In association with the International Commission of Jurists

General

08 Nov

News services are reporting that President Obama, speaking to the Indian Parliament, has endorsed India receiving a permanent seat on the UN Security Council.  The AP story adds that this was the biggest applause line in the speech, fully consonant with the rise of Indian nationalism within India, and its rapidly increasing sense of importance in the broader world.  What of this nationalism?  And the rise of national pride of place among the newly rising great powers, not just India? I continue to find mystifying the Western academic international law world's infatuation with the ideals of the dimishining importance of states and membership in states.  Particularly when that mostly seems to refer not to a universal aspiration, but only to the inability of the leading Western-states-in-decline to persuade themselves to exercise the coherence that makes states socially useful - and that largely through the cultural and class predilections of the political classes of those societies.  When are we going to see proper analytic attention to the Globalized New Class as a phenomenon?  In any event, the rising new powers understand that states are about coherence, and that the constant struggle of most states, most of the time, is to remain coherent and prevent "disaggregation" of the state into internal groups of power and "public choice" struggles for primacy and the resources of politics to economic ends. Disaggregation is attractive to many Western intellectuals, I'd suggest, however, because our species-being, so to speak, has gradually come to be purely contractual free agency.  We gave up on any kind of "fiduciary professional" model of the intellectual when we discovered that we could leverage our knowledge skills, at least until China and India caught up, across a needy global economy.  It required freeing ourselves from the strictures of local communities; but the opportunities for globally marketizing our professional expertise being very large, we have moved a long, long way from RH Tawney's post-war British model of the professional as community leader through expertise. That's not how we academics pronounce the disaggregation of the state.  Our favored trope is to declare disaggregation of the state as an enabler of individual freedom.  We mean by that, of course, particularly market freedom of the academic free agency market (best of both worlds: free agent competition as academics and tenure).  The coherence of states is seen by us as an inhibition to individual freedom in some cosmopolitan, fully-marketized, free-agent status for every individual in the world.  
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06 Nov

I am heading to Europe on Wednesday for a couple of weeks.  I will be in Salzburg from November 13-19, participating in an amazing project on the intersection of international and Islamic law that is sponsored by the International Bar Association and the Salzburg Global Seminar.  (The definition of terror: my chapter for the resulting book, on sentencing and rights...

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05 Nov

Duke Law is hosting the annual Duke-Harvard Foreign Relations Law Workshop tomorrow, and, as usual offers a stellar line-up.  This year's topic is The Political Economy of Foreign Relations Law.  For those interested in knowing more, here's the line-up. Session 1: War Powers Peter D. Feaver, Seven Provocations on Domestic Politics of Foreign Relations William G. Howell, Wartime Presidents Douglas L. Kriner, More than...

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05 Nov

A few days ago, Roger (and others) discussed the possibility of legal challenges to Oklahoma's constitutional amendment prohibiting its judges from considering international and Sharia law.  I have my own questions about the amendment under the Supremacy Clause beyond the more obvious arguments that Oklahoma Courts must apply treaties that fall within Article VI's ambit (putting aside for now debates over whether non-self-execution limits...

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03 Nov

Yesterday voters in Oklahoma voted overwhelmingly (70% in favor to 30% against) to ban the use of international law and Sharia law in state courts. It appears that the referendum will be headed to the courts for review, for as my colleague Michael Helfand has noted, the ban on Sharia law may well be unconstitutional under the First Amendment. The...

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03 Nov

What does the change of power in the U.S. Congress (at least in the House) mean for U.S. attitudes toward international law and foreign policy?  Not much, I think, since I think foreign policy is one of the few areas where we can imagine the new more conservative Republicans and President Obama working together better than he did with progressive...

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29 Oct

I spent the day at Georgetown University Law Center, at a seminar put on by Georgetown and the Queen's University Belfast School of Law, on Professor Vicki Jackson's splendid new book, Constitutional Engagement in a Transnational Era.  Fabulous small discussion seminar with comparative constitutional law scholars from around the planet, and a fine discussion of the book.  This book partly...

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29 Oct

William Gibson (appropriating Gertrude Stein's bon mot about Oakland, California) said of cyberspace: "there is no there, there."  While this captured the feeling of Gibson's fictional cyberpunk protagonists, it obscures all the physical "theres" that make cyberspace possible.  A student post at Infranet Lab called Re-Link:The Physical Network of Data is a quick visual primer on all the stuff of cyberspace...

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26 Oct

Interest in targeted killing and drone warfare is not letting up in intensity to judge by the pace of events on the topic. Right on top of my debate with Mary Ellen O'Connell on this at Washington University two weeks ago, Mary Ellen and Ben Wittes undertook another one, this past Saturday at International Law Weekend in New York.  It was considerably more testy than the Washington University debate.  Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate.  I'm sure it will generate a lot of interest and a lot of pushback in several directions.  Ben has posted up video of the event at Lawfare. Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen's statements at what they say, Barack Obama is not therefore a "serial killer" for having directly ordered the CIA to carry out what Mary Ellen characterizes as "crimes" and Harold Koh at the least an aider and abetter.  Ben has in mind, for example, statements in Mary Ellen's widely noticed article, "Unlawful Killing with Combat Drones," which among other things declares that "members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime."  One might argue Ben's choice of provocative words in the debate - serial killing - or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well).  His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator.  Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law.  Crime is a charge of more than mere non-compliance.  If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you. And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It's not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental "crimes" for which corporations routinely pay criminal fines in the domestic United States.  Killing is not like that, presumably, at least not when it's systematic, systemic, large-scale, and under direct orders. The article by Mary Ellen specifically says who commits a crime - members of the CIA.  Yet they are not acting as rogues in this, but rather under direct orders of the President.  If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes.  So what is it to be?  I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both.  I take it that was Ben's larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.
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23 Oct

Although everyone is justly excited about International Law Weekend, I wanted to mention another conference in New York that took place yesterday at Brooklyn Law School, Governing Civil Society: NGO Accountability, Legitimacy and Influence.  Congratulations to Professors Claire R. Kelly and Dana Brakman Reiser at BLS for putting it together.  I was on one of the panels at this one day session and there were many other terrific people who represented a quite fascinating and too-rare mingling of the international law and nonprofit law worlds.  As someone who cuts across both, I thought this was a great conference. The issue that drove it was to ask (this is my summary) whether there is a way to bring together two basic questions about non-governmental organizations and nonprofit organizations in the international world, the transnational world, the global space: accountability in the sense of large political legitimacy, and accountability in the sense that is usually meant in non-profit and charitable organization law.  So one panel addressed the interactions of NGOs and international organizations; a second addressed models of governance and regulation of NGOs; and the last panel asked whether and how legitimacy and accountability might be linked. One of the takeaways for me was that the question of the legitimacy and governance function of international NGOs, global civil society, is still a salient question.  I have long criticized (very sharply) the suggestion that international NGOs ought to have a legitimacy function within the international system, which is to say, a role in governance, even if you think, as I do not, that liberal international global governance is a good idea.  But I had mostly stopped writing on this theme, except when specifically invited (here and here, for example), because I had thought that the idea had died away.  That was something I thought I had learned from Anne-Marie Slaughter's impressive A New World Order; she specifically rejects the global civil society-international organization partnership in governance as failing basic tests of legitimacy (I discuss this in a long review of the book).  Instead, focus seemed to have shifted to the also important question of NGO accountability with respect to the performance of their own missions - internal governance of international NGOs, their relationships with governments in their operational work, and questions that implicate accountability and governance about them as institutions, not global governance. More recently, however, I have realized that something that I thought had faded away as a model project in global governance is still around, somewhat incorporated into some of theories of global constitutionalism that have been a staple of European academic writing on global governance for many years.  But definitely active once again as a proposed theory of global governance and legitimacy.  So I guess I am back writing about it again.  I am no more in favor of it than I ever was, I'm afraid.  Of the academic international law writers in this area, the one who seems to me the most important is Steve Charnovitz of GW, who presented a very interesting paper at this conference.  Steve always offers a careful and measured view, and this paper was exactly that, but also exceedingly interesting not just in the critique of critics like me, but in offering a step forward in a positive account of NGOs in governance.  Indeed, in some respects it was quietly the most audacious of the papers at the seminar, because Steve set out the form of an argument for asking how anyone could propose to leave the NGOs out.  I will very much look forward to reading the essay when published in the symposium issue.
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22 Oct

Yesterday a federal district court granted Chevron's motion under Section 1782 to discover communications and interactions that Steven Donziger and others affiliated with the Lago Agrio plaintiffs had with Ecuadorian courts, the Ecuadorian Special Master, and the Ecuadorian government. The order was in furtherance of Chevron's efforts to respond to a criminal investigation brought in Ecuador against two Chevron...

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20 Oct

Peggy has already posted on this, so this is just a reminder that ILW 2010 starts today (October 21) in New York City. The website of the American Branch of the International Law Association has this description: On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law...

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