Don’t worry, I will not be linking to any and all reviews of my book.  (Only the good ones.)  I mention this review — a review essay written by the distinguished scholar David Fraser at Nottingham (sub. req.) — because it uses my book as a springboard to discuss a number of important historiographic issues concerning World War II scholarship that readers may find interesting.  Here is the abstract:

This review article discusses the emergence of the subsequent proceedings before the US Military Tribunals from the shadows of the trial of ‘Major War Criminals’ at the International Military Tribunal as explored in Kevin Jon Heller’s The Nuremberg Military Tribunals and the Origins of International Criminal Law. The article applauds Heller’s efforts in producing a detailed examination of an understudied aspect of the origins of international criminal law. The essay suggests that given the specific focus of the author on the genealogy of international criminal law, important legal historical questions are left unexamined. It suggests a research agenda that would focus more specifically on the centrality of the Shoah to National Socialism and argues that the current trend in historical scholarship focusing on war crimes trials as a distinct subject of inquiry could provide a fruitful basis for future socio-legal research into the Nazi state and its legal apparatus.

I completely agree that the book does not answer all — or even most — of the legal questions concerning WW II-era trials.  I very much hope that others will fill the lacunae that my book leaves behind.

That’s the question that a Ninth Circuit en banc panel heard yesterday in Movesian v. Versicherung AG. There is no statute, treaty or executive order refusing to recognize the Armenian Genocide, but there have been equivocal statements by various Presidents on the subject and failed attempts to adopt congressional resolutions recognizing the Armenian genocide. Is that enough to constitute a federal policy that would preempt a California statute (CCP 354.4), which provides in relevant part:

Notwithstanding any other provision of law, any Armenian Genocide victim, or heir or beneficiary of an Armenian Genocide victim, who resides in this state and has a claim arising out of an insurance policy or policies purchased or in effect in Europe or Asia between 1875 and 1923 from an insurer described in paragraph (2) of subdivision (a), may bring a legal action or may continue a pending legal action to recover on that claim in any court of competent jurisdiction in this state, which court shall be deemed the proper forum for that action until its completion or resolution.

In December 2010, a Ninth Circuit panel concluded that there was no federal policy that preempted the California statute.

The Ninth Circuit en banc oral argument yesterday is a great case to watch for anyone interested in preemption. My friend and former colleague Lee Boyd argued on behalf of Appellees, who are heirs of Armenian genocide victims seeking to collect on the insurance policies.

Well, not really today, but it was about twenty years ago that what we now call (incorrectly, at times) the “frozen conflicts”– the separatist conflicts in Georgia, Azerbaijan, and Moldova– weren’t  frozen but were actually brushfire wars before settling into stalemates. Long-time readers of this blog may remember my interest in these conflicts, starting with the ongoing conflict in Moldova over the separatist region Transnistria and moving on to include the other conflicts, including the fight over South Ossetia.

This Friday, Columbia University’s Harriman Institute for Russian, Eurasian and East European Studies will host a conference called “Frozen Conflicts Twenty Years After the Fall of the Soviet Union.” Here’s the short description:

Two decades after the collapse of the Soviet Union the conflicts in Abkhazia, Nagorno Karabakh, South Ossetia and Transnistria remain unresolved and their dynamics continue to impact political stability, state-building and great power competition in the former Soviet Union. Over the last years, the international community’s strategy for addressing them has varied significantly. By bringing together leading scholars, policy analysts, and NGO representatives from Europe, the United States and Eurasia to discuss these issues we hope to provide an opportunity to reflect on the last twenty years and to think about possible steps forward.

The conference program is available as a pdf here. I’ll be one of the panelists on the 11:15 panel  and I will be speaking about the uses and abuses of international legal arguments in attempts to resolve separatist conflicts. If any Opinio Juris readers attend, please say hello!

The imminent collapse of the eurozone (and maybe the global financial markets as well) makes for terrifying reading. It also is one reminder of how the success of regional and international legal institutions has depended on the general health of the global economy  (and of wealthy states in Europe, North America, and East Asia).  Three stories from today, both big and small, remind me of just how powerful economic forces can be.

1) The eurozone is (according to the Economist) a few weeks away from collapsing absent some drastic measure to save it. Yet the EU’s main institutions seem helpless and European Commission leaders are squabbling. The real decision seems to be in the hands of Germany’s leader Angela Merkel. I don’t pretend to know what the right answer is to this crisis, but if the eurozone breaks apart, it is hard to imagine the EU survives in its current form.  Interestingly, the choice appears to be even greater fiscal union and dominance by Brussels, or giving up on the euro project and going their separate ways. It does make me nervous that the UK Foreign Office is preparing for civil unrest in the eurozone as a result of a possible euro collapse in the next month.  It also makes me nervous that the U.S. Federal Reserve may be preparing a “shock and awe” intervention into the European sovereign debt market. In any event, the EU as a gradual project of ever closer union through the forms of international law (e.g. treaties and such) seems unlikely to continue without substantially different institutional mechanisms (referendums anyone?).

2) The Kyoto Protocol is heading toward an ignominious expiration, with key participants like Canada already signaling they will not sign an extension, and may not even stay in the system until the 2012 expiration date. The cost is the protocol is a huge reason why even the EU is demanding big changes.

3) And on a much smaller note, the ICC has been complaining that their host country, the Netherlands, are being a little bit too dutch in refusing to continue paying the rent for the ICC’s temporary quarters in the Hague.  The ICC President mentioned this issue when he visited Hofstra recently.  It sounds like the ICC needs about 40 to 50 million euros (or perhaps some other safer currency) to get it to 2015 when its new building opens.  This amount shouldn’t be a problem but it is a sign of our new age of austerity that the open checkbook for international criminal justice is also coming to an end.

Over the last year, we’ve hosted a number of discussions centered on immunity issues and how US courts deal with them.  For the most part, however, these discussions focused on individuals claiming immunity from becoming the subject of criminal or civil proceedings.  Last week, however, the 11th Circuit gave us a very different type of immunity case — the sovereign immunity a State has over its naval shipwrecks.  In 2007, Odyssey Marine Exploration, Inc. discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar.  It instituted admiralty proceedings in Florida to effectuate its claim to the sunken treasure it found there (including thousands of silver coins being transported at the behest of private Spanish interests) and the vessel’s remains. Spain, among others then intervened, claiming the vessel was the Mercedes, part of a Spanish squadron that had met the following fate:

On the morning of October 5, 1804, when the Spanish squadron was only one day’s sail from Cadiz, it was intercepted by a British squadron. Four Royal British Navyships, under the command of Commodore Graham Moore, had been sent by the British Navy Admiralty to intercept Spanish warships transporting treasure back to Spain. The Spanish frigates, having sighted the British frigates headed towards them, assumed a combat formation. A British officer was sent aboard [one of the Spanish vessels] and informed the Spanish that the British King had ordered the British Navy to detain the Spanish squadron and take it to England. The Spanish refused the British order, and what was to become known as the Battle of Cape Saint Mary soon commenced. Only a few minutes after the battle began, the Mercedes exploded. . . Except for fifty sailors, everyone aboard the Mercedes was killed . . . The remaining three Spanish frigates surrendered and were taken by the British squadron to England.  Partly as a consequence of the Battle of Cape Saint Mary, Spain declared war against Great Britain and entered into the Napoleonic Wars as an ally of France.

Based on the wreck’s identity as the Mercedes, Spain asserted sovereign immunity over the res of not only the vessel, but its cargo.  Odyssey objected as to the identity of the ship, the application of sovereign immunity to its cargo, and invoked a commercial activity exception to any immunity findings.  The District Court, however, concluded the res was the Mercedes and that it was entitled to sovereign immunity.

On appeal, the 11th Circuit affirmed the District Court decision that the vessel was the Mercedes and that Spain was entitled to a presumption of immunity under Section 1609 of the Foreign Sovereign Immunities Act:

Section 1609 of the FSIA states: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execution except as provided in sections 1610 and 1611 of this chapter.”  28 U.S.C. § 1609.  The Mercedes is Spain’s sovereign property that is within the United States.  While the Mercedes itself is not within the United States, that alone does not defeat the court’s ability to obtain jurisdiction over it.  A court may have either actual or constructive possession over the res . . . A salvor is thus able to bring a shipwreck found in international waters constructively within a court’s territorial jurisdiction by having a portion of the shipwreck within the jurisdiction.  R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943,967-69 (4th Cir. 1999) (concluding a shipwreck found in international waters can “constructively” be considered within the jurisdiction of the district court, although the district court’s sovereignty over the wreck is a “‘shared sovereignty,’ shared with other nations enforcing the same [law of all nations]”).  Odyssey has deposited parts of the Mercedes with the district court, constructively bringing the shipwreck within the court’s territorial jurisdiction.  Because this is an in rem action based on the arrest of sovereign property, § 1609 provides the Mercedes with presumptive immunity from arrest.

Odyssey did not invoke either of the statutory exceptions to Section 1609, but instead invoked the “subject to existing international agreements” language in Section 1609, arguing that the 1958 High Seas Convention’s restrictive approach to immunity should govern the case.  The Court disagreed, finding that, for Spain, “providing protection and safe passage to property of Spanish citizens was a military function of the Spanish Navy, especially in times of war or threatened war.”

All of the foregoing seems pretty sensible with respect to the Spanish vessel, but why give the cargo the same immunity if it hadn’t actually belonged to Spain?  The 11th Circuit invokes a 1902 Treaty as requiring it to do so:

In 1902, the United States and Spain signed a treaty mandating “[i]n cases of shipwreck . . . each party shall afford to the vessels of the other, whether belonging to the state or to individuals, the same assistance and protection and the same immunities which would have been granted to its own vessels in similar cases.” 1902 Treaty of Friendship and General Relations Between the United States of America and Spain, art. X, July 3, 1902, 33 Stat. 2105.  Under this treaty, the United States must afford the Mercedes, as a shipwrecked Spanish warship, the same protection it would give a shipwrecked United States military vessel.  The United States considers the cargo of a shipwrecked U.S. military vessel part of the shipwreck and gives it the same immunities as the shipwreck.  Under the [Sunken Military Craft Act], the rights, title and interest of the United States in any sunken military craft are protected absent an “express divestiture of title.”  § 1401, 118 Stat. at 2094. The definition of a “sunken military craft” includes a sunken warship or other military vessel, as well as “all or any portion of . . . the associated contents of a craft.”  § 1408(3)(C), 118 Stat. at 2098.  “Associated contents” are defined as “the equipment, cargo, and contents of a sunken military craft that are within its debris field . . . [and] the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.”  § 1408(1), 118 Stat. at 2097 (emphasis added).  Thus, under the 1902 treaty, the Mercedes and its cargo are entitled to the same immunities provided by the SMCA.

It’s an interesting opinion, both for the close statutory analysis of the FSIA, but also for giving judicial effect to the 1902 treaty (albeit, I assume, because Section 1609 requires that effect, although its possible I suppose one might alternatively see the 1902 Treaty as self-executing).  I wonder what those readers expert in sovereign immunity issues make of this case?

How could I have missed this? According the Guardian:

The principality of Liechtenstein has decided to make itself available to private clients, from $70,000 (£43,000) a night, complete with customised street signs and temporary currency…

Since then they have woken up to the marketing opportunities of their mountainous landscape. The price tag includes accommodation for 150 people, although the 35,000 inhabitants would remain. Any personal touches, such as an individual logo created out of candle wax or a customised medieval procession, come at an extra, undisclosed cost.

Upon arrival in Liechtenstein, visitors would be presented with the symbolic key to the state, followed by wine tasting at the estate of the head of state, Prince Hans-Adam II. Other options include tobogganing, fireworks and horse-drawn carriage rides through the capital Vaduz.

At first I thought: “My own nation-state for only $70 K a night? I’m in!” (Not that I have the money, but that’s sort of beside the point.) But then I looked again at the list of what you get and it comes down to a spa weekend with a bunch of friends with some monopoly money with your face on it. Where are all the aspects of sovereignty that you hear so much about?  (A carriage ride? Please. How about an airborne assault?)  It’s like being told you can rent a car but are not allowed to take any right turns and you have to drive 15 miles per hour.

In this case, I don’t think you get to do anything seriosuly fun like nationalize industries, mess with currency markets, or get all crazy at the UN. I don’t even think sabre-rattling is allowed. Actually, I don’t think Liechtenstein has any sabres.   Now if you could rent North Korea for a day….

Hat tip: io9

Professor Cecilia Marcela Bailliet of the University of Oslo has a very useful post over at IntLawGrrls on possible criminal punishment for right-wing extremist Anders Behring Breivik. Contrary to what has been reported elsewhere, according to Bailliet it is possible that Breivik could get life in prison for the death of 76 persons in last week’s shooting. Here’s an excerpt:

Detention is a punishment that can be pursued in the alternative of incarceration. It is pursued in cases involving serious crimes with a high risk of recidivism. Detention is conducted within penal system and is not subject to time limits. An order of detention shall establish the time period that normally will not extend past 15 years and cannot surpass 21 years. The minimum period of detention shall not be over 10 years. If the authorities consider the individual so dangerous that his release would pose a risk to society , the Court may extend the detention period up to 5 years at a time. There is no maximum limit for extensions.

In theory, the accused may spend the rest of his life in detention, pursuant to Court orders extending his detention 5 years at a time. Anders Behring Breivik is being charged with violating the terrorism provisions of the penal code which carry a penalty of 21 years incarceration. Furthermore, the prosecutors are considering pursuing a charge of violation of crimes against humanity which carry a maximum penalty of 30 years incarceration. This is a less plausible charge. The crime refers to actions by a State, organization connected to a state, or a paramilitary organization. It is unlikely that the Norwegian provision may be applied to an individual’s act without a relation to a larger organization.

What if he is found insane? In order to be criminally punished, the individual must be found to be sane at the time of the commission of the crime. Breivik is subject to court-appointed psychiatric evaluation to determine whether or not he is psychotic. If he is found to be considered insane at the time of the commission of the crime, he may be committed to a psychiatric institution if it is considered necessary for the protection of the society. This type of detention is not subject to time limits, but the law requires that the Court review the case regularly in order to establish whether there is a risk of recidivism.

Three stories to mention.  First, Moreno-Ocampo plans to introduce WikiLeaks cables in the trial of the six Kenyan defendants:

The cables are classic hearsay, of course, but hearsay is admissible at international trials.

Second, readers may recall that a Swiss banker, Rudolf Elmer, was imprisoned by Swiss authorities about six months ago for allegedly leaking bank secrets to WikiLeaks on two CDs.  It turns out that the CDs contained no secret information at all — but that hasn’t stopped Switzerland from continuing to detain Elmer without charges…

Or so it would seem, based on this analysis from the European Center for Law and Justice, a right-leaning public interest law firm.  A proposed new law in Poland appears to ban abortion under any circumstance, thus replacing the current law, which allows exemptions for the mother’s health and for cases of rape and incest. If, as the ECLJ argues, there is no international law right to an abortion, than I suppose the clean ban would seem more acceptable. But although I have not studied this question, I am not sure that a complete ban would ultimately survive review under the European Convention of Human Rights. But that’s just a gut feeling. Any actual experts out there should feel free to chime in.

In Serbia, not surprisingly:

Ratko Mladic, the Bosnian Serb general accused of overseeing the worst massacre in Europe since the end of World War II, has been arrested, Serbian authorities said Thursday.

Mladic is Europe’s most wanted war crimes suspect for his alleged role in the 1995 slaughter of 8,000 Bosnian Muslim men and boys in the enclave of Srebrenica, an atrocity that came to symbolize the brutality of the Balkans conflict. The war crimes tribunal in The Hague wants to try Mladic on charges of genocide.

Serbian President Boris Tadic announced Mladic’s capture at a hastily called news conference in Belgrade, the nation’s capital, and said authorities were preparing his extradition.

The arrest comes after sustained criticism of Serbia for being too lackadaisical in tracking down Mladic, including a new report by the International Criminal Tribunal for the Former Yugoslavia that reportedly castigates Belgrade’s efforts as insufficient.

[snip]

He added that Mladic was arrested on Serbian soil but did not disclose other details of the operation.

There will be questions, however, as to how Mladic managed to remain at large for so long and whether elements of Serbian security forces knew of his whereabouts without bothering to act. Some Serbian nationalists consider Mladic a hero and believe their country to be the unfair target of censure for its wartime past by international authorities. The arrest could trigger street protests.

Mladic’s arrest is interesting from a number of angles.  To begin with, it will no doubt have a significant impact on the Karadzic trial.  Prosecutors have long wanted to try Mladic and Karadzic together, although I think the Karadzic trial is too far along to make joinder a realistic possibility.  But who knows what the OTP will do.

A separate Mladic trial would also complicate the ICTY’s completion strategy, which calls for all judicial work to cease by the end of 2014.  Given how long trials involving high-value suspects take at the ICTY, there is little chance that Mladic’s trial and appeal would end by 2015.  So it looks like the Security Council will either have to keep the ICTY going longer than anticipated (which would not be the first time) or leave Mladic’s prosecution to the newly-created residual mechanism. The latter seems like an undesirable option — so my guess is that the ICTY judges and prosecutors will get to keep their jobs a bit longer.

Hat-Tip: Dov Jacobs at Spreading the Jam.

Lindseth’s claim in his new book is simple, intriguing, and surely will be seen as radical by most European law scholars: the European Union (EU) should be studied as an administrative rather than a constitutional project. Instead of reading the Lisbon Treaty as Member States’ acquiescence to a European constitutional order – one in which EU law is paramount and European Courts are empowered to strike down national legislation – Lindseth takes up Giandomenico Majone’s challenge from the early 1990s, to reconceptualize the EU as a “fourth branch of government.” But Lindseth then explores this redefined EU – most importantly its dynamic relation with its Member States – in significantly greater legal-historical depth.

In particular, Lindseth argues, the States’ reaction to the growth of EU regulatory power, a mix of acceptance and resistance, should be seen as a form of “reconciliation” or redefinition of European powers by domestic governmental and judicial bodies. European legitimacy, in his view, springs not from the Court’s purported neutrality and independence, but rather from these different moments of reconciliation between Brussels and national agencies, administrative tribunals, and constitutional courts.

The book openly rejects the powerful narrative of European constitutionalism, which has conventionally portrayed the EU as firmly set on a clear trajectory: departing from a mere intergovernmental organization, transforming itself into a supranational entity and finally achieving a more democratic constitutional union. The dominance of this view among EU scholars is self-evident: for over two decades the legal integration of Europe has triggered many interesting and different projects. Lacking Lindseth’s rich comparative and historical account of European integration, however, such projects have all been straitjacketed by a rigid constitutional narrative for Europe.

In the early 1990s, Joseph Weiler’s Transformation of Europe successfully framed the EU as a constitutional or quasi-federal union so that subsequent scholars felt constrained to make explicit or implicit references to US constitutionalism. In addition, scholars suggested that European constitutionalism was promoted silently by the European Court of Justice through the supremacy and direct-effect doctrines that ultimately were accepted, albeit not without resistance, by the Member States (Slaughter and Mattli, Alter). The academic focus was therefore fixed on Brussels, the Commission and the European court, rather than on the public and private legal orders of the Member States.

In the late 1990s, another strand of constitutionalism began addressing European governance as legitimated by its self-standing power rather than as a product of Member States’ delegation (Sabel, Simon, Gerstenberg, Cohen). In this strand, European constitutionalism was moving beyond courts and looking at new deliberative fora whose production of soft law and policy guidelines became an exemplary form of governance and a response to the failures of representative democracy. Constitutionalization became synonymous with the Europeanization of regulatory regimes going beyond the economic sphere, and increasingly encompassing social and civil rights. From a descriptive project, European constitutionalism became a normative one, insofar as academics were ambitiously attempting to solve pressing democratic and social problems.

In the post-Lisbon scenario, however, European constitutionalism has lost much of its appeal: Power and Legitimacy represents its nemesis. Scholars are reminded by Lindseth that relatively autonomous EU bodies draw legitimacy from the judicial, executive and parliamentary mechanisms set in place by each Member State. Therefore Lindseth sets a timely and important scholarly agenda calling for a more penetrating analysis of European integration, its past and its future, through a careful understanding of what ideas were received and promoted by political and legal elites and what were the unintended consequences of the integration process. In Lindseth’s view the “reconciliations” between the Member States and Europe are ongoing, complex legal and political battles fought by administrative and judicial bodies addressing the disconnect between multiple regulatory powers and the need for democratic recognition.

Let me first thank Peter and the other members of Opinio Juris for providing this space for an online discussion of my new book.  Let me also thank Ken, Francesca, and Fernanda for taking the time to offer comments.  I am really looking forward to this exchange.

As its title suggests, Power and Legitimacy grapples with what I see as the core disconnect in European integration. This has involved, on the one hand, the creation of supranational institutions with some measure of autonomous regulatory power that can penetrate deeply into national legal orders. And yet, on the other hand, despite the obvious constitutional implications of this process on the national level, European integration has been unable to achieve a democratic and constitutional legitimacy in its own right. There are certainly other bases of legitimacy for integration—as an instrument of peace, as an expression of a denationalized legality, or as a neutral producer of regulatory norms for a market-polity transcending national borders (Fritz Scharpf’s famous ‘output legitimacy’). But the institutions of integration are otherwise not generally understood by Europeans to embody or express the capacity of a new, historically cohesive political community (‘Europe’) to rule itself through institutions ‘constituted’ for that purpose. In that critical regard, the leading bodies of the Member States—executive, legislative, and judicial—have remained the political-cultural locus of self-government in the EU. This is true even as the Member States have delegated significant and often autonomous regulatory power to the European level for numerous functional and political reasons.

How has European public law come to terms with this separation of power and legitimacy? That is the central question motivating my book. The phrase ‘coming to terms’ is used here in a double sense. First, it refers to the development of a conceptual vocabulary to describe this complex reality over the last half-century. In this regard, the European Court of Justice (ECJ) and sympathetic legal commentators have played a key role as advocates of an interpretation of European law as autonomously ‘constitutional’ in its own right, separate and apart from the Member States. Second, ‘coming to terms’ also refers, more figuratively, to the less noticed process of institutional reconciliation, in which European public law at all levels has sought to deal with the conflicting demands of supranational regulatory power and continuing national legitimacy. Here the analytical focus must necessarily move beyond the ECJ, to a comprehensive and historical understanding of the EU’s legal and institutional development.

Appreciating these tensions in the process of ‘coming to terms’ may also help us deal with another disconnect in European integration. As the events of the last decade have made clear, the dominant constitutional understanding of the EU has had a great difficulty accounting for the direction of European public law. ‘Coming to terms’ with the EU’s particular form of regulatory power beyond the state has in fact required mechanisms profoundly dependent on the normative principles and legitimating structures of administrative governance as it has developed over the course of the twentieth century.

This should, in fact, not surprise us. The separation of power and legitimacy has been the identifying characteristic of administrative governance since 1945, if not before. Moreover, the delegations at the heart of administrative governance have been legitimized, in important part, through forms of oversight (though necessarily control) by national democratic and constitutional bodies vis-à-vis the burgeoning administrative apparatus. As my book seeks to show, the evolution of European public law, much less than suggesting a new, autonomous form of ‘constitutionalism beyond the state,’ in fact reflects an increasing convergence around ‘the postwar constitutional settlement of administrative governance.’ The result has been a polycentric constitutionalism in the EU, with regulatory power increasingly exercised at the supranational level but democratic and constitutional legitimacy still concentrated within national institutions.

The evolution of European public law, my book thus seeks to show, reflects a clear effort to maintain, over time, the connection between this denationalized regulatory power and national forms of constitutional democracy. This effort is very much consistent with the postwar settlement on the national level, albeit in an altered form to account for the peculiarities of integration (notably multiple ‘principals’ and regulatory norm-production outside the state). By understanding European integration as a manifestation of administrative governance, Power and Legitimacy seeks to offer a new conceptual vocabulary to ‘come to terms’—both descriptively and normatively—with the integration phenomenon in all its complexity.