Recent Posts

More on US Lawsuit to Squash AZ Law (Less Wishy-Washy)

Julian's link to the WSJ blog post forces me to aim for something a little more coherent (apologies, I didn't know they were doing the interview format - thought they were on the usual fishing expedition for a soundbite or two).  The bottom line: I think there's a pretty good chance the S.B. 1070 will be enjoined before it goes...

Peter Spiro on the U.S. Lawsuit Against Arizona

Our own Peter Spiro talks to the Wall Street Journal's Law Blog on today's filing of a federal lawsuit against Arizona's immigration law.  The grounds for the lawsuit, as expected, is preemption, even though most of the political debate about the lawsuit is concerned with racial discrimination.  The choice of preemption confirms my assessment that an equal protection  challenge to...

The Worst Flight Ever?

Surely one of the great things about a career in international law is the travel.  I consider myself extremely fortunate to have found a profession that afforded me opportunities to visit (or even live in) a diverse set of destinations, whether it was Nairobi or Geneva, Buenos Aires or Jakarta, Osaka or St. Petersburg, and, yes, even Doha in the summer (and...

Foreign Law Watch, Kagan Edition

From the AP account of the Kagan confirmation hearing of the now presumably de rigueur question of candidates ...

Morrison: The Fastest Reversal Ever (?) of a U.S. Supreme Court Decision

I wanted to thank all of the contributors (Bill Dodge, Austen Parrish, Margaret Sachs) to our discussion here about the recent Supreme Court decision on the extraterritorial application of U.S. securities laws in Morrison v. National Australia Bank. I wanted to also point readers toward some very wise and interesting comments on the decision from Prof. Hannah Buxbaum (over...

Introducing the Newest Member of the ICJ: Xue Hanqin (薛捍勤)

[caption id="attachment_12870" align="alignright" width="300" caption=" "][/caption] The U.N. General Assembly and Security Council today voted to elect Xue Hanqin (薛捍勤) of China to membership on the International Court of Justice.  Xue will fill out the rest of the Judge Shi Jiuyong's term, which runs until 5 February 2012.  As I noted before, Xue has an extensive experience as a diplomat as well as...

Gabriella Blum and Philip Heymann on Targeted Killing

Harvard professors Gabriella Blum and Philip Heymann have a new, short article online at the Harvard National Security Law Journal (which, by the way, is doing many interesting things), Law and Policy of Targeted Killing (June 27, 2010).  A version of it will appear as a chapter in their forthcoming book on terrorism and counterterrorism.  It is a fine essay, not over-long, and well worth reading if you at all take an interest in these topics.  Here is a little bit from the introduction (continued below the fold):

More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war.  The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty.  In law enforcement, individuals are punished for their individual guilt.  Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives.  In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.

A Final Thought on Mark Janis’ ‘America and the Law of Nations’

Having now finished America and the Law of Nations, let me add one more thought.  I had originally been interested in this book principally for the period between the world wars; my work on the UN has given me a long interest in the collective action failures of the League, and attempts to judicialize aggression as a crime at the ICC has likewise given me an interest in earlier attempts to outlaw war, e.g., Kellogg-Briand.  But instead I find that the chapter that most captured my attention was Chapter 4, "Dodge, Worcester, Ladd, and Burritt: Christianity, Courts, and World Peace." That chapter argues that to "a surprising extent, the international courts of today are the offspring of nineteenth-century American utopians, religious enthusiasts by and large untrained in the law."  (p. 72.)  Antebellum Americans, at that.   Given my own steeping in the European history of the later 19th century and the founding of the ICRC, I had always assumed that, to the extent there was what today we would call a transnational social movement toward these kinds of utopian impulses, they would have been centered in Europe.  Locksley Hall, The Parliament of Man, all that.  I would not have guessed that fifty years or more before, the provincial, remotely located Americans would have been making waves in these matters.  But Janis makes a strong scholarly case that antebellum American religious progressivists played a deep and wide role in fostering the spirit of internationalist utopianism that embraced the idea of international tribunals. But note - and I think this remains relevant today - that historically this progressive movement was located within, and was sheltered by, a still larger, or at least more transcendentally motivating, universalist utopianism - Christianity itself.  It is not, so far as I can understand from Professor Janis's account, the form of disconnected, deracinated cosmopolitanism that is sometimes urged as the basis for liberal internationalism today.  Perhaps we have come so far, in the progression of culture, technology, and ever more expansive idealism that the mediating universalisms such as religion can be set aside, but I rather doubt it. Rather, the risk of today's deracinated cosmopolitan-liberal internationalism is, on the one hand, that it cannot and does not succeed on its own terms - but still manages to neuter, on the other, the one form of large scale political organization that has shown itself itself, even with its many failures, able to deliver to those it governs, the nation-state - particularly expressed as liberal, democratic, and secular (in the sense of divided public-private).  Vive Westphalia, &tc. ps.  Reading over the comments, it seems as good a time as any to quote from Thomas Berger:

"Address me not in Christian sentiments," said the Lady of the Lake, "the which I find too coarse for fine kings.  Thine obligation was to maintain power in as decent a way as would be yet the most effective."

The irony, of course, is that the Lady offers Arthur a nearly pitch-perfect expression of Niebuhrian Christian moral realism.

Morrison and the Effects Test

[William S. Dodge is a Professor of Law at the University of California, Hastings College of the Law. One of his articles on extraterritoriality was cited in Justice Stevens’s concurring opinion.] There is no doubt that Morrison v. National Australia Bank is a landmark opinion, not just because the Supreme Court addresses here, for the first time, the extraterritorial reach of...