Author Archive for
Peter Spiro

Syria Insta-Symposium: Did Obama Consult His Lawyers Before War Powers About-Face?

by Peter Spiro

Doesn’t sound like it, if you read between the lines of this AP account. Until Friday, everyone was assuming that congressional pre-clearance was not constitutionally required or otherwise warranted.

Obama’s national security team was in agreement that while consulting with Congress was critical, there was no need for formal approval, officials said. Seeking a vote in Congress to authorize a strike wasn’t even an option on the table.

You have to guess there were memos to that effect bouncing around State and Justice. Obama turned around on a dime after a long walk with Denis McDonough. No lawyers anywhere in this photo. Smart money also says that nobody outside the White House scrubbed the draft authorization the President sent over to the Hill. [I’m making a process point here – I’ll hold off for the moment responding to the substance of Marty and Deborah’s excellent posts below, but I think even they would concede that a credible-enough argument could be made to back up a decision not to seek congressional assent.]

Does it make any difference that the lawyers weren’t in on it? Not necessarily, of course. Everyone likes to point out that Obama is himself a constitutional lawyer who advocated robust congressional war powers as a member of the Senate.

But you have to wonder if he wouldn’t have provoked some stiff resistance from OLC and the Legal Adviser’s Office if the option had been vetted below.

It also raises the odds of unintended consequences down the line. Bad things happen when the lawyers are called on to reverse-engineer decisions taken above their heads. (Quite a contrast to the Libya encounter with the War Powers Resolution, in which Harold Koh, OLC acting head Caroline Krass and DoD general counsel Jeh Johnson brought their disagreement to Obama in full dress argument.) Another reason to think this may play out in unexpected ways.

UPDATE: An informed reader tells me that that new NSC Legal Adviser Brian Egan is in the Oval Office meeting (seated second from the left, between Brian McKeon and Tony Blinken); apologies for the error. So there was at least one lawyer participating in the deliberations. Still a completely different story than the battle of legal titans over Libya.

A couple of others have responded along the lines of, what difference does it make. As I say above, it’s possible that it doesn’t make any difference at all. But the lack of full legal vetting does raise the risk of error. One manifestation: there seems to be some confusion about whether Obama is claiming that he could proceed with the strike even if he doesn’t get the thumbs up. Does it also mean we will have no formal OLC opinion on the question? If not, the precedent is less easily cabined in the way that Marty, Jack, Deborah, and others assume it will be.

Syria Insta-Symposium: Obama’s Constitutional Surrender?

by Peter Spiro

President Obama’s decision to seek authorization for military intervention in Syria is a watershed in the modern history of war powers. At no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force. Foreign Policy’s David Rothkopf gets it exactly right:

Whatever happens with regard to Syria, the larger consequence of the president’s action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval. . . .

Obama has reversed decades of precedent regarding the nature of presidential war powers — and whether you prefer this change in the balance of power or not, as a matter of quantifiable fact he is transferring greater responsibility for U.S. foreign policy to a Congress that is more divided, more incapable of reasoned debate or action, and more dysfunctional than any in modern American history. . . .

Will future offensive actions require Congress to weigh in? How will Congress react if the president tries to pick and choose when this precedent should be applied? At best, the door is open to further acrimony. At worst, the paralysis of the U.S. Congress that has given us the current budget crisis and almost no meaningful recent legislation will soon be coming to a foreign policy decision near you.

The request makes all the difference. Just compare this episode to Kosovo, in which Congress tried and failed to get its act together to agree on an institutional position on the NATO bombing. But President Clinton had not requested authorization, and so there was no concession that congressional approval was needed. So he left himself free to ignore Congress’ failure to approve the action.

Obama will have no such out. (He claimed authority to go it alone in his statement today, but this is a context in which actions speak louder than words.) If Congress doesn’t authorize the use of force in Syria, his hands will be tied. The request shifts the default position.

In the past, presidents have been able unilaterally to initiate uses of force short of real war so long as Congress doesn’t formally disapprove. Institutional incentives have always pointed away from such disapproval. In fact there are only two partial examples of Congress limiting presidential uses of force in the modern era — Lebanon (Reagan) and Somalia (Clinton) — and that happened only after unilateral presidential actions had headed south. But of course those incentives also point against formally approving these sorts of lesser operations. Kosovo proved both sides of the coin, as measures both to approve and disapprove went down in defeat.

Over at Lawfare, Jack Goldsmith congratulates Obama for the move. Future presidents will not be so thankful, and maybe the rest of us shouldn’t be, either. Assuming a limited operation with no American casualties, Obama could have sweated the political heat just like he did during Libya. Through Democrat and Republican administrations presidents have for the most part used the power to initiate lesser uses of force in ways that served the national interest. American power would have been embarrassed by the requirement of congressional approval, which in many cases wouldn’t have been forthcoming.

The rest of the world can basically forget about the US going to military bat in these kinds of situations if congressional action is a precondition. This is a huge development with broad implications not just for separation of powers but for the global system generally.

International Law on Twitter (Looking for Follower No. 5000)

by Peter Spiro

Just a note to highlight OJ’s Twitter feed, which you can find here.  We link to posts on the blog, but there’s added content in the form of pointers to other items that might be of interest to OJ readers.

For those of you that haven’t taken up the habit, some serious material is floating around the Twitterverse at the same time that it’s easy to avoid the dreck.  If you’re looking for a starter package in international law, check out feeds from Ryan Goodman, Rob Howse, Blake Hounshell, David Kaye, David Bosco, and  Dan Drezner.  Most major NGOs, IOs, and governmental entities now have multiple feeds (the Department of State has dozens).  And don’t forget personal (opinionated!) feeds from OJ bloggers Kevin Heller, Julian Ku, and Ken Anderson.

Lots of interesting exchanges this week on legal aspects of the prospective Syria intervention. Updates from the 100th Anniversary Peace Palace gathering that Chris Borgen is reporting from are going up with the hashtag #peace100.

OJ is following 200+ accounts, which you can find here.  Thanks to the almost 5000 of you who are following us.

Eyal Benvenisti’s World Is Already Here (Even in the United States)

by Peter Spiro

Eyal Benvenisti’s excellent piece sets the stage for a substantial research agenda (hence the need for a major project to pursue its many possible applications). Benvenisti considers aspects of his trusteeship norm largely in the realm of international tribunals. There is also the possibility of direct internalization. I read the piece through the optic of US decisionmaking.

My first thought was, in effect, it’s not going to happen here. Take Benvenisti’s procedural duty to account for the interests of foreign stakeholders. That could readily map out in a cognate to the environmental impact statement, the longstanding requirement that the federal government analyze the environmental consequences of a broad range of government projects. The EIS process does not impose substantive constraints; it simply requires that environmental implications be brought to the table. By way of implementing the Benvenisti duty, the federal government could be required to undertake international impact statements for certain types of activity that are likely to have nontrivial impacts outside of the United States.

On the legislative side, one might imagine the emergence of practice under which Congress would invite foreign stakeholder testimony at legislative hearings, in something of the same way that committees will typically divvy up witness choices between the two parties. Committee reports could be required to assess the foreign impact of legislation in the the way that, for instance, Senate Standing Rules require reports to include cost estimates.

Neither kind of innovation sounds very plausible, though. The executive branch is loath to adopt extra bureaucratic requirements (which, even if only procedural, can result in significant administrative costs, direct and indirect). The locus of likely impacts would further complicate the adoption of some sort of IIS. Many executive branch activities with likely international impacts would be lodged in the Departments of State, Homeland Security, and Defense, activity that has historically been sheltered from such administrative requirements as the EIS and the Administrative Procedure Act. There is something cognitively dissonant about the concept of an International Impact Statement for, say, sanctions on Iran or the withdrawal of troops from Afghanistan.

It’s even less likely that Congress would adopt a practice under which foreign stakeholder interests became a routine part of legislative business. The costs wouldn’t be a hurdle so much as the culture is, one ostensibly resistant to foreign views. It’s part of sovereigntist dogma that the legislature represents the American people and only the American people, and that everything else is alien in an almost literal sense of the term.

So on first inspection the Benvenisti approach would not be very promisingly pressed in the US.

But scratching the surface only lightly, one can see that US decisionmaking already accounts for the interests of foreign stakeholders. Three agents — foreign corporations, foreign governments, and NGOs — do a pretty good job at making sure that foreign voices are heard in US decisionmaking.

Foreign corporations press their interests through lobbyists, an effective channel to the ears of both executive and legislative branch decisionmakers. Benvenisti recognizes the clout of foreign corporations, but only in the North/South context (at pages 303-04). That may present a possible pathology of trusteeship (multinationals dominating weak developing-country governments). But among developed states, it may be a part of the answer. Of course, even against the North/North landscape, lobbying is subject to all the ordinary pathologies of domestic governance, which Benvenisti acknowledges — lobbyists aren’t generally welcomed as the part of any answer. But their use is a way that foreign stakeholders can press their voices effectively within the imperfect confines of domestic governance.

Ditto for foreign governments, which also engage lobbyists in Washington. Foreign governments have always been a mouthpiece for foreign stakeholder interests. Historically it was through diplomatic channels only. Today, foreign governments work various channels on US policy. In addition to hiring lobbyists, they interact directly with decisionmakers at all levels. Where their interests are at stake, they try to advance them as political actors.

Finally, NGOs will take up other interests. On any issue implicating significant individual rights, it will almost always be the case that some NGO will adopt the cause — it’s a feature of the non-governmental ecosystem that empty niches get filled. Where such major NGOs as Human Rights Watch or NRDC pick up the ball, foreign stakeholders can be assured that their interests will be taken seriously in Washington.

There are issues of representativity in each context (not the least with NGOs). But that will always be the case in any context requiring agency relationships. Distortions tend to be self-correcting, as nonstate actors police state actors and each other. Some issues will have more traction with NGOs than others, but that typically reflects a judgment as to the probability of ultimate success (a problem corporations and foreign governments don’t have, since they are free to spend their money on losing causes).

There may also be questions about why these voices are being heard. When it comes to lobbyists material incentives are in play (though not directly, since foreign entities are barred from campaign contributions). With NGOs there may be votes at stakes from sympathetic domestic constituencies (a kind of proxy representation), though the kind of norms that Benvenisti articulates may also be in play, giving rise to a sense of proto-obligation among decisionmakers to consider foreign interests.

In any case, significant foreign constituencies are one way or another having their voices heard in domestic US institutions.

The Benvenisti program thus looks conservative rather than revolutionary. In Benvenisti’s apartment building of states, how could they not already be hearing each other, in the lobby and the hallways at least, if not through the walls? Of course, recognition is a major function of the development of international law, nudging holdouts and correcting anomalies, facilitating institutionalization. So the piece is a major contribution to the extent it systematizes and justifies developments that are taking hold on the ground in any event.

This July 4th, Exploring Paths Away From Citizenship

by Peter Spiro

As July 4th approaches, get ready for stock-in-trade accounts of uplifting naturalization ceremonies conducted in dignified settings and presided over by distinguished persons. That’s a nice thing for those who see citizenship through a traditional lens and who should be getting better value for an $800 naturalization fee (never mind that most naturalization ceremonies occur in DMV-like conditions in local Homeland Security offices).

What’s new this Independence Day is the growing number of US citizens who are looking to shed their citizenship. Until recently there hadn’t been much incentive to lose US citizenship (the burdens being negligible) and some reason to keep it (mostly, a passport and the right of entry into the US). But that has changed as non-resident citizens are hit with burdensome new tax filing requirements under the Foreign Account Tax Compliance Act (FATCA). For a growing number of external Americans, FATCA appears to have shifted the balance away from maintaining the citizenship tie.

There is only one clear-cut path to losing your US citizenship: through express formal renunciation at a US consular facility outside the United States. More are taking that route (Facebook co-founder Eduardo Saverin is a notable example). Renunciation involves multiple interviews, an oath, and a $450 filing fee. Renunciation can also implicate a hefty tax obligation. Individuals have to pay an exit tax on unrecognized capital gains (expatriation is treated as a tax event) and any back taxes owed (external citizens have always been required to file).

A more novel escape route (rediscovered, really) is through “relinquishment”. Under section 349 of the Nationality Act, naturalization in a foreign state will result in loss of US citizenship if accompanied by an intent to relinquish. In the past, it was the Government that asserted the existence of such intent. The Supreme Court constrained the practice in a series of mid-20th century decisions, and since 1990 at least, the State Department as a matter of administrative practice has assumed that an individual never intends to relinquish citizenship except where expressly renounced.

But now that there are reasons to lose citizenship, some will argue that, yes, in fact they did intend to relinquish citizenship when they naturalized elsewhere. The DC Circuit overturned the State Department’s refusal to accept such an argument (on somewhat anomalous grounds in a case involving naturalization under Israel’s Law of Return) in its decision last year in Fox v. Clinton.

For the moment, relinquishment triggers the same exit tax as renunciation – the IRS computes tax due as of the delivery of the notice of relinquishment, not the date of the expatriating act. I wonder if there isn’t a case against that, in support of backdating. In any event, relinquishment reduces bureaucratic hassle, eliminates the oath requirement (no good feeling there!), and saves the $450 fee, so I imagine its popularity will increase.

In the meantime, my correspondent on expatriate matters, the very well informed and thoughtful Victoria Ferauge (resident in Versailles), tells me that many nonresident US citizens are getting tax compliant precisely in order to cut the citizenship cord without the IRS getting in the way.

That’s too bad. The US is the only OECD country to tax non-resident citizens. Most are getting caught in a dragnet aimed at much bigger fish and the different problem of asset offshoring. Just as other countries are looking to cement ties with non-resident citizens, the US seems to be scaring its away. The better fix for all of this would be to roll back FATCA as it applies to ordinary Americans overseas, eliminating the need to become un-American. In the meantime, we will almost surely see more fellow citizens heading to the exits.

Sovereigntist Alarm-Ringing in Foreign Affairs

by Peter Spiro

John Kyl, Douglas Feith, and John Fonte have this offering in the July/August edition of Foreign Affairs. It’s a strong restatement of the sovereigntist position on the incorporation of international law from a powerful trio – Kyl, the sovereigntist legislator par excellence; Feith, the veteran executive branch point-man; and Fonte, the house intellectual. But the piece feels tired from the title (“The War of Law”) on down.

If there’s anything new, it’s in a more explicit rhetorical acknowledgement that international law isn’t all bad, to the extent it supplies “useful rules of the road” (an “accommodationist” move also made by Julian Ku and John Yoo in their recent book Taming Globalization). Beyond that, the anti-internationalist tone plays along familiar chords. Though the piece concedes that treaties can sometimes become part of domestic law (“After all, the U.S. Constitution specifies that treaties, together with the Constitution itself and federal statutes, are ‘the supreme law of the land’”), it doesn’t cite a single specific example of a “good” one.

The UN treaty committees are now clearly on the sovereigntist threat list (mandating day care in Slovenia!). Down with universal jurisdiction (Dick Cheney in a foreign dock)! “[T]he transnational law movement is creative, determined, and championed by prestigious figures. It has already altered the legal landscape and could inflict further harm on federalism and democratic accountability.” Cue attack on Harold Koh as ringleader.

Customary international law remains the prime target, in its “new” and “instant” versions, as incorporated not only by activist judges but also by the transnationalist Obama Administration (taken particularly to task for accepting the CIL status of Additional Protocol I). The piece calls on Congress to “counter this affront to the Constitution” with new legislation that “could help ensure that there are authoritative, proper, and constitutional means in place to incorporate new norms or new customary international law into U.S. law.”

I don’t see that bill getting very far (how would it be framed?). The proposal shows a nagging insecurity among the sovereigntists. At one level, what have they got to worry about? If a disabled rights convention can’t get through the Senate, nothing can. Contrary to the activist judge trope, the Supreme Court is resisting international law at every turn.

But international law is more insinuating than that. Chapter 3 of Katerina Linos’ book on policy diffusion, the subject of our excellent symposium this week, supplies some interesting support: even — perhaps especially — Republicans are more inclined to support policies endorsed by the United Nations. That points to a socio-cultural shift on international law, one that sovereigntists are powerless to stop.

“Foreign Intelligence” ≠ Foreigner Intelligence (Expatriate Americans in PRISM)

by Peter Spiro

The NSA may be collecting data on Americans in the United States. What about Americans abroad?

“Foreign intelligence” is a term threaded through the surveillance debate, with a general understanding that collecting that kind of information is okay. The term is defined in a territorial sense, in the sense of intelligence originating outside of the United States. Under the FISA Amendments Act, the Attorney General and the NDI are required to adopt “targeting procedures that are reasonably designed to ensure that any [intelligence acquisition] is limited to targeting persons reasonably believed to be located outside the United States.”

If intelligence is “foreign” in that sense, the gloves seem to come off. (We’re talking not just metadata, but the contents of emails and other electronic communications, the kind of stuff which in the ordinary case clearly requires probable cause.) The FISA Amendments Act does bar “intentionally target[ing] a United States person reasonably believed to be located outside the United States.” But there doesn’t seem to be any mechanism to police that constraint or the citizenship determination (or at least not any mechanism that has been publicly disclosed).

If on the internet it’s difficult to draw the domestic/foreign line in territorial terms, it’s only more so in terms of citizenship. The surveillance is all secret, so there’s no chance to declare yourself an American. There’s really no way for the Government to know whether you are a citizen or not. There is no master list of US citizens. For every John Smith Bank of America employee temporarily in London (who might be easily flagged as a US citizen), there are many who have acquired citizenship in less obvious ways and who don’t wear their American identity on their electronic sleeve. Does the NSA have a citizenship algorithm?

This may be as much a problem with the doctrine as with the practice. Under the conventional reading of the Supreme Court’s 1958 decision in Reid v. Covert, constitutional rights are portable to US citizens. If you’re American, you have the same rights against governmental action in Paris as you do in Detroit. But even in the non-virtual world, it’s tough to know the citizenship status of people behind foreign doors you are about to knock down. There’s no evidence that anyone in the intelligence apparatus is even trying to stay true to the constitutional rule. Perhaps yet another reason for several million expatriate Americans to feel second class.

US (Lamely) Excuses No-Show at UN Arms Treaty Signing

by Peter Spiro

Here’s the official explanation: the US had yet to “satisfactorily complete” the “process of conforming the official translations” of the agreement. Via Twitter, FP’s David Bosco sees a back-up excuse once the analysts at State finish reading the French version:

Bosco is almost certainly on the money predicting that when the US does sign on, it will be late on a Friday afternoon in summer.

I don’t understand this. The treaty wouldn’t require any changes in US law, much less trample on any Second Amendment rights. Can’t the Administration stand up to the NRA on this front, at least for the purely symbolic exercise of the treaty signing?

If Obama wanted to put his recently aggressive interpretations of executive branch power to work, he might even think of acceding to the convention as a sole executive agreement. (Before you laugh, remember that he has that in mind for the more consequential Anti-Counterfeiting Agreement, as Oona Hathaway describes here.) The US absence yesterday at the UN bodes ill for any second-term progress on any of the human rights treaty fronts.

Bangladesh Factory Safety Accord: Watershed Innovation in Global Governance?

by Peter Spiro

Here’s the text of the agreement described in reports in the NY Times and elsewhere today. It’s the most significant institutional response to the massive loss of life (now above a thousand dead) in the April Bangladesh factory collapse.

This may be a signal episode in the continuing evolution of global corporate regulation. Formally styled as the “Accord on Fire and Building Safety in Bangladesh,” the agreement is being executed by trade unions and corporations. It establishes a standing Steering Committee (three seats for unions and corporations each, one for a designee of the International Labour Organization) to police the agreement, which requires companies to undertake the inspection of Bangladesh supplier facilities and remediation as necessary. It also sets up a worker complaint mechanism, with binding arbitration under the New York Convention. NGOs appear to have some participatory standing as “witnesses” to the agreement.

H&M, Tesco, C&A, and Calvin Klein, among others, are on board. There is a midnight May 15 deadline – countdown and latest developments can be found at the UNI Global Union site. There has to be a lot of pressure on the big apparel manufacturers to sign on.

The template: a legal agreement between non-state parties facilitated and nominally hosted by an international organization. No governments involved, at least not as parties to the agreement. If it works, look for more of the same in other contexts. The ILO ‘s profile will surely rise in the face of this episode and the growing global awareness of worker rights issues.

Obama Not Giving Up On The New American Citizenship

by Peter Spiro

When I was writing my book on citizenship several years ago, I wanted to take on what I thought was a standard trope of American political discourse: “the rights and obligations of citizenship.” Though it hardly seemed like an alien phrase, I had trouble finding good examples of its use by major political leaders.

I won’t have that problem any more.

President Obama is now turning to “citizenship” almost like a drum beat. He played a citizenship theme in his Convention acceptance speech in September, his second inaugural inaugural address in January, and the State of the Union in February. He returned to citizenship in perhaps the biggest way yet in his commencement speech at Ohio State this past Sunday. The speech highlighted all the great things that graduates would go forth and do (work for the Peace Corps, start companies, “otherwise realize your vision”):

There is a word for this. It’s citizenship. And we don’t always talk about this idea much these days — citizenship — let alone celebrate it. Sometimes, we see it as a virtue from another time, a distant past, one that’s slipping from a society that celebrates individual ambition above all else; a society awash in instant technology that empowers us to leverage our skills and talents like never before, but just as easily allows us to retreat from the world  And the result is that we sometimes forget the larger bonds we share as one American family.

With citizenship as the rallying call, he exhorted the graduates to educate more children, build better roads, work to confront climate change, protect kids from gun violence, etc. “[T]hat’s what citizenship is. It’s at the heart of our founding — that as Americans, we are blessed with God-given talents and inalienable rights, but with those rights come responsibilities — to ourselves, and to one another, and to future generations.”

Am I the only one picking up on the theme? Obama makes clear that he intends more than a throwaway use of the term:

I’ve been thinking a lot lately about how we can keep this idea of citizenship in its fullest sense alive at the national level — not just on Election Day, not just in times of tragedy, but all the days in between. And perhaps because I spend a lot of time in Washington, I’m obsessed with this issue because that sense of citizenship is so sorely needed there.

Sounds pretty personal. But I have yet to see even an op-ed piece which lands on citizenship as an emerging focal point for this Adminsitration.

Maybe that’s because he doesn’t have a lot to work with. Certainly not in Washington. But maybe not even with youngsters on college campuses. At least 10% of students at OSU Obama addressed yesterday aren’t citizens at all, or at least not American citizens. His invocation (for example) of “a deep devotion to this country that we love” couldn’t really work for them. The orientation starts to seem a little anachronistic to the extent that an audience consisting solely of Americans alone is an increasingly rare phenomenon. The group is no longer clearly bounded. For that and other reasons, what might in some other time have worked as “The New Citizenship” is unlikely to fly today.

There Are Lots of Reasons to Oppose Ted Cruz for President. His Birthplace Isn’t One of Them.

by Peter Spiro

Ted Cruz is running for president, and an election-addled media is training its sights on his nascent candidacy in the absence of many alternatives this early in the cycle.

His birth outside the United States is inevitably raising the eligibility question. Cruz was born in Calgary to a US-citizen mother and a non-citizen father. Under section 301(g) of the Nationality Act, his mother had satisfied the requisite residency period for citizenship to descend by parentage. Ted Cruz was a citizen at birth.

That pretty clears works to satisfy the requirement that the President be a “natural born” citizen. Some argue that “natural born” means born within the territory of the United States – ie, a citizen under the Fourteenth Amendment. But John McCain’s candidacy put that line to rest, since Canal Zone-born McCain had citizenship only by statute (it’s not even clear that he had it at birth, as Jack Chin nicely argued here). Nobody seriously asserted his ineligibility. George Romney’s 1968 run supplies a less well-developed precedent, Romney having been born in Mexico to US-citizen parents.

That doesn’t mean we won’t get some birthers coming out of the woodwork, though they’ll probably be of the left-wing, tongue-in-cheek variety (see 4:30 in this Jon Stewart takedown, for example). Tea Party chickens may come home to roost as their claims of Obama’s ineligibility (including by virtue of his non-citizen father, not just his imaginary birth in Kenya) are turned back against them. But it would be too against-type for Democrats to press the line aggressively vis-a-vis Cruz (who, by the way, probably counts as a Canadian citizen as well as an American one).

That doesn’t mean we won’t get closer cases in the future (say, involving an adopted foreign-born child) or a strong candidate who was naturalized and thus not “natural born” under any possible interpretation. As post-globalization generations mature, better just to get rid of the requirement altogether.

Samuel Moyn Applauds the Death of the Alien Tort Statute

by Peter Spiro

Columbia University historian Samuel Moyn has a tough post up on the Foreign Affairs website on Kiobel and the arc of the Alien Tort Statute, which he sees as having served the narrow constituency of us rather than being true to the historical origins of human rights:

The ATS has been a boon for U.S. law schools, in which students rightly interested in saving the world have been taught to view the statute as an all-powerful tool. But the popularity of the law might have led them to neglect the fact that it offers only a quick fix for a few people with access to U.S. courts, not fundamental change.

The takeaway, with which I’m sympathetic: human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.

Far better would be to move on to other ways of protecting human rights — less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. If it moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble.

I’m sure there will be room for both paths, that is, for some to keep at it with the ATS while others look to put non-judicial mechanisms better to work. But one takeaway for US law schools would be to give a little more play to the latter. Pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.