of Human Rights, article 11, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights, and article 27, paragraph 3, of the Convention on the Rights of the Child, and on the right to non-discrimination as reflected in article 14, paragraph 2 (h) of the Convention on the Elimination of All Forms of Discrimination against Women, and article 5 (e) of the International Convention on the Elimination of All Forms of Racial Discrimination;

Uh, the U.S. is not party to any of the treaties mentioned here, and the UN Declaration of Human Rights, art. 25, para. 1 has never been considered binding.  So to sum up:  the UN Human Rights Council’s special rapporteur on adequate housing is going to spend her time on a country which is unlikely to be in the top ten places with lack of adequate housing, and which in any event, is not a party to any of the treaties which form her mandate.  And people wonder why the UN Human Rights Council is unpopular?

Looking at the long-awaited new Obama Sudan Strategy, there is much to admire.  It is sensible, forward-looking, and realistic.  It also appears to be pretty much the same policy President Bush pursued, which then Obama campaign adviser Susan Rice (and current UN Ambassador) trashed back in 2008.  For instance, it emphasizes ending the violence and war through a peace agreement, and barely mentions the elephant in the room.  How do you make a peace deal with a government headed by an individual wanted for war crimes and crimes against humanity?

(Please note that a commenter has rightly corrected me on two points, which I correct below)

Former State Department Legal Adviser John Bellinger (and former OJ guest blogger) spoke today at Hofstra’s biennial Legal Ethics Conference.  His talk was typically engaging, honest, and interesting (it will not be news to many of our readers that Bellinger was an internal dissenter on many Bush Administration policies).  But you will have to wait for the webcast to get more details.

Bellinger also flagged a case that I have totally missed: Judge Royce Lamberth’s curious dismissal of a major Alien Tort Statute lawsuit against Exxon Mobil arising out of activities in Indonesia.   It is curious because it comes up with a completely new and potentially devastating argument against most ATS cases: that non-residents aliens do not have standing to bring lawsuits in the U.S., as a general matter.  Whoa! Where did that argument come from?  It seems to come entirely from a 1976 district court decision in Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976). [Correction: a commenter points out that the current case only has DC tort law claims remaining, and no claims under international law, although it is not clear to me that this would affect the standing argument]

I have to admit I know very little about “prudential” standing (as opposed to constitutional standing).  It is worth noting that the [analysis of standing in the] 1976 decision in  Berlin Democratic Club has never been cited in any judicial opinion.  Ever! It is “precedent”, but hardly a very deeply developed one. I smell a reversal coming…

The Obama Administration is becoming famous for their Friday night news dumps (deficit reports are always on Fridays).  So here is another one sure to anger some parts of their base, but which is carefully buried while everyone is watching the Yankees beat up on the Angels.

The Obama administration has formulated a new policy for Sudan that proposes working with that country’s government, rather than isolating it as President Obama had pledged to do during his campaign.

In an interview, President Obama’s special envoy to Sudan, Maj. Gen. J. Scott Gration, said that the policy, to be announced Monday by Secretary of State Hillary Rodham Clinton, would make use of a mix of “incentives and pressure” to put an end to the human rights abuses that have left millions of people dead and displaced while burningDarfur into the American conscience.

General Gration said the administration would set strict time lines for President Omar al-Bashir of Sudan to fulfill the conditions of a 2005 peace agreementthat his government signed with rebels in southern Sudan; under the agreement, a proposal for independence for southern Sudan will be put to a vote in 2011.

It looks like Gration has won out over Sudan hawk Susan Rice in this interagency battle.  And this sounds like the least worst policy, given our options, but it is striking how it departs from the high-minded and hawkish language that both Obama and his VP Joe Biden used in their campaign, and their criticism of President Bush for not doing enough to isolate the regime (Biden wanted a no-fly zone and a NATO intervention!).

But even more striking:  the Obama Administration appears ready to make a deal with Sudan, without insisting on compliance with the ICC’s arrest warrants for Sudan’s President and other government officials. As a non-party to the ICC, this actually gives the U.S. more legal and policy room to make a deal.  But will the Obama Administration now move to have the prosecution deferred altogether?  They may have to (but I’m sure that story will be held back until at least the college football playoffs).

Wow! I know there has been some talk and some cases about an international right to internet access. But Finland has upped the ante by guaranteeing a right to high speed internet access.

Finland’s Ministry of Transport and Communications has made 1-megabit broadband Web access a legal right, YLE, the country’s national broadcasting company, reported on Wednesday.

According to the report, every person in Finland (a little over 5 million people, according to a 2009 estimate) will have the right of access to a 1Mb broadband connection starting in July. And they may ultimately gain the right to a 100Mb broadband connection.

I don’t know about how I feel about making internet access a “human right”.  Is telephone access a human right?  TV access?  Radio?  On the other hand, if we are going to make internet access a human right, it makes sense to guarantee broadband.  I shudder at the thought of using dial up on today’s internet.

It sure looks like it, according to Bloomberg.

The Pentagon is reviewing the Bush administration’s doctrine of preemptive military strikes with an eye to modifying or possibly ending it.

The international environment is “more complex” than when President George W. Bush announced the policy in 2002, Kathleen Hicks, the Defense Department’s deputy undersecretary for strategy, said in an interview. “We’d really like to update our use-of-force doctrine to start to take account for that.”

It would be interesting to see if the new strategy pays more than simply ritual obeisance to the international law governing the use of force, or whether it explicitly incorporates such norms.