Over at EJIL Talk!, Professors Joanna Harrington and Rene Provost note the passage of what Provost has dubbed “Canada’s Alien Tort Statute.”

As for the details, the new Canadian law will now allow Canadian citizens and permanent residents of Canada who are victims of terrorism, as well as others if the action has a real and substantial connection to Canada, to seek redress by way of a civil action for terrorist acts committed anywhere in the world on or after 1 January 1985.

With all due respect to Professor Provost, this does not sound like the U.S. Alien Tort Statute at all. How is it different?

From all I’ve read, there is very little chance that a NY court will dismiss a civil lawsuit against former IMF chief Dominique Strauss-Kahn on the grounds that he enjoys diplomatic immunity.  I don’t have the papers, but the description of his argument goes like this:

Amit Mehta, one of Strauss-Kahn’s lawyers, said his client’s diplomatic immunity flowed from a 1947 United Nations convention that grants the heads of certain specialized agencies diplomatic immunity, regardless of whether they acted in an official capacity when the alleged harm occurred.

While the U.S. has never signed onto the convention, Mehta said it has achieved what is known as “customary international law” status, which means it must be honored even by countries that have not explicitly ratified it.

“The fact that the U.S. is not a signatory to the convention does not mean it should not apply,” Mehta told the court.

My guess is the judge will assume that DSK does have immunity under customary international law, but that DSK waived it by failing to invoke it properly. Or that DSK’s acts were not within the scope of any immunity he might have (as Prof. Chimene Keitner argues here). Or that DSK can’t get the immunity unless the IMF invokes it for him.   This will avoid the question of whether it really is a rule of customary law that heads of international agencies get diplomatic immunity. And whether if it is a rule of customary law, whether it is applicable in a NY court.

And what if there is an appeal?  Assuming that this is some sort of federal common law (a view to which I reluctantly concede), could there be some attempt to remove the case to federal court? Or is this question already settled by the various US statutes in the area? I doubt it, since DSK could have removed to federal court on alienage grounds alone, and hasn’t done so.

The silence of the State Department in this case is not surprising, but it is a shame since it would have offered the NY court an easy way out of this issue. Indeed, it would be nice to know whether the U.S. government believes the relevant convention for “specialized agencies” has achieved the status of customary international law.  It seems that there is some authority in favor of that proposition, although the scope of such immunity is uncertain.

As a strategic matter, though, DSK’s lawyers probably will fight this as far as they can, and try to drag out this argument, which could only be to the benefit of their client (who has other more serious legal troubles, it seems).

John Yoo and I will be discussing our new book, Taming Globalization, tomorrow night, Wednesday, March 28, 2012 from 6-8 p.m., at the The New York Athletic Club, 180 Central Park South New York, New York in an event hosted by the Federalist Society.  Anyone who is interested is welcome to attend!

For those of you on Long Island (and I know there must be at least a couple out there) we are holding a similar event at Hofstra Law School, Room 308 on Thursday, March 29 from 6-8 p.m.

I found much to like and dislike in this essay by Nigerian-American writer Teju Cole discussing his widely shared tweets on the Invisible Children Kony 2012 video. Here is one:

Teju Cole@tejucole

Cole goes on to observe (rightly in my view) that Africa and Africa causes like Kony 2012 often derive from the emotional needs of the American or European “saviors” rather than the needs of the Africans themselves.

One song we hear too often is the one in which Africa serves as a backdrop for white fantasies of conquest and heroism. From the colonial project to Out of Africa to The Constant Gardener and Kony 2012, Africa has provided a space onto which white egos can conveniently be projected. It is a liberated space in which the usual rules do not apply: a nobody from America or Europe can go to Africa and become a godlike savior or, at the very least, have his or her emotional needs satisfied.

This problem has implications for the entire international aid community, and its affiliated international human rights community.  I agree much of this “white savior complex” is real, but I don’t get what he wants to do about it. Cole believes that U.S. foreign policy is almost completely evil and hypocritical. So would he make common cause with U.S. non-interventionists like Ron Paul and Pat Buchanan? Is that road better just so he doesn’t have to watch condescending and self-regarding white “saviors” strutting around the world?

I don’t have any particular insights to add on the very interesting and detailed roundtable discussion folks are having on the Lubanga judgment.  But I can’t resist pointing out this op-ed by Ian Paisley (the son of a leading figure on the Northern Irish settlement) in the New York Times slamming the ICC as a obstruction to national reconciliation and peace:

The court’s success as a vehicle for delivering justice continues to be debated. The I.C.C. was founded amid much fanfare, but its track record — with only this single conviction — has been poor. Arguably, the cases before it are complex, and it was always going to take time for a new institution to complete them.

But this misses the point. The I.C.C. was intended as an instrument for delivering peace. In this respect it has not been a success. It will continue to falter because its current methods go against the experience of many places in Africa and around the world where peace has been delivered through political negotiations and reconciliation efforts, not the imposition of international justice.

…

I am not making an argument against I.C.C.’s existence: In places where there is no functioning government, or the government is hostage to one section of society, or where there is no viable reconciliation process, the international community has a duty to ensure that the court is the guardian of justice.

But the pursuit of justice should not replace or undermine ongoing national reconciliation efforts. The foremost challenge facing the I.C.C. is to determine whether its intervention will help or hinder the cause of peace. The wheels of justice must be allowed to turn at their own pace, but that they must not impede the peace process.

Of course, Jide Nzelibe and I have made this argument at some length here, and with a further wrinkle that the ICC is not likely to have much of a deterrence effect either.  I know this is an old and already hotly debated topic among scholars. But I wonder if it will again become a leading criticism of the ICC.

I agree with Professor Cheng that legal theory does not have to be predictive to be successful.  But I wonder if he sets the bar a bit too low. In his previous post, he writes:

Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be the most that ought to be done.

But two of the leading alternative theories that Professor Cheng discusses in his book claim to do more than simply guide. One, positivism, claims to control and the other, rationalism, claims to predict.

As I intimated in my introduction to this Roundtable, I was deeply impressed by When International Law Works (WILW).  Professor Cheng’s accomplishment is to make legal theory — even international legal theory – seem accessible, relevant and important.  This may not sound like much, but I challenge you to work your way through Austin, Hart or McDougal/Lasswell  and Koskenniemi and come up with a discussion as elegant as that which can be found in Chapter Two of WILW.

Professor Cheng positions himself as “moderate” exponent of the New Haven School’s policy-oriented approach to international law.  Rejecting efforts to offer a purely conceptual theory of international law, he argues that political decisionmakers should follow “prescriptions” (rules) according to procedures accepted by other decisionmakers.  In many, but not all, cases, this means that decisionmakers should follow formal “international law.” This sort-of-commitment to follow formal international law is undergirded by a moral commitment to world order and human dignity.

Opinio Juris is very pleased to host a Roundtable this week on Professor Tai-Heng Cheng’s recent book, When International Law Works: Realistic Idealism After 9/11 and the Global Recession (Oxford University Press).  The Roundtable will proceed throughout the week and feature a fascinating and diverse group of discussants.  Professor Cheng and I will kick off the discussion today, followed later this week by professors Ralph Wilde, Robert Howse, Chester Brown, and Hari Osofsky.  I will start by introducing our author:

Tai-Heng Cheng has been Professor of Law at New York Law School, where has taught since 2006. He is Co-Director of the Institute for Global Law, Justice, & Policy, and of the New York City International Economic Law Working Group. Professor Cheng has authored almost forty books, articles and essays on international law, international dispute resolution and international investment law.  His scholarship has been cited and relied on in the American Journal of International Law, the Yale Journal of International Law and the Harvard Journal of International Law, as well as by judges and counsel in the U.S. Supreme Court and federal appeals and district courts.  You can see the rest of Professor Cheng’s impressive record here.

Professor Cheng’s book is an ambitious contribution to the field of international legal theory, and, unlike many contributions to this field, the book is both lucid and insightful.  We are thrilled to have a chance to discuss his book over the next few days.

There is much to admire in Alex Waal’s criticism of the international community’s kneejerk response to mass humanitarian atrocities.

Once an abstract obligation, stopping genocide has become a political project. Building on the humanitarian interventionism of the 1990s, a vast anti-genocide movement, largely U.S.-based, is stirring students and movie stars alike. Its figureheads are Gareth Evans, a former Australian foreign minister and the architect of the “responsibility to protect” doctrine, and Samantha Power, the author of “A Problem from Hell: America and the Age of Genocide,” who is now at the National Security Council. It enjoins “us” — that is, the United States and the United Nations — to lead the response to mass atrocities.

High from last year’s interventions in Libya and Ivory Coast, Evans wrote triumphantly in Foreign Policy last December that those missions brought “an end to most of the confused debates” about humanitarian intervention. The vision he, Power and fellow idealists share is to send the cavalry over the hill not only to stop any massacres but also to herald justice and democracy.

Waal points out that most mass atrocities do not always lead to endless mass atrocities.

In other words, even once they are under way, mass atrocities do not lead inexorably to bottomless massacres. The killers usually have political goals: They are determined to kill until they have achieved their objectives, not until there’s no one else left standing. Their use of violence can be excessive, but more important, it is often instrumental.

This creates an opportunity for negotiating an end to mass atrocities, through peace talks and with financial and diplomatic incentives and pressure. In recent history such deal-making has brought to an end, albeit often an imperfect one, massacres in Burundi, East Timor, Kenya, Macedonia and South Sudan.

Yet the idealists insist on pursuing a more ambitious agenda: nothing short of democracy and justice, imposed by military intervention. And this can undermine simply getting the killing to stop. For perpetrators, the prospect of foreign intervention and prosecution rules out the possibility for compromise. For rebels, it creates a perverse incentive to escalate ethnic violence so as to provoke an international military response.

Waal is no doubt attacking neoconservative idealists like Senator McCain, but they are not the only targets.  Waal doesn’t point the finger at the international criminal justice advocates.  He doesn’t point out that codifying the justice into legal obligations makes his preferred solutions, negotiated peace, much, much harder.  But he doesn’t have to.

This is not to say that demanding democracy and justice is always wrong. But both conservative and liberal interventionists (and “justice” advocates) need to remember that it is not always the right goal, either, if the pursuit of democracy and justice prevents the end of mass violence.

Fascinating article on how the U.S. government can, if it chooses, force almost any website with the “.com” suffix to shut down.

…the U.S. government… says it has the right to seize any .com, .net and .org domain name because the companies that have the contracts to administer them are based on United States soil, according to Nicole Navas, an Immigration and Customs Enforcement spokeswoman.

The controversy highlights the unique control the U.S. continues to hold over key components of the global domain name system, and rips a Band-Aid off a historic sore point for other nations. A complicated web of bureaucracy and Commerce Department-dictated contracts signed in 1999 established that key domains would be contracted out to Network Solutions, which was acquired by VeriSign in 2000. That cemented control of all-important .com and .net domains with a U.S. company – VeriSign – putting every website using one of those addresses firmly within reach of American courts regardless of where the owners are located – possibly forever.

I think the system works pretty well for now, and I doubt creating an international regulatory system will improve things. But still, when the U.S. exercises its power over these sites indiscriminately, it will increase calls to break the U.S. government’s semi-control over the Internet.

I feel like I have been working on this book forever, and my co-author John Yoo feels the same, which is why we are more than usually delighted to announce that  Taming Globalization: International Law, the U.S. Constitution, and the New World Order, has been officially released.  It is an attempt to pull together our thinking on U.S. foreign relations law to develop a normative argument in favor of controlling the impact of international law on the domestic legal system.  In the book, we recognize and accept that globalization and international law are having, and will have, an important impact on the U.S. constitutional system.  We argue, however, that a method of “accommodation” can best mediate these impacts.  Accommodation includes, but is not limited to, the doctrines of non-self-execution, executive management of the interpretation of international law, and limited state autonomy in foreign affairs.

I plan to host an online discussion of this book on Opinio Juris sometime later this spring, and you will no doubt notice me flacking this book on the blog periodically.  But if you can’t wait until our symposium, please buy a copy!

David French and Jay Sekulow respond to Bruce Ackerman’s legal argument about the use of force against Iran with a factual claim: Iran has already attacked the U.S.

There has, in fact, been an “armed attack” against the United States. Iran has been waging a low-intensity war against America and Israel — both directly and by proxy — for more than two decades. Iran’s Quds Force has planned and directed attacks on U.S. forces in Iraq and on Israelis in Israel and abroad. Iran has directly supplied our enemies with deadly weaponry in Iraq and Afghanistan, and is responsible for hundreds of American military deaths — including the Marine barracks bombing in Beirut and the Khobar Towers bombing in Saudi Arabia.  

In other words, Iran attacked us long ago, and our forbearance to this point is neither required by international law nor does it bind us to continued forbearance. In fact, when a declared and hostile enemy escalates its military capabilities dramatically, that presents a direct challenge to American security and the security of our allies.

I don’t know if this is quite right, but it builds on my argument that there is a factual disagreement that will go to the heart of a legal analysis of the use of force. I don’t know if folks on both sides will ever be able to agree on the set of facts, before they even get to legal principles.