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Did You Hear the One About Fox News Being Less Biased than the “Liberal” Media?

by Kevin Jon Heller

The Volokh Conspiracy is hosting a discussion of a new book on media bias entitled Left Turn: How Liberal Media Bias Distorts The American Mind.  Here is a snippet from the summary on the Amazon page:

Dr. Tim Groseclose, a professor of political science and economics at UCLA, has spent years constructing precise, quantitative measures of the slant of media outlets. He does this by measuring the political content of news, as a way to measure the PQ, or “political quotient” of voters and politicians.

Among his conclusions are: (i) all mainstream media outlets have a liberal bias; and (ii) while some supposedly conservative outlets — such the Washington Times or Fox News’ Special Report — do lean right, their conservative bias is less than the liberal bias of most mainstream outlets.

If you can stop laughing long enough at the central thesis of the book, you might want to note that there is already a burgeoning critical literature on its flawed methodology, which somehow manages to lead to the conclusion that the RAND Corporation is more liberal than the ACLU, the NRA is barely right-of-center, and the ACLU is on the conservative side of the ledger.  (Were that it so!)  It also claims that, but for liberal media bias, McCain would have defeated Obama 56% to 42% in the last election.

In any case, you can find the Volokh Conspiracy’s intro post here.  And here is a roundup of links to sources that debunk the book and/or its underlying academic studies:

  • A forthcoming article by Carnegie-Mellon’s John Gasper.
  • An analysis by Brendan Nyhan, a professor of government at Dartmouth.
  • An analysis by Geoff Nunberg, a linguistics professor at Berkeley.
  • Critical thoughts by Columbia’s Andrew Gelman.
  • An analysis by Media Matters.

Not surprisingly, the authors of the book have received funding from the usual conservative suspects, such as AEI, The Heritage Foundation, and the Hoover Institute.

Don’t TV Writers Use Google?

by Kevin Jon Heller

As some readers may know, I spent four years writing television in Los Angeles — law, cop, and terrorism shows — before becoming an academic.  When I wrote scripts, I prided myself on accuracy: although I occasionally took artistic license, I always tried to get the law and facts right as best I could.  So it bothers me to no end when television shows use plot devices that even cursory research would indicate are inaccurate.  A recent case in point: an episode of White Collar, an enjoyable trifle of a show about a con man who gets captured and has to work with the FBI.  The entire episode is built around a cold-blooded killer who pretends to be an Interpol agent in order to extract information from various main characters on the show — all of whom are supposed to be extremely sophisticated about the world of law enforcement. Just one problem…

Interpol, of course, doesn’t have agents.  Its job is to facilitate communication and cooperation between various police agencies around the world.

Seriously, this isn’t rocket science.  There is even an entire internet page dedicated to cataloging all of the various popular-culture references to Interpol agents.  It took me 30 seconds to find using Google.

QS World Law School Rankings

by Kevin Jon Heller

QS World University Rankings has released its list of the world’s top law schools.  Here are the top 30:

1.  Harvard
2.  Oxford
3.  Cambridge
4.  Yale
5.  Stanford
6.  Berkeley
7.  Columbia
8.  London School of Economics
9.  Melbourne
10. NYU
11. Sydney
12. McGill
13. Toronto
14. Chicago
15. Australia National University
16. UCLA
17. Michigan
18. Auckland
19. Victoria University Wellington
20. Monash
21. King’s College London
22. University College London
23. University of British Columbia
24. National University Singapore
25. University of Pennsylvania
26. Duke
27. Texas
28. Cornell
29. New South Wales
30. Otago

    Any ranking system should be taken cum grano salis, of course, and the law rankings are no different.  I find it difficult to believe that Chicago and UCL aren’t ranked considerably higher, and the list seems considerably Anglocentric, with the first non-English-speaking law school — the University of Bologna — not checking in until number 32.

    That said, I am delighted to see Melbourne ranked so highly.  I have noted before the exceptional quality of our public international law faculty, but we are very strong across the board — in both private and public law.  It’s good to see my colleagues’ skill and productivity recognized.

    ADDENDUM: Congratulations are also due to my former colleagues at Auckland, a law school with wonderful faculty and students that is held back solely by its inadequate facilities.

    Torture by Non-State Actors Not Actionable Under ATS

    by Roger Alford

    The D.C. Circuit held this week that torture by non-state actors was not actionable under the Alien Tort Statute. The case, Ali Shafi v. Palestinian Authority, arose from the alleged torture in the West Bank by the Palestinian Authority and the PLO of a Palestinian national who was an Israeli spy.

    The Shafis argue that “the [Palestinian Authority's] conduct violated universally recognized and applicable norms of international customary law prohibiting torture by a public official .” App. Br. 22. That argument cannot prevail. Appellants are advancing a theory that nonstate actors can nonetheless be public officials. We need not decide whether that is a possibility, as there is clearly no sufficiently universal norm of international law supporting such a concept to support the creation of an ATS cause of action for torture against a nonstate actor, even if that actor falls into the appellants’ proposed expanded category of “public official.”

    The Court recognized the some actions by non-state actors could be actionable, such as piracy and infringements of rights of ambassadors. It also seemed to accept Kadic v. Karadzic’s rationale that genocide by a non-state actor could be actionable. Nonetheless, the Court held that “in 2011 it remains the case that appellants have shown us no such consensus. The complaint does not state a claim cognizable within the jurisdictional grant of the Alien Tort Statute.”

    The Safis argued that Common Article 3 of the Geneva Conventions provided the requisite consensus, but the Court rejected that argument, finding that the status of the PLO and the nature of Israeli relations with the Palestinian territory are subjects of continuing debate. In other words, the Court was unwilling to conclude that the alleged torture occurred in the context of an armed conflict such that Common Article 3 applied and could serve as the basis for the requisite international consensus required under Sosa. (This, in my view, is the weakest part of the decision).

    The Court also upheld the district court’s decision to dimiss the pendant tort claim raised under Israeli Law, finding that 28 U.S.C. 1367(c) gave it permission to do so.

    One of the more interesting parts of the opinion came from Senior Judge Stephen Williams. In his concurring opinion, Judge Williams tried to limit the scope of actionable claims against non-state actors to claims that raise concerns of state sovereignty:

    “It seems to me that the unifying feature of the three offenses is that their punishment protects and facilitates the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war. Piracy involves a rejection of the Westphalian system itself—pirates remove them-selves from the national building blocks of interna-tional society (and hence are enemies of all mankind). … As to cases against foreigners, violations of the law of nations would be actionable under the ATS if they matched piracy as an affront to Westphalian sovereignty itself, or if the foreign perpetrator were linked to the United States by residence or by some other feature such that American disregard of the offense might cause serious blame to fall on the United States.”

    Curiously, Senior Judge Williams failed to apply his analysis to the question at hand: whether a Palestinian who is serving as an Israeli spy and is tortured by the Palestinian Authority because he is a spy in any way implicates the Westphalian system such that his claim should be actionable.

    The slow, quiet demise of the ATS continues. Without further support from the Supreme Court, it appears that the statute is in free fall.

    On The Road Again — and the Classlessness of Virgin Blue

    by Kevin Jon Heller

    I’m traveling in Europe for the next few weeks, so posting will be a bit light.  As always, I’m happy to meet up with Opinio Juris readers in the places I’m visiting.  Here’s my schedule: June 4-7, Helsinki; June 7-9, Tallinn; June 9-13, Berlin; June 13-15, Leuven; June 15-18, Amsterdam; June 18-20, London.  On June 6, I’m giving a talk at the University of Helsinki about prosecuting WikiLeaks for espionage; and on June 14, I’m giving a talk at Katholik University Leuven about the Nuremberg Military Tribunals’ contribution to crimes against humanity.  I’ll also be defending my dissertation — a version of my book on the NMTs — at Leiden University on June 16, which means that you’ll have to call me “Dr. Kevin” very soon.  Apparently, Leiden’s defence is one of the most formal in the world, including requiring students (ie., me) to wear waistcoats.  I plan on blogging about the experience after it’s over.

    On a different note, I had one of the most insulting flying experiences ever on my Virgin Blue flight from Melbourne to Sydney this morning.  (I’m writing this post in L.A.)  I did not have a seat assigned, and the woman at the check-in counter was nice enough to give me an exit-row aisle, so I’d have a bit more leg room.  Then, when I got to the gate, one of Virgin Blue’s agents pulled me aside and told me that they were moving me back to a regular seat, because someone had paid $45.00 for the exit-row aisle.  When I expressed amazement that they would assign me a seat and then kick me out of it, the agent simply shrugged and reiterated that someone had paid for it.  No apology, no sympathy.  No class. In general, Virgin is an excellent airline — I always fly Virgin Australia to the U.S. and Virgin Atlantic from the U.S. to London.  But I will certainly do what I can to avoid flying Virgin Blue within Australia in the future; there are too many other domestic airlines to put up with that kind of treatment.

    To close on a more positive note, my book will be out in the next couple of weeks, which is very exciting!  My thanks to all the readers who gave me feedback on the cover and who read chapters during the writing and editing process.

    Jacob Katz Cogan Is Back!

    by Kevin Jon Heller

    Readers will be delighted to know that Jacob has restarted International Law Reporter, your one-stop-shopping center for all new international-law scholarship.  And I’m delighted to learn that Jacob’s new essay, entitled “The Regulatory Turn in International Law,” is now forthcoming in the Harvard International Law Journal, which has recently partnered with our blog.  The essay looks fascinating; check it out here.  Congrats to Jacob!

    Call for Papers — The Eichmann Trial at 50

    by Kevin Jon Heller

    Because the “Untold Stories” symposium that Gerry Simpson and I organized was such a success, we are organizing another one.  Here is the call for papers:

    THE EICHMANN TRIAL AT 50

    A two-day international symposium to discuss one of the most important trials of the 20th Century

    Melbourne Law School

    14-15 October 2011

    Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

    Organizers: Kevin Jon Heller & Gerry Simpson

    CALL FOR PAPERS

    Deadline for Abstracts: 15 June 2011

    On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem. The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world. Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death. Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.

    2011 marks the 50th anniversary of the Eichmann trial. The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other. The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial. The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

    The symposium will be held over two days.  We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided.  A speakers’ dinner will be held on the evening of the 14th and an informal dinner on the 15th for those who remain in town.

    The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.” The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish. Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

    If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 15 June 2011 to Kevin Jon Heller, c/o James Ellis (j [dot] ellis [at] student [dot] unimelb [dot] edu [dot] au).  Doctoral students are welcome to submit abstracts. Participants will be selected by July 1 to facilitate travel plans.

    Questions about the symposium should be directed to Kevin at kheller [at] unimelb [dot] edu [dot] au.

    I hope some Opinio Juris readers will be interested in attending!

    More From the Department of False Equivalences

    by Kevin Jon Heller

    Not surprisingly, conservatives and the Obama administration are falling all over themselves to praise Paul Clement for his brave willingness to represent the House of Representatives at the low, low rate of $520.00 per hour — practically pro bono.  The idea that zealous representation is an end in itself, regardless of client or cause, is one of the most basic tenets of the legal profession, a useful myth that allows skilled lawyers to convince themselves that getting rich defending polluters, companies that manufacture defective products, and banks who throw people out of their homes not only contributes to the public welfare, but is in fact an act of selflessness deserving of moral praise.

    The false equivalence between Clement and lawyers who actually work pro bono on unpopular causes (conservative or progressive) or who make $35,000 per year providing legal services to the poor and powerless is offensive enough.  Even worse is witnessing Jonathan Adler, one of the bloggers at Volokh Conspiracy, describe the Human Rights Campaign’s pressure on King & Spalding to drop the defense of DOMA as the “new McCarthyism” (emphasis added):

    Clement’s decision to represent Congress and defend DOMA was controversial in some circles, and understandably so. Although DOMA was enacted with broad bipartisan majorities and signed into law by President Clinton, it prevents federal recognition of same-sex marriages, even when sanctioned by state law. For supporters of same-sex marriage, that’s a tough pill to swallow.

    Angered over Clement’s decision, the Human Rights Campaign launched a campaign against King & Spalding, seeking to punish the firm because one of its partners dared represent a controversial client. According to HRC, the representation was “a shameful stain on the firm’s reputation.” In reality, what’s really shameful is HRC’s McCarthyite attack on Clement and King & Spalding — particularly given the nation’s sorry history of efforts to prevent effective legal representation of marginalized groups and unpopular causes.

    As I noted yesterday, I think pressuring law firms to drop clients is generally a very bad idea.  To describe the HRC’s efforts as “McCarthyism,” however, is ridiculous.  Joseph McCarthy was a United States Senator who used the power of his position to destroy the lives of dozens, if not hundreds, of innocent people.  The HRC is a civil-rights group that is attempting to shame King & Spalding for accepting a client whose cause is antithetical to the firm’s own values, given its long history of support for LGBT rights. It is certainly reasonable to argue that the HRC is playing a dangerous and counterproductive game by trying to convince King & Spalding clients to leave the firm; I’m inclined to agree with that position.  But there can be no comparison — none at all — between grassroots campaigns and state-sponsored persecution.

    When the government passes a law disbarring lawyers who represent conservative causes, we can talk.

    DOMA, Gitmo, and False Equivalences

    by Kevin Jon Heller

    At Lawfare today, Ben Wittes criticizes King & Spalding for refusing to help the House of Representatives defend the Defense of Marriage Act (DOMA) in court.  His argument turns on an analogy between representing the House and representing Gitmo detainees:

    Sometimes, the politically unpopular client is the House of Representatives, not a Guantanamo detainee. Sometimes, the contested legal questions are not ones related to counterterrorism but involve marriage and equality and tradition. But good counsel is still critical to ensuring that tribunals have access to the best arguments and most rigorous factual presentations before making crucial decisions. When interest groups pressure law firms to drop such representations, they are still demanding adjudications stripped of a full record–or objecting to the right of their opponents to have adjudications at all. And if major law firms will buckle under such political pressures before defending a (rightly, in my view) disfavored federal statute, can anyone really imagine that they will not also abandon other disfavored clients?

    Paul is a friend. I do not know his personal views on DOMA and would never ask them. But I ask readers to consider whether we would consider what King & Spalding did in this matter honorable had the firm done it to a different firm client–say, Mohammed Al Adahi–and how we would consider a lawyer who resigned in protest if it did.

    I think Ben’s point that law firms should be very wary of letting interest groups pressure them into dropping clients is a good one, and in that regard the analogy to the horrific attacks on lawyers who represented Gitmo detainees is appropriate.  That said, I think Ben’s argument otherwise relies on a fundamentally false equivalence between Paul Clement and lawyers who represent Gitmo detainees.  Lawyers in the latter category are representing powerless, indigent clients who are faced with criminal charges or — worse still — a lifetime of indefinite detention.  Paul Clement is representing one part of the legislative branch of the United States government, a client that is not faced with the deprivation of liberty and is not even trying to defend a constitutional right.  The Constitution doesn’t define marriage as the union of a man and a woman, nor does it impose an obligation on the executive to defend laws (in contrast to enforcing them) that it believes are unconstitutional.

    I have no problem with Clement choosing to represent the House in its attempt to defend the DOMA legislation, although I think Ted Olson deserves far more credit for using his legal skills to promote the constitutional rights of gays and lesbians.  But analogies like Ben’s simply reinforce one of the most destructive ideas perpetuated by legal education — namely, that a “good” lawyer is nothing more than a mercenary, willing and able to zealously promote the interests of whomever is capable of paying his or her fees.  Lawyers should always be free to represent whomever they want, but we should not pretend that there is no moral difference between civil-rights attorneys and attorneys who represent tobacco companies, weapons manufacturers, and polluters.  And we should certainly not pretend that there is no moral difference between representing individuals facing a lifetime in prison and representing right-wing congressmen facing a world in which they are no longer able to legislate hate.

    ADDENDUM: Many critics of King & Spalding’s decision, including Ben, emphasize that the adversary system only works when both sides have quality representation.  That’s a lovely ideal, but in the real world quality representation is almost always the prerogative of the wealthy.  With the exception of indigent criminal defendants, who are provided overworked and under-resourced public defenders (whose funding is constantly under attack by conservatives), society has no problem either not providing the poor with any representation at all or providing them with substandard representation — tenants, the victims of mortgage fraud, employees discriminated against because of age or race or gender, people harmed by defective products, etc.  Such individuals have to rely on overworked and under-resourced legal-aid offices (whose funding is constantly under attack by conservatives) or plaintiff’s attorneys who work on contingency (whose work is constantly under attack by conservatives).  So please, spare me the crocodile tears for the poor House of Representatives.  When the government adequately funds public defenders’ offices and legal-aid societies, I’ll take the quality-representation argument seriously.

    Faculty Positions at Melbourne Law School

    by Kevin Jon Heller

    My school is once again advertising for new faculty at all levels, from Lecturer to Professor.  Note the short deadline: applications must be in by April 27.  Here is the job description:

    Melbourne Law School, Australia’s first all-graduate law faculty, invites applications for continuing appointments from creative legal scholars committed to educational innovation.

    We continue to seek new colleagues at all ranks (levels B to E) and across all sub-disciplines who share our commitment to a highly collegial, research-intensive professional life. We specifically encourage applications from current or aspiring academics with a clear understanding of the value of cross-disciplinary and comparative analysis, who are able to integrate teaching with research and community engagement activities, and who are prepared to contribute to the vibrant communal life and culture at the Law School and within the University of Melbourne as a whole.

    Melbourne Law School was the first faculty in Australia to teach law and awarded this country’s first law degrees. We were the first to move to the global standard Juris Doctor degree. Coupled with the unrivalled excellence of the Melbourne Law Masters and our internationally renowned Research Higher Degree programmes, we offer a unique opportunity to integrate scholarship and teaching. Colleagues are encouraged to affiliate with one or more of the Law School’s dozen research institutes, centres and groups, and to take full part in the University of Melbourne’s rich intellectual life – all in the heart of one of the world’s most liveable cities. Full details of appointment possibilities may be found at www.jobs.unimelb.edu.au, under the job category ‘Law’.

    Melbourne Law School is an equal opportunity employer, and welcomes applications from scholars able to enrich the diversity of our community. In particular we encourage Aboriginal and Torres Strait Islander people to apply.

    All enquiries to Professor Carolyn Evans, Dean, at law-academicpositions [at] unimelb [dot] edu [dot] au, tel. + 61 3 8344 6172. Applications (consisting of a curriculum vitae and a cover letter addressing the selection criteria) must be submitted online at www.jobs.unimelb.edu.au

    You can find more information here.  As always, interested readers should feel free to email me.

    Guest-Post: Nuclear Trafficking as an International Crime?

    by Kevin Jon Heller

    The following is a guest-post written by Orde Kittrie, a professor at ASU’s law school, and Sandy Spector, the deputy director of the James Martin Center for Nonproliferation Studies.  They very much want input from OJ’s readership, so please post your thoughts.  Our thanks to Orde and Sandy for contributing the post!

    Seven years after A.Q. Khan publicly confessed to his illegal nuclear dealings, and 35 years after he fled the Netherlands with a cache of stolen nuclear blueprints, the father of Pakistan’s nuclear weapons program (and Iran’s) has yet to pay a significant price for his transgressions.

    How might the next A.Q. Khan be more successfully prosecuted or deterred? Does it make sense to try to turn trafficking in nuclear materials (e.g., enriched uranium) and nuclear commodities (e.g., nuclear equipment and technology) into an international crime? If so, how? This will be a major topic of discussion at an April 4-5 conference in Washington, DC sponsored by the Nautilus Institute for Security and Sustainability and the Carnegie Endowment of International Peace (see here for more information about the conference). We thought it might be interesting to pose these questions for brainstorming by the collective expertise of Opinio Juris readers.

    In the rest of this post, we will briefly 1) describe what has been suggested would be the ideal (but possibly unattainable) new legal instrument for combating nuclear smuggling; 2) describe the major current relevant legal instruments and their flaws; and 3) identify several potential options, short of the ideal, for making nuclear trafficking an international crime. We welcome your comments on all aspects of this analysis, including which one or more of the potential options might make the most sense to pursue. We also welcome any other ideas you might have for maximizing the international community’s chances to prosecute and/or deter the next A.Q. Khan.

    What Is The Ideal New Legal Instrument for Combatting Nuclear Smuggling?

    It has been suggested that the ideal would be a new treaty, adhered to by all relevant states, that would: make nuclear material and nuclear commodity trafficking an offense under its terms; require all parties to enact laws making nuclear trafficking a high-penalty criminal offense domestically; give parties broad jurisdiction to bring traffickers to justice, by providing jurisdiction over persons on their territory, over their nationals who committed offenses abroad, and over any individual who injured a national of the state party; and include strong mutual legal assistance provisions, requiring all parties to extradite or prosecute and to support prosecutions in the courts of other parties.

    What Are The Major Current Relevant Legal Instruments And Their Flaws?

    The International Convention for the Suppression of Acts of Nuclear Terrorism (entry into force 2007) contains many of the elements of the “ideal new treaty” discussed above. But it makes only trafficking in nuclear materials an offense, not trafficking in commodities of the type provided to North Korea, Iran, and Libya by the A.Q. Khan network or the commodities being illicitly acquired today by Iran, Pakistan, and North Korea. Moreover, it has only 76 parties.

    The Convention on the Physical Protection of Nuclear Material(entry into force 1987) has 145 parties, but is also limited to nuclear material trafficking, and indeed, covers only nuclear material in peaceful uses, not that in military programs.

    UN Security Council Resolution (UNSCR) 1540 requires all states to control nuclear materials and commodities (termed “related materials”) and to adopt and enforce civil and criminal penalties against the export, trans-shipment, and financing of transfers that would contribute to proliferation. But the resolution does not itself criminalize such activities, nor does it establish the robust jurisdictional and mutual assistance rules of the nuclear material treaties.

    Security Council resolutions imposing sanctions on North Korea and Iran establish quasi-criminal penalties (asset freezes and travel bans) on any individual whom the Security Council, or the committees established by the Security Council to oversee implementation of the North Korea and Iran sanctions, “designates” as being engaged in, directly associated with or providing support for North Korea or Iran’s proliferation sensitive nuclear activities, including persons or entities acting on their behalf or at their direction. This formulation does cover both those involved in nuclear material trafficking and illicit procurement of nuclear commodities, as well as those directing such efforts. To date, however, virtually all those subjected to these sanctions have been North Korean and Iranian individuals (usually officials); very few individuals situated elsewhere who are involved in procurement efforts on behalf of these governments have been targeted. Moreover, the resolutions cover only North Korean and Iranian nuclear trafficking, not that by others.

    The Guidelines of the 46-member Nuclear Suppliers Group (NSG) also fall short. The NSG is a voluntary international arrangement, whose members by consensus develop certain export licensing principles and lists of nuclear materials and commodities whose transfer is to be controlled. All members then adopt and implement these guidelines voluntarily. The guidelines do not establish trafficking as an offense, per se, stating only, “Suppliers should have in place legal measures to ensure the effective implementation of the Guidelines, including export licensing regulations, enforcement measures, and penalties for violations.” Nor do the Guidelines provide for any form of mutual legal assistance to enforce the parallel export control rules that all members are implementing.

    What Are Some Options For Making Nuclear Trafficking an International Crime?

    Ad Hoc Coalitions or Existing Groupings — It may be possible to reinforce the network of mutual legal assistance and extradition treaties for an ad hoc coalition or an existing grouping such as U.S. security partners or the NSG. For example, if a group included only parties to the Convention for the Suppression of Acts of Nuclear Terrorism, all members of the group could jointly agree to apply the robust mutual legal assistance and jurisdictional rules in that convention not only to nuclear material trafficking as the convention provides, but also to nuclear commodity trafficking.

    Security Council — In addition, the Security Council could reinforce the international criminal law aspects of UNSCR 1540 by, in a new resolution, encouraging or requiring states to incorporate robust jurisdictional and mutual assistance rules in their laws criminalizing all types of nuclear smuggling. Or, the UNSCR 1540 Committee could perhaps issue an interpretation of the resolution to encourage this.

    Rome Statute — Some have suggested amending the Rome Statute to extend the jurisdiction of the International Criminal Court to cover the most egregious acts of nuclear trafficking, such as providing a nuclear weapon or the ability to manufacture one to a non-state group or transferring particularly sensitive nuclear technology, such as a nuclear weapon design, to a non-nuclear-weapon state party to the Nuclear Nonproliferation Treaty.

    Customary International Law — A final possibility would be to accelerate the evolution toward customary international law in this area. All of the international instruments noted above are moving toward greater participation. Both the Convention for the Suppression of Acts of Nuclear Terrorism and the Convention on the Physical Protection of Nuclear Material are gaining additional adherents and states’ implementation of UNSCR 1540 is steadily improving. As this web grows stronger, perhaps certain components will evolve to the point of becoming so generally applied, out of a sense of legal obligation, as to reach the level of customary international law, which would make them binding on all states.

    Which of these routes towards making nuclear trafficking an international crime do you think it would make the most sense to pursue? Are there other feasible routes?

    Thanks,

    Professor Orde F. Kittrie, Sandra Day O’Connor College of Law, Arizona State University

    Leonard “Sandy” Spector, Esq., Deputy Director, James Martin Center for Nonproliferation Studies

    ASIL 2011

    by Kevin Jon Heller

    I’m in Los Angeles, on my way home to Melbourne.  I had not attended an ASIL conference in five years, since I was teaching at Georgia, and I’m very glad I attended this one. I met a number of interesting people, including some with whom I’ve had a virtual friendship for a number of years.  (I still have not met my co-blogger Julian Ku face to face!)  I was particularly impressed by two panels.  The first was on the Kosovo advisory opinion; I learned a great deal about the legal aspects of secession and independence, and I also learned that Marko Milanovic — current lecturer at Nottingham, future President of Serbia — is as funny as he is brilliant.  The second was on Israel’s attack on the Turkish flotilla.  Although the representative of the Israeli government simply parroted Israel’s talking points (the government must have macros for them on all its computers, accessible by various functionaries at the push of a button), I was very impressed with the presentations by Naz Modirizadeh of Harvard’s superb Program on Humanitarian Policy and Conflict Research and by Sari Bashi, the Executive Director of Gisha, an invaluable Israeli NGO that protects the freedom of movement of Palestinians, especially those that live in Gaza.  Sari was simply brilliant, managing in a short 12 minutes to show — often using quotes by the Israelis themselves — how Israel’s blockade of Gaza is illegal even if we accept the Israeli government’s legal characterization of the blockade.  (Which, of course, we shouldn’t.)  I also greatly enjoyed the lunchtime talk given by Fatou Bensouda, the deputy prosecutor of the ICC, although I had to listen to it through the door of the conference room because I forgot to purchase a ticket.  Bensouda’s talk, which demonstrated both her legal acumen and her deep humanity, reaffirmed my belief that she would be an ideal replacement for Moreno-Ocampo in 2012.

    The very best part of the conference, however, was meeting so many Opinio Juris readers.  At least 20 people came up to me and told me how much they liked the blog.  (That they liked my blogging was less common.)  It is incredibly gratifying to know that the blog remains a vital part of the international-law conversation after so many years.  I can only hope that the next five years will involve more of the same.