Author Archive for
Roger Alford

The Self-Judging WTO Security Exception

by Roger Alford

I have just published an article in the Utah Law Review that I wanted to flag for our readers. The focus is on the WTO security exception, one of the least appreciated aspects of WTO law. Given that the security exception is self-judging, it is curious that Member States rarely abuse the privilege by invoking it in bad faith. This is in turn raises interesting questions about compliance with international law: if a Member State has a trump card to avoid legal obligations, why does a Member State not invoke it more frequently? Scholars rarely focus on the question of why nations obey international law in the context of self-judging treaty exceptions. The WTO security exception affords that opportunity.

Here’s the abstract:

This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.

A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address this concern, including opting out of normal trade relations, opting in to deeper trade relations, granting preferential treatment to developing countries consistent with security interests, and protecting against the nullification or impairment of Member States’ legitimate expectations even in the absence of a WTO violation. These arrangements provide broad discretion to act in furtherance of the national interest without violating trade rules. As such, Member States quite often can advance national objectives without the need to invoke the security exception.

Notwithstanding these mitigating factors, a self-judging security exception poses grave risks. If abused, it could undermine the entire WTO regime. But the practice of WTO Member States is to invoke the security exception in good faith, with a margin of discretion. A Member State may do so because of a fear of sanction, out of a sense of norm legitimacy, or because it is in its self-interest to do so.

The Article concludes with brief reflections on why nations comply with the good faith obligation of a self-judging exception. Compliance with a self-judging rule offers useful insights into larger questions of why nations obey international law. Rational choice and normative theories best explain compliance with a self-judging international norm.

The Citation Superstars of International Law: Bradley, Goldsmith, and Koh

by Roger Alford

Fred Shapiro and Michelle Pearse have just published in the Michigan Law Review “The Most-Cited Law Review Articles of All Time.” It is a fascinating read, and includes some choice nuggets about international law scholarship.

Among the more interesting findings is that of the recent era (1990-2009) only three international law scholars were among the most-cited: Curtis Bradley, Jack Goldsmith, and Harold Koh. In the recent era only six law professors (Mark Lemley, Cass Sunstein, Akhil Reed Amar, William Eskridge, Robert Post, and Reva Siegel) have had more citations and only seven other law professors (Stephen Bainbridge, Lucian Arye Bebchuk, Yochai Benkler, John Coffee, Dan Kahan, Lawrence Lessig, and Benjamin Spencer) have had as many top citations as the three IL citation superstars. See p. 1506. (I’m happy to say that one of Koh’s two-most cited articles was in an AJIL Agora debate in which I participated, albeit on the opposite side of the question).

Of the most cited law review articles of all time, no international law article makes the list. (An article by Abram Chayes is at number eleven, but it is not an international law piece.)

The other interesting nugget from the Shapiro and Pearse article is the list of the most-cited international law articles of all time, which I reproduce below.

Kudos to Bradley, Cole, Goldsmith, Helfer, Koh, Lans, Lowenfeld, McDougal, Mendelsohn, Orentlicher, Schachter, Slaughter, Sohn, and Weiler for making the list!

Plaintiffs Seek to Enforce Ecuadorian Judgment Against Chevron in Canada

by Roger Alford

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron’s far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and a questionable commitment to the rule of law. The good news is that the Plaintiffs have chosen, at least for now, a highly reputable forum–the Ontario Superior Court in Canada–for adjudicating the recognition and enforcement of the judgment. Here’s a key excerpt:

11. The Judgment of the [Ecuadorian] Appellate Division is a final Judgment in Ecuador and is exigible against the assets of Chevron in whatever jurisdiction any may be found, including Canada.

12. All the facts, findings and conclusions of law stated in the Judgments and Clarifications in Ecuador are res judicata as between the parties.

13. As a consequence of the Decision of the Supreme Court of Canada in Beals v. Saldanha and subsequent jurisprudence, Chevron is estopped from challenging any fact, finding or determination of law in the Ecuadorian Decisions on the merits. Further, Chevron is restricted from challenging the Ecuadorian Decisions on the basis of fraud unless it can demonstrate that the allegations are new, not the subject or prior adjudication and were not discoverable by the exercise of due diligence.

Significantly, the plaintiffs are trying to attach the assets of Chevron Canada Ltd and Chevron Canada Financial Ltd, two wholly-owned subsidiaries of Chevron. Given that Chevron itself has few assets in Canada, the choice is somewhat curious. We know from the Invictus Memo that the Plaintiffs are seeking a jurisdiction that is “flexible” on veil-piercing, including what they call the “rare” case of “reverse veil-peircing”, holding the subsidiary liable for the parent’s judgment debt. (see p. 23). I do not know whether Canada would fall into the category of a flexible jurisdiction on reverse veil piercing.

The other key question, of course, is how Canadian law treats fraud as a defense to the enforcement of foreign judgments. As reported here, according to one Canadian scholar, Canadian courts “tend to take a somewhat narrower view of what might constitute fraud than some courts would.” I would be curious if others in the know agree or disagree.

It would appear that the Plaintiffs are confident enough in the merits of their position to avoid the mistake of filing in a court of dubious distinction, but not sufficiently confident enough to subject themselves to the jurisdiction of U.S. courts and the resulting counterclaims that would inevitably follow. As Chevron put it in a statement today, “If the plaintiffs’ lawyers believed in the integrity of their judgment, they would be seeking enforcement in the United States – where Chevron Corporation resides. In the U.S., however, the plaintiffs’ lawyers would be confronted by the fact that seven federal courts have already made findings under the crime/fraud doctrine about this scheme.”

The Statement of Claim makes no mention of the investment arbitration, nor the injunction against Ecuador to take action to prevent enforcement proceedings anywhere in the world.

A copy of the Statement of Claim is available here.

“‘Twas a Famous Victory”

by Roger Alford

On past Memorial Day weekend celebrations I have posted various speeches and photos in memory of our fallen heroes. For this Memorial Day weekend, I thought I would offer you a different perspective and present one of the best anti-war poems ever written.

The poem “The Battle of Blenheim” by Robert Southey was assigned in my younger son’s English class, along with a more traditional poem extolling the valor of war.

It has been a regular in English Anthologies since it was published in 1798, presenting the story of the futility of war, the foolishness of elders, and the wisdom of children. As one 1909 anthology put it, “Its call is to the people of the coming generations more than to ours, for it seeks to arouse feelings and attitudes just beginning to be felt among civilized people. Its cry is the rising voice of humanity; the protest against the senseless slaughter of war.”

It was a summer evening,
Old Kaspar’s work was done,
And he before his cottage door
Was sitting in the sun,
And by him sported on the green
His little grandchild Wilhelmine.

She saw her brother Peterkin
Roll something large and round
Which he beside the rivulet
In playing there had found;
He came to ask what he had found,
That was so large, and smooth, and round.

Old Kaspar took it from the boy,
Who stood expectant by;
And then the old man shook his head,
And with a natural sigh,
“‘Tis some poor fellow’s skull,” said he,
“Who fell in the great victory.

“I find them in the garden,
For there’s many here about;
And often when I go to plough,
The ploughshare turns them out!
For many thousand men,” said he,
“Were slain in that great victory.”

“Now tell us what ’twas all about,”
Young Peterkin, he cries;
And little Wilhelmine looks up
With wonder-waiting eyes;
“Now tell us all about the war,
And what they fought each other for.”

“It was the English,” Kaspar cried,
“Who put the French to rout;
But what they fought each other for
I could not well make out;
But everybody said,” quoth he,
“That ’twas a famous victory.

“My father lived at Blenheim then,
Yon little stream hard by;
They burnt his dwelling to the ground,
And he was forced to fly;
So with his wife and child he fled,
Nor had he where to rest his head.

“With fire and sword the country round
Was wasted far and wide,
And many a childing mother then,
And new-born baby died;
But things like that, you know, must be
At every famous victory.

“They said it was a shocking sight
After the field was won;
For many thousand bodies here
Lay rotting in the sun;
But things like that, you know, must be
After a famous victory.

“Great praise the Duke of Marlbro’ won,
And our good Prince Eugene.”
“Why, ’twas a very wicked thing!”
Said little Wilhelmine.
“Nay … nay … my little girl,” quoth he,
“It was a famous victory.”

“And everybody praised the Duke
Who this great fight did win.”
“But what good came of it at last?”
Quoth little Peterkin.
“Why, that I cannot tell,” said he,
“But ’twas a famous victory.”

Thousands of Kids Are Obsessed Today With What Six Countries?

by Roger Alford

Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, “The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes.” But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six–and only six–representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:
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When is an Arbitral Panel an International Tribunal?

by Roger Alford

When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to Prove Denial of Justice, what constitutes an international tribunal is not a simple question. It is also a critically important question, because the power to invoke federal court discovery in aid of foreign or international proceedings is one of the most effective evidentiary tools that any international lawyer can wield.

Ever since the Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc. that question has vexed lower federal courts. Although the Supreme Court did not address international arbitration directly, its reasoning appeared to support a broad interpretation that would encompass arbitral tribunals, which likewise act as “first-instance decision-makers” that render “dispositive rulings” subject to limited national court review. Moreover, in describing the scope of Section 1782, the Court found that Congress amended the statute in 1964 to “provide the possibility of U.S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad” and quoted scholarly commentary that defined the term ‘tribunal’ to include “investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.”

In the wake of Intel, federal courts have struggled to apply the Court’s liberal Section 1782 standards to the context of international arbitration. Lower courts are divided on the question of whether a contract-based private international arbitral panel satisfies the statutory definition of “international tribunal.”

A majority have concluded that arbitral tribunals established by private contract are “foreign or international tribunals.” As the federal district court in In re Babcock Borsig AG, 583 F.Supp.2d 233 put it, addressing a Section 1782 petition involving an ICC arbitration, “[t]here is no textual basis upon which to draw a distinction between public and private arbitral tribunals, and the Supreme Court in Intel repeatedly refused to place ‘categorical limitations’ on the availability of § 1782(a).” Under this analysis, the functional approach adopted by the Supreme Court in Intel suggests that contract-based arbitral tribunals are first-instance decision-makers that issue decisions both responsive to the complaint and reviewable in court. As the court in Roz Trading, 469 F.Supp.2d 1221 put it, “it is the function of the body that makes it a ‘tribunal,’ not its formal identity as a ‘governmental’ or ‘private’ institution.”

Other federal district courts have concluded that private arbitral tribunals are not “international tribunals” within the meaning of Section 1782. These courts focus on arbitration as an alternative to litigation, foreclosing a key element of Intel’s analysis: judicial review. “[T]he very narrow circumstances in which [arbitral] decisions may be subject to review does not allow for judicial review of the merits of the parties’ dispute,” opined the federal district court in Norfolk Southern Corp., 626 F.Supp.2d 882. “Accordingly, the ‘arbitral tribunal’ at issue here does not fall within the definition the Supreme Court embraced in its Intel dictum.” Moreover, according to some courts, the fact that the source of judicial authority is derived from private agreement likewise militates against classifying it as a foreign or international proceeding under § 1782. Finally, pragmatic concerns have loomed large in the analysis. As one court put it, “[i]nterpreting § 1782 to apply to voluntary, private international arbitrations would be a body blow to such arbitration, since it would create a tremendous disincentive to engage in such arbitration wherever, as here, such a reading would create substantially asymmetrical discovery obligations.”

Whatever doubts there may be about the application of Section 1782 to contract-based international arbitration, federal courts uniformly agree that an arbitral tribunal established pursuant to a bilateral investment treaty constitutes an “international tribunal” within the meaning of the statute. Since Intel, over twenty federal courts have considered motions to compel Section 1782 discovery in aid of proceedings before treaty-based investment arbitration tribunals. Not a single federal court has held that such arbitral tribunals fall short of the statutory definition of an “international tribunal.”

Rather than take a functional approach that analyzes whether the investment tribunal is a first-instance decision-maker rendering decisions subject to judicial review, these courts either assume that such arbitral panels are “international tribunals,” or focus on the fact that the arbitral tribunal has its origins in a bilateral investment treaty. Although the absence of judicial review in the investment context is even more pronounced than in private commercial arbitration, this factor has not featured in any of the decisions applying Section 1782 to investment arbitration. In short, federal courts take a functional approach in defining an “international tribunal” in the commercial arbitration context, and a formalist approach in the investment arbitration context.

Yoo, Cerone and Alford Debate Sovereignty in the Age of Globalization

by Roger Alford

The Liberty Forum has just posted a debate on sovereignty in the age of globalization between John Yoo, John Cerone, and yours truly. Here’s a taste of the exchange, which I encourage you to read in its entirety.

From John Yoo’s post:

Globalization has led to (1) the explosive growth in international trade; (2) the swift creation of international markets in goods and services; (3) the easy movement of capital and labor across national borders; (4) the rise of major transnational networks, such as international drug cartels, international crime-fighting regimes, and international terrorism; and (5) the global effects of industrialization on the environment and global commons.

These profound changes present challenges to the American constitutional order because they give rise to international law and institutions that demand the transfer of sovereignty in response. To limit carbon emissions, proposed follow-ons to the Kyoto accords seek to regulate energy use throughout the world. To allow for the smooth movement of capital, nations must coordinate their regulatory controls on the financial industry. These multilateral treaty regimes seek to regulate private activity under the control of independent sovereign nations. They ask states to delegate lawmaking, law enforcement, or adjudication authority to bureaucracies, such as the United Nations, the International Court of Justice, or the World Trade Organization, that operate along undemocratic lines and remain unaccountable to any nation.

These efforts at global governance create tension with American constitutional controls on state power…. Many scholars of international law argue that globalization’s demands justify abnormal powers for the federal government. Treaties on global warming or the environment, for example, should have a reach beyond the Constitution’s normal limits on the powers of Congress. International institutions like the WTO or the ICJ should enjoy the power to issue direct orders in the U.S. legal system, overcoming contrary policies at the state or even federal levels. States should have no voice in responding to globalization. Courts, as the least democratic branch, should play a primary role in incorporating global governance at home without the intervention of the elected branches of government.

These efforts aim at nothing less than the erosion of American national sovereignty….

While relatively young, the new forms and orders of global governance should sound a familiar note to students of the American administrative state. Just as innovative international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm in Wickard v. Filburn. The new international courts and entities have their counterparts in the New Deal’s commissions and independent bodies, created to remove politics from administration in favor of technical expertise. These international bodies, to remain neutral, must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. The New Deal’s stretching of constitutional doctrine sparked a confrontation between FDR and the Supreme Court, which kept to a narrower and less flexible vision of federal power and the role of administrative agencies during FDR’s first term. Similarly, in the absence of a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law.

Like nationalization, globalization will inevitably call on us to reconsider the same fundamental questions: the proper scope of the federal government’s regulatory power; the balance of authority between the President and Congress; and the appropriate role of the courts. We may only belatedly realize the consequences of economic and social transformation on constitutional doctrine. The inability of international organizations to provide legitimacy commensurate with the scope of their delegated authority—when combined with the serious strains that their delegations place on the federal government’s own legitimacy—weigh strongly in favor of enforcing the Constitution’s formal processes for exercising public power. A formalist approach would confer the greatest possible level of political and popular acceptance because any consent to international law and institutions would then occur with the full extent of the Constitution’s legitimating force. Such an approach might require rejecting some delegations, but it would at least ensure the full measure of domestic political legitimacy to support those that survive.

From John Cerone’s post:

State sovereignty is the fundamental building block of the international legal system. International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty. At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so.

Today’s international legal system is a strongly positivist, consent-based system. In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to. While states have chosen to greatly expand the scope and substance of international law, most of its rules remain in the form of broadly formulated obligations that leave the manner of their implementation in the broad discretion of states.

The US has been a proponent of the development of international law since the founding of the country, and this is reflected in its constitutional order. The Constitution of the United States was not created in a vacuum. It was well understood by the framers that they were drafting the Constitution against the backdrop of international law. They consciously chose to buy into the international legal system because it was clearly advantageous to do so. They wanted recognition as a sovereign equal, and all of the rights and protections that international law provided to states.

The international legal system of that time was a system largely oriented toward co-existence, and was one of relatively few rules. Since that time, there has been a dramatic expansion in international law, driven largely by the need for international cooperation in tackling the world’s ills and in harnessing its opportunities. The United States has played a central and powerful role in this evolution. Successive US governments have consented to be bound by literally thousands of treaties, and have supported the creation of dozens of international institutions. The US also frequently engages in treaty negotiations even in situations where it is clear that the US will not become a party to the treaty being negotiated. The robust engagement of the US in this process results from the recognition that international law and international institutions are useful in serving US interests.

From Roger Alford’s post:

While there are legitimate concerns about a nascent global administrative state, one should recognize that treaties are rarely a threat to national sovereignty. Indeed, treaties should be seen as an expression of sovereign will to protect and advance our national interests.

Treaties are optional commitments, freely entered into by political actors in order to achieve mutually-beneficial results. Like contracts, the first principle of treaties is party autonomy.

Sovereign nations negotiate the terms of a treaty and ultimately decide whether or not to join a treaty. The United States, for example, was intimately involved in the drafting of the treaty establishing the International Criminal Court, but ultimately decided not to become a member because the final text included unacceptable terms. The same could be said of dozens of other treaties….

Even after signing a treaty, sovereign nations attach reservations, understandings, and declarations (RUDs) that condition, interpret, and limit the impact of a treaty. The United States quite often will include a RUD stating that the treaty is not self-executing, or stating that the terms of a treaty are coterminous with our constitutional obligations.

When a nation does sign a treaty, its obligations are rarely permanent. Treaties frequently allow for member states to withdraw from a treaty, and almost always permit suspension of treaty obligations in the face of a breach by another member state.

All of these tools are designed to preserve sovereigns’ prerogative to protect the national interest. But it is not simply the formation and termination of treaties that are designed to protect sovereignty. The performance obligations of treaties also are drafted to protect national sovereignty.

Most human rights treaties, for example, include Optional Protocols that require a nation to affirmatively opt-in to international adjudication of domestic behavior. The same is true of the compulsory jurisdiction of the International Court of Justice. The WTO and many bilateral investment treaties have incorporated self-judging national security exceptions, essentially rendering key questions of national sovereignty non-justiciable political questions beyond the purview of international courts. The WTO also designed the dispute settlement process in a manner that anticipates the possibility that member states will rationally decide to engage in an efficient breach of their obligations….

In conclusion, we have little to fear from treaties. Treaties are hardwired to protect national sovereignty. The process of formation, performance and termination of treaties was designed to advance sovereign interests. Occasionally there are unanticipated consequences that flow from adherence to treaties, but these risks to sovereignty are manageable. Widespread adherence to treaties reflects a political calculus that the benefits of membership outweigh the costs.

Kony 2012: Social Media Activists as Norm Entrepreneurs

by Roger Alford

I generally subscribe to a constructivist theory of international relations. On many issues I do not think state interests are fixed and this fluidity allows a space for norm entrepreneurs to alter state preferences. With any successful campaign, specific actors promote ideas that catch fire and create a norm cascade reflected in consensus on the appropriate path. That consensus often is reflected in treaties, but it need not always be the case. The final stage is typically a process of norm internalization, in which an idea that once was novel reaches a tipping point and becomes the new normal.

Individual actors have always attempted to change state behavior. Sometimes they have done so from within the state, and altered state interests through incremental changes as political actors. Other times they are prophets from outside the system, calling for change. The examples one could give of such norm entrepreneurs are legion and the modes they have employed change with the seasons.

In the 19th century, Henry Dunant’s Memory of Solferino was an international sensation, leading to the establishment of the International Committee of the Red Cross, which has been one of the most instrumental forces for the development of international humanitarian law in history. In 1934 Robert Cecil promoted the Peace Ballot to rally British support for the League of Nations. The results were astounding. “Overnight, politicians of all stripes became League supporters and advocates of collective security,” wrote one historian. The photograph of Zulu Chief Albert Luthuli burning his Pass Book in response to the Sharpeville massacre of 1960 made international headlines, and for the first time in history South Africa faced overwhelming international condemnation for apartheid. Dozens of protest songs from the likes of Bob Dylan, John Lennon, and The Doors helped turn the tide of American public opinion against the Vietnam War.

The point is so obvious that it scarcely needs stating: individual actors have used all types of media throughout history to alter public perceptions and force political change.

What is different about social media activists today? Two things. First, the barriers to entry are extremely low. Anyone who can effectively communicate on a digital platform is a potential norm entrepreneur. Only those who do not have the desire or ability to effectively use new media platforms are excluded from eligibility. Second, the new media platforms can reach 2.3 billion Internet users instantaneously. Everyone who is plugged in is a potential information consumer.

It therefore should not come as a surprise that a bunch of sophisticated young activists who were completely unknown to us just one month ago were able to reach over 70 million people–approximately 3 percent of all Internet users–in less than one week. Their message and strategy were incredibly effective at reaching the masses.

Of course, there is much to criticize about the Kony 2012 video if it is viewed in isolation. But the broad sweep of their campaign is much more nuanced and detailed than one video. One should think of the Invisible Children campaign as concentric circles of outreach, with the one superficial, emotive and short video everyone knows about as the outer layer of the onion. I’m not surprised that intellectuals are criticizing the Kony 2012 video. But I’m also not surprised that it went viral.

Kony 2012 has achieved the desired result, which was to make Joseph Kony famous, or rather infamous. Whether Kony will be held accountable in an international court of law remains to be seen. In the end, that may be beside the point. The court of international public opinion has rendered its verdict.

Kony 2012: Symposium on Social Activism and International Law

by Roger Alford

Opinio Juris is pleased to announce an online symposium addressing social activism and international law. As our readers know, Kony 2012 was a YouTube sensation, spreading faster than any video in history. Although the details are airbrushed, the central theme of the video is about international law. The key idea of the video is that the indicted fugitive Joseph Kony should be brought to justice before the International Criminal Court to face charges of war crimes and crimes against humanity.

Millions of viewers who never thought about the International Criminal Court before are encouraged to embrace this new court and take on the cause of child soldiers. In the Internet age, a handful of tech-savvy twenty-somethings captivated the globe and generated a cause célèbre. Google Trends says it all: in a matter of days an issue that was completely off the radar became one of the world’s most-discussed topics.

For the next three days, we have gathered a variety of experts to discuss social activism and international law. Given the nature of the issue, we have invited experts across disciplines to discuss the topic. Among the topics that our experts are invited to discuss are the following:

1. How does the social media phenomenon affect the way people view international law?
2. What are the pros and cons of using social media to promote international law?
3. Does social activism effectively raise awareness and promote accountability?
4. What is the difference between activism and “slacktivism”?
5. How has Kony 2012 impacted the situation in Northern Uganda and the surrounding area?
6. How has Kony 2012 impacted our perception of child soldiers?
7. What does social media activism promise for the future of international law?

Kony 2012 has generated a tremendous amount of discussion, with a wide range of viewpoints. What is often overlooked is how this viral sensation has impacted international law. So let the debate begin!

Berman on Global Legal Pluralism

by Roger Alford

Dean Paul Schiff Berman has a new book entitled Global Legal Pluralism (Cambridge University Press 2012) that I heartily recommend to our readers. Here’s the abstract:

We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing, and we cannot expect territorial borders to solve all these problems because human activity and legal norms inevitably flow across such borders. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization.

As the abstract suggests, the great thing about the book is that Berman tries to steer a middle course between the sovereigntists and the universalists. Berman effectively argues that normative positions such as territorial sovereignty or universalism have no hope of triumphing in the hybrid world of overlapping legal regimes. Those who would embrace territorial sovereignty cannot hope for their position to prevail in a world of interdependence with permeable borders, multiple communities, and overlapping jurisdictions. By contrast, those who embrace universalism ignore the normative differences that cut across communities and thereby undermine their position.

Cosmopolitan pluralism is Berman’s solution to the “messy reality of law on the ground.” A cosmopolitan pluralist recognizes the role of all legal pronouncements as fundamentally rhetorical, and treats legitimacy not as a formal question but as statement that will or will not prove true over time. “[L]egitmacy becomes a sociological question about changes of legal consciousness,” he concludes, “and a cosmopolitan pluralist legal system seeks to keep those multiple voices in dialogue with each other to the extent possible.”

The book presents a wonderful addition to the literature on competing norms and will be a must read for anyone interested in navigating questions of legal pluralism in the age of globalization.

John Bolton: Either Support an Israeli Preemptive Strike or Accept the Reality of a Nuclear Iran

by Roger Alford

Speaking at a Federalist Society meeting yesterday at Notre Dame Law School, former Ambassador John Bolton addressed what the Obama Administration should do to curtail the threat of Iran. He offered not a single word of praise for the Obama Administration’s foreign policy and not a single word of criticism for the Bush Administration, such as its failure to prevent a nuclear North Korea. Bolton presented a grim picture of the future Middle East faced with a bellicose Iran and a feckless American President.

Bolton argued that the greatest threat to the world today is a nuclear Iran, whereas “President Obama seems to think that the greatest threat to the Middle East are a few Jewish settlements in the West Bank.” He offered no hope that sanctions would deter Iran, and declined to endorse lesser responses (such as another Stuxnet cyberattack on Iran’s nuclear facilities) short of an armed attack.

He concluded that the United States had a stark choice: either support Israel’s decision to bomb Iran or accept the reality of a nuclear Iran. Bolton left no doubt as to his preference between these “two unattractive choices.” He predicted that Israel would engage in a preemptive strike against Iran by the end of the calendar year and that since the United States “will be blamed anyway,” we should stand strong behind Israel.

As for Iran’s likely response to such a preemptive attack, Bolton conceded that Iran would strike back on Israeli territory, either directly or indirectly through Hezbollah. But that risk, he predicted, would not deter Israel, nor should it alter our support for such an attack.

The risk of a nuclear Iran was not simply that it would arm terrorists, but that it would also lead inexorably to a regional nuclear arms race, with Saudi Arabia and other countries seeking nuclear capacity in quick succession.

In response to questions as to the legitimacy of a preemptive strike, he cited historical examples of Israel’s 1981 attack on the Osiraq facility in Iraq and the 2007 attack on the Al-Kibar facility in Syria as examples of legitimate exercises of preemptive self-defense. The idea that you had to be physically attacked to engage in self-defense was anachronistic in the modern age of weapons technology. When one of my students asked where you draw the line in asserting a claim of preemptive self-defense, Bolton said he was not interested in theoretical questions. “You must establish that you are actually engaging in self-defense,” Bolton reasoned, “it cannot be mere rhetoric.” But we need not demand an actual armed attack–the limiting language used in Article 51 of the U.N. Charter–to justify a defensive attack.

So there you have it. An unequivocal endorsement by the former U.S. Ambassador to the UN supporting a preemptive strike against Iran in the near term. Bolton never endorsed a U.S. attack on Iran, nor did he detail what he meant by American support for an attack. But he clearly stated that an attack against Iran would be in the U.S. national interest.

“President Obama thinks that American strength is provocative,” he concluded. “while I think American weakness is provocative.”

Jerusalem Arbitration Center: Merchants of Peace

by Roger Alford

Last week I had the good fortune to attend a reception in Washington D.C. with various arbitration luminaries announcing the inauguration of the Jerusalem Arbitration Center.

With almost $5 billion in annual trade between Palestine and Israel, it is imperative to establish a neutral forum for resolving business disputes. JAC is established under the auspices of the International Chamber of Commerce. Zahi Khouri and Yara Asad of ICC Palestine and Oren Schachor and Baruch Mazor of ICC Israel were on hand to announce the partnership. JAC’s goal is to establish, in John Beechey’s words, “a truly neutral and independent forum.”

Catherine Rogers at Penn State has been actively involved in JAC’s creation, and she expressed to me her desire for arbitration to impact real people on the ground in conflict zones. As she put it,

“Israel is by far Palestine’s largest trading partner and, according to some estimates, Palestine is Israel’s second largest trading partner after the United States…. [W]hile politicians on both sides seem locked in an intractable battle against peace, peaceful exchanges occur every day between ordinary Palestinians and Israelis. Of course, some disputes arise out of these commercial transactions. In those disputes, Israelis have full access to the machinery of civil justice under Israeli law. Meanwhile, it can be exceedingly difficult for Palestinians to participate in the judicial proceedings in Israel, and Palestinian court judgments are generally unenforceable…. The JAC could provide a better alternative for Israeli-Palestinian exchanges.”

A video introducing JAC is available here. Kudos to all those involved in creating this new joint venture, which the ICC evocatively describes as the “merchants of peace” in the Middle East.