For a while there, it looked as if there might be a real fight over Harold Koh’s nomination as State Department Legal Adviser. The Republicans have been casting about for a nomination that they could defeat on some issue of principle (that is, over something not involving a nominee’s tax returns), along the lines of Lani Guinier’s failed nomination to the Clinton Justice Department. It might also be useful for them to pick up a rallying call. Anti-internationalism has looked pretty promising. As fringe elements started taking shots at Koh, it looked like they might get some traction with more mainstream voices.
Not to be. Yesterday’s hearing wasn’t exactly a love fest, but the gloves were on. Further evidence that his confirmation is assured: there appears to have been no major media coverage of the hearing. Harold Koh will be the next legal adviser.
Beyond the fact that Koh supporters put together an effective response to blogosphere detractors, and that Koh has ideal qualifications for the position (then again, so did Guinier), there are two explanations for his sailing through.
The first is that he’s not really a transnationalist, “transnational legal process” notwithstanding. Efforts to paint Koh as someone who believes in the primacy of international law (in the sense of trumping US law) failed for the simple reason that he doesn’t. Koh buys into American exceptionalism, the good version in which the United States should stand at the head of the human-rights-advancing pack. Anyone who has heard him speak of his family history (including in his opening statement to the committee) will know that he is patriotic, in the way of a liberal nationalist. Koh’s positions are hardly radical. (He did a really nice job in his testimony of playing up “cooperation,” “interdependence,” and “managing” the relationship between US and international law.) On this view, Koh just wasn’t the right target for a sovereigntist ambush.
On the other hand, if Koh wasn’t the right target, then nobody is. No nominee will ever acknowledge the superiority of international law in that trumping sense. Koh is (obviously) favorably disposed to international law. In a response to Senator Corker, Koh forthrightly asserted that the US has been “lawless” in the sense of having “fallen below international standards” with respect for example to detainee treatment and the invasion of Iraq. That might seem an obvious characterization to many of us, but it takes some guts for a prospective high-level official to go there; I’m sure for Corker and other red-meat Americans the proposition just doesn’t compute. If the sovereigntists couldn’t muster the troops for this one, then they don’t comprise a very potent political force.
So what’s the upshot, beyond the confirmation? Maybe Obama will be a little more inclined to push on various IL-related fronts, law of the sea, the women’s and children’s conventions, and the ICC (with Koh as legal adviser leading the charge), on the probability that they’ll require less in the way of political capital. Maybe the Supreme Court will get back on its internationalist tracks. As some conservative elements begin to see IL as a valuable tool for advancing their own agenda, anti-internationalism won’t even work as a unifying agenda item within the rump Republican party. Maybe we’ll witness Bricker’s final interment and a shift in the political culture towards broad support for international law and institutions.
The Bulletin of the Atomic Scientists has a provocative essay by Brian Weeden critiquing the idea that the U.S. should sign on to a treaty banning the weaponization of space. The author’s point is not so much that he thinks there should be unregulated military use of space, but rather whether a treaty is the best way to go about addressing the policy issues. Ultimately, this essay provides an interesting case study in using “hard law” versus “soft law” in pursuit of a foreign policy goal…
In case you haven’t seen them already, I wanted to point out that Beth Van Schaack and Hari Osofsky have a couple of posts at IntLawGrrls on yesterday’s Koh confirmation hearing.
The Eleventh Circuit earlier this month ruled that Manuel Noriega could be extradited to France following the completion of his sentence in Florida. In Noriega v. Pastrana, Noriega argued that under the Third Geneva Convention he was entitled to automatic and immediate repatriation to Panama as soon as his criminal sentence was complete. However, Section 5 of the MCA provides that “no person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or … agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” The Court held that the MCA precluded Noriega’s action pursuant to the Third Geneva Convention:
No sooner had I read Peter’s thought-provoking post about transparency in arbitration than I received a link to a complete webcast of this month’s arbitration before the Permanent Court of Arbitration between the Government of Sudan and the Sudan Peoples Liberation Movement/Army over the Abyei region. This appears to be the first videotape/webcast of an arbitration between a state and a non-state actor. (Readers: Do you know of any other audio or video recording of an arbitration involving states?). The impressive arbitration panel is presided over by Professor Pierre-Marie Dupuy and includes Judge Awn Al-Khasawneh, Judge Stephen Schwebel, along with Professors Gerhard Hafner and Michael Reisman. The complete webcast represents five and half days of proceedings (April 18-23) at the Hague, which are broken up into 90-minute clips following the issues as argued by the parties. For those of you who teach arbitration, this is a treasure trove of material for classroom use.
Maybe. In any event, Harold Koh’s testimony before the Senate Foreign Relations Committee will be webcast live starting around 2:15. I predict a very boring hearing where nothing of substance will be asked, and nothing of substance will be offered as an answer either. This should work to Koh’s benefit, of course. Boring is good, when you are a nominee for high office these days.
Dave Kopel has a post today at The Volokh Conspiracy in which he dusts off John Yoo’s argument in the infamous 14 March 2003 memo that a CIA interrogator prosecuted for torture would be able to invoke the defenses of necessity and self-defense. I am not interested in responding to Kopel’s post, which grossly mischaracterizes my position on torture prosecutions and — far worse — identifies me as an Australian and spells my name wrong. Instead, I want to focus on two moments in Yoo’s argument that illustrate the fundamental dishonesty of his legal analysis.
We can begin with necessity. There are many reasons to question whether a CIA interrogator could raise a necessity defense: he would have a difficult time arguing that it was a response to a “clear and imminent danger” of a terrorist attack; a reasonable person would be unlikely to consider torture an effective means of obtaining information; the interrogator could have relied on legal avenues to avert the purported harm, such as non-coercive interrogation. Most problematic of all, however, is the fact that the necessity defense applies — to quote § 3.02 of the Model Penal Code — only where “a legislative purpose to exclude the justification claimed does not otherwise plainly appear.” A statement of legislative purpose to exclude a necessity defense more plain than Article 2(2) of the Convention Against Torture is difficult to imagine: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”
The National Court has reassigned the case from Judge Garzon to Judge Eloy Velasco. CNN says that “Judge Velasco is thought to have little, if any, experience in these kinds of cases.” Apparently, CNN has never heard of The Google, because it took me about 30 seconds to learn that, in January, Judge Velasco relied on Spain’s universal jurisdiction law to open an investigation into the 1989 killing of six Jesuit priests by members of the Salvadoran army:
A Spanish judge has decided to open an investigation into the case of 14 members of the Salvadoran army accused of involvement in killing six Jesuit priests and two of their employees in 1989, during El Salvador’s civil war.
High Court Judge Eloy Velasco also decided not to try former Salvadoran President Alfredo Cristiani, accused of concealment of the crime, because of insufficient evidence.
Last November, the Spanish Association for Human Rights and the San Francisco-based Center for Justice and Accountability filed a lawsuit against the military officers and Cristiani based on the Spanish legal principle of universal jurisdiction for crimes against humanity.
In 1991 a Salvadoran court convicted two of the 14 accused army members of murder and conspiracy to commit acts of terrorism. Both were sentenced to 30 years in prison, but were released when the parliament approved a law granting them amnesty in 1993, one year after the war ended.
Velasco’s decision was announced Jan. 13, nearly 20 years after the Nov. 16, 1989, massacre at Central American University in San Salvador.
Note the penultimate paragraph: two of the soldiers under investigation were freed as a result of a government amnesty. Given the Obama administration’s lack of interest in investigating — much less prosecuting — its predecessor’s many crimes, that would make me very nervous if I was one of the Bush Six…
Chris Borgen and I have an op-ed in today’s Philadelphia Inquirer — you can access it here – defending Yale Law School Dean Harold Koh’s nomination to serve as the Legal Adviser to Secretary of State Hillary Clinton. Our inspiration for writing it was Rick Santorum’s recent column, which suggested Harold Koh was un-American, and launched a general attack on international law having any role in U.S. law or foreign law serving as any source of interpretative authority within the U.S. legal system. Our op-ed suggests that whatever roots isolationism may have as an American tradition, Koh’s critics have painted an inaccurate and incomplete portrait of Koh’s positions, and, in doing so, ignored a distinct American tradition of international engagement with both international and foreign law.
Meanwhile, the Senate Foreign Relations Committee is scheduled to take up Dean Koh’s nomination tomorrow at 2:15.
For a fascinating google-map of individual cases identified swine-flu occurrences, see here. (Can’t vouch for its accuracy, however, and as H/T Futurepundit points out, it will rapidly get overwhelmed as more cases become identified over time.)
Among the interviews I participated in as one of the experts on the Gingrich-Mitchell UN reform commission back in 2005 was one with a senior WHO official. I asked him - this was not long after SARS in Hong Kong - whether he thought it would be helpful if the WHO were able to have a mandate from the Security Council treating pandemics or epidemics that might be a serious concern (like SARS or swine flu) as something susceptible to Security Council orders that mandated implementation of recommendations of WHO. Shouldn’t WHO be able to appeal to the Security Council or the political bodies of the UN in order to be able to have the greatest legitimacy to order forcible measures to prevent the spread of a serious epidemic disease?
His look was one of utter consternation and horror, and he asked me please not to propose such an idea under any circumstances. I’m not - I think he’s right …
Despite his checkered past, I’m beginning to like Jacob Zuma, who is set to become the next President of South Africa, more and more:
The Sudanese president Omer Hassan Al-Bashir will not be invited to the inauguration ceremony of the South African president-elect Jacob Zuma, according to news reports.
The ruling African National Congress (ANC) headed by Zuma has an absolute majority in general polls paving the way for the parliament to elect him as the new head of state in an early May vote.
The UK based ‘Times’ newspaper citing unidentified South African diplomatic sources reported that Zuma indicated that Bashir will not be welcome at his inauguration on May 9, and that he could even risk arrest and deportation to International Criminal Court (ICC).
[snip]
South Africa is a member of the ICC and is legally obligated to apprehend Bashir if he lands on its territory. However under former South African president Thabo Mbeki it has taken a strong stance in support of Bashir against the ICC.
Mbeki is now heading an African Union appointed panel to resolve the row between Sudan and the ICC by finding other means to bring accountability while preserving peace stakes.
After the embarrassment that was Mbeki — with his appalling support not only for Bashir, but for Mugabe, as well — Zuma is a welcome change. Strike one more country off the list of places Bashir won’t be visiting anytime soon.
State Department Legal Adviser nominee Harold Koh’s written answers to pre-hearing questions asked by the Senate Foreign Relations Committee have been posted online at Senator Lugar’s site.
The Q&A goes for over 60 pages. I have only skimmed it and so, for now, I will simply point out questions/answers that may be of particular interest to Opinio Juris readers (and of course, I suggest checking through the whole document for other topics of interest):
Q4 - Q5 Relation of the Supreme Court to the Executive in treaty interpretation.
Q8 The use of foreign law and practice in interpretation of US legal materials.
Q10 - Q11 Transnational legal process.
Q13 Is “unsigning” noncompliance?
Q14-Q16 The death penalty and international law.
Q17 The International Criminal Court.
Q18 The effects of “unsigning.”
Q24 - Q26 The Vienna Convention on Consular Relations cases.
Q29 - Q30 Detention in Iraq and Afghanistan.
Q32 Unilateral anticipatory war.
Q34 - Q35 The responsibility to protect and intervention.
Koh’s hearing is scheduled for this coming Tuesday, April 28th, 2009.
And proves he is neither very funny nor even remotely interested in anything resembling intelligent debate:
Hypothesize that the Obama administration, or perhaps foreign/international courts, prosecute and convict various officials of the Bush administration. Further assume that the new President who takes office in 2013 or 2017 has promised “I will ensure that the crimes of the previous administration are vigorously prosecuted.”
Which, if any, acts of the First 100 Days of the Obama administration might be prosecuted? In answering the question, you may aggressively interpret any statute, treaty, jurisdictional claim, etc., in favor of the prosecution, but the interpretation may not involve a greater stretch than would be required to hypothesize the convictions of Bush, Cheney, Rumsfeld, their attorneys, CIA officers, and so on.
For my part, I’ll continue to hypothesize the existence of the Ministries Case, US prosecutions of Japanese soldiers for waterboarding, the Convention Against Torture, the Rome Statute, the federal torture statute…
Harold Koh, who is moderating the last Reisman panel on human rights, asks the panel about the legal status of human rights committees like the CEDAW committee, obliquely referring to a controversy over the legal status of such committees’ interpretive authority. Hmm….what controversy is he referring to???*
UPDATE: when someone asks Koh a question, he (quite rightly) says he won’t answer questions until after his hearing!
I, along with an impressive group of legal scholars from around the world, have gathered in New Haven to celebrate the career and scholarship of Yale Law Professor W. Michael Reisman. So, a wonderful opportunity to blog! But I forgot to bring my laptop, so all I have is my lousy iPhone.
Still, I will try to share a few observations during the day. The first panel I attended, on Reisman’s influence on trade and investment law was a bit dry, but had some interesting moments, especially on the relationship between civil society and international institutions. This is, of course, a “transnationalist” bunch that tends to privilege international cooperation as a solution to most problems.
But as Reisman himself emphasized in a trenchant comment: the next generation of international lawyers must focus on improving the role of domestic stakeholders in the processes of international cooperation because domestic stakeholders are much more likely to be necessary to fulfill international obligations.
I don’t doubt he is generally right about this. And that the trend in international law scholarship is strongly in this direction, and has been in this direction for some time. Global civil society, norms, networks, transnational legal process, etc. But it is interesting to see a leading but also a longtime scholar (40 plus years!) like Reisman make this observation.
Interesting item from The Economist here. It is becoming increasingly clear that any important international process or institution is going to be held to transparency norms. And where there is power, there must also be accountability. In the dispute resolution context, that takes the form of NGO participation. Why shouldn’t NGOs be able to participate in proceedings with public policy implications, at least in the manner of amicus briefs. I never could quite fathom why states have gotten so agitated about NGO amicus participation in the WTO, other than out of hidebound adherence to the table manners of sovereignity.
The fact that international arbitration is institutionally competitive adds an element here not present where tribunals have a decisionmaking monopoly (as in the WTO). I’m not sure which way that cuts, though. Over the long run, arbitration platforms that are open and allow broad participation will enjoy greater legitimacy; in the short, corporate and state arbitral litigants might just prefer to keep things quiet.
On Tuesday, the Supreme Court decided Iran v. Elahi, a case that appears to fall within a data set of one. As I reported earlier, the case is extraordinarily complex, focusing on whether a terrorist victim judgment creditor can attach a confirmed arbitration award rendered in Iran’s favor. Although it involves exotic issues relating to international terrorism, military contracts, and international arbitration, the actual dispositive issues in the case are simple matters of statutory interpretation.
Simplifying the case to its bare essentials, in 1977 Iran had a contract with a military contractor, Cubic Defense Systems, to deliver military goods. Iran paid for some of the goods, but then up and had a revolution, which prevented Cubic from delivering the goods—changed circumstances and all that. The hostage crisis was resolved in 1981 with Iran returning all American hostages and the United States returning all frozen Iranian assets. Outstanding disputes were to be resolved before an international tribunal, the now famous Iran-United States Claims Tribunal. Iran tried to resolve its contractual claim against Cubic before that tribunal, but the claim fell outside its jurisdiction. So it then relied on the arbitration clause in the contract and successfully received an ICC award obligating Cubic to pay Iran $2.8 million. That award was confirmed by a federal district court in 1999. So, Iran became a judgment creditor against Cubic, but unfortunately it has the nasty habit of sponsoring terrorism and losing cases because of that sponsorship. One such case was brought by Elahi, who won a $312 million terrorism judgment against Iran. Iranian assets in the United States are few and far between, so Elahi had the brilliant idea of attaching the Cubic Judgment. But the United States did not take too kindly to this idea, because it too had its eyes on that money. The final wrinkle in the case is that the United States showed extreme sympathy for the terrorism victims by essentially subrogating Iran’s obligation to pay the compensatory damages in certain cases, including a payment of $2.3 million to Elahi. That payment came with strings attached, in particular a commitment by Elahi to relinquish its right to attach property that is “at issue” before the Iran-United States Claims Tribunal. The United States was planning on using this payment as a set off against an eventual judgment against it in an ongoing case before the Iran-United States Claims Tribunal. So Cubic is out $2.8 million, but the question is whether the money should go to Elahi, the United States, or Iran. And Elahi is not looking so great because it received millions from the generosity of the United States, and then promptly attempted to bite the hand that fed it. Are we all clear?
The ultimate question in the case is whether the Cubic Judgment award is an asset that can be attached by Elahi, given that it agreed to waive any claim to property at issue before the Iran-United States Claims Tribunal. Here’s how Justice Breyer analyzed the situation:
Scholars who believe that the individuals who wrote the OLC memos authorizing torture should be criminally prosecuted — as I do — normally cite the Justice Case, decided by the Nuremberg Military Tribunal (NMT) in 1947, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Last year, I wrote a long post for Balkinization explaining why I believe that, in fact, the Justice Case provides much less support for that proposition than most scholars assume. As I said then, nothing in the Tribunal’s judgment prohibits prosecuting a government lawyer for giving erroneous legal advice — but nothing in the judgment supports it, either. That is, of course, a critical distinction when one is arguing that a case has precedential value.
There is, however, another NMT case that does provide significant support for prosecuting the authors of the OLC memos: United States v. von Weizsaecker et al., better known as the Ministries Case, in which a number of government ministers, state secretaries, and high-ranking members of the Nazi party were convicted of crimes against peace, war crimes, and crimes against humanity. The critical defendants are Ernst von Weizsacker himself, who was the State Secretary in the Foreign Office, and Ernst Woermann, who was the Undersecretary of State and head of the Political Department in the Foreign Office. The two defendants, who were the Nazi government’s primary legal advisers, were convicted of crimes against humanity for approving SS actions that they knew violated international law…
Conflicting accounts exist over Muse’s age (the judge rejected defense claims that he’s 15) and his role in seizing the U.S. vessel (i.e., Muse was either the brazen leader or an unwilling accomplice forced to participate in the attack). I suspect both issues will continue to draw attention if Muse’s case proceeds to trial.
But, for international lawyers the most interesting questions involve the defense’s apparent invocation of the Geneva Conventions. It’s unclear whether and how Muse would rely on them — perhaps he’ll argue that he’s an unlawful enemy combatant entitled to the protections of Common Article III? It’s hard though to see how he’d be entitled to a provision that applies to non-international armed conflicts “occurring in the territory of one of the High Contracting Parties.” That territorial restriction seems to exclude events on the high seas, or even in a state’s EEZ. But even if Common Article III applied, where’s the violation? Muse was injured, so he must get “humane” treatment, but I’ve yet to see any reports suggesting he was treated otherwise; and any prosecution in the Southern District of New York should meet Common Article III’s minimum standards of due process.
A statement by Ron Kuby–a civil rights lawyer in discussions about forming a legal team to represent Muse–suggests a different line of defense:
I think in this particular case, there’s a grave question as to whether America was in violation of principles of truce in warfare on the high seas,” said Kuby. “This man seemed to come onto the Bainbridge under a flag of truce to negotiate. He was then captured. There is a question whether he is lawfully in American custody and serious questions as to whether he can be prosecuted because of his age.
This made me wonder whether Muse might actually invoke the prohibition on perfidy in his defense?
Professor Ron Slye has a helpful defense of the Koh nomination up at Foreign Policy. His post includes this very useful description of “transnational legal process” noting, importantly, that TLP is a descriptive theory of how law crosses borders. Somehow this fact has eluded much of the MSM discussion:
All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law’s traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law — that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws.
This is hardly a radical approach — in fact it is solidly within the mainstream of academic legal scholarship, legal practice, and U.S. constitutional law. Everyone from corporate lawyers to International Criminal Court prosecutors recognize the dynamic relationships between domestic and international law. And the vast majority of international law scholarship, whether “liberal” or “conservative,” concerns the proper relationship between international and domestic law. No one questions that international law exists or matters.
Additionally, the power to create and enforce laws now lies outside capital courtrooms — and thus requires a transnationalist approach. The World Trade Organization ensures a level playing field for international trade; the World Intellectual Property Organization protects patents globally; and U.N. Security Council resolutions impose financial sanctions on states. The State Department needs a counselor who understands all such global actors.
[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He teaches International Law, and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.]
First, I express my thanks to Opinio Juris for permitting me to comment on recent events here at West Point in my personal capacity as an international law scholar and U.S. citizen.
Last week saw the Grand Opening Conference of the West Point Center for the Rule of Law at the United States Military Academy. Due to funding by The John D. and Catherine T. MacArthur Foundation, future officers attending all four U.S. service academies had the opportunity to spend three days immersed in examining “The Future of International Criminal Justice,” the conference’s focus. Featuring leading scholars, jurists, practitioners, policy-makers and diplomats from around the world, some of the U.S. military’s future leaders considered the role of international criminal justice in maintaining the rule of law both nationally and internationally.
Topics the first day included the International Criminal Court, the challenges to future U.S. participation in it, and alternative venues for securing international criminal justice. A constant theme was the not only the high promise but also the practical limits of international criminal law to maintaining the rule of law and vindicating the rights of victims. At lunch, former President of Ireland and UN Commissioner for Human Rights Mary Robinson stressed the importance of these issues. At dinner, Attorney General Holder stressed the tough decisions the administration is undertaking to address in a principled manner based on the rule of law.
The second day focused on the challenges to helping and empowering those suffering the most in societies that fail to maintain the rule of law: the poor, women and children. Dan Rather stated during his keynote address that it had been his experience that these are also the victims of war most in need of the protection of law. Her Majesty Queen Noor (wife of the late King Hussein of Jordan) emphasized the unique perspectives and strengths these groups provide when empowered to govern – to assist in maintaining the rule of law. Finally, the conference examined various aspects of the U.S. responses to terrorism and the difficult questions that have been raised, some that have been answered, and the many that remain. Panelists and participants examined the strengths and weaknesses of approaching terrorism with the laws governing armed conflict rather than the law governing crimes and human rights.
In my humble opinion, this is a time for optimism. That West Point sees the rule of law as so important, so essential to its missions to “educate, train, and inspire the Corps of Cadets” and to create “leader[s] of character committed to the values of Duty, Honor, Country and prepared for a career of professional excellence and service to the Nation” is no small event. Part of the time-honored traditions and values of West Point are based on the rule of law. All cadets are already required to take a course in Constitutional and Military Law before graduation. The Center for the Rule of Law provides an additional opportunity for them to study and consider the importance of law to their future service in the military, including the meaning of their oath to “support and defend the Constitution of the United States.”
This optimism, however, must remain cautious optimism. The Center is what is called a “margin of excellence” program at West Point. This means that its survival depends upon securing adequate funding to continue its mission. As the defense budget dwindles, I am sure that both the Department of Law and West Point hope that others will quickly see the value in funding the Center and its mission.
Whatever the future brings to this Center, U.S. residents and citizens would have been proud of the challenging and insightful questions raised by the future leaders of its military. Although many West Point cadets have not even taken a course (my course) in international law, an elective unless one is an International and Comparative Legal Studies major, these future leaders quickly grasped the conceptual issues raised by the panelists and probed for clarifications and deeper understanding. Said one panelist, a prosecutor in international tribunals and former officer in the UK army:
“I was astonished how well-informed your cadets were about the world. With strong opinions and no fear to speak up or speak out even with their tender years. Thank goodness, I thought, that all this military might will one day be resting on such well informed and honourable young officers.”
While I can in no way speak for the Department of Defense, U.S. Army or U.S. Military Academy at West Point, I can say that I am honored and proud to be teaching the young men and women filling their ranks. I am also thankful to be living in a country that allows me to express my personal and academic opinions publicly in spite of my position as an instructor here. I’d be happy to address questions the Opinio Juris readership might have regarding the conference and West Point to the best of my ability.
The WSJ Editorial Page takes UN Ambassador Susan Rice to task for claiming that the recent UN Security Council “presidential statement” is legally binding on North Korea. Here is Rice’s full statement on this point, I believe.
Reporter: Ambassador, there seems to be some debate as to whether there’s any legally binding items in this presidential statement. We talked to one party and they say, “no.” Your saying, “yes”.
Ambassador Rice: First of all the United States views presidential statements, broadly speaking, as binding. In this instance, it is more than binding in that it adds to an existing Chapter 7 sanctions regime. So in our view, there is no doubt that the measures that will be imposed as a consequence of this presidential statement by the 24 or 30 of April will occur and will be binding.
Is this a change of U.S. position? The WSJ argues that no action by the Security Council can have legally binding effect on members unless it is a resolution issued pursuant to the UNSC’s Chapter VII powers. UNSC presidential statements don’t qualify as a Chapter VII action, and are designed not to do so, since it is easier to get agreement from the SC members. I’m no UN Charter expert, but I believe the weight of academic literature supports the non-binding view. (For those with contrary views, please chime in below).
If that’s right, is Ambassador Rice adopting on a new legal interpretation of the UN Charter and of the Security Council’s powers? Or did her lawyer just screw up?
TNR discusses here the circumstances of last Friday’s intervention by Palestinian doctor Ashraf El Hagog as a representative of UN Watch. The Chair of the then-Prep Com, who has since been elected chair of the Durban II conference, is Najjat al-Hajjaji, representing the government of Libya. Readers might recall that Hagog, along with a group of Bulgarian nurses was imprisoned and tortured by Libya after being wrongly convicted of intentionally infecting a group of children with HIV. France negotiated the release of Hagog and the group last year, and Hagog now lives in Bulgaria. While the U.S. media has focused on yesterday’s walk out by European state delegates during the incendiary speech by Iran’s Ahmadinedjad, this clip illustrates the value of NGO participation at such fora.
On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that “those who devised policy” also “should not be prosecuted.” But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale.
I’m dubious that this is what Emanuel really meant, but I guess it’s possible. Regardless, it’s important to note that the administration’s new position is far worse than the old one. I would be delighted to see Yoo, Bradbury, and Bybee in the dock — but as reprehensible as their actions might have been, they are clearly less culpable than the members of the “Principals Committee,” Rice, Cheney, Rumsfeld, Ashcroft et al. After all, if they hadn’t set the torture regime in motion, the OLC’s rationalizations for that regime would have been unnecessary.
Eric Posner picks up on Marko Milanovic’s very interesting comments in response to my question below about the views of non American international lawyers of the ATS. I’m going to pull up interesting responses to my question into this separate post - currently from Marko, Francisco Forrest Martin, and I’ll update if others add things to the bottom of the post. (I have also added Marko’s response to Eric in the comments at Volokh, as Marko was not very happy with Eric’s riff.) But here is a bit of what Eric comments on Marko’s comment; Eric discusses Koh’s views of transnationalism, but I want to pull away from Koh’s views back to the more general question of the ATS as seen by non-American international lawyers and legal scholars (I can’t seem to get the block quote to work):
“[F]oreigners do not approve of ATS litigation. Foreign countries do not have their own ATS-style litigation and indeed shudder at American tort litigation of any type.
Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals. When Americans tire of using tanks to inflict their ideology on foreigners, they use lawyers. On the foreigners’ view, if international criminals are to be punished, they should face criminal, not tort, liability meted out by an international court (ideally) or, in some cases, a domestic criminal court that has a proper basis of jurisdiction in international law. International law, grounded as it is in the consent of states, supports no other outcome.”
Still holding out hope that the Obama administration will prosecute the architects of the torture regime? Stop:
The Obama administration opposes any effort to prosecute those in the Justice Department who drafted legal memos authorizing harsh interrogations at secret CIA prisons, White House chief of staff Rahm Emanuel said yesterday.
Some analysts and lawmakers have called for investigations and possible prosecution of those involved because they say four of the memos, disclosed last week by President Obama, illegally authorized torture. Emanuel’s dismissal of the idea went beyond Obama’s pledge not to prosecute CIA officers who acted on the Justice Department’s legal advice.
“It’s not a time to use our energy and our time in looking back” out of “any sense of anger and retribution,” Emanuel said on ABC’s “This Week.” His remarks reflect the White House’s effort to claim a middle ground after the release of the memos, which had been top secret, angered backers of the Bush administration’s interrogation policy.
Obama’s refusal to live up to the US’s international obligations — “looking back” at Chucky Taylor’s torture, fine; “looking back” at the Bush Six’s torture, not so much — indicates how important it is that other countries pursue prosecutions. Fortunately, Judge Garzon in Spain is ignoring the Attorney General’s recommendation that he drop the “fraudulent” case against the Bush Six — although he is going to randomly assign the case to one of the six High Court judges, who may feel differently.
It is unlikely, of course, that other countries will ever get their hands on one of the Bush Six. But at least a concerted international effort to compensate for Obama’s coddling of Bush’s coterie of war criminals would make sure that they don’t take European vacations anytime soon.
Comments today by Gen. Michael Hayden make clear a further reason why the Obama Administration should name a special prosecutor to investigate potential war crimes in light of everything we know, and have recently learned, about CIA interrogations of “high value al Qaeda detainees.” Gen. Hayden has played a vocal role in arguing against the release of additional Department of Justice memos regarding the legality of certain “enhanced interrogation techniques” (i.e., torture). Today he commented as follows as reported in the NY Times: “It describes the box within which Americans will not go beyond. To me, that’s very useful for our enemies, even if, as a policy matter, this president at this time had decided not to use one, any, or all of those techniques.” Without prosecutions, the very real possibility that the next Administration will revert to these practices remains. To Gen. Hayden these memos reveal “policy matter[s],” not legal ones. The Times also reports Sen. Ensign as commenting that “The harm [in releasing the memos] is that if we ever return to those policies, one is they can train against them now.”
Without prosecutions, torture becomes a policy preference, not a matter of domestic and international law. The next Administration’s aspiring Judge Jay Bybee will be free to issue new memos reading statutory, treaty, and constitutional restraints on practices that can only reasonably be described as torture out of the law books (on calls for Jay Bybee’s impeachment see here and here). Without prosecutions, our laws become merely “the box within which Americans will not go beyond” as Gen. Hayden put it. Gen. Hayden’s argument would make our Constitution, laws, and traditions of respecting the “opinions of mankind” (in the Declaration of Independence’s language) troublesome restraints that will only be useful to our enemies. Today’s comments suggest that more is at stake than the revelation of these memos. Gen. Hayden and others are laying the groundwork for returning to these “policies” at the next available opportunity.
Tommy’s comment lays bare the utter folly of Obama’s defense of refusing to prosecute the CIA interrogators who tortured — that “[t]his is a time for reflection, not retribution,” and that, having been through “a dark and painful chapter in our history… nothing will be gained by spending our time and energy laying blame for the past.” The sad truth is that the only thing many conservatives see as dark and painful about the recent past is that America’s torture regime was revealed to the world, undermining its “effectiveness.” These people do not believe that Bybee, Yoo, Bradbury, and the CIA interrogators did anything wrong. These people do not believe that waterboarding someone 183 times is torture. These people do not believe that there should be limits on what the CIA can do to detainees to extract information from them. These people are simply biding their time, waiting for a future Republican administration that will “return to those policies,” to quote the admirably forthright Sen. Ensign.
These people reject the “core values” that Obama lauds and that make America great. No amount of calm reflection will convince them that torture is wrong. They cannot be rehabilitated — only deterred. And the only way to deter them is to prosecute those who engaged in the torture they valorize. Anything short of that and the Obama administration will be a temporary hiatus from torture — the transient policy preference, in Gen. Hayden’s words, of “this president at this time” — not the vehicle for ending torture once and for all.
Just in case you hadn’t had enough of the Koh discussions, here are Stuart Taylor and Evan Thomas in Newsweek. I am in broad agreement with this assessment, for whatever that is worth. I also broadly agree with Jonathan Adler’s assessment over at Volokh (below).
I am fundamentally in agreement with the Bradley-Goldsmith view that Julian and Kevin discuss in the two previous posts. However, I want to post up a related question. It is not so much about the ATS itself or its implications for US law or its politics. It is, rather, about the substance of the legal positions produced in ATS cases and the US-centric methods by which they are produced, and whether non-US international lawyers and legal scholars think that they are right as a matter of international law, the substance of international law. (UPDATE: I have put up a new post with substantive comments received, including Marko Milanovic and others, as well as some further discussion and Eric Posner’s comments from Volokh.)
As I point out in a short essay coming out soon in the European Journal of International Law that Joe Weiler was kind enough to solicit (adv.) (but it is certainly not an observation original with me):
Consider, for example, the very particular sub-community of interpretation of international law by US courts in Alien Tort Statute interpretation. Those courts (constantly citing to each other) have gradually built up a self-referential, hybrid jurisprudence of certain aspects of international criminal law – war crimes, crimes against humanity, and genocide, for example – together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the Alien Tort Statute – “in violation of the law of nations or a treaty of the United States,” especially – create idiosyncratic pressures on interpretation. What is the ‘law of nations’ – for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, or anyway what was meant in their times, along with some “fundamental” matters of the law of nations.
I do not mean to get hung up on differences among contested doctrines of US ‘originalism’ in interpretation - on the contrary, the fact that we might get hung up on such things tells you something about how distinctive this community of “international law” interpretation is. In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of “international law” filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute, Sosa atop of that (Sosa, while (predictably) not producing predictable outcomes, nonetheless introduces a distinctly US set of interpretive issues) and only by extension to the “international” law underlying it.
The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding, absolute need of plaintiffs to show a law of nations violation merely to get into US court, must start to look strange to those international lawyers as well. What does it mean when the function of the law of nations is to establish a threshold by which to get into court, rather than being the core issue of the litigation - litigation in tort, not a category of international law as such at all? Doesn’t this inevitably affect the way in which the law of nations is interpreted? I suspect – it is hard to get anyone to say much, frankly – that many non-American international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways that are not consistent with the “authoritative” interpretation of international law in the international community and that are, in a word, weird. But who wants to be the non-American “international lawyer” to tell a US District Court that?
This is from the unedited draft; it will all be polished up in the final. But my basic question stands. I have had conversations with several prominent European legal scholars who have expressed exactly such private reservations about the interpretive filter through which international law flows in ATS cases as well as private reservations about the substantive results. They also have never wanted to make such criticism publicly, because overall they favor American courts getting involved, presumably - the discussions didn’t go that far - because they hoped, as American transnationalists often hope, to use the American courts for (as John Bolton or I might put it) an end-run around the will of the American political branches.
But I would be exceedingly curious to know if there were discussion by non-American legal scholars of the process and substance of American ATS cases - whether favorably or unfavorably disposed. I have searched over the years, but don’t find so much - especially criticism of the kind that I have heard in private discussion. The closest things to criticism I can think of are the expert declarations offered a few years ago by Christopher Greenwood and James Crawford in Talisman in which there were at least some discreet, indirect criticisms offered of US court interpretations of international law. But I might be over-remembering.
So my question is, does anyone know of expert commentary by non-US international lawyers or scholars in this area? Either for or against the way in which US ATS litigation interprets as a matter of method as well as substantive conclusions of international law? I would be grateful if you could point me toward such commentary.
Curtis Bradley and Jack Goldsmith have a new op-ed taking aim at the latest decision in the ongoing Alien Tort Statute case involving U.S. corporations who did business during South Africa apartheid era. In fact, they take issue with the whole wave of ATS litigation attempting to hold corporations liable under aiding and abetting liability, using the South Africa case as an example.
The South African case, brought by class-action attorneys many years after apartheid ended, is a dramatic example. The South African government opposed the litigation on the grounds that it would interfere with the policy embodied by its Truth and Reconciliation Commission, which “deliberately avoided a ‘victor’s justice’ approach to the crimes of apartheid.” The Bush administration’s State Department opposed the lawsuit, arguing that it “risks potentially serious adverse consequences for significant interests of the United States” by threatening international economic relations as well as political relations with South Africa and other countries whose firms are defendants.
This should have been enough for dismissal. Five years ago, the Supreme Court said in reference to the South Africa litigation that “there is a strong argument that the federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” Yet the New York court, unpersuaded, concluded that allowing the lawsuit to proceed “would not contradict American foreign policy in a manner that would ’seriously interfere with important governmental interests.’ ” Thus it supplanted its foreign policy views for those of the federal government and refused to respect South Africa’s efforts to move its society forward.
More significant, the court ruled that firms were liable for a foreign government’s human rights violations, even if they did not engage in the abuses or intend to facilitate them, as long as companies were aware that their business activities would substantially assist the government’s illegal practices. This put GM and Ford on the hook for supplying trucks that the South African government used to attack anti-apartheid activists, and IBM for providing computers and software that the government used to register and segregate individuals.
The underlying acts associated with apartheid are abhorrent. But it is crass retroactivity to say that these firms are legally responsible for actions of the South African government. Under the New York court’s standard, a great deal of global investment in the developing world would now be subject to U.S. judicial scrutiny.
They also point out that Harold Koh, the likely State Department Legal Advisor, is a supporter of the plaintiffs in this case and, is unlikely to try to block these lawsuits in general.
In today’s Washington Post, Curtis Bradley and Jack Goldsmith have an editorial attacking the recent refusal of a federal judge to grant a motion to dismiss in Khulumani v. Barclays National Bank Ltd, the ATS lawsuit brought by victims of apartheid against 23 corporations who did business with the South African government during the apartheid era. It’s a remarkably unpersuasive editorial — and in at least one respect, utterly perverse. Let’s begin at the beginning:
As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms’ financial burdens.
It is revealing that Bradley and Goldsmith begin with an argument that has nothing to do with the legal merits of the case. Yes, times are hard for three of the corporate defendants — Ford, GM, and JP Morgan Chase. But what about the other 20? Should Judge Scheindlin have dismissed the case for all of the corporate defendants? Bradley and Goldsmith strongly imply that she should. But why? And since when did the the exercise of legal rights depend on the overall economic health of the defendant? That is a remarkably pragmatic approach to the law for two judicial conservatives. Do Bradley and Goldsmith believe that plaintiffs should be barred from suing troubled corporations who knowingly sell dangerous products? Who intentionally discriminate against women or people of color? Who break contracts with healthier companies?
These cases are not merely symbolic — the U.S. corporations have deep pockets and U.S. bank accounts — and present enormous opportunities for judicial meddling in foreign relations. The South African case, brought by class-action attorneys many years after apartheid ended, is a dramatic example. The South African government opposed the litigation on the grounds that it would interfere with the policy embodied by its Truth and Reconciliation Commission, which “deliberately avoided a ‘victor’s justice’ approach to the crimes of apartheid.”
This is a remarkably disingenuous argument — implying that permitting the case to go forward somehow undermines the reconciliation process in South Africa. As anyone familiar with the history of South Africa’s TRC knows, its amnesty provisions prohibited South Africans from suing the government for civil damages, even though the government was fully aware that the overwhelming majority of South Africans preferred the right to sue to forgiveness…
More evidence that the CIA interrogators did not rely in good faith on the OLC memos: Bradbury’s 30 May 2005 memo acknowledges (p. 37) that the CIA Inspector General’s report found that the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003 and Abu Zubaydah 83 times in August 2002. That regime far surpasses the CIA’s own internal guidelines for the use of waterboarding, as they are summarized by Bradbury’s memo:
[W]here authorized, it may be used for two “sessions” per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water application. Additionally, the waterboard may be used on as many as five days during a 30-day approval period.
I’m not particularly good at math, but even I can figure out that these guidelines do not permit a detainee to be waterboarded 83 times in one month — much less 183 times. The maximum number of waterboarding applications is 12 per day (two sessions, six applications per session), so the maximum number of waterboarding applications in a month is 60 (12 applications per day, five days during the month). The CIA’s waterboarding of KSM thus exceeded what the OLC authorized by more than 200%. (Zubaydah by 38%.)
There is also no question that the CIA’s excessive use of waterboarding was not authorized by the OLC. Bybee’s 1 August 2002 memo was the only one issued before the CIA waterboarded KSM and Zubaydah. And that memo makes clear (see particularly pp. 4-6) that Bybee’s authorization was based on representations by the CIA that its waterboarding regime followed the guidelines summarized above, which were based on the use of waterboarding for training purposes at the SERE school. Yet the CIA completely ignored the SERE guidelines when it waterboarded KSM and Zubaydah. (See also the footnote from the 10 May 2005 memo I quoted yesterday.)
Is there any remaining doubt that the CIA interrogators who waterboarded KSM and Zubaydah should be prosecuted?
As we all know, the ICC does not have jurisdiction over the acts of torture committed by the CIA at Guantanamo Bay — neither the US nor Cuba is a member of the Court. Nevertheless, it is worth noting that it would be far easier to prosecute the CIA interrogators at the ICC than in the US, because there is no defense of “reasonable reliance upon an official statement of law” in the Rome Statute. Kai Ambos:
Article 32 is similar to § 2.04 Model Penal Code (MPC) in that if focuses on the mental element as the determining factor of the relevance or irrelevance of a mistake. It is, however, narrower than the MPC’s provision since it recognizes a mistaken belief in the legality of one’s conduct only in the case of a superior order and not, as is the case in § 2.04 (3) MPC, in the case of ignorance of statute law or of acting in reasonable reliance upon official statements of the law.
Article 32, in other words, only recognizes mistakes of law that negate the mental element of a crime — a mistaken belief that conduct is legal does not qualify, in keeping with the principle ignorantia legis nihil excusat. Reliance on the OLC memos would thus be irrelevant in an ICC prosecution of a CIA interrogator: believing that conduct amounting to torture is legal because of an OLC statement would not negate the mental element of torture, which is simply the intent to inflict severe physical or mental pain or suffering or the awareness that such suffering will occur in the ordinary course of events.
Bill Schabas has pointed out that Article 12(3) of the Rome Statute would permit Cuba to accept the jurisdiction of the ICC on an ad hoc basis retroactive to 1 July 2002 — in which case the Court would have territorial jurisdiction over the CIA’s torture program. Maybe we should take advantage of the new rules concerning travel between the US and Cuba and talk to Raul Castro about Schabas’s idea…
I’m not particularly surprised, but I’m still disappointed. Israel’s ostensible justification is that the UNHRC resolution that created the fact-finding mission is biased, because it only asked Goldstone to investigate Israeli war crimes. That was a ridiculous move on the UNHRC’s part, to be sure — but one of the very first things Goldstone did was to make clear that, despite his “mandate,” he would investigate Hamas’ numerous crimes, as well. So Israel’s argument is obviously just a pretext for its general opposition to having Operation Cast Lead scrutinized.
Israel’s refusal to cooperate with Goldstone’s investigation will be a PR disaster for the country. As my friend Mark Leon Goldberg pointed out at UN Dispatch, Goldstone is far more difficult to dismiss as biased against Israel than Richard Falk:
Goldstone was a former prosecutor of the Yugoslav and Rwandan war crimes tribunals. He was also a famous anti-apartheid judicial activist in South Africa, in 1991 Nelson Mandela tapped him to chair a legal inquiry into human rights abuses committed by the South African government. This later became known as the Goldstone Commission. And though he is a South African, he has deep ties to Israel. (He is a trustee at Hebrew University). From the New York Times.
Goldstone said he was ‘’shocked, as a Jew,” to be invited to head the mission.
”It adds an additional dimension,” said Gladstone, who is on the board of governors at Hebrew University in Jerusalem. ”I’ve taken a deep interest in what happens in Israel. I’m associated with organizations that have worked in Israel. And I believe I can approach the daunting task that I have accepted in an evenhanded and impartial manner.”
It will be hard for critics to dismiss Judge Goldstone as some crank with a grudge, like some did to Richard Falk, the Special Rapporteur on Palestinian Rights. More to the point, Goldstone brings to this job a sterling reputation as an impartial voice whose enduring loyalty has been to international law and justice.
I am grateful to Mr. Li and Professor Wang for their thoughtful comments and am flattered by their praise. The very fact that a lawyer and a law professor speak of their criminal justice system with such insight and candor highlights one of the most laudatory aspects of Taiwan’s legal reform project: A transparent, open debate over the best path for Taiwan. During the course of my research, I was deeply impressed by the transcripts of lengthy legislative debates during which a number of experts from the judiciary, executive branch, and academia appeared to present reports and field legislators’ questions regarding proposed reforms. Moreover, these transcripts are readily available from government websites.
While I agree with Mr. Li that the “perception of prosecutors as judge-equivalent” remains strong, I would not go so far as to say that Taiwan’s current path is pointing towards “a way of no return.” Perhaps I am naïve or Pollyannaish, but I am an incorrigible optimist and believe that there remains room to chart a different path. Certainly the dramatic changes to Taiwan’s legal system in the relatively short period of two decades suggest reason for hope that reformers can once again muster momentum for further changes. For example, as Professor Wang indicates, people might “rethink” the timing of when counsel is appointed. It is certainly possible that some sort of brief initial appearance will not suit Taiwan’s civil-law based system. However, at a minimum, a renewed debate over the possibility of initial appearances would at least draw attention to the concern that, under current procedures, lawyers are often appointed too late in the game to have a significant impact on the case’s resolution. Come what may, I am confident that with the likes of Mr. Li and Professor Wang spearheading reform efforts, vibrant debate will continue. I look forward to following reforms in the years to come.
[Jaw-perng Wang is Professor of Law at National Taiwan University]
I am very impressed that a foreign scholar, especially a common-law trained one, could have a precise picture of Taiwan’s criminal procedure and its history and recent reforms. Without spending tremendous time and effort, an article that accurately and meticulously reports Taiwan’s criminal procedure, like this one, could not possibly be produced. In addition, I must confess that several parts of the detailed report of Taiwan’s practice did not come to my attention until after reading this article. It is the best article in American literature reporting Taiwan’s criminal procedure in sense of its depth, breadth, and accuracy.
I personally like Parts IV and V of this article the most. In Part IV, the article provides concrete proposals for Taiwan to achieve the desired adversarial model. It divides cases into serious offenses and non-serious offenses for different proposals. For serious offenses, the article proposes that, when the prosecutor seeks pretrial detention following arrest, the court could appoint counsel at this preliminary stage. When the prosecutor does not seek pretrial detention, a brief initial appearance could be used to appoint counsel. I believe the proposal is absolutely right in theory. As a matter of fact, some scholars and defense lawyers made the same requests in Taiwan. However, the government simply turned a blind eye to it. As to the “initial appearance,” it might be common in common law countries, but it is unfamiliar or unheard of in civil law countries. The great, great majority of the people have no idea of this concept. Nonetheless, this article’s proposal could cause the people in power in Taiwan to rethink these problems.
In Taiwan’s legal history, we always learn lessons from foreign countries, such as Germany, Japan, and the United States. When we devoted our efforts to reforming the criminal process in Taiwan, we moved bravely to get rid of wrong aspects and adopt right ones. However, it is impossible to be successful in every aspect of reforms no matter how hard we plan and try. In close observation of Taiwan’s experience, this article raises some very good and insightful questions and proposals that Taiwan should reconsider and adopt. The same might apply to other countries that have already committed to incorporating adversarial reforms. It is great to know that Taiwan’s experience could offer some contributions to the world of comparative law.
[Nigel Li is a prominent lawyer and legal scholar in Taiwan]
Professor Lewis’ article comes timely as a 10-year review of the half-baked criminal procedure reforms in Taiwan, particularly in a vacuum of rigorous academic attention to an ambitious attempt to transplant the common-law adversarial system to a soil of civil-law inquisitorial adjudication by a rising young democracy seeking a new identity in the global village. Professor Lewis unveils with remarkable, insightful precision the hard fact that the reforms may have adopted a two-track system that was not fully conceived at the outset. The overlooked challenge of efficiency-driven reforms, in tandem with the adversarial system, highlights a compromise between the reformers and their powerful and persistent opponents that creates the appearance of a serious reform but leaves substantially intact the turf that had been occupied by the prosecution before the Grand Justices’ 1995 decision stripped off the prosecutors’ monopoly on imposing pre-indictment detention.
The outgrowth of the 1995 decision, among others, was the 1999 conference launching judicial reform and setting the stage for the new adversarial system, but the needed infrastructure for its success was neglected. Most in all the relevant four sectors, including the judges, the prosecutors, the lawyers and the law professors who provide law-school education, are not prepared in both the spirit and skills that the new system demands. To date, strict application of newly introduced evidence rules is still a novel idea in the day-to-day judicial practice. Many judges and lawyers are not well versed in the rules for cross examination. Meanwhile, government-employed stenographers are not trained to produce verbatim transcripts in court without the aid of any apparatus to ensure real time, mechanical recordation, which frustrates the swift operation of cross examination.
With the prevalent perception of prosecutors as judge-equivalent within the legal community, institutional resistance from within has been a core problem in the course of cultivating the new system that distinguishes judges and prosecutors in all respects. The common thread of several “efficiency-driven procedures” is to retain the dominance of the prosecution’s power in the criminal justice system. In a nutshell, introducing the adversarial system is a part of the serious judicial reform to redefine the powers and functions of the court. The judiciary is to recover its domain originally reserved under the Constitution but once wrested away by the executive branch via the over-expanded functions of the prosecution. Far from claiming any complacency that the new system now requires no more than a fine tuning, as Professor Lewis rightly points out, the new system must be scrutinized. Serious commitments must be made for the reform to charge ahead. Changing course and charting a different path is not an alternative, however, since the momentum generated by the Grand Justices through many critical constitutional interpretations points to a way of no return.
[Margaret K. Lewis is a Senior Research Fellow at NYU Law School's U.S.-Asia Law Institute.]
Thank you to the editors of the Virginia Journal of International Law and to Opinio Juris for providing this forum. My article grew out of work on legal reforms in Mainland China, which led to a cross-Strait project. As I learned more about Taiwan’s criminal justice system, I realized that Taiwan’s reform path presents an intriguing story of a legal transplant at a time when systems around the world are increasingly unmoored from the traditional adversarial/inquisitorial divide.
By way of brief background, over the past twenty years, Taiwan has transformed from a repressive, martial law state into a vibrant, multi-party democracy, and wide-sweeping reforms to the legal system have accompanied these political changes. Prior to the current reform project, the criminal justice system had a strong inquisitorial flavor. What Taiwan chose to adopt at the turn of the century is what they call a “reformed adversarial system.” The desired new system is adversarial in that it is rooted in the idea that the criminal process is structured as a contest between the competing views of the defense and prosecution, and the case is ultimately resolved by a neutral adjudicator.
When talking with Jaw-perng Wang, a friend who is a prominent Taiwanese criminal procedure scholar (and respondent to this post), he told me that Taiwan had introduced plea bargaining as part of its transition towards an adversarial system. This surprised me because plea bargaining had traditionally been frowned upon as going against the prevailing view in Taiwan that the criminal process involved a search for objective truth and that justice is not open to negotiation. Despite these objections, in order to speed cases through the system, Taiwan has promoted not only plea bargaining, but also three other alternatives to the full trial process, what I collectively term “efficiency-driven procedures”; namely, plea bargaining, deferred prosecution, file-based adjudication, and simplified trials. What really struck me was Professor Wang’s explanation that because the new trial procedures were putting greater strain on this new adversarial system, expedited procedures were necessary to resolve cases rapidly.
This type of case-load pressure argument in support of plea bargaining is not novel to Taiwan. What is different and important is how a growing reliance on plea bargaining and other streamlined procedures plays out in a jurisdiction that is attempting to fundamentally shift to an adversarial system. And beyond a straightforward efficiency rationale, outside of the context of Taiwan, scholars have proposed that plea bargaining could actually encourage a new adversarial spirit because it is a party-controlled procedural form of resolving cases.
The problem is that the scenario that appears to be developing in Taiwan is a different one. Instead of enhancing robust interaction between the prosecution and defense, these trial-avoiding and trial-condensing procedures have created a separate track of expedited, prosecutor-dominated justice alongside the adversarial one. The vast majority of defendants see their cases decided at the prosecutor-controlled investigation stage or directed through an abbreviated adjudication stage with little activity by either the judge or defense.
Admittedly, that most cases are decided without a contested trial is not shocking. What is concerning is that the trumpeted adversarial reforms are not permeating into efficiency-driven procedures and these procedures are increasingly coming to dominate in Taiwan. My claim is that these procedures, which are seen as necessary for Taiwan’s new system to even function, are actually impeding the development of the desired adversarial approach. This observation is important not only to Taiwan, but also to other transitional jurisdictions by sounding a note of caution that focusing on the minority of cases in which defense lawyers spar with prosecutors in the courtroom may lead reformers to overlook how the overall reform package is increasingly channeling cases through very different processes.
I argued below that “good faith reliance” on OLC opinions does not justify promising CIA interrogators that they will not be prosecuted for their criminal acts. With regard to waterboarding, it is important to note that it seems clear some of the interrogators cannot even argue good faith reliance. Consider the following footnote from Bradbury’s May 10, 2005, memo, discussing the CIA Inspector General’s Report on Counterterrorism and Detention Activities. Pay attention to the quoted language, which was redacted in the version of the IG Report released to the public:
51. The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 45,103, 104 and also that it was used in a different manner. See id. at 37 (”The waterboard technique was different from the technique described in the DOJ opinion and used in the SERE training. The difference was in the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by by the firm application of a damp cloth over the air passages; the Interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrorgator… applies large volumes of water to a cloththat covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different than that used by in SERE training because it is ‘for real’ and is ‘more poignant and convincing’.”)…. The Inspector General further reported that… “[c]onsequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.” Id. at 21 n.26.
The footnote makes clear that the CIA’s waterboarding regime was different from — and much harsher than — the waterboarding regime approved by the Justice Department. The interrogators involved in waterboarding, therefore, cannot argue that they were simply “relying in good faith upon legal advice from the Department of Justice,” Obama’s publicly-stated requirement for guaranteeing not to prosecute them.
I presume that Obama will support prosecuting those CIA interrogators.
Having criticized Obama somewhat regularly as of late, it’s important to give him partial credit where partial credit is due — he has released the four OLC torture memos with a minimum of redaction. You can find the memos here. That could not have been an easy decision, given the CIA’s opposition to having its systematic criminality (further) exposed.
Nevertheless, Obama only deserves partial credit for the decision. Regrettably, he has also promised impunity for anyone involved in the CIA’s crimes:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.
It is revealing, of course, that Obama did not promise impunity for individuals CIA interrogators in particular who reasonably relied on legal advice from the OLC. As Marty Lederman pointed out before he joined the Obama administration, that is the legal standard:
The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases — Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States — stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.
Lederman argued then, and I imagine is still arguing now, that the CIA interrogators should not be prosecuted even if they unreasonably relied on the OLC’s advice. Not wanting the interrogators to be prosecuted, he had no other choice: he admitted (in the post linked to above) that waterboarding was “patently illegal” i.e., that a CIA interrogator could not reasonably believe that it was lawful to waterboard.
I pointed out at the time that there was no legal justification for watering down American criminal law’s well-established “entrapment by estoppel” defense in the way that Lederman suggested and that Obama has now endorsed. Here is what I wrote…
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.
It is revealing, of course, that Obama did not promise impunity for individuals CIA interrogators in particular who reasonably relied on legal advice from the OLC. As Marty Lederman pointed out before he joined the Obama administration, that is the legal standard:
The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases — Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States — stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.
Lederman argued then, and I imagine is still arguing now, that the CIA interrogators should not be prosecuted even if they unreasonably relied on the OLC’s advice. Not wanting the interrogators to be prosecuted, he had no other choice: he admitted (in the post linked to above) that waterboarding was “patently illegal” i.e., that a CIA interrogator could not reasonably believe that it was lawful to waterboard.
I pointed out at the time that there was no legal justification for watering down American criminal law’s well-established “entrapment by estoppel” defense in the way that Lederman suggested and that Obama has now endorsed. Here is what I wrote regarding Lederman’s claim that we can infer reasonable reliance from the existence of the OLC’s advice itself (which directly contradicts his insistence that waterboarding is patently illegal)…<-->
Spain’s attorney general said he’ll seek dismissal of an investigation of Bush administration officials for alleged torture of Guantanamo Bay, Cuba, prisoners.
Attorney General Candido Conde-Pumpido said Thursday the claim against officials in former President George W. Bush’s administration is fraudulent, CNN reported.
The matter was presented by a human rights group and provisionally accepted by a Spanish court pending the prosecutor’s opinion.
If a claim were to be investigated, it should be pursued by the United States so the former officials would have the opportunity to defend themselves in the U.S. court system, Conde-Pumpido said through his press secretary.
Anyone wondering whether the AG’s opposition is based on legal considerations or on ideology-cum-political-pressure need only consider his statement that the case against the Bush Six is “fraudulent.” Reasonable people can disagree about whether the prosecution is a good idea. Reasonable people can even disagree about whether Spanish or international criminal law makes conviction likely. But to describe the case as “fraudulent” is ridiculous.
Fortunately, the AG’s opposition does not end the case. The decision to proceed — or not proceed — will ultimately be made by the investigating judge. Here’s hoping he allows the case to continue.
I very much appreciate the thoughtful commentary of Professors J.B. Ruhl and Nathan Sayre on my article. They are engaged in tremendously interesting thinking on questions of environmental scale and governance, and I find their comments insightful. I agree with both of them that this article opens further research questions about what diagonals are, how they have been constituted over time, the ways in which law and political economy interact through them, and how they might fit into panarchical conceptions of governance. More broadly, their comments speak to the value of bringing law and geography together to address complex environmental problems.
My exploration of diagonals in the context of climate litigation raises questions for me about the benefits and limitations of such cross-cutting approaches. As I, like Ruhl and Jim Salzmann, reflect on the messiness of problems like climate change, I agree with them that our approaches need to engage the panarchical nature of the formal and informal interactions taking place. However, I also struggle with the scalar stickiness of law, which is subdivided into relatively fixed levels of governance. When we try to craft governance structures that encompass the messiness of climate change, what I would term fully integrated diagonal approaches, their complexity becomes daunting. In a companion piece to this one, tentatively entitled Diagonal Climate Regulation: Implications for the Obama administration, which I hope to have in full draft by the end of the summer, I am thus considering the vectors that comprise diagonal interactions and the possibilities for crafting integrative approaches through combinations of partial diagonal regulation. Specifically, I am considering regulatory scale (small scale v. large scale), axis (vertical v. horizontal), hierarchy (top-down v. bottom-up), and cooperativeness (cooperative v. conflictual). I think that a study of these vectors and how regulatory approaches at different points along them might be combined in the context of the Obama administration’s efforts may help to get at the complexity Ruhl rightly highlights.
Moreover, I agree with Sayre that history and political economy are key elements for understanding how effective diagonal regulatory approaches might be developed. I had the pleasure of participating this spring in a Washington University Journal of Law & Policy symposium organized by Dan Mandelker and Dan Tarlock on New Directions in Environmental Law. The symposium explored how U.S. environmental regulation should develop through paired presentations on the history of major statutes and possibilities for the future. One thing that struck me throughout the dialogue was the complex interplay of science, scale, and law taking place in each of these substantive contexts. I think that we can learn from the experiments in horizontal, vertical, and diagonal governance that these statutes create—both in the provisions themselves and in the formal and informal interactions regarding their creation, interpretation, and implementation—as we consider what the next generation of environmental governance should be. For example, the Clean Air Act has a number of provisions that create diagonal interactions, such as the waiver provision discussed in depth in Is Climate Change “International”?: Litigation’s Diagonal Regulatory Role. An engagement of the rich federalism literature regarding these statutes through the lens of geography’s nuanced exploration of scale provides many possibilities for future inquiry.
These historical questions are made more difficult by the way in which time interacts with the problem of climate change. Current levels of greenhouse gases in the atmosphere result from emissions allowed under past regulatory regimes, and future levels will be influenced by past, present, and future laws. As noted in Is Climate Change “International”?, different parts of the climate system respond at varying paces; for example, the ocean and atmosphere do not evolve at the same rate. Similarly, impacts and adaptation needs vary simultaneously across time and space, which create policy and justice dilemmas. To make things even more complex, scientific uncertainty is greater at smaller spatial and temporal scales. Efforts to craft diagonal approaches will need to be grounded in the historical contests and their resolution that Sayre describes, as well as these spatio-temporal interactions.
I similarly concur with Sayre’s assessment of the critical role that the scales of the political economy play. In my earlier work on climate change litigation, particularly The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, I explored these cases as multiactor, multiscalar, multibranch interactions which center around state-corporate regulatory dynamics regarding climate change. These suits generally focus either on whether or not government should be regulating major corporate emitters or directly on the auto and power plant industries. More broadly, the complex legal, political, and economic scales of governmental and nongovernmental entities, as Sayre notes, influence the possibilities for effective diagonal regulatory strategies. Some local governments, such as San Bernardino County for example, are larger than many states and even smaller nations, and the most significant U.S. state emitters would rank among the countries with the greatest emissions if they were so categorized. Major corporate emitters are simultaneously local, state, national, and transnational. These complex identity issues blurs a description of a diagonal as small or large scale, top down or bottom up, and vertical or horizontal.
The nuances that the commentaries by Ruhl and Sayre highlight thus reinforce the role that law and geography can play in crafting more effective regulatory strategies for complex problems like climate change. Geography’s engagement of place, space, and scale can add depth to legal analysis, and law’s understanding of regulatory intricacy can do the same for geographic analysis. An exploration of diagonal regulatory strategies in this context forms one piece of that larger project.
[Nathan Sayre is Assistant Professor in the Department of Geography at the University of California at Berkeley]
I join J.B. Ruhl in applauding Hari Osofsky’s effort to bring geographical and legal scholarship into a constructive dialogue to address climate change. Her analysis draws important empirical and theoretical lessons from two case studies by illuminating the complex role of litigation in driving processes of regulatory rescaling—a critical role given the unprecedented and urgent challenges that global warming poses to existing legal and institutional frameworks. To meet these challenges, society—at every level—needs not only new laws and regulations, not only new approaches to governance, but also new ways of thinking about society and the environment altogether. Professor Osofsky’s work contributes valuably to this endeavor.
I would also concur with Ruhl’s suggestion, however, that we should take Osofsky’s analysis and conclusions still further, in at least two additional directions. The first would ask whether the intrinsically diagonal character of environmental regulation—and perhaps regulation as a whole—is a recent phenomenon, linked to climate change, or if, instead, it has always been there. In other words, might we fruitfully use Osofsky’s conceptual framework to improve our understanding of historical contests over the environment? (And environment, here, should be construed broadly to encompass urban and rural, human and wild, built and natural environments.) This is not merely a historiographical issue, moreover, because the legal and regulatory landscapes that climate change is rescaling are themselves historical products of prior processes; in other words, to understand current rescaling we must also understand how the existing scales came into being in the first place.
Consider the US federal government, for example, which sits in the middle of many discussions of climate change regulation—a “fulcrum” between international treaties and state and local laws. Its preeminent role in environmental regulations in this country derives from landmark legislation enacted in the 1960s and 70s, such as the National Environmental Policy Act, the Endangered Species Act, and the Clean Air and Clean Water Acts. As in the current contests over climate change, the actors that shaped those statutes were myriad, including both private and public, for-profit and not-for-profit institutions, arrayed across numerous levels of government and linked through both formal and informal networks. By mobilizing action at the federal level, environmental activists by-passed or overrode obstacles that could not so easily be overcome at state or local levels. After all, how could state legislatures effectively regulate pollution from industrial facilities located in other states? Their efforts were multi-scaled, moreover—think of how Rachel Carson dramatized the perils of chemical pesticides by depicting events unfolding out ordinary housewives’ kitchen windows, for example. Pushing this history back further, to the early 20th century, one could examine the networked efforts of local groups in pushing for state level regulations to protect wildlife, enacted at a time when the federal government’s role was much more circumscribed than it has been in our own lifetimes. Even then, both national and international legal factors played important roles in processes of rescaling—how would the federal government have become such an important player without the Commerce Clause, for example? And what about international treaties protecting migratory birds, which further buttressed claims for federal jurisdiction?
The second direction that warrants greater attention under Osofsky’s diagonal framework is political economy. Perhaps, as in her article, it goes without saying that many, if not all, of the actors involved are motivated by concerns about economic growth: corporations, local developers and businesses, to be sure, but also municipal and county planners and, for that matter, employees concerned that regulating carbon may impact their jobs. Here again, questions of scale are of central importance. The opposition of the auto industry to state-level climate regulation, for example, rests largely on concerns that a “patchwork” of different regulatory regimes would undermine the economies of scale built into their production systems. And one can scarcely appreciate the importance of Massachusetts v. EPA without considering California’s outsized significance to the US economy in general, as well as its unique statutory position under the Clean Air Act. Economic production is fundamentally shaped by the scales at which it is organized, and institutions of governance are internally related to the resulting dynamics.
These are not flaws in Osofsky’s argument so much as further research directions, whose importance extends beyond legal scholarship but should not for that reason be neglected by legal scholars. Bridging disciplinary divides is of the utmost importance for addressing climate change, and thinking diagonally will require collaborative efforts among many different scholars, each bringing expertise not only in terms of substance but also in terms of the scales at which they are most adept at thinking and communicating. As Ruhl correctly notes, a diagonal approach is not merely a matter of being both horizontal and vertical at the same time, but of expecting and explaining complex, non-linear, and emergent properties and dynamics in both social and ecological systems. This complexity has long been a property of the world we seek to understand and affect, but perhaps only now are we beginning to recognize and appreciate it.
[J.B. Ruhl is Matthews & Hawkins Professor of Property at Florida State University College of Law]
By asking us to think diagonally about institutional frameworks for formulating and implementing responses to climate change, Professor Hari Osofsky challenges law and policy to confront the reality of climate change as a hugely complex multi-scalar phenomenon. The conventional wisdom has been that climate change, given its global dimensions, is inherently an international problem demanding institutional responses at the international scale. True enough, most everyone agrees, but many also argue this should not be to the exclusion of national and subnational responses. For the United States, once the discussion drifts down to those levels the federalism debate opens in full gear. A mountain of legal scholarship has risen from the collision between the pro-federal, pro-state, and pro-local climate change policy camps. Declining to join this Goldilocks search for the “just right” balance, Osofsky joins those, including myself, who see a need for an interconnected multi-scalar policy response that is equally as complex as the climate change problem itself. What sets her apart from work advancing this perspective is her use of climate change litigation as a lens through which to observe the forces pushing toward a rescaling of climate change law and policy from the bottom up and top down. Through her case studies illustrating contested rescalings in both directions, Osofsy paints a picture of an emerging institutional network that cuts across governance scales both vertically (to connect federal, state, and local actors) and horizontally (to connect actors at each scale)—thus diagonally.
I find much appealing about Osofsky’s portrayal of climate change litigation’s diagonal rescaling function, no doubt due in large measure to our common bond of being formally trained in geography. Geographers think about scales—all scales—and climate change law must as well. In this respect, while I applaud Osofsky’s diagonal thinking, I wonder whether it goes far enough. In a forthcoming California Law Review article I co-authored with Professor Jim Salzman, Massive Problems in the Administrative State, we argue that the kind of networked multi-agency, multi-scale institutional arrangements Osofsky envisions are necessary for effective responses to climate change and other massively-scaled problems confronting the administrative state. Yes, these transgovernmental networks are messy, redundant, unwieldy, and decentralized, yet these are the very attributes that give them adaptive staying power compared to the rigid institutional frameworks we conventionally throw at such problems. They also are less hierarchical than even Osofsky’s diagonality suggests—they are panarchical, depending far more for their work on the relationships and resources of people in the networks than on the formal legal status of the institutions employing them.
Most legal scholarship on institutional design for climate change policy is stuck in the conventional two-dimensional horizontal and vertical conceptualization of federalism. But when we say climate change is multi-scalar, we don’t mean it behaves according to some multi-tiered hierarchy of physical events; rather, we mean that it plays out through a complex network of feedback loops, nonlinear causal chains, and emergent properties that interconnect over different temporal, spatial, and cultural scales, but not that any one scale is running the show. Our governance response to such a phenomenon can be no less complex. Perhaps, therefore, the litigation-driven bottom up and top down rescaling Osofsky identifies as contributing to growing diagonality in climate change policy is a first step toward breaking away from governance hierarchy and moving toward complex transgovernmental networks for formulating and implementing climate change policy. With Osofsky’s lead, then, we should all start thinking diagonally.
[Hari M. Osofky is Associate Professor at the Washington and Lee University School of Law]
I would like to thank both the Virginia Journal of International Law and Opinio Juris for providing this forum to discuss my new article, Is Climate Change “International”?: Litigation’s Diagonal Regulatory Role. I also am grateful to both J.B. Ruhl and Nathan Sayre for their thoughtful commentary on the piece.
This Article argues that the scale of climate regulation must fit the scale of the problem. More specifically, the Article claims that because greenhouse gas emissions and impacts are multiscalar—individual, local, state, national, regional, and international—focusing predominantly on any one level of governance limits solutions. Although existing analyses and regulatory efforts often recognize the multiscalar nature of this problem, translating that recognition into meaningful policy solutions is extremely difficult, as exemplified in treaty negotiations, piecemeal policy initiatives, and pending litigation.
This challenge is made harder by efforts that treat climate change as a predominantly “international” legal problem in order to block smaller scale regulation. Variations on these “too big” arguments are proffered repeatedly in climate change litigation currently taking place in U.S. state and federal courts. Regulatory opponents argue that the spatial and temporal scope of climate change and its resulting scientific uncertainties make particular local, state, or national regulatory steps inappropriate. The Article explores two examples of these scalar contests—California’s suit against San Bernardino County for its failure to regulate and the U.S. EPA’s denial of California’s Clean Air Act waiver request—and their implications for regulatory scale.
The Article then considers the lessons from these disputes for what more effective multiscalar governance of climate change might look like. It examines the dangers of “scaling up” climate regulation and the “diagonal” regulatory role that these lawsuits play. Bringing together the scholarly literature on transnational legal process and geographic network theory, grounded in dynamic federalism and new governance approaches, it situates the two case examples within multiscalar networks that form the basis for informal and formal efforts to enhance or undermine regulatory efforts.
The Article argues more broadly that the nature of the problem and of the public and private entities engaging it provides the basis for diagonal regulatory strategies that simultaneously incorporate vertical and horizontal networks; this litigation serves as one such mechanism, and more analysis of other appropriate contexts for diagonal approaches is needed. In so doing, the Article introduces my ongoing research and writing on diagonal regulation, in which I am exploring in further depth the elements of such approaches and their implications for the Obama administration’s efforts to address climate change.
As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I’ve endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward.
We are pleased that Professor Ramsey agrees with our overarching proposition that the practice of making political commitments should be subject to analysis on a constitutional dimension. Our disagreements, therefore, primarily lie in constitutional methodology. How we define political commitments goes a long way toward resolving the differences between our analysis and Professor Ramsey’s. To the extent that Professor Ramsey suggests that we are re-packaging “non-binding personal pledges by the President” as political commitments, we emphasize that the nation, not the President, incurs the obligation. Political commitments came out of the late nineteenth and early twentieth century practice of entering into gentlemen’s agreement, but that was a much more personal phenomenon—binding its makers, not the state. As the practice developed, it became more of a vehicle for encompassing state commitments. The Newfoundland Fishery Agreement and Horseshoe Reef Agreement were hardly the stuff of personal promises, and political commitments now include the Helsinki Accords, the NATO-Russia Founding Act, and the London Guidelines. All of these implicate national credibility, not that of an individual President. Personal promises by the President and other heads of state, of course, remain, but we wanted to analyze the distinct concept of political commitments that purport to represent the agreement of a state or its agencies. With that clarification in mind, I hope to answer Professor Ramsey’s more substantive comments.
1. Political commitments as a constitutional work-around. Professor Ramsey situates political commitments in relation to other executive acts by noting that they are one tool at the President’s disposal to avoid the rigidity of the treaty-making process. We do not disagree that political commitments offer a useful, flexible tool to avoid the Constitution’s rigidity in making treaties. But, the ability to substitute this tool in place of a treaty is all the more reason to place some constitutional checks on their use. In this way, Professor Ramsey’s critique partially answers Professor Swaine’s observation that we “need a theory of constitutional proximity (or an argument about the dynamic effects of leaving substitutes unregulated).” If unregulated, political commitments may sometimes facilitate end-runs around constitutional mechanisms, distorting democratic processes and the rule of law (for example, FDR completed the Atlantic Charter as a political commitment in part to avoid any need for Senate approval).
Der Spiegel reports from Germany (the article is detailed and worth reading in full):
In the latest dispute over the European Union’s anti-piracy mission off the coast of Somalia, lawyers representing two suspects being detained in Kenya have filed suits against the German government. They want Berlin to foot the bill for the suspects’ defense and ensure they are given a fair trial.
Two suspected pirates detained by German naval forces in a mission off the coast of Somalia on March 3, who were later turned over to Kenyan officials for prosecution, are now suing the government in Berlin for a fair trial.
Attorneys for the men filed a suit on Tuesday demanding that the German government pay for the men’s defense and provide support to a group of suspected pirates currently being held in the Shimo La Tewa prison in Mombasa.
[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).]
Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges by the President) are a distinct and crucial form of diplomacy, and that we need to understand how political commitments fit into the Constitution’s foreign affairs framework.
The article inspires two reactions. The first is that political commitments are a constitutional work-around. Arguably the Constitution’s framers erred in making international agreements too hard to undertake (by requiring two-thirds of the Senate to approve) and too inflexible once undertaken (by giving them automatic status as domestic law). In any event, the framers imposed a rigid international agreement process that the executive branch has found unsatisfactory. Over time, executive agreements and non-self-executing treaties emerged as ways to work around the framers’ formalistic diplomatic system to make it more flexible and more suited to executive branch desires. Political commitments similarly seem to respond to the Constitution’s inflexibility in international agreement-making. They are, in this sense, akin to executive agreements and non-self-executing treaties, with similar benefits to the executive branch.
My second reaction is that, unlike executive agreements and non-self-executing treaties, political commitments fit relatively easily into the Constitution’s text and original meaning. Duncan and Joshua don’t seem to agree, because they spend a good part of their article straining to give political commitments a constitutional defense. It’s true, of course, that the Constitution’s text doesn’t expressly mention political commitments and that the framers didn’t seem to have had them in mind. But the Constitution was designed to provide general principles that could encompass specifics not directly contemplated.
[This post was jointly authored by Duncan Hollis and Joshua Newcomer] Ed Swaine brings his typical thoughtful (and rigorous) method to our article, and we greatly appreciate his insights, not only for engaging with our ideas but also for suggesting how we might advance them in future scholarship. Since Ed has framed his comments as questions, we’ve endeavored to provide responses to each of his five questions below.
1. What is the international significance of political commitments? Our research produced lots of anecdotal evidence on the widespread use of political commitments. Add to that the experience that one of us (Hollis) had in the State Department Treaty Office, where he spent as much time working on political commitments as actual treaty-making, and we’re hard pressed to deny that this is a pretty regular tool of international relations (a point on which Tony Aust, a former legal official in the British Foreign Office, readily concurs). That said, we take Ed’s point that there are no comprehensive surveys of the political commitment practice. Nor are there collections of these instruments; indeed, no mechanism exists for states to record or publicize them. By placing political commitments under the Constitution, however, we hope to generate information-forcing actions from Congress and the executive branch to develop a better picture of when, how, and with whom the United States concludes political commitments.
In any case, although we resist the notion that political commitments are rare (at least for the United States), we readily concede that some of them may comprise “cheap talk.” At the same time, however, our article emphasizes that other political commitments have provided significant constraints on state behavior (e.g., the Helsinki Accords or the FATF regime). Thus, our article reveals a political commitment practice far more diverse than previously acknowledged. And, as discussed below, we devised our typology to figure out what criteria distinguish “cheap talk” political commitments from those that are meaningful. To get at the domestic constitutional question, we wanted to show not only that this instrument has become a significant tool of U.S. foreign relations, but also that it can be employed to perform an array of functions that vary widely in terms of implications for U.S. credibility, reputation, flexibility, and foreign relations more generally. Moreover, whatever the breadth and depth of the political commitment practice, we need not concede that these instruments have international legal effect. While sometimes they might, we aimed to illustrate that, whatever their legal effect, the potential political significance of these instruments alone warrants constitutional scrutiny.
Thanks to Opinio Juris for hosting this discussion and to the editors of the Virginia Journal of International Law for their discerning taste in publishing such an excellent article.
Duncan Hollis (who has published widely both on the international aspects of treaties and on their domestic significance, and so is expertly situated to address this question) and Joshua Newcomer (already publishing like an old hand) have written an important article on an underappreciated phenomenon. On the theory that if it’s good enough for Derek, it’s good enough for me, I will structure my comments in a series of questions. The questions may seem critical, but they really pale in comparison to the article’s obvious strengths.
1. What is the international significance of political commitments?
Hollis and Newcomer (HN) begin their article by noting prominent examples of political commitments (PCs) (pp. 510-11), and add “[t]he popularity of political commitments reflects their utility to nation-states.” The ambiguity of that observation reflects a problem common to the understanding of international agreements. On the one hand, if such a device is used often, that might signal that it is useful – no activity is wholly costless, so it must be worth something. On the other hand, it may be inexpensive relative to its alternatives; employing a special sense of “utility,” we might say that the popularity of PCs reflects their utility in the same way that cheap talk does. In either event, I’m not confident that we have a robust sense of popularity. If every member of the UN struck one and only one bilateral arrangement with every other member, we should see over 18,000 of them; we could just as easily be struck by how rare PCs really are. And we do not know, of course, how significant they are in shaping state conduct. Forced to guess, one might hazard that PCs do much less than treaties that attach formal legal consequences, and that this is all by design.
There’s something else going on in the article’s argument that’s worth observing. HN clearly regard PCs as having international political significance – that is the premise for regarding them as having domestic legal significance. But they essentially dismiss, or at least decided not to resolve, the international legal significance of these arrangements. Because they duck the whole “soft law” depiction of PCs (while indicating doubts about it, see p. 520), we are left in the unusual posture of deeming something to have domestic legal significance – to our Constitution, no less – without any international legal significance, under CIL or otherwise. This is the polar opposite of most incorporation problems, in which dualist states fail to reflect completely in their domestic schemes the legal force of rules on the international plane. Offhand, I cannot think of many other issues in foreign relations law that fit that profile, and none with the constitutional attributes they give PCs (essentially, a defeasible executive branch authority). I bet there are some, though, and reflecting on those examples might help in thinking about the class of problem they address here.
I in no way believe that Deb exhibits “virtually pathological level of tribal loyalty and monumental intellectual dishonesty,” and I doubt that Glenn does either. That said, I am not sure that Deb’s (clearly initial) thoughts on the Obama administration avoids Glenn’s basic critique — that Obama supporters justify his increasingly Bush-like policies by de-emphasizing substance in favor of personality and process, focusing on the superiority of Obama’s coterie of advisors and his decision-making process instead of on the policies that the process ultimately generates. I freely concede the personality and process argument, but I draw the opposite conclusion: that Obama’s superior advisers and decision-making process means that it is even more indefensible that he has abandoned a number of his most important campaign promises concerning national security. I never expected Bush’s advisers — the Yoos and Addingtons — to support sensible limits on the power of the Executive. But I certainly expected — and continue to expect — Obama’s advisers to do so. And yet, time and again, Obama mimics the worst excesses of the Bush administration.
One example: Obama’s appalling position on whether a federal court has the authority to order the Executive to disclose classified information that it would rather keep secret. That position directly contradicts the idea that Obama has “categorically repudiated” the Bush administration’s radical “constitutional theory of the unlimited, inherent authority of the executive”…
[This post was jointly authored by Duncan Hollis and Joshua Newcomer]
We would like to start by expressing our thanks to the editors of the Virginia Journal of International Law, the (other) hosts of Opinio Juris, and especially Professors Edward Swaine and Michael Ramsey for commenting on our article.
“Political” Commitments and the Constitution (available on SSRN here) explores the constitutional validity of the executive branch’s use of political commitments in international relations. The recent controversy surrounding the formation of a U.S. security relationship with Iraq served as the impetus for our piece. Although most of that controversy focused on the Bush Administration’s ability to conclude a status of force agreement (SOFA) with Iraq as a sole executive agreement, we became interested in the Bush Administration’s position on the related Strategic Framework Agreement (SFA). Rather than suggest that the President could conclude the SFA as a sole executive agreement, the executive branch initially insisted that this instrument would merely be a “political”–or, non-legally binding–commitment in which the legislature could have no interest. We wanted to explore this claim because, while the United States has long used political commitments as alternatives to treaty-making, the constitutional authority to do so has gone mostly unexamined among academics and government officials alike. And, although international law and international relations scholars have studied political commitments, in both arenas, the conventional wisdom holds that because these commitments are not international “law”, they are irrelevant to domestic “law” as well.
Our article, in contrast, seeks to situate political commitments within the Constitution. Specifically, we contend that the Constitution affords the President a discrete power to make political commitments, which is not plenary, but instead may be subject to legislative oversight or control. Our argument comes in four parts.
In the comments section of an earlier post, GW lawprof Edward Swaine raises a really good point in defense of Koh’s CEDAW testimony. Since I highlighted Whelan’s very tough post, it is worth highlighting Swaine’s very good point in defense (I am paraphrasing, but this is the gist):
In the context of a committee hearing where other folks, including Senator Boxer, have addressed the issue of the CEDAW committee, and where Koh also addressed the CEDAW committee in his answers to questions, it is unfair for Whelan to conclude that Koh was deliberately misleading the Senate in his omission of the committee’s reports in his written testimony.
I still think that Koh’s testimony was not his best moment. Drawing on his credibility as an expert in human rights law, it is sloppy not to go ahead and rebut those reports and explain why they shouldn’t matter. He didn’t even do that in his answers to questions. Given that he, as Whelan rightly points out, is a big fan of using these reports in some cases to help interpret the Constitution or treaties, his written testimony could easily have, and should have, addressed the issue better than he did. But Ed’s larger point remains. As far as I can tell, there is no real ethical issue here.
My boss, Dean Ken Starr, has just published this letter expressing warm and hearty support for Harold Koh’s nomination to be the State Department Legal Advisor. Here is an excerpt:
Harold’s background is, of course, the very essence of the American dream. That great story needs no repetition. What I can speak to more personally is Harold Koh the passiionate, idealistic litigator serving on behalf of causes in which he fervently believes. Harold embraces, deeply, a vision of the goodness of America, and the ideals of a nation, ruled, abindgingly, by law.
***
Harold Koh, in short, is not only a great lawyer, but a truly great man of irreproachable integrity. And thus the President … should be deemed entitled to have this upright, highly qualified individual serving at the State Department in the pivotal role of Legal Advisor. Elections have consequences. In my view, one consequence is that, in shaping the contours of the Executive Branch, the President enjoys a strong presumption that his choice be honored….
What an academic writes or says as an academic is one thing. But quite another is the solemn taking of the oath of office to uphold and defend the Constitution of the United States. That life-changing event carries with it an abiding responsibility to be faithful to the law as it is–not as one might, as an academic, wish it to be.
For what it is worth, Harold Koh and I have also sparred in academic circles on the issue of the role of foreign and international law as an aid in interpreting the Constitution. I am much more reluctant to embrace the position he takes on that issue, and I have written in detail expressing my strong reservations. But that does not change my view that he is extremely well-qualified to serve as the State Department Legal Advisor and that he should and will be confirmed.
“That the Obama DOJ has repeatedly embraced the very legal theories responsible for much of the intense progressive rage towards the Bush/Cheney regime is now beyond dispute.”
So writes Glenn Greenwald on his Salon blog this week entitled “An emerging progressive consensus on Obama’s executive power and secrecy abuses.” I take it Glenn’s blog is much read by the “legal left” (thanks Politico), and recently much embraced by the late-night left, Olbermann and Maddow.
Indeed, Glenn cites Kevin’s writing here at Opinio Juris as evidence in support of his position.
“International law professor Kevin Jon Heller of Opinio Juris said that ‘the Obama administration’s stance on Bagram is deplorable’ and that Obama was trying to ‘create a legal black hole’ in Afghanistan identical to what Obama vehemently condemned at Guantanamo.”
For the record, may I please be excused from the putative “progressive consensus” on this one? Here are some reasons why I ask.
First, I left my corporate law firm back in 2003 to help the then-Lawyers Committee for Human Rights (now Human Rights First) start up a new program on law and security issues in part because I was appalled by “the very legal theories” of the Bush/Cheney regime. Among the theories I put at the top of that list: (1) a constitutional theory of the unlimited, inherent authority of the executive; (2) a political theory of the law as an obstacle to power, rather than the best-we-have and in all events mandatory-in-our-country tool to ensure the appropriate exercise of power; and (3) a policy theory that viewed process (due or otherwise) as a meaningless irritant – whether the process was an internal administrative mechanism for, say, setting up a system of military trials, or, an administrative and/or judicial process for figuring out whether we have the right people in custody.
By my count, the Obama administration has categorically repudiated theory #1 (in, for example, its Guantanamo habeas briefs), and has effectively repudiated theory #2 (in, for example, appointing the likes of Anne-Marie Slaughter and Harold Koh to the State Department). So what about theory #3 – how about a little process, for, say, the Bagram detainees? That brings me to…
Second, the Administration announced on Day 2 that it was creating a new inter-agency task force and was giving it 6 months to figure out how to handle non-Gitmo detainee issues going forward. I vigorously supported – and support – the creation of that task force. Its conceit was one I think is amply justified by the legal, political and policy complexities of its topic – namely, that the Administration was not yet sure and had not yet decided on the best course forward on detainees. (Yes – the Bagram habeas question is complex. Anyone who thinks it’s not hasn’t paid attention to the detainees’ own litigating strategy – which is to start out with a minority class of detainees there whose case for habeas is far more plausible than for many others at Bagram under current law.) So the Administration was going to get a lot of interested parties around the table, hear a range of views, study the issue, and come to a conclusion that had not been predetermined. Struck me as a rather dramatically un-Bush-like approach.
It has also struck me that the only way for the Administration to take its own internal process seriously is to preserve as full a range of options for the task force to choose from as it can – even as it is forced in interim court filings to take positions on questions before it has complete (or any) answers. I hardly agree with everything the Administration has said in its recent litigating positions on detainee matters (written, as best I can tell, by career attorneys scrambling in the DOJ civil division). And I can scarcely imagine the human toll taken on those individuals who may have been detained wrongly and have waited far too long already for some resolution of their case. But these briefs are plainly designed to leave options open, and to try to keep more decisions from being forced before they’ve been made. (The latest Bagram brief, for instance, asks the trial court to certify the case for interlocutory appeal and in that context argues that interlocutory review is appropriate because, pursuant to the statutory standard, there exists “a controlling question of law as to which there is substantial ground for difference of opinion” – namely, whether Boumediene should be read to extend habeas rights to Afghanistan.) Seems to me that most other litigating approaches would render the Administration’s own task force process less than what it was sold to be.
Could be this all means I suffer from a “virtually pathological level of tribal loyalty and monumental intellectual dishonesty” in Glenn Greenwald’s eyes. But my read is that they’ve got some months yet before their process comes due.
(Update: At the end of this post, I put a note from Eugene Kontorovich on his new paper on piracy, apparently still a discussion draft and not yet on SSRN, but apparently available from him if you contact him at Northwestern.)
In the midst of so much newspaper op-ed, blogosphere commentary on the piracy issue, Ruth Wedgwood - who has been working on this issue for some time now - has a fine piece up at The American Interest on the larger issues of piracy and international law, The Law Adrift. If one is looking for deeper examinations of contemporary piracy in law and policy, where do you go? Ruth Wedgwood’s writing is one place. Another is the scholarship of Eugene Kontorovich, who began working on this issue as a scholarly question several years ago - Opinio Juris has posted animportant guest comment from Eugene on piracy and why current policies are not working by him; it is well worth reading in the current discussion. And there is Peter T. Leeson’s brand new book from Princeton UP - The Hidden Hook: The Hidden Economics of Pirates.
I raise these to note, especially for web researchers who might have drifted here to OJ looking for sources, there are discussions of these issues that go deeper than the op eds and blog posts. One of Ruth Wedgwood’s important observations is the way in which the edifice of international law precludes ordinary realism:
[T]he UN Security Council voted in November 2008 that foreign navies could target pirates within Somalia’s territorial seas—that is, within 12 miles of shore—so long as they had a letter of consent from the Transitional Federal Government of Somalia. In December 2008, the Security Council voted that foreign states could take enforcement action ashore and in Somali airspace to root out pirate lairs, so long as the Transitional Federal Government again consented. Responsible states can take robust action under Security Council authority if they want to. That is not what they are doing. Instead, the West is tangled in a postmodern confusion over the law of armed conflict, human rights law, solipsistic views of national criminal jurisdiction and, above all, a stunning lack of common sense.
by The Editors of the Virginia Journal of International Law
The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles recently published by VJIL in Vol. 49:3, available here.
On Wednesday, Professor Duncan B. Hollis of Temple University James E. Beasley School of Law and Joshua J. Newcomer, Clerk for the Honorable Carolyn Dineen King of the United States Court of Appeals for the Fifth Circuit, will discuss their article “Political” Commitments and the Constitution.
In his new book Saviors and Survivors: Darfur, Politics, and the War on Terror, Mahmood Mamdani claims that, “in its present form, the call for justice is really a slogan that masks a big power agenda to recolonize Africa.” There is more than a grain of truth to that; I think my friend Tony Anghie’s seminal work Imperialism, Sovereignty, and the Making of International Law should be required reading not only for all students of international law, but for all law students period. That said, I find claims like Mamdani’s to be woefully overbroad — and ultimately counterproductive, because they delegitimize all attempts to do justice in Africa, no matter by whom, against whom, or for what.
Consider the International Criminal Court. I have been exceptionally critical of the ICC’s exclusive focus on Africa, both in my published work and in lectures — including one I gave at the ICC. But I think it is completely absurd to claim that the ICC’s regrettable focus on Africa somehow reflects racism or “masks a big power agenda to recolonize Africa.” The ICC has many flaws, but being a puppet of the big powers isn’t one of them. Three of the permanent members of the Security Council are not members of the Court: the US, Russia, and China. And of the 108 members of the Court, approximately 65 are from the Global South,16 are from Eastern Europe, and only 23 are from Western Europe or North America (and that includes such traditional imperialist powers like San Marino, Andorra, Ireland, and Malta).
That is a remarkable degree of geographic diversity — and it is reflected in the diversity of the Court’s personnel…
Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid.
[snip]
But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high-profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantánamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón. Instead, the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity.
[snip]
[T]he Obama State Department has been in steady contact with the Spanish government about the case. Shortly after the case was filed on March 17, chief prosecutor Javier Zaragoza was invited to the U.S. embassy in Madrid to brief members of the embassy staff about the matter. A person in attendance at the meeting described the process as “correct and formal.” The Spanish prosecutors briefed the American diplomats on the status of the case, how it arose, the nature of the allegations raised against the former U.S. government officials. The Americans “were basically there just to collect information,” the source stated.The Spanish prosecutors advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters. They pressed to know whether any such investigation was pending. These inquiries met with no answer from the U.S. side.
Scott notes that the human-rights community may be concerned about asking Garzon to step aside. I’m not sure if I’m a member in good standing of that community, but I have no problem with transferring the case to Ismail Moreno. There is no question that Garzon is a polarizing figure, and the last thing an already polarizing case needs is a polarizing judge — whether he deserves the label or not. (Not, in my opinion.)
I also think that the Spanish prosecutors are being remarkably clever by letting it be publicly known that they will step aside if the US investigates the Bush Six — Horton’s clever name for the defendants — on its own. In essence, they are forcing the US to live up to its obligations under the Torture Convention if it wants to make the case go away.
The only remaining possible explanation that I can see for Koh’s failure in his Senate Foreign Relations Committee testimony to address the CEDAW committee’s interpretations of CEDAW is that Koh deliberately chose not to be—let’s put the matter as delicately as possible—forthright with the members of the committee and the public generally. Given the exclusion of the first two possibilities, that explanation would seem logically compelled.
(Emphasis his)
Yikes! Is Whelan attacking Koh’s integrity? It sure sounds like it. But is it fair?
I agree with Whelan that CEDAW, if it is ratified and given self-executing status, could have a larger impact on domestic U.S. law than Koh suggests in his testimony. But I don’t think Koh’s omission of the Committee’s interpretation is necessarily misleading. The Committee is created under Article 17 of CEDAW ”[f]or the purpose of considering the progress made in the implementation of the present Convention….” Its interpretations of the Convention have no binding force (although some folks have tried to argue that they should). Nor does it have any power other than to issue reports to the UN Economic and Social Council. So I think it is understandable for Koh to focus his testimony on the text of the treaty, rather than on the committee’s interpretations of the treaty. And the substance of Koh’s testimony is accurate: the text of the treaty is neutral on abortion, negative on prostitution, and silent on Mother’s Day. And I really think Koh, in good faith, believes that the treaty will have very little effect on these issues.
Of course, it would have been better testimony if Koh had acknowledged and rebutted the CEDAW committee’s reports, since it would have given a clearer picture of how the Convention is being implemented overseas and of the range of possible interpretations. My own guess is that Koh didn’t include that stuff because he was not engaged in scholarship, he was engaged in advocacy when he testified before the Senate. The parts that Whelan zeroes in on sounds a lot like the ABA’s Section on Individual Rights’ talking points for supporters of CEDAW. Koh was plainly in advocacy mode, not scholarship mode.
Still, given that one of the most important jobs of the Legal Advisor is to review the legal implications of treaties like CEDAW and to advise the Secretary and Senate about them, one (fervently) hopes Koh will take a different approach as the Legal Advisor. This testimony was not Koh’s best moment. Whelan deserves credit for raising questions about it. Will Koh or his defenders respond?
There has been tons of commentary on the pirate thing now, so there is little more to add. Except that there is a brewing debate about where to try the remaining captured Somali pirate. In theory, the pirate could be tried before a military commission, if Obama wished, but I somehow doubt that his going to happen (although if he does, I would love to see Neal Katyal and Marty Lederman be assigned to draft that executive order). So the choice is Kenya (where he will probably receive a light sentence) or the U.S. (where he will get lots of useful constitutional rights and where many of the naval personnel will have to give testimony). I don’t think either choice will likely create much deterrence of future piracy. I still think the most effective choices are “self help” or, as Eric Posner argues, just paying the ransoms. The Navy saved the day this time, but they can’t be everywhere.
My professor in the Literature Program at Duke University, Eve Kosofsky Sedgwick, has passed away. Eve was one of the pioneering figures in queer theory. From Duke University Press’s announcement:
Duke University Press mourns the loss of Eve Kosofsky Sedgwick. We have been proud to publish six of Sedgwick’s books. The first, Tendencies (1992) is one of the founding texts in queer theory. Writing in the New York Times Book Review, Karla Jay said, “Tendencies is a selection of Sedgwick’s brilliant and provocative essays. . . . The associations she makes are novel and imaginative.” Sedgwick then published Fat Art, Thin Art(1994), a book of poems; and edited Shame and Its Sisters: A Silvan Tompkins Reader (1995, with Adam Frank), Gary in Your Pocket (1996) and Novel Gazing: Queer Readings in Fiction (1997). Always on the cutting edge, more recently she has been leading the scholarship on affect with Touching, Feeling: Affect, Pedagogy, Performativity(2003).
Eve was also one of the kindest people you will ever meet. She will be greatly missed.
My thanks to Peter for his invaluable comments and to Opinio Juris and the Yale Journal of International Law for making this exchange possible. I am particularly grateful for Peter’s extraordinarily insightful critiques, which I think go a long way toward helping me develop the model that I propose in Protecting Rights Online.
Peter’s first critique identifies one of the primary difficulties associated with any model that allocates authority between international and domestic institutions – namely, the difficulty of determining precisely where to draw the line. As Peter rightly observes, allocating too much authority to states may effectively eviscerate the rights in question. Rights are only meaningful in their implementation and international institutions need to retain the ability to supervise state decisions in practice.
There are two primary ways in which a model of flexible harmonization allows for such control. Even when norms are imprecise, it is the international institution and not the state that determines whether deference to the state’s interpretation is appropriate. One might think of this as the flip side of the “kompetenz-kompetenz” doctrine. The international authority might defer to the state but retains the ability to determine when such deference is appropriate.
In addition, this allocation of authority is not static but rather depends on a variety of factors. For example, flexible harmonization should only operate in the grey areas in which states can legitimately disagree. With respect to free speech, for example, Peter asks whether it would be permissible for states to guarantee the right to free speech in a heavily-monitored and highly-regulated environment. My answer is that it depends on whether the monitoring and regulation in question would violate the norm of free speech. If individuals run the risk of sanction for what they say, this is certainly an impermissible “implementation” of the right. If the government monitors speech in order to identify threats to public safety, reasonable people might well disagree. In this area of disagreement, the international institution could decide to defer to the state’s interpretation of its obligations.
The grey area in which flexible harmonization applies will most commonly arise when there are conflicts between rights or between rights and public policies. (The rights of authors and consumers in intellectual property policy is one such area.) It is with respect to conflicts of rights that there is the greatest need for local decision making. These conflicts require the state to balance context-specific needs and concerns. In addition, there is a significant need for public participation in such decisions. Although the extent of public participation on the domestic level varies greatly among states, it will in many cases be easier to achieve on the domestic than the international level.
Peter also identifies several situations in which a model of flexible harmonization may not be appropriate. First, I share Peter’s concern about whether the norms needed by developing countries and local communities might be eroded by flexibility. Some constituencies may at times need strong, precise norms to protect local values and resources from outside pressures. This is particularly the case in the context of indigenous rights, where “flexibility” in implementation may end up serving as a proxy for exploitation. It may make sense in such situations to forgo binding norms in favor of non-binding but precise guidance that can gain strength with time. This is an issue I hope to investigate further as I develop this model.
Second, Peter argues that different countries and interest groups may value rights differently. Some may want greater precision on the international level while others would prefer that states have significant discretion in implementation. In the presence of such disagreement, however, imprecise norms may be preferable if the alternative is no norms. Even if the lack of precision makes monitoring difficult, it may be better to have states be part of a regime, since even imprecise norms can develop over time.
Peter also quite rightly asks whether we can realistically expect cooperation outside of the context of access to medicines. Although I hope I am not being too optimistic, I agree that there are few access to knowledge issues that present as compelling of a case as essential medicines. This has significant implications for strategy. In the medicines context, public outcry was instrumental in pressuring pharmaceutical companies to lower their prices in some cases. It may be more difficult to generate the same level of public protest regarding the effect of copyright restrictions on the public domain.
This is precisely where a human rights framework can be most valuable, however. The language of rights transforms a statement of need into a claim that can be asserted against the state. For example, even if we are not able to assert a human rights claim to access particular cultural works, we can at least begin to talk about the public domain in human rights terms. A vibrant and robust public domain is not just an aspirational goal but a public good to which we have a claim that we can assert against the state. Human rights language may make it easier to mobilize constituencies to bring to bear the pressure that is needed to achieve intellectual property policies that respect human rights. A human rights campaign to protect the public domain would also help to take the discussion about access out of commercial law terms and transform it into an issue of human welfare and dignity.
Finally, I agree with Peter that the questions of how norms should be harmonized and what process will be most successful in achieving this goal are crucial. The answer to these questions will depend on the context, and this points to a need for further empirical research into how norms of access and exclusivity have been translated into domestic law.
My thanks again to Peter, Opinio Juris, and YJIL for this online symposium. I welcome further comments at molly.beutz@nyls.edu.
Let me begin by thanking Opinio Juris and the Yale International Law Journal for hosting this online symposium. In “Protecting Rights Online,” Professor Molly Beutz Land has written a highly interesting article that seeks to bridge the disciplinary and doctrinal divide between the human rights and access to knowledge (A2K) movements. The article is well-written, accessible and provocative. It has made an important contribution to the debate about issues lying at the intersection of human rights and global information governance.
It is particularly refreshing to find Molly staying away from the traditional state-centered, inter-national approach, which is somewhat incomplete and increasingly misleading. Indeed, as shown in her discussion of the A2K movement, there have been many important recent developments at the sub-state and non-state levels. In examining both the human rights and A2K movements, the article successfully captures many of these developments. It paints vividly and realistically the growing dynamism, complexities and messiness in the area of global information governance.
Also of great interest is Molly’s model of “flexible harmonization,” an innovative model that employs “binding but imprecise international norms” (2). Like the “margin of appreciation” doctrine that the European Court of Human Rights has embraced, this model underscores the importance of building flexibility into the international human rights system. It seeks to protect the gains won by human rights activists in the past few decades while at the same time recognizing the difficulty in achieving international consensus in areas that many countries have deemed controversial and highly sensitive.
Although the human rights and access to knowledge (A2K) movements share many of the same goals, their legal and regulatory agendas in the area of Internet governance have historically had little in common. While state censorship online has been a principal concern for human rights advocates, this issue has not been a central focus of the A2K movement. Likewise, human rights advocates have failed to examine the cumulative effect of expanding copyright protections on education and culture. Overcoming this divide and identifying areas in which the two movements can collaborate on issues of Internet regulation is critical to ensuring that they are able to draw on their respective strengths to address the pressing issues we face in protecting rights online.
This Article bridges the “human rights/A2K divide” in two ways. First, it explores how the historical development of each movement has led them to view the harms associated with online content—and thus the solutions that might address these harms—in very different ways. This history indicates that the most promising avenues for collaboration will be with respect to issues on which state authority is limited because of international obligations or the absence of resources or commitment on the part of the state. Second, building on recent literature concerning the design of international institutions, the Article develops a model of “flexible harmonization”—employing imprecise but binding international norms—that responds to the regulatory concerns of both the human rights and A2K movements. The Article then uses this model to evaluate two proposed regulatory frameworks for Internet governance and examines the conditions under which a model of flexible harmonization can be employed in other contexts.
Harold Koh’s position that customary international law is a form of federal common law reflects the conventional view since the founding of the nation. For over 200 years, Congress, the courts, and the Executive Branch have recognized that each branch has authority to observe customary international law (or, the law of nations) as part of federal law. Such customary norms include basic rules governing international business transactions, forms of immunity, and the treatment of POWs. They are well-established norms that are so widely shared that they attain the status of custom.
Courts perform common law adjudication simply to resolve ambiguities or gaps in the law. In the area of international law, this federal common law making power has survived over the years because customary international law involves unique and distinctive national foreign policy interests, including the United States’ relationships with other nations, which, of course, is reserved to the federal government.
A little further on, she responds to the concern that customary international law is anti-democratic:
Indeed, customary international law bears the hallmark of democratic legitimacy. The U.S. is a key participant in the consensus-building process inherent in the creation of customary norms. Thus, these legal norms are fashioned with the input of U.S. elected and appointed officials, who represent and answer to their constituents at home. As Dean Koh acknowledges, Congress may override a customary international law norm where Congress’s intent is clear, thereby addressing any concern regarding democratic oversight.
Across party lines, the Executive Branch has provided ongoing support for this time-honored conception of customary international law. During the Nixon Administration, the Carter Administration, and the Clinton Administration, the United States has filed amicus briefs embracing the bi-partisan perspective that customary international law is enforceable federal law. This well-established formulation of customary international law has shaped judicial precedent and federal policy since our nation’s founding. While one of the torture memos issued under George W. Bush called some of these basic tenants into question, this memo was later repudiated even by the Bush Administration.
Pope Benedict XVI’s Easter homily included this message of hope and reconciliation:
If it is true that death no longer has power over man and over the world, there still remain very many, in fact too many signs of its former dominion. Even if through Easter, Christ has destroyed the root of evil, he still wants the assistance of men and women in every time and place who help him to affirm his victory using his own weapons: the weapons of justice and truth, mercy, forgiveness and love. This is the message which, during my recent Apostolic Visit to Cameroon and Angola, I wanted to convey to the entire African continent, where I was welcomed with such great enthusiasm and readiness to listen. Africa suffers disproportionately from the cruel and unending conflicts, often forgotten, that are causing so much bloodshed and destruction in several of her nations, and from the growing number of her sons and daughters who fall prey to hunger, poverty and disease. I shall repeat the same message emphatically in the Holy Land, to which I shall have the joy of travelling in a few weeks from now. Reconciliation – difficult, but indispensable – is a precondition for a future of overall security and peaceful coexistence, and it can only be achieved through renewed, persevering and sincere efforts to resolve the Israeli-Palestinian conflict. My thoughts move outwards from the Holy Land to neighbouring countries, to the Middle East, to the whole world. At a time of world food shortage, of financial turmoil, of old and new forms of poverty, of disturbing climate change, of violence and deprivation which force many to leave their homelands in search of a less precarious form of existence, of the ever-present threat of terrorism, of growing fears over the future, it is urgent to rediscover grounds for hope.
Stuart Taylor, the eminent legal affairs columnist for National Journal, writes this week on the vexed issue of the detainee cases. This sentence in particular caught my eye:
So clogged with detainee cases are the federal courts in D.C. that they may not have time to conduct any ordinary civil trials this spring or summer.
Stuart is a very diligent journalist, so I will take him at that - I must admit, although no expert in litigation and procedure, I was startled. (Stuart, if you wanted to fill this in more for us a bit more, I’d certainly be delighted to hear from you.)
A big case from the U.S. District Court here in New York came down this week, and I was spending my time reading blog posts on Harold Koh. Where are my priorities? In an important test of the scope of the Alien Tort Statute’s application to multinational corporations, Judge Shira Scheindlin has finally ruled on the defendant corporations’ motion to dismiss, and allowed most of the lawsuits to continue against a number of key companies, Ford and GM included.
It’s a long opinion, so you can cheat and read the Law.com summary here. Readers of this blog will no doubt focus on Judge Scheindlin’s review of the elements for aiding and abetting liability, which is at the core of most of these case against corporations. Kevin Heller will be happy to learn that Judge Scheindlin has rejected the stricter ICC standard requiring assistance for the “purpose” of committing the criminal activity in favor of a looser assistance with the “knowledge” of criminal activity standard. She then applies this standard and narrows the lawsuits somewhat, but not nearly as much as the corporate defendants would like since she applied the looser knowledge standard. (She had the freedom to pick, because the Second Circuit panel above basically split three ways on this question).
I don’t know what happens next here. There could be another appeal, which would start this process all over again. From GM’s perspective, why not keep appealing? They are likely to be in bankruptcy by the time this case even gets to summary judgment…
The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.
In a court filing, the Justice Department also asked District Judge John D. Bates not to proceed with the habeas-corpus cases of three detainees at Bagram Air Base outside Kabul, Afghanistan. Judge Bates ruled last week that the three — each of whom says he was seized outside of Afghanistan — could challenge their detention in court.
For some reason, Glenn Greenwald seems to think the appeal is inconsistent with candidate Obama’s position on habeas:
Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.
It’s patently obvious that there is no contradiction here. Obama was criticizing creating a legal black hole at Guantanamo; he said nothing about not creating one at Bagram…
PS: Lest anyone be confused, I am not actually criticizing Glenn. I think the Obama administration’s stance on Bagram is deplorable.
The folks at UN Dispatch say they have uncovered a conspiracy among conservatives to oppose Koh’s nomination in what they describe is the “Dirty Fight Against Koh”. The evidence is this draft letter to Senators Kerry and Lugar opposing Koh’s confirmation.
Thanks to Kevin’s intervention, and Ed Whelan’s gracious admission that he’s gone a bit far in his rhetoric against his critics, I thought we had managed to push some parts of the blogosphere into a more useful discussion of Koh’s nomination. But this UN Dispatch post is exactly the type of post that is likely to cause more rabble rousing on both sides. Without defending any of Koh’s views on the merits, the post simply dismisses the authors of the letter as “the forces of darkness” and “conducting a smear campaign.”
Maybe there is a conspiracy and a smear campaign, but I see no evidence of it in this letter. Basically, the letter argues that Koh is likely to give legal advice that would restrain the use of military force without UN authorization, that he believes decisions of the International Court of Justice are (at least in some cases) directly enforceable, that the Supreme Court should try to use international law or foreign law more often, and that the U.S. should ratify the ICC and the Convention on the Rights of the Child, and that the U.S. should comply more often with international law. I doubt Koh would deny any of these positions and, indeed, I’m sure he would welcome a chance to defend them.
The broader question, which a commenter to one of Kevin’s posts has raised, is whether any of this is relevant to Koh’s fitness to serve as Legal Adviser. If none of this is relevant, then while not a smear campaign, it is probably a waste of time to raise them. But I can’t imagine legal policy questions are out of bounds for confirmation hearings of executive branch officials. And it is perfectly appropriate for senators to vote against such officials because they disagree with their views. 47 Senators voted against Ted Olson, whom no one would say was unqualified to be Bush’s Solicitor General, largely based on Olson’s substantive legal views. I doubt nearly as many will vote against Koh, but a confirmation fight of this sort is hardly unprecedented. Just ask “Ambassador” John Bolton.
Lawyers and judges working on Guantanamo Bay legal cases are showing signs of exasperation at President Barack Obama’s administration, which they accuse of slowing federal judicial procedures for detainees.
Two federal judges tasked with examining cases by five Guantanamo prisoners contesting their detention — a right to habeas corpus granted by the Supreme Court in June 2008 — have made a rare public row of their impatience with government prosecutors.
“Respondent’s counsel violated all three orders,” Judge Colleen Kollar-Kotelly wrote in an unusually harshly worded court document seen Wednesday.
Kollar-Kotelly was referring to an earlier decision that a government lawyer should be removed from the case of four Kuwaitis held at the US military prison in southern Cuba because the attorney repeatedly missed deadlines.
The lawyer’s “compliance was not optional,” she wrote, adding that the court “has serious concern about counsel’s ability to read and comprehend its orders.”
Another federal [judge], Emmet Sullivan, expressed outrage at a hearing last week over prosecutors’ delay in providing unclassified documents to the defense in a Yemeni detainee’s case.
“To hide — and I don’t use that word loosely — to hide relevant and exculpatory evidence from counsel and from the court under any circumstance … is fundamentally unjust, outrageous and will not be tolerated,” he said, threatening to sanction the government.
“How can this court have any confidence whatsoever in US government to comply with its obligation and to be truthful to the court?” he added, citing “repeated failures” by government prosecutors in complying with the court’s order to provide exculpatory evidence.
But hey, why split hairs? After all, now that we’ve added the word “substantially” to the definition of an enemy combatant and officially banished the expression “Global War on Terror,” all is right with the world again.
UPDATE: I have replaced the original article in the post with a better one.
Many thanks to Derek Jinks for his kind words on the article and deeply incisive comments. I will do my best to reply sequentially to the provocative issues he’s raised.
1. I agree that conceptual overlap of ad bellum and in bello does not necessarily pose a problem for IHL. Indeed, as Jinks says, some discrepancy based on the nature of the parties is foundational to IHL, most prominently, the privileges and rights of state soldiers and the correlative prohibition on purposive violence by most private armies, which, unlike those of states, do not presumptively enjoy the combatant’s privilege. (Long footnote: I think that I disagree, however, with the ICRC Commentary’s view that soldiers fighting a war of aggression should be denied combatant immunity. I’m unsure of the context of this part of the Commentary. But I can’t recall an instance in which this proposition has received support in either state practice or opinio juris, or even, for that matter, de lege ferenda scholarship. None of the Nazis, for example, were tried for simple murder rather than war crimes, and it’s doubtful whether aggression remains a crime under customary international law. It should not be, in my view, but that’s an even longer digression. One of the principal rationales for the DA is the absence of a neutral arbiter, and any effort to identify one party as the aggressor and deny that party combatant immunity would, I think, foreseeably lead to the breakdown of IHL rules in the conflict.) The principal worry that I have about the influence of ad bellum considerations on in bello rules may be illustrated by a question I pose about the Kosovo campaign, an example that I flesh out in the article. To avert misunderstanding, I should state at the outset that I support NATO’s action under the circumstances and do not think the ICTY Prosecutor erred by declining to investigate NATO. But strictly in terms of the in bello legality of NATO’s conduct of that campaign, it seems to me that modern IHL requires belligerents to assume at least some risk (how much is debatable) to themselves to reduce the risk of death and suffering to enemy civilians. Yet NATO, by instructing its pilots to fly at a minimum height of 15,000 feet, deliberately reduced the risk to its own forces to zero at the cost of a substantial increase in the risk to Serbian civilians. Suppose NATO’s avowed ad bellum objective had been to annex and occupy Serbia (rather than to halt incipient ethnic cleansing). Would we be so quick to dismiss NATO’s in bello conduct of the war as lawful? I concede this is speculative, but it seems to me that our ad bellum appraisal of NATO’s conduct as humanitarian intervention influenced our in bello appraisal of how it conducted the military campaign.
2. In terms of the evidence: I suggest that the DA has been misconstrued or misapplied, sometimes deliberately, but more often subconsciously or tacitly—in part because of natural self-serving biases. I doubt that any belligerent would openly claim that the justice of its cause relieves it of or relaxes the in bello constraints under which it must conduct warfare (although, notably, the Soviet Union, North Vietnam, and others, in the past, and more recently, the United States, in part, in its conduct of the “GWOT” have made essentially this claim). But the gravamen of the article’s argument is that the DA is customary international humanitarian law as the prohibition on torture is CIL: there’s far more state practice than we acknowledge that’s in tension with the rhetoric and written word affirming the DA. The law-in-action, as Roscoe Pound famously put it, may well differ from the law-on-the-books—and in subtle ways. That doesn’t mean violations of the norms against torture or of the DA are lawful. But the examples of state (and non-state) practice and jurisprudence I supply seem to me to share, at bottom, a tendency to elide the DA. Readers of the article will make their own judgment. I concede I may be wrong, or exaggerating the extent of the trend. I hope that’s true.
3. Jinks’s point here is well-taken, and to a certain extent, the article does try to make the case that we need to tinker with the ad bellum, as it’s currently construed—for, at present, in my judgment, it encourages violations of the DA. That’s why I spend so much time critiquing the ICJ’s jurisprudence of war despite the fact that it seldom opines on IHL. The Court has a distinct institutional role in the international system and sees itself as the guardian of the U.N. Charter’s regime on force, so I don’t mean to fault the ICJ as much as may seem at first glance. The ICJ, however, is emblematic, in my view, of a trend toward eliding, rather than candidly confronting, the twenty-first century challenges of warfare. For as long as it insists on hewing to an anachronistic state-to-state paradigm, it encourages a divergence or disconnect between the law and the reality of modern warfare. As I say at the outset of the article, “the efficacy and normative force of the law of war is roughly commensurate to its correspondence to the nature and felt necessities of warfare.” It must be possible for elite belligerents operating in good faith to abide by IHL and still feel they can do their job, i.e., win or accomplish a military objective. “Insofar as [in bello-ad bellum] conflation obscures the need to refine the law of war to adapt to current sociopolitical conditions and to work out practical conceptions of [e.g.,] both ad bellum and in bello proportionality, it impedes the ability of international law to develop at both ends of the duality. To preserve the DA axiom in the twenty-first century therefore may well require reform of both in bello and ad bellum law. (For example, as I argue in the article, the law of war should decisively adopt the aggregative, rather than the atomized, conception of ad bellum proportionality: it’s both more realistic and reflects a more just balance between the competing values at stake.)
4. Here I have to punt—as I largely do in the article’s conclusion raising these points. It seems to me that there are, or will foreseeably be, situations in which, as I say, the very same humanitarian values that underwrite the modern DA may countenance limited exceptions to it—for example, if a war fought in technical violation of the DA is the sole politically feasible way to halt an incipient genocide. Conflicts of theoretically harmonious values—between the humanitarian imperative of the DA and the equally, if not (I would think) more, compelling need finally to cease the hypocrisy of saying “never again” and yet turning a blind eye to genocides—require political choices that I hesitate to opine on in the abstract.
5. Jinks is absolutely right to point to the difficulty in incorporating IHRL in the context of an armed conflict, while respecting the DA. The convergence of IHL and IHRL pointed out in Meron’s well-known article on the humanization of IHL will increasingly raise the kinds of questions that Jinks flags. Candidly, I haven’t thought these issues through well enough to respond in any depth. But I would say, in response to the example Jinks raises, that even though Iraq clearly qualified as the aggressor in 1990, that would not render every detention or killing of a Kuwaiti soldier an arbitrary deprivation of life or liberty in violation of IHRL. To say otherwise, I think, would be to deny the DA, and the consequences of that for IHL would be detrimental for both IHL and IHRL—and the relationship between the two. The circumstance of armed conflict, as the Nuclear Weapons decision rightly, in my judgment, said, alters what it means for a deprivation of life or liberty to be “arbitrary” within the meaning of, say, the ICCPR.
6. In the realm of proportionality, it’s very difficult to avoid allowing the ad bellum to influence the in bello. In theory, as just war theorists like Jeff McMahan and Thomas Hurka have argued, there’s a slippery slope from “concrete and direct military advantage” to “victory.” The challenge is for IHL to prevent the former from slipping into the latter, for if the relevant yardstick is “victory,” every in bello strike’s proportionate in theory. It’s for that reason that AP1, for example, uses the words “concrete” and “direct,” and enjoins a commander to determine whether such a military advantage (not ultimate victory) would be “excessive” relative to the civilian harm it will foreseeably cause. But the sorts of inquiries raised by the Prosecutor’s Report on Kosovo, reproduced on page 111 of the article, urgently need to be answered. That’s another article, but absent further work in this area, the kind of confusion about proportionality that reigned in the Israel-Hezbollah conflict will persist—as will the needless death and suffering caused by it.
Once again, my sincere thanks to Opinio Juris, YJIL, and Professor Derek Jinks. I welcome comments: rdsloane@bu.edu.
Thanks to the editors of Yale Journal of International Law and the hosts of Opinio Juris for the opportunity to comment on Rob Sloane’s terrific article, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and the Jus in Bello in the Contemporary Law of War. The piece is, in my view, essential reading for law of war scholars. I find myself in broad agreement with much of Sloane’s analysis so in my necessarily brief comments I offer a series of questions aimed at clarifying or strengthening his already compelling argument.
1. What is the nature of the dualistic axiom (DA)?. As Sloane points out, DA requires that in bello constraints apply equally to all parties to a conflict. In other words, DA in contemporary international law is a proposition of the jus in bello (or international humanitarian law or IHL)—it is not a structural principle straddling the ad bellum and in bello regimes. The idea is to ensure that no distinctions are made in the rules applicable to each party to a conflict—the irrelevance of the ad bellum justification available to each party is but one instantiation of this more general principle. Nevertheless, this formal equality of belligerents or the formal mutuality of obligations forecloses a certain variety of justification or excuse for acts prohibited by IHL. “Conflation” of, or conceptual overlap between, ad bellum and in bello constraints does not, as such, necessarily pose any deep challenge to IHL. Indeed, the scope and content of some IHL rules are modified, some directly and some indirectly, in their application by reference to ad bellum considerations. For example, POW status arguably does not accord combatant immunity for the crime of aggression (according to the ICRC Commentary on the Geneva Convention for the Protection of Prisoners of War). And whether any situation qualifies as an instance of military occupation within the meaning of Common Article 2 of the Geneva Conventions arguably requires some determination of which party is properly understood as the sovereign over the territory in question. Indirect examples include the fact that IHL imposes less onerous constraints on states when engaged in armed conflict against entities not protected by ad bellum rules. And IHL accords a the privileged postion to members of the armed forces of a state—recognizing a limited right to participate in the hostilities. The relevant IHL rules apply equally to all sides, but the actual application of the rule to some concrete case will, at times, requrie reference to ad bellum considerations. The worry that motivates DA is not a worry about the conceptual integrity of ad bellum and in bello regimes. Rather, the worry is that any assymetry in the obligations assigned the parties to a conflict must be avoided.
2. Is there good evidence that DA is eroding? Sloane, to his credit, points to many concrete examples of “conflation”—which, in his framework, includes examples of conceptual confusion between ad bellum and in bello constraints. But very few of these examples involve actors claiming that the constraints of IHL vary according to the ad bellum justifications (or lack thereof) available to the belligerents. In my view, the troubling examples include only (one reading of) the ICJ opinion on Nuclear Weapons and some of the US rhetoric in the war on terror. I’ll offer no justification of ICJ’s infamously obtuse holding in the Nuclear Weapons case. I will say, though, that the opinion likely provides little reason for serious worry about any erosion of DA particularly since the Court offered no sustained analysis of its seeming conflation of the in bello and ad bellum—and this aspect of the opinion is widely condemned as incoherent at best. The US rheotoric in the war on terror is potentially more troubling, but on closer inspection the US position does not purport to modify IHL constraints by reference to its casus belli. Rather, the US forwarded a construction of IHL that badly misconstrued the material field of application, personal field of application, and substantive content of that law. These claims at times turned on the character of the groups against which the US fights and the nature of the threat posed by such groups, but these points need not turn on—nor are they adequately rebutted by resisting any—erosion of DA. To be sure, claims grounded in some notion of “supreme emergency” may facillitate erosion of DA, but they need not.
3. Why is conflation, even in the limited sense suggested above, problematic? In explaining why dualism is important Sloane emphasizes the institutional rationale—the claim that dualism is necessary because international law has no reliable, effective ad bellum institutional mechanisms that might facillitate a viable aggressor-defender model. Without dualism, war will be prevalent and it will be conducted in an essentially unregulated way because all parties to the conflict will have formally plausible ad bellum justifications warranting relaxed in bello regulation. This rationale is terrifically important, however, over-reliance on it should be avoided. As a practical matter, the institutions in question might be improved—or alternatively, we might think the available institutions work sufficiently well in a non-trivial number of cases. And, as Soane acknowledges in the conclusion, the law of war might need to be reformed in any case to deal with what Sloane suggests are the truly difficult questions. If this is so, the very problem cases Sloane considers as important challenges to DA arguably counsel in favor of reforming the ad bellum machinery rather than tinkering with DA itself—particuarly if we are persuaded that the elimination of war ought be the regulatory priority and we are suspect of any formal equality of belligerents in many contemporary conflicts. In my view, the equality of belligerents (or DA) is also justified because general reciprocity is, as a sociological matter, necessary to ensure compliance with IHL—irrespective of whether any sort of ad bellum regime even exists and irrespective of whether we even have any intuitions about what a just or unjust war might look like.
4. How should we resolve the difficult unanswered questions flagged in the conclusion? Sloane seems to acknowledge, in the end, that some exceptions to DA might be appropriate—but the question is how, given the balance of his analysis, should be even think about the propreity of any such exceptions. This is important, in my view, because the rubber really hits the road on the advisability or acceptability of eroding DA precisely at the points Sloane seem to soften his stance. I sympathize with his position in the paper—that he has no definite answers on the scope or content of any possible exceptions to DA—but I wonder how we might even begin a transnatinal deliberative process regarding any such exceptions.
5. How should we incoporate international human rights law (IHRL) into the analysis of DA—and it’s possible exceptions? applies in time of armed conflict (even if only in the compromised way contemplated in formal derogation schemes) and in this limited sense is part of the full range of in bello constraints. The complication is that ad bellum considerations are ultimately relevant to many questions arising under IHRL. For instance, whether any killing in time of armed conflict is “arbitrary” within the meaning of IHRL surely would require inquiry into whether the attacking party acted in contravention of the ad bellum Same with any determination as to the arbitrariness of any detention in time of armed conflict. (e.g., when Iraq invaded Kuwait in 1990, surely every killing and detention at the hands of the Iraqi forces in Kuwait were arbitrary within the meaning of IHRL. If this is all right, then the scope and content (in the strong sense) varies depending on ad bellum considerations. Perhaps the development of an increasingly robust international law designed to protect human dignity (which includes IHL and IHRL) will inevitably erode DA.
6. Are the ad bellum and in bello proportionality inquiries completely distinct? Sloane is certainly right to say that these inquiries are importantly different, but I wonder whether at times the casus belli exerts important, and perhaps even decisive, influence on the in bello proportionality inquiry. The idea is that ad bellum proportionality should not accord parties unlimited discretion in selecting strategic, operational, and tactical objectives (only to balance the military advantage secured in a discrete operation, determined by reference to these objectives, against the collateral costs imposed on civilians). Instead, in bello proportionality, should understand the ad bellum proportionality constraints, determined by reference to the ad bellum justification advanced by each party, as establishing an outer limit for the legitimate military objectives that concrete operations might further. In this sense, it seems, there is at least one level of generality at which these inquires should overlap.
In the first place, I want to express my thanks to the hosts of Opinio Juris and to the editors of the Yale Journal of International Law for the opportunity to discuss this piece in a public forum—and, above all, to Derek Jinks for kindly taking the time to read and comment on it. What animated this article is my sense that we have witnessed, and continue to witness, a largely tacit degradation in the vital axiom of international humanitarian law (IHL) that insists on the analytic independence of jus ad bellum and jus in bello, which, following Michael Walzer, I call the dualistic axiom. In short, that axiom says that in bello rules and principles apply equally to all belligerents, whatever each party’s ad bellum rationale for force (casus belli): be it, to cite the extremes, lawful self-defense or aggressive war in the service of a totalitarian ideology with genocidal designs. The axiom, as just war theorists have long recognized, therefore seems to produce counterintuitive results: as Thomas Hurka wrote, for example, “If military advantage justifies killing civilians, it does so only because of the further goods such advantage will lead to, and how much it justifies depends on what those good are.” So surely, he suggests, more collateral damage should be tolerated in a war against an enemy like Nazi Germany than in the Falklands War. Yet in law, in contradistinction to normative ethics, the injunctions of IHL would be far less effective, and in some cases might even cease to operate, were subjective, ideological, or politicized conceptions of the ad bellum justice or legality of each belligerent’s casus belli smuggled into IHL calculations. Scrutiny of jurisprudence and at least some state practice suggest, however, that such politicized appraisals of the legality or justice of particular conflicts have increasingly eroded the boundary between ad bellum and in bello constraints on war. They have also generated a related, widespread confusion in the application of proportionality, which has conceptually distinct ad bellum and in bello components that should be applied concurrently.
I offer three arguable examples of ad bellum-in bello conflation: the 1999 campaign against Kosovo; the thirty-four day war between Israel and Hezbollah in July 2006; and the resurrection of candidly justified torture in the “Global War on Terror.” What unites each, I suggest, is the often tacit view that ad bellum considerations may justifiably mitigate and perhaps even vitiate in bello constraints—including both context-dependent, flexible constraints such as the in bello principle of proportionality and absolute constraints such as the prohibition of torture or the denial of quarter. For example, the now infamous memorandum of Alberto R. Gonzales (actually, David Addington), asserting that “the war against terrorism is a new kind of war,” which “renders obsolete Geneva’s strict limitations on question of enemy prisoners and renders quaint some of its provisions,” may be understood as a suggestion that ad bellum considerations should justifiably relax, or even vitiate, what some see as anachronistic in bello constraints.
I trace the theoretical source of ad bellum-in bello conflation to familiar twenty-first century themes including the rise of transnational terrorist networks, asymmetrical warfare, geopolitical reconfiguration, and technological progress, as well as to the demise of the dualistic axiom’s traditional rationales: one theological, the other (broadly speaking) positivist. Early just war theorists espoused “probabilism,” the view that all belligerents in war should practice moderation because of epistemic uncertainty about which side fought on the side of divine justice. And in the nineteenth century, the high watermark of legal positivism, international law abandoned even the pretense of a genuine jus ad bellum. This rendered the idea of conditioning the legality of particular means and methods of warfare on a non-existent body of law simply incoherent. But with the reintroduction of a positive jus ad bellum in the postwar era, some scholars openly suggested that the dualistic axiom should indeed be abandoned, lest the Charter regime’s perceived authority suffer, or the elaboration of a new body of IHL rules and principles interfere with the postwar aspiration to abolish war for all time. Yet quickly, as early as 1953, Sir Hersch Lauterpacht recognized that the Charter regime, whatever the hopes of its drafters, would often prove quixotic and therefore that abandoning the dualistic axiom might well lead, in practice, to the demise of IHL, which would “cease to operate if [its rules] were made dependent upon the legality of the war on the part of one belligerent or group of belligerents.” International lawyers, almost without dissent, have since adopted Lauterpacht’s view and nominally affirm the dualistic axiom. But at least three trends, I think, have led to the subtle (and sometimes overt) degradation of the axiom in the actual practice of warfare: (1) an aggressor-defender model of war, whereby one belligerent implicitly denies the dualistic axiom by reference to the maxim ex injuria jus non oritur (a right may not arise from an illegal act), e.g., North Vietnam’s position in the Vietnam War; (2) the conceptual collapse of ad bellum and in bello proportionality, i.e., in effect, the confusion of architectural military objectives with the “concrete and direct military advantage anticipated,” which should be the focus of IHL (a phenomenon evident, for example, in the thirty-four day war between Israel and Hezbollah in 2006 and, more recently, in the tragic conflict in Gaza); and (3) “supreme emergency” arguments, which the ICJ arguably endorsed in Nuclear Weapons, and which underlie, for example, the hackneyed ticking time-bomb torture scenario.
Furthermore, while I lack adequate space here to summarize my critique of the ICJ’s jurisprudence of war, I suggest that the ICJ has done a disservice to IHL by adhering to a contrived (and now dated) view of the Charter’s ad bellum framework (supposedly identical to that of customary international law). It first set out this view in Nicaragua and, to the dismay of many, unreflectively affirmed it more recently in the wholly incongruous context of a virtual world war between states and non-state belligerents fighting in central Africa (Armed Activities on the Territory of the Congo). In effect, the Court has thereby avoided opining on the truly difficult and critical questions of ad bellum and in bello necessity and proportionality in the context of non-traditional warfare by focusing, instead, quite narrowly on an anachronistic vision of self-defense. It has also tended to disregard the dualistic axiom’s insistence that ad bellum analysis does not obviate the need to analyze ad bellum proportionality and the full corpus of the jus in bello.
The dualistic axiom is indispensable to the efficacy of the law of war, such as it may be, because it theoretically ensures that relatively common, if debatable, ad bellum violations do not obviate or diminish the humanitarian potential of jus in bello, modern IHL. Just war theorists, such as Jeff McMahan and Thomas Hurka, have done a superlative job analyzing the normative ethical foundations of the axiom and exposing its theoretical weaknesses. International law, I believe, ignores their analyses at its peril. Yet while such challenges to the dualistic axiom do not prove unassailable even in theory, in the final analysis, I suggest that the dualistic axiom, as a legal principle, remains firmly rooted in experience and an appreciation of the political and moral reality of war—more, to adapt Justice Holmes’s maxim, in experience than in logic. So the dualistic axiom should candidly confront serious objections raised by recent theorists. At the same time, for the axiom to operate most effectively, it must adapt to new geostrategic developments, technological advances, and changes in the nature of warfare. The article concludes by clarifying how the axiom might be conceived and applied today to best serve the values and policies that underwrite it. In particular, I suggest that the axiom, despite both theoretical and practical difficulties at the margins, must be preserved rigorously and self-consciously; that ad bellum and in bello proportionality should be clarified and applied concurrently with greater precision; and that international lawyers should consider whether the values that underwrite a “humanized” IHL and international human rights law alike should ever countenance limited exceptions to the axiom (e.g., in cases of humanitarian intervention or “transformative occupation”). Above all, my hope is that the article, for all its flaws, will help to revive a dialogue about the appropriate relationship between the traditional branches of the law of war in the twenty-first century—for these issues have been conspicuously (and, I think, dangerously) absent from that dialogue.
Ed Whelan ends his latest intervention into the debate about Koh by asking, “[c]an’t anyone out there engage in honest and competent debate?” A fair question — so I thought it might be useful to take a quick look at what Whelan seems to think qualifies:
I’ll take a brief break to respond to the vapid criticisms of my posts by Koh’s defenders.I haven’t seen anything yet that rises beyond the risible.
Now a quick survey of the folly of Koh’s defenders.
The hapless (but therefore aptly named) Charlie Brown.
Publius-Poseur doesn’t know up from down about Koh.
That’s a ludicrous mischaracterization, as any sentient being who reads Koh’s own words in my posts should immediately recognize.
And she doesn’t have the decency even to link to my posts (perhaps out of fear that her readers will discover how empty her responses are).
It shouldn’t be surprising that I responded to her attacks on me rather than bothering with her trivial “core point.”
I’ll readily acknowledge that in the zoo of modern legal academia, Harold Koh isn’t an especially exotic creature (especially to other animals in the zoo).But that says much more about the state of legal academia than anything else.
Incoherent academics for Koh.
It’s long been my experience that many liberal legal academics are surprisingly unable to engage in reasoned legal argument.
Those selections, by the way, come from three posts. Honest and competent debate indeed!
PS: The saddest thing about Whelan’s feverish and dismissive writing style is that, in his more temperate moments, he has offered well-reasoned criticisms of Koh that deserve proper rebuttal. I agree with him, for example, about the potential for transnationalism to undermine what I believe are important First Amendment restrictions on criminalizing hate speech. But it’s hard to blame Koh’s defenders for ignoring those criticisms, given that all of their previous attempts to respond to Whelan have been met by nothing more than insults.
UPDATED: As he notes in the comments, Whelan has modified his most recent post to eliminate much of the rhetoric I quote above. His posts are still too dismissive for my liking — something I am guilty of myself far too often — but he deserves credit for recognizing that he wasn’t helping his own cause. And I reiterate that I hope Koh’s defenders will address the points he makes in his substantive posts, such as here.
I have tried to stay quiet in the ongoing “Koh Wars” in the blogosphere, where Ed Whelan seems to be taking on the entire legal academic blogosphere himself and getting in a bad mood about it.I am also conflicted. I am a former student of Professor Koh and I have always admired his energy, passion, and his willingness to state his views openly and clearly.Unlike some other Obama nominees, I’m sure Koh pays all of his taxes..And he is, as Ted Olson says, a really brilliant lawyer.But the standard for Senate consent ought to be a little bit more than compliance with the Internal Revenue Code and being a really smart lawyer.
If, as I do, one disagrees with Koh on many of the things he says about international law, then one might oppose his nomination.So I don’t believe it is fair for Koh defenders to dismiss criticism of Koh’s substantive legal views.Koh loves to engage in the public debate and I don’t think he would hold back from attacking, say, Harvard law professor Jack Goldsmith’s substantive legal views if Goldsmith was nominated one day to the same position.
I am sure that Koh will be confirmed eventually (perhaps once Al Franken is finally sworn in?).But I do think it is important for the Senators to ask him about questions of legal policy that may come within his purview.With a Democratic Congress, and a strongly Democratic Senate, Koh could make serious waves from his post at L.So questions should be asked, and a debate about his views is necessary and hopefully illuminating.So here goes (I’ll provide my answers and my guesses about his answers in a later post):
1)The Senate may consider three important treaties in the near future:The UN Convention on the Law of the Sea, the Convention for the Elimination of Discrimination Against Women, and the Convention on the Rights of the Child.Do you believe that it is legal and appropriate for the U.S. government to attach statements of “non-self-execution” to these treaties such as those that were attached to the International Convention on Civil and Political Rights? Would you be willing to defend the domestic legality of such provisions in U.S. litigation?
I would first like to thank David for his thoughtful reply to my initial post. I will address his three main points briefly and in order.
First, David raises a very fair set of questions regarding the choice and emphasis of my case studies. I deliberately chose three networks that were widely seen as successful in the literature, so that they would constitute “hard cases” from the perspective of my own rationalist framework. Another choice I made was to focus on “core” independent TRNs—excluding, for instance, networks formed to facilitate the implementation of European directives and other formal instruments, as well as expert networks not composed primarily of national regulators. These choices were, to a significant extent, driven by the objective of addressing directly Slaughter’s argument that TRNs are legitimate and effective precisely because they are made up of domestic regulators. The argument, it will be recalled, is that national regulators are held accountable by domestic mechanisms, and can ensure effective implementation of international standards through their existing domestic legal authority. It seems to me that this argument would play out quite differently when looking at the kinds of networks I excluded from the scope of my article. Nevertheless, as David’s mention of networks of human rights lawyers illustrates, a recurrent difficulty in the literature is that these different networks to be lumped together. In my view, both proponents and skeptics of networks would benefit from a more granular debate, one that better account for the significant differences between the various phenomena that sail under the “network” flag.
As regards my evaluation of each case study, this is ultimately a question for each reader of the article to judge. This being said, I would vigorously defend my emphasis on the failures of the Basel Committee. I would do so in light both of the disagreements of the 1990s and of the Committee’s resolute insistence, throughout the 2000s, in going forward with a capital adequacy model that is now widely regarded as theoretically flawed and overly responsive to the banks’ preferences. For more detail, I highly recommend Daniel Tarullo’s recent book on Basel II.
Second, David raises the crucial question of alternatives—TRNs, he argues, may fail, but do they fail more often than other institutions? This question is, of course, extremely difficult to answer empirically, but I believe it is also somewhat misdirected. My article is a response to what I see as an overstated normative claim about TRNs—namely, that they can provide effective and accountable global governance in a wide range of regulatory areas, without the undesirable features of more formal institutions. This claim, I argue, is flawed because regulators acting in TRNs are subject to pressure from domestic constituencies, many of the “technical” issues they attempt to address have significant distributive implications, and their informal structure struggles to achieve effective implementation and contain opportunistic defection. Once we acknowledge that TRNs suffer from such limitations, the question is not: “Are they better or worse than—say—the WTO or the UN?,” but rather: “In what circumstances are the various available models of global governance—treaty-based institutions, TRNs, non-governmental networks, and others—most likely to produce the best outcomes?” The question, in other words, becomes one of institutional design.
My article suggests part of the answer: TRNs are well-suited to address regulatory coordination problems, but not distributive and enforcement problems. This brings me to David’s third point. There is emphatically nothing wrong with coordination, and I am positively delighted that TRNs have effectively addressed some regulatory coordination issues. There is, however, a difficulty with suggesting that TRNs can achieve much more than that: it tends to conceal the institutional trade-offs—greater formality, rigidity, and international constraint on state sovereignty—that are inevitably required to deal with distribution and enforcement. This difficulty becomes more significant once we realize that so-called “technical” areas of international regulation are in fact rife with such distributive and enforcement problems, rather than being primarily coordination problems that can be solved by a rational consensus of disinterested experts.
On a more positive note, I also believe that the stark choice David posits between TRNs and the traditional “grand bargain” model—embodied by institutions like the ICJ, the UN, the UN Convention of the Law of the Sea, and the WTO—does not exhaust the possibilities. In an upcoming paper, I will argue that a more modest approach to international regulatory cooperation—based on mutual recognition among countries with comparable levels of regulation, continuous review of the adequacy of foreign standards, and credible reciprocity in rulemaking and enforcement—may be more promising in many areas. The SEC’s recent efforts to promote bilateral mutual recognition arrangements may turn out to be an important step in that direction.
Thank you again, David, for participating in this online symposium. My own perspective on TRNs is, as you pointed out, more skeptical than that of other scholars in the field. Nevertheless, I sincerely hope that my article will contribute to clarifying the issues and arguments on both sides, and that the case studies will be useful even to scholars who are more optimistic regarding the global governance potential of TRNs.
All news is local, I suppose, even in this supposedly globalized age. So it is not surprising that it took an attack on a U.S. ship with a U.S. crew to focus the American public’s attention on the piracy problem off the coast of Somalia. But as readers of this blog can attest, the piracy issue has been flagged, addressed, and analyzed carefully. Most recently, emerging piracy law expert Eugene Kontorovich has outlined the problem here.
One possible remedy for the piracy problem is self-help. That is to say, merchant ships should, like the U.S. flagged Maersk Alabama, fight back against the pirates without waiting for the Navy to show up. This appears to have more or less worked in the Alabama’s case, even though the crew was probably unarmed. The Navy is, frankly, not much help because, while they can shoot a missile out of a sky, they have a hard time tracking little speedboats. And even worse, as Prof. Kontorovich has pointed out, the Navy may not be able to shoot at the pirates even when they do show up unless the pirates shoot first. Nor are they willing to try them, or punish them, given various legal protections that the pirates now enjoy under international law and the U.S. constitutional defenses they can probably raise against a U.S. prosecution (gotta love that Boumediene case, just gotta love it).
Self-help might actually be the most effective measure, although I’d have to think about what legal rules of engagement would apply to a merchant mariner shooting at a pirate. Ironically, the merchant mariner (acting in self-defense) is probably legally better off than a naval officer in fighting pirates. And self-help is cheaper than naval protection in most cases. But it still might be more expensive than just paying the ransom, which has been the preferred option up until now.
It’s a pleasure to be able to comment on Pierre-Hugues Verdier’s excellent, if critical, article on networks. I respond as a defender: in my view, networks have notched some impressive achievements, and at their best, have become primary vehicles of international governance. From bank capital adequacy to mutual recognition on drug regulation to accounting standards, their list of achievements is, in my view, long.
Pierre disagrees. His claim, at bottom, is this: networks are basically ignorable, and because of this, they are frequently ineffective. They are ignorable because they cannot force their constituents to act in unpalatable ways, because of their informality, independence, and inability to distribute benefits and burdens across a variety of issue areas.
Pierre thus challenges networks on what, I think, their defenders have often argued are their signal advantage: we claim networks can offer meaningful international governance, often where treaties and courts cannot. His argument is powerful, and his article is a stimulating and elegant read, but, in the end, I do not think that we should reject the network form wholesale. I would defend networks by taking their measure comparatively, rather than on some absolute scale, by disputing the advantage of the formal or politicized grand bargain over the network, and by defending the value of institutions that succeed in resolving coordination games.
First: if networks fail, do they fail more or less often than other international institutions? Pierre proves his effectiveness point with case studies, and case studies can only tell part of the story. The Basel Committee enjoyed compliance early, he acknowledges, but late in its life the United States began to become recalcitrant, leading to a reformulation of the committee’s capital accords that promised to benefit American, and possibly European, banks more than any other. I’d emphasize the early achievements more than the later disagreements, but I’d also be inclined to ask about the other networks out there, of human rights lawyers doing more, perhaps, than the ICC to create global criminal law standards. And just as treaties are sometimes observed in the breach, and international custom ignored, networks may not enjoy perfect compliance at all times. IOSCO is an example of coordination that appears to have stopped at coordination of enforcement, in Pierre’s account, and I would largely agree. But holding networks to a perfect compliance standard is holding them to an unrealistic one.
Second, what’s so great about grand bargains? The legal institutions that, at least purportedly, are most encompassing are institutions regularly faced with intimations of desuetude. The United Nations, the International Court of Justice, the Law of the Sea Convention – all of these have signed up the many, and have lumbered along, ossified and frequently inactive because of it (the WTO is an exception). Networks offer less grand bargains – but that may be an advantage more than a problem, as I suggest below.
Third, what’s wrong with coordination? Many legal relationships are coordinative, in that both or all of the parties that participate in the relationship expect to benefit from it. Mutual benefit is the reason to enter any contract, but mutual benefit does not mean that contracts are failed legal instruments. Nor, as far as I know, do economists view specialist firms – firms that only produce one good, say – as less able to participate in contract than conglomerates that can trade wins in some contracts for losses in others. Specialized regulatory networks do coordinate, it is true, and they are not well-suited to trade, say, European antitrust standards for American accounting standards. But this does not mean that they cannot contribute coordination – indeed, their specialized expertise may mean that they are able to see coordination more easily than could, say, the UN, or diplomats at a US-EU summit.
Finally, for what it is worth, I think that few of the scholars who have written positively about networks are abject triumphalists. Anne-Marie Slaughter has said that networks will not replace states. Kal Raustiala has written about how networks can complement treaties, rather than replace them. I have written that networks may play the role of rulemakers in global administrative law, while other institutions will play the role of adjudicators. Indeed the only theorist who I associate with the networks-uber-alles position is David Mitrany, who wrote about the vast potential of technical coordination in the context of the failures of the League of Nations, and did so very long ago.
Network theorists should not champion their pet institution unreflectively, of course. Networks do not always work, and they do not work when we would most like them to work. The current financial crisis, for example, has unfolded with almost no international response by the Basel Committee and other economic regulators deemed to be the best, and probably the oldest and most established networks. Basel’s relative silence, IOSCO’s anodyne speeches and promises to study the matter further, and the lack of any serious response by the Financial Stability Forum, the putative network of financial regulatory networks, suggests that there are some things networks cannot do. And the primary role played by the G20 – really, a modern day Concert of Europe – in developing and coordinating what international regulatory response we have seen should give anyone pause about the primacy of law or law-like institutions in a world where political actors will continue to play a critical role.
But in the end, the problems of the network form means that perhaps it only deserves two cheers, rather than three. Pierre, I suspect, would give the network rather fewer kudos, and it is in this difference, partly of degree and partly of kind, where we ultimately disagree.
I would first like to thank Opinio Juris for hosting this online symposium on my recent article, Transnational Regulatory Networks and Their Limits. Opinio Juris has quickly become an invaluable means of keeping up with current developments in international law, and I am delighted to have this opportunity to share my thoughts with you.
In essence, the article sounds a cautionary note regarding the rise of transnational regulatory networks (TRNs) and the predominantly optimistic scholarship about them. In particular, it takes issue with the argument developed by Anne-Marie Slaughter in A New World Order, according to which TRNs are creating a revolutionary system of effective global governance without centralized world government. My response, instead of focusing on much-debated issues of accountability, representativeness or legitimacy, emphasizes the inherent limits on the effectiveness of TRNs in addressing transnational regulatory problems. This is something that lawyers tend to assume, perhaps because of the proliferation of TRNs and the sheer volume of standards they produce. I argue, however, that the effectiveness of TRNs is intrinsically limited by some of the very features—decentralization, informality, specialization—that make them normatively attractive to Slaughter and other scholars. The argument proceeds in two stages, the first theoretical, the second based on case studies of three major TRNs—the Basel Committee, IOSCO and the ICN.
First, on a theoretical level, I argue that the numerous domestic legal and political accountability mechanisms and other constraints faced by national regulators bind them to the interest of domestic constituencies and prevent them from pursuing optimal global public policy for its own sake. As a result, negotiations within TRNs reflect sharp political divides over the distributive consequences of alternative standards. Since national regulators active in TRNs generally lack the authority to offer trade-offs across issue-areas, such divides will be bridged by other means—such as weakening the substantive international standards, or imposing the standards favored by powerful states. Even after international standards are adopted, they will often be vulnerable to opportunistic defection by regulators under pressure to benefit domestic constituencies. In such circumstances, the institutional incapacity of TRNs to monitor or enforce these standards suggests that they are likely to unravel over time. In other words, localizing governance in networks of specialized regulators does not avoid the intensely political issues involved in any international negotiation, and it sometimes actually makes them harder to address effectively.
The second stage of my argument involves case studies of three TRNs—in banking, securities and antitrust—in light of my theoretical framework. In brief, these case studies reveal that TRNs have been relatively successful in overcoming international coordination problems where state interests converge—for instance, coordinating securities fraud enforcement among regulators in developed capital markets, or smoothing procedural inconsistencies and delays in international merger reviews. They have, however, faced serious difficulties when faced with distributive or enforcement problems. Thus, a close look at the Basel Committee’s capital adequacy standards reveals that, while the accord was initially successful in raising worldwide capital levels in the early 1990s, banks were gradually able to secure looser implementation by national regulators, a trend the Committee was essentially powerless to prevent. Indeed, banking interests essentially drove the recent Basel II reform, whose guiding principle was to align regulatory capital levels with internal bank risk management practices—an approach whose flaws are now evident. Likewise, the debate over cross-border enforcement of securities laws takes a very different shape when relations between major financial markets and offshore financial centers (OFCs) are concerned. Since the attractiveness of many OFCs depends on less stringent and transparent regulation, efforts to improve cooperation involve significant tension and coercive measures by powerful countries acting through bodies like the OECD and FATF.
The article concludes that ambitious claims regarding the transformative potential of TRNs are overly optimistic. Future scholarship on TRNs should be more sensitive to the political aspects of international regulation, and particularly to distributional and enforcement problems, the domestic incentives and pressures on national regulators, and the intrinsic limitations of informal governance structures. There should also be more interaction between international law work on TRNs, emerging political science work on international regulation, and legal scholarship in specialized areas of regulation such as securities, banking and antitrust. In my view, such research will contribute to international regulatory design by developing a pragmatic account of the conditions under which TRNs may be successful and desirable.
by The Editors of the Yale Journal of International Law
The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris in this third online symposium. Today, Friday, and Monday we will feature three Articles published by YJIL in Vol. 34-1, which is available for download here. Thank you very much to Peggy McGuinness and the other Opinio Juris bloggers for hosting and joining in this discussion.
Today, Pierre-Hugues Verdier (Boston University School of Law) will discuss his Article, Transnational Regulatory Networks and Their Limits. Verdier’s Article serves as a counterpoint to scholars who are enthusiastic about the potential for transgovernmental regulatory networks (TRNs)—associations through which national regulators cooperate to address common regulatory problems—to create a system of effective global governance. Verdier agrees that TRNs may be successful in overcoming relatively simple problems of coordination when state interests converge. However, where the choice of a specific policy has distributive implications, or where participating states have incentives to defect, Verdier concludes that TRNs are unlikely to be successful. Verdier analyzes three of the most salient examples of TRNs—in international securities fraud enforcement, banking regulation, and antitrust—and shows that the institutional weaknesses inherent in TRNs have limited the effectiveness of cooperation in these areas. David Zaring (Wharton School, University of Pennsylvania) will be the respondent.
On Friday, Robert Sloane (Boston University School of Law) will discuss his Article, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War. Sloane argues that the traditional analytic independence of the two branches of the law of war—(i) the jus ad bellum, which governs the resort to war, and (ii) the jus in bello, which governs the conduct of hostilities—has increasingly eroded in the modern era. Sloane argues that the cost of this ad bellum-in bello conflation is high: blurring the two threatens to compromise the efficacy of each. His Article defends the continuing vitality of the dualistic axiom while suggesting ways to improve its application today in light of recent geostrategic developments, technological advances, and changes in the nature of warfare. Derek Jinks (University of Texas Law School) will be the respondent.
On Monday, Molly Beutz Land (New York Law School) will discuss her Article, Protecting Rights Online. In this Article, Beutz explains why the human rights and access to knowledge (A2K) movements have developed disparate legal and regulatory agendas despite sharing many of the same goals. Beutz argues that the movements’ lack of agreement has inhibited coherent regulation of Internet governance. Building on recent literature discussing the design of international institutions, Beutz develops a model of “flexible harmonization” —the use of imprecise but binding international norms—that responds to the regulatory goals and concerns of both the human rights and A2K movements. Beutz uses this model to evaluate two proposed regulatory frameworks for Internet governance and examines the conditions under which a model of flexible harmonization could be employed in other contexts. Peter Yu (Drake University School of Law) will be the respondent.
We hope that you will join us for what is sure to be a vigorous and thought-provoking exchange!
In the case of Moldova, the question will be whether the protests continue and, if so, their size. While Moldova’s President Voronin is term-limited out of office, based on the recent parliamentary elections, the ruling Communist Party (headed by Voronin) will stay in power. The question is whether the protests will up-end the the political status quo. I’ll write a longer analysis on the situation Moldova in the near future.
Georgian opposition movements have planned mass protests for April 9, mostly in Tbilisi but also around the country. These protests could spell trouble for President Mikhail Saakashvili. The Western-leaning president has faced protests before, but this time the opposition is more consolidated than in the past. Furthermore, some members of the government are expected to join in the protests, and Russia has stepped up its efforts to oust Saakashvili.
Mary Ellen O’Connell (whose recent book The Power and the Purpose of International Law was the subject of one of our book discussions) has a post at Balkinization called “Who’s Afraid of International Law?” that considers the fear-mongering by some in the media concerning international law. After briefly discussing the views of the Founders, she writes:
So why does Glen Beck seem to fear international law? Why is he and decrying strong international lawyers in America’s top international law jobs? As with so many things we fear, the critics seem to be speaking against something they do not understand. At times they appear to be confusing international law with communism or other ideologies against which Americans have had to struggle in war and peace.
International law is not an ideology. It is a system of law. It is almost 400 years old. The United States today may claim credit for some of the most important developments in international law. Since the Founding, our leaders have consistently understood the importance of international law to American goals and values. It is true that beginning in the 1960s, misinformation and misunderstanding about international law began to emerge political science departments, then apparently even crept into some law schools. We now have a knowledge gap respecting international law in the United States and it is becoming a handicap in our relations with other nations. It is time to return to our roots and become learned again in this area of law.
I think the point that international law is not an ideology but simply the obligations to which we are bound is a point worthy of emphasis. One of the reasons the debate over the Koh nomination is so important is because it is shaping public opinion not only about Koh but also about international law itself. And the problem is that, from the fevered ramblings of Glenn Beck to the calmer insinuations of Ed Whelan, there’s a good deal of misinformation being bandied about. Unfortunately, this may be the first time many of their readers or listeners hear about “customary international law” or “transnational legal process” (and, in any case, neither Beck nor Whelan call it that, but turn it into an ideological “-ism”: transnationalism).
There will be plenty to say in the coming days on the specific substantive points of the debate. For now, I just was struck by this observation that arguments that “international law is part of our law” (to quote the Supreme Court) are being spun by the punditocracy to seem radical and against our Constitutional traditions.
However, in regards to the Koh nomination, I am heartened by the push-back in the blogosphere (such as: 1, 2, 3, 4, 5, 6, 7), by conservative students at Yale, and also by prominent officials from across party lines. A few days ago, Ted Olson defended Koh from the right-wing criticism. A letter in support of the Koh nomination that has been recently delivered to the Senate Foreign Relations Committee includes signatories such as former Republican State Department Legal Advisers John Bellinger, William Taft, and Davis Robinson as well as former Democratic Legal Advisers David Andrews, Conrad Harper, Roberts Owen and Herbert Hansell. If I had to throw in my lot with Glenn Beck and Ed Whelan or with this list of signatories, I would choose the latter. (And I did, and signed the letter of endorsement as well.)
Ed Whelan responds to my post mostly through name-calling, labeling me an incoherent, liberal academic. Yet, no amount of ad hominem attack can obscure the basic weakness of his argument. He continues to worry that international elites will subvert the will of democratically elected leaders in the executive and legislative branches. But who exactly are these international elites and how does Whelan think this subverting will be done?
At one point, Whelan seems to focus on academics and NGOs as his elite culprits, picturing them imposing customary international law on an unwilling democratic majority. But that is simply a red herring. After all, academics and NGOs have no power to create law on their own. They can only make arguments that it would be in the best interest of the United States to follow certain international norms. And to whom do they make such arguments? Well, to the extent that the arguments are made to the legislative or executive branches, then clearly the international law argument is not subverting the democratic political process; it is part of that process.
Therefore Whelan must really be focused only on the specter of so-called “transnationalist” judges overturning the will of democratically elected leaders. But this concern is also without foundation. After all, when interpreting constitutional provisions, not a single sitting U.S. Supreme Court justice has taken the position that international or foreign law constitutes binding authority. As to concerns about customary international law, there are, as Whelan points out, hundreds of pages of academic debate on the precise nuances of how customary international law and federal common law interact, but the key point is that Koh’s position on this question is firmly within the mainstream of legal thought. Indeed, courts perform common law adjudication all the time to resolve ambiguities or lacunae in the law, and when they do, they frequently consult treatises or other materials. To claim that doing so somehow means that judges are subverting democratic processes is at best hyperbole and at worst distortion. Indeed, most of Whelan’s arguments seem to be equally applicable to all forms of judicial review, but if Whelan is opposed to judicial review, then it is Whelan who is the extremist, seeking to turn back the clock hundreds of years on matters that have been settled in this country since the founding era. And that’s an argument that has nothing to do with international law at all.
Most fundamentally, Whelan ignores the core point of my post, which is simply that Harold Hongju Koh is a mainstream scholar and lawyer who has won praise from Democrats and Republicans alike and who has even-handedly served in Democratic and Republican administrations. Whoever the “transnationlist elites” may be that Whelan’s fevered imagination pictures taking over the world, Koh is simply not one of them.
Somali pirates have seized a US-flagged ship carrying relief aid and 20 Americans, the New York Times reports. It is the first time in a long time - I haven’t looked hard and could be wrong, but I couldn’t find any indication of a US-flagged ship being seized by pirates going back at least a decade. We’ve talked before on this blog about international responses to piracy. I’ve suggested that in some ways it is a made-for-TV issue for the Obama administration - a chance to show multilateral leadership in a firm, security-related way. American ship? American crew being held hostage? Ship carrying relief supplies? There’s already a Security Council resolution and, for once, general agreement among the great powers that everyone favors secure seas through the region - China, Russia, Saudi Arabia, etc. Of course, it is never that simple once the pirates actually have hostages.
Last week, on April 1, the European Community (EC) signed onto the Hague Choice of Courts Convention. The treaty essentially seeks to replicate for covered commercial contracts a regime of judgment recognition in cases where parties exclusively agreed on a particular court for their disputes akin to the recognition of arbitral awards that occurs under the New York Convention. The EC signature is interesting in a several respects.
First, the timing of the signature suggests that the EC has opted to follow the U.S. lead. It comes weeks after the U.S. signature on January 19, in the last days of the Bush Administration. In the three years prior to U.S. signature, the treaty had lain dormant; only Mexico had acceded to it in 2007. How firmly either the United States or the EC will support this treaty remains to be seen, however, since they have to take the additional step of ratification or acceptance to join it. And in doing so either might include reservations, understandings or declarations that modify the treaty’s scope or operation in significant ways. Moreover, I’m not sure this one instance of the EC following U.S. leadership can be read to have broader political overtones for the future of U.S.-European relations. As I understand it, this treaty would not make much sense without U.S. participation given the large number of contracts that choose U.S. courts for dispute resolution. Thus, it might be that the EC simply held off its signature decision until it was sure a necessary party–the United States–was ready to proceed with ratification.
It is a rare thing indeed to find a published mediation decision involving a matter of such profound importance as the settlement of 9/11 litigation. Last month, Judge Hellerstein of the Southern District of New York published an order accepting the mediated settlement of 95 claims against the airlines for approximately $500 million. The order and accompanying mediator report are important examples of one area of international litigation that is sorely neglected. Among the issues resolved by the mediator, Sheila Birnbaum, was how to settle international claims covered by the Warsaw Convention and related protocols. She also raises an extremely interesting question of whether traditional litigation, mediation, or a “victim’s compensation fund” is good policy in the event of some future tragedy. Here is an excerpt from the mediator’s report:
Bangladesh may request the International Criminal Courtto put on trial Pakistani forces for alleged war crimes, a top official said Tuesday.
‘We will take the matter to the International Criminal Court and seek the trial of the members of the Pakistani occupation forces who committed crimes against humanity during our liberation war,’ State Minister for Liberation War Affairs, AB Tajul Islam, told German Press Agency dpa.
The alleged perpetrators of the atrocities among the Pakistani forces were not in Bangladesh now, so Dhaka needed international assistance to bring them to justice, he added.
‘And we will request the world body to bring them to justice as many of them are guilty of war crimes,’ said Tajul, a war veteran. He said the government was going to appoint a body to reinvestigate the crimes.
A good idea in theory, to be sure. But two small practical problems: neither Bangladesh nor Pakistan is a member of the ICC, and Bangladesh’s war for liberation ended — successfully — in 1971, 31 years before the beginning of the ICC’s temporal jurisdiction.
My long slow slide into complete disenchantment with the Obama administration continues. Comes now, via my two favorite national-security law bloggers, Glenn Greewald and Scott Horton, a truly terrifying tale in which a nameless and faceless Department of Defense committee attempts to put Clive Stafford Smith, one of the world’s great human-rights lawyers, in jail for… trying to inform President Obama about the torture to which his client, Binyam Mohamed, has been subjected at Guantanamo Bay. Greenwald:
In his quest to obtain key documents proving that his client was tortured at the hands of the Bush administration, Smith is now involved in a truly bizarre though revealing controversy, first reported last Thursday by The Guardian. In February, Smith wrote a letter to President Obama urging Obama to authorize the release of evidence relevant to Mohamed’s torture so that Obama does not become complicit in covering-up crimes of torture (which is itself a crime). Smith attached to his letter to Obama a 2-page memo detailing the facts proving his client’s torture. But under the rigid rules of Guantanamo, all lawyers for detainees are barred (under threat of criminal penalties) from disclosing any information they learn from their clients — even if the subject of the communication is the torture to which their clients were subjected — without first obtaining the approval from something called the ”Privilege Review Team,” a secret tribunal of Pentagon officials who monitor and censor all communications from Guantanamo lawyers.
As a formality, Smith submitted his letter to President Obama to this Privilege Review Team, naturally assuming (since Obama obviously has full security clearances) that it would be passed on to Obama without any problems. Instead, the letter was sent back to Smithwith the entire body of the memo — every word — redacted with black blocks, with only the “from” line left (see the unbelievable redacted memo here — .pdf) [kjh -- scroll down to p. 4]. In other words, the Privilege Review Team blocked Smith from communicating to President Obama the facts surrounding his client’s torture at Guantanamo. Smith then sent that redacted memo directly to Obama along with a new cover letter informing Obama of the ”bizarre reality” that “you, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command.”
As a response to that new letter, Smith and a colleague of his have now been summoned to appear before a Washington court on May 11, to answer a criminal complaint filed by the Privilege Review Team, alleging that Smith — merely by sending Obama the redacted memo — has violated the secrecy terms to which he is bound. He faces up to six months in prison if found guilty.
Just think about that: these Pentagon officials — who have long been accused of using their censoring powers to hide evidence of torture at Guantanamo — first blocked Smith from sending Obama any information about his client’s torture, and now seek to criminally punish him merely for notifying Obama of how extensively his letter to Obama had been redacted by that Pentagon agency. If that isn’t the behavior of a lawless and tyrannical government completely out of control, it is hard to know what is.
One thing needs to be emphasized: President Obama is not the victim here. He is the Commander-in-Chief. He controls the Pentagon. He is responsible for the actions of the Privilege Review Team.
[ Laura Dickinson is Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]
Recent attempts to criticize Harold Hongju Koh’s appointment to be the Legal Adviser at the U.S. Department of State have gone from silly to absurd. Koh, currently the Dean and the Gerard C. and Bernice Latrobe Smith Professor at Yale Law School, is one of the nation’s leading lawyers and scholars, and his ideas fit firmly within the mainstream legal tradition in the United States. He has served with distinction in both Republican and Democratic administrations, first in the Office of Legal Counsel during the presidency of Ronald Reagan and second as the Assistant Secretary of State for Democracy, Human Rights, and Labor under President Bill Clinton – a position in which, having been confirmed unanimously by the U.S. Senate, he received praise from Democrats and Republicans alike. (Not only had I been his student, but I had served as policy adviser for Koh when he held this position.) He clerked for two judges appointed by Republican Presidents, Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. He has argued before the U.S. Supreme Court and testified in Congress more than thirty times. And he has authored or co-authored eight books and more than 150 articles, has won more than thirty awards for his litigation, and has earned two life-time achievement awards (from the American Bar Association and Columbia Law School) before reaching the age of 45. Moreover, he has sued both democratic and republican administrations — and has advanced the cause of Cuban refugees fleeing Fidel Castro’s regime. Conservative students and Federalist Society members from Yale Law School support his candidacy.
Thus, when far-right bloggers tried to smear Koh by spreading a patently false rumor, that Koh wanted Islamic law to govern cases in U.S. courts, it would have been laughable had Fox News not picked up the story. Fortunately, the organizer of the event where Koh purportedly made the comment has flatly stated that Koh said no such thing.
More recent efforts to tarnish Koh by arguing that his “transnationalist legal views threaten fundamental American principles of representative government,” a position argued by Ed Whelan at the National Review Online, are equally absurd.
Koh’s transnationalist legal perspective does no such thing. It is a simple recognition of our legal interdependence with the rest of the world–traditional, not novel; not a surrender of sovereignty but a recognition that we must engage diplomatically to assert our interests. Indeed, even the conservative law professor Eric Posner has acknowledged that the core ideas behind Koh’s transnationalist legal perspective are so mainstream as to be even bland:
When the president ratifies a treaty with senate consent, the treaty becomes a part of American law; if the treaty is self-executing, courts will enforce its provisions. Congress can also adopt international law by statute. Common law courts, including federal courts using their limited common law powers, are free to draw on international and foreign law for inspiration, and often do. And federal courts sometimes rely on norms of international law for the purpose of interpreting ambiguous statutes and . . . constitutional provisions such as the eighth amendment. The observation that courts do these things is not controversial.
Thus, when Koh argued in an amicus brief to the U.S. Supreme Court that it might consider foreign and international law and practice in deciding whether the eighth amendment of the Constitution’s ban on cruel and unusual punishment prohibits the execution of children, senior diplomats from both Republican and Democratic administrations joined him on the brief. Koh did not contend that foreign and international law was controlling, but rather merely relevant – one source among many that the Court could consider – a position the Court agreed with.
Indeed, Koh’s transnationalist legal perspective does not in any respect hold that international or foreign law binds us contrary to our interests; it only suggests that it may often actually be in our interest, as the Declaration of Independence asserts, to “pay a decent respect to the opinions of mankind.” Koh’s transnationalist legal perspective merely admits the possibility that how we act in the world (and the interests we are able to achieve) may be affected by how we are seen by others. Nothing particularly controversial is contained in such a position.
Ed Whelan has argued that Koh’s approach to transnational legal process would allow “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.” This is clearly incorrect. Koh’s book, The National Security Constitution, is all about how Congress and the executive branch both have an important role to play in pursuing national security issues. Thus, Koh’s vision of how national security matters should be debated actually gives more power to Congress – something Republican senators should want – than the Bush Administration’s policy of executive branch supremacy.
In short, nothing in Koh’s background or views warrants the extreme and wrong-headed criticism he is receiving. All fair-minded citizens should resist these transparently partisan efforts to denigrate one of the country’s most distinguished public servants.
If you read one article about the recently released February 2007 ICRC report on U.S. use of torture, read this one by Mark Danner in the current issue of the NY Review of Books. Danner correctly points out that, at least since 2004, the broad contours of the practice of torture by the U.S. government have been publicly known. But despite that fact, the American press and the public have largely treated the question of torture not as a moral or legal question, but as a question of national security: Does torture work to make us safer? The debate has recently been rejoined by former VP Cheney, asserting that President Obama’s prohibition against torture and repeal of other Bush-era legal policies has made us less safe. As we head into the next phase of this dark narrative — criminal and civil cases brought abroad, either a special prosecutor or truth commission/congressional panel at home — Danner explains why the debate over the utility of torture it is central, why the press, on its own, cannot resolve this fundamental question, and why a full investigation with the power to review all available classified information, is essential:
Our colleagues at International Law Observer asked me to write a post for them in honor of the blog’s second anniversary. I was delighted to do so, and the post is now up. It’s a long reflection on the pros and cons of international law blogging — a timely subject, I think, given that I have been cited twice by international tribunals in the past two weeks, once positively (regarding Bashir) and once negatively (regarding Karadzic).
The post is here. Feel free to offer your thoughts in the comments below.
Foreign-law opponents, take heart! Koh is not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law serves as a handy vehicle, to be used or ignored to the extent necessary to reach this goal. Obama is certainly entitled to have a mainstream liberal lawyer like Koh in his government. In case you haven’t noticed, Koh won’t be the only one.
For my part, I wish I were wrong, and that Koh’s tenure would be a real test of legal cosmopolitanism, properly understood. I would love to be a fly on the wall when Koh explains to Hillary Clinton that customary international law prohibits the death penalty, and accordingly the United States has a legal obligation to eliminate the death penalty and should urge places like China to do the same. I would expect that Koh would soon find himself negotiating embassy lease agreements in Burkina Faso. But Koh will not be so rash. In his writings, Koh has been careful to leave this final evolution of the customary international law on capital punishment to the undefined future, a mark of prudence that should serve him well in government.
I agree with Eric about this, and also what he says in the rest of that post. The whole thing is worth reading. In general, I find the Obama administration’s foreign policy to be shifting, sometimes abruptly, back and forth between liberal internationalism and what I have called the ‘new liberal realism’. Dean Koh exemplifies the former, while Hillary Clinton’s brusque de-coupling of human rights from relations with America’s once-and-future creditor, China, exemplifies the latter, and it is hard to tell in these early days where it finally balances.
Notwithstanding that for many academics, the debate over global governance has shifted away from NGOs, and the debate over NGOs has shifted away from ‘representativeness’ and ‘legitimacy’ to ‘accountability’ in a narrower and more local sense, I suggest in this review essay, in the new AJIL (January 2009), of a 2006 book on NGO accountability, that the questions of legitimacy and governance have not really disappeared. Submerged, but not gone, with incentives to make claims of legitimacy that are as inflated as ever, and one of these days we will see the return of the repressed. The book under review, NGO Accountability, has outstanding essays by Steve Charnovitz (who in many respects pioneered the narrowing of the focus of accountability to make it practical and useful) and Enrique Peruzzotti. Here is an excerpt from the unedited version AJIL allowed me to post at SSRN …
I’ve always loved the New York Times. I’ve been reading it since I was a kid. But this comment by the paper’s Executive Editor, Bill “Isn’t the Iraq War Just Swell?” Keller, makes me want to cancel my subscription:
Saving the New York Times now ranks with saving Darfur as a high-minded cause.
Yeah, propping up the Gray Lady is just as important as preventing the deaths of untold thousands. I hope my friends at Enough and Stop Genocide Now will adjust their mandates accordingly.
He had become the most vocal opponent of the trial of Guantanamo Bay detainee Omar Khadr, taking on a position more akin to politician than lawyer and launching a two-year public and media campaign that landed him on the front pages of newspapers and inside glossy magazines.
But U.S. Navy lawyer William Kuebler’s role as the Pentagon-appointed defender of 22-year-old Khadr came to an end today when he was fired from the case.
An internal investigation by Guantanamo’s Chief Defence lawyer, Col. Peter Masciola, had been launched into Kuebler’s conduct in February following months of backroom fighting among the Pentagon’s defence team. Kuebler had accused Masciola of a “conflict of interest.”
Kuebler was dismissed for the improper supervision and management of Khadr’s defence team, according to an email sent Friday night by Guantanamo’s Deputy Chief Defence lawyer Michael Berrigan. Kuebler’s re-assignment was “in the best interests of Omar Khadr, and necessary to pursue a client-centered representation.”
[snip]
Reached in his office today, Kuebler said he could not comment. A press release, issued on his behalf, lashed out at Masciola, saying he was acting “to support he agenda of military prosecutors.”
Col. Masciola certainly has an interesting conception of “client-centered representation.” He blocked Kuebler from seeing Khadr in February, and one of Khadr’s Canadian lawyers has made it clear that Khadr himself was not involved in the decision to fire Kuebler — and may not even know about it.
Michael Innes, over at ComplexTerrainLab posts up a comment on a new journal, Critical Studies on Terrorism, and a (scathing) review of it in another journal, Studies in Conflict and Terrorism. Here is Innes describing the dustup …
Tod Lindberg, research fellow at the Hoover Institution and editor of Policy Review, has a new article out in Commentary, ”The Only Way to Prevent Genocide.” The article argues that while “creative diplomacy” can make a difference, in “the end, it may all come down to the willingness of the United States to act.” It then walks back through the ways in which a consensus was built on a bi-partisan basis to support the idea of “responsibility to protect” in Washington …
It’s not exactly international law, but he was my professor at CU — one of the very best I ever had — and, in order to rule in his favor, the jury had to find that a majority of the Regents used his infamous 9/11 essay as a “substantial or motivating factor” in the decision to fire him. So I think there’s a nexus.
I’m delighted at the outcome, although the jury’s award of $1.00 in damages is puzzling. The real issue is whether Churchill will be reinstated at CU, which is up to the judge, not the jury.
Whatever one thinks of Churchill, his victory is very good news for academic freedom. You can read about the trial in remarkable detail at Race to the Bottom. I followed the trial closely, and am more than a little biased, but the vast majority of the research-misconduct allegations against Churchill seemed amazingly petty: the kind of “mistakes” — most were simply differences of scholarly opinion — that I imagine a disciplinary committee bent on firing someone could find in the work of anyone who had been a prolific scholar for nearly 30 years. (The only genuinely disturbing plagiarism allegation, for which he had a decent explanation, took place before Churchill was at CU and could not be used as a reason for his dismissal.)
All in all, an excellent result. Fingers crossed that the judge reinstates him.
UPDATE: A minor note. The New York Times article says that “[a] reinstatement would likely draw a sharply negative reaction among many on the faculty, since a faculty committee was instrumental in his firing.” That is a somewhat misleading statement. Three CU committees reviewed the allegations against Churchill, and although all of them concluded that he had engaged in misconduct, only one — the Standing Committee on Research Misconduct — recommended that he be fired. Indeed, the final committee, Privilege & Tenure, voted 4-1 against firing him.
I know I shouldn’t let mainstream American conservatives’ ignorance of international law bother me, but it does. Today’s example:
The United States is not a signatory to the International Criminal Court, and Spanish judge and prosecutor Baltasar Garzon is a good reason why.
He is considering a lawsuit by lawyers for human rights groups seeking the arrest and extradition of six former Bush administration officials for sanctioning torture at Guantanamo Bay. The New York Times quoted an official as saying it is “highly probable” Garzon will grant the arrest warrants.
Spanish law and a doctrine called universal competence — an underpinning of the ICC — allow Spain and other governments to arrest and try persons for heinous offenses, generally war crimes, even if the crime did not occur on Spanish soil or involve Spanish citizens.
The author at least gets props for making as many mistakes as humanly possible in the space of three paragraphs: (1) the US is a signatory to the Rome Statute; (2) it’s “universal jurisdiction,” not “universal competence”; and (3) universal jurisdiction is not an “underpinning of the ICC.”
Oh, and by the way, the title of the editorial? “A Misuse of International Law.”
PS: Before someone writes in to claim “gotcha,” I’m fully aware that universal jurisdiction is sometimes referred to as “universal competence,” particularly in reference to Belgium’s controversial law. No one who knows anything about international law, though, would use that term instead of “universal jurisdiction.”
Read all about today’s blockbuster decision in which a U.S. federal district court held, in light of Boumediene, that detainees held at the U.S. Air Force Base in Bagram, Afghanistan, have a constitutional right to petition for a writ of habeas corpus in U.S. courts. A longer description and link to the 53-page opinion are here. Key caveat: habeas extends to those Bagram detainees who were picked up in countries other than Afghanistan, and later shipped to Bagram – which has come to serve not simply as a conflict theater prison, but as some sort of international holding facility for at least some number of random terrorist suspects. Whether and when the writ may extend to more traditional international armed conflict-like prisoners at Bagram? Looks like that’s yet to be determined.
More one of these days, but for now, I’m back to reading….
Following-up on my post on Harold Koh’s nomination, in the first part of this post I round-up some links to new stories and blog posts on Koh’s nomination. Moreover, after the “continue reading” jump there is a guest post from Prof. Anupam Chander of the University of California, Davis (currently visiting at the University of Chicago).
In the last day or so, a variety of news outlets have picked-up the story of the reaction to the anti-Koh spin of some right-wing blogs and media outlets. In particular, Dahlia Lithwick has an analysis at Slate of the anti-Koh rhetoric from the far Right. The New York Timeshas picked-up the story, writing:
“Once we sign our rights over to international law, the Constitution is officially dead,” the Fox News commentator Glenn Beck bemoaned Monday in a scathing critique of Mr. Koh.
Unfortunately for Mr. Koh’s critics, his academic record does not fit into quite so neat a sound bite, and his supporters have been quick to rally to his defense.
“This is all just an attempt to whip up hysteria,” said Pamela S. Karlan, a professor at Stanford Law School who was one of 11 prominent law professors who sent a letter to Congress on Wednesday in support of President Obama’s announcement last month that he planned to nominate Mr. Koh as the legal adviser to the State Department.
Despite the attacks, there was no sign in the Senate that Mr. Koh’s nomination was in jeopardy, and the White House stood firmly behind the pick.
Reid Cherlin, a spokesman for the White House, called the attacks on Mr. Koh “a gross mischaracterization” and said that “you have political opponents of the president who are motivated by their opposition to his agenda who are mischaracterizing or fabricating statements by Dean Koh.”
At the center of the dispute is a statement that Mr. Koh was said to have made in 2007 at a Yale alumni event in Greenwich, Conn. One guest at the event wrote in a blog item on a conservative Web site at the time that Mr. Koh had made a “favorable reference” to Shariah, or Islamic law, and had said it could be used to “govern a controversy” in an American court.
Conservative commentators like Mr. Beck and Web sites like Jihad Watch quickly focused on the alleged statement after The New York Post carried an article featuring it.
But Robin Reeves Zorthian, who organized the Yale event in Greenwich, said Mr. Stein “was totally mischaracterizing what Dean Koh said.” Ms. Zorthian said Mr. Stein had initiated an animated series of questions with Mr. Koh about international law and raised the issue of Shariah and its place in American law. She said Mr. Koh had said that there were “common underlying concepts” in many legal systems around the world but that he never voiced support for allowing Shariah to be used in American courts.
It is good to see a news outlet actually try to find out what was said. That ”anecdote” about using shari’a law in the U.S. is racing all over the right-wing blogosphere with nothing to back it up. The Times also quoted our own Deborah Pearlstein:
“You can’t attack this guy on his qualifications,” said Deborah Pearlstein, a scholar on international law at the Woodrow Wilson Institute who has worked with Mr. Koh on human rights issues.
“I hate to see the blogosphere drive questions about this nominee,” Ms. Pearlstein said. “There are legitimate areas of debate on matters of international law, but whether or not he would impose Shariah law in the United States is not one of them.”
Besides these news stories, there have also been various further reactions in the blogosphere to the anti-Koh rhetoric. Brandt Goldstein has an essay at the Huffington Post in favor of the Koh nomination. Austen Parrish has a short piece at Prawfsblawg. And I already mentioned Beth Van Schaack’s post over at IntLawGrrls (where she puts an end to that weird Mother’s Day rumor).
In addition, Anupam Chander has sent in a guest post on the Koh nomination. Prof. Chander teaches at the University of California-Davis, School of Law, and is currently a Visiting Professor at the University of Chicago Law School. Following the “continue reading” jump is his post, which can also be seen at his blog…
Back in February, I noted that the ASIL Task Force on U.S. Policy Toward the International Criminal Court had adopted a set of recommendations for how the Obama Administration could take steps to engage with the ICC in new, more positive ways than the preceding Bush Administration. As part of the ASIL Conference last week, the Task Force released a Report to support their earlier Recommendations (full disclosure–I was asked for, and provided advice to, the Task Force, on the legal effects of John Bolton’s 2002 letter indicating the United States did not intend to ratify the Rome Statute).
Here’s the quick take-away version from the Report’s Executive Summary:
The Court is in the early stage of development, now convening its first trial. And yet, it has an emerging track record of engagement in situations of great interest to the United States. In 2010, the Assembly of States Parties to the Rome Statute will convene its first Review Conference to consider the future direction of the Court. Among the issues to be addressed at the Review Conference are defining the crime of aggression and setting out the conditions under which the Court shall exercise jurisdiction over allegations of aggression—steps that inevitably implicate U.S. interests. The time is ripe for a review of U.S. policy toward the Court, to assess its performance to date and identify ways in which the United States might, in its own interests as well as those of the international community, more effectively contribute to the development of the Court.
This Task Force has undertaken such a review, hearing from more than a dozen experts and officials representing a variety of perspectives on the ICC. Our conclusion—detailed in the recommendations in this report—is that the United States should announce a policy of positive engagement with the Court, and that this policy should be reflected in concrete support for the Court’s efforts and the elimination of legal and other obstacles to such support. The Task Force does not recommend U.S. ratification of the Rome Statute at this time. But it urges engagement with the ICC and the Assembly of States Parties in a manner that enables the United States to help further shape the Court into an effective accountability mechanism. The Task Force believes that such engagement will also facilitate future consideration of whether the United States should join the Court.
The Report goes on to talk about a host of ICC-related issues, including the Rome Statute’s consistency with other rules of international law, the legal effects of the 2002 Bolton letter on U.S. obligations under the “object and purpose” rule found in Article 18 of the Vienna Convention on the Law of Treaties, the constraints of the American Service-Members’ Protection Act of 2002, Article 98 Agreements, complimentarity, as well as U.S. constitutional questions relating to due process and the construction of domestic courts. For those interested in the ICC, and more particularly, the future of U.S. relations with the Court, there’s a lot to digest here. Given the expertise and bipartisan nature of the Task Force, I’ll be interested to see how the State Department responds to the Report and its recommendations.
On Monday, the Eleventh Circuit rendered an interesting opinion in the case of King v. Cessna Aircraft on the subject of forum non conveniens and the rights foreign plaintiffs under bilateral treaties. The case arose out of wrongful death actions by American and European plaintiffs against Cessna Aircraft arising from a plane crash in Italy. The district court dismissed on forum non the claims of all the European plaintiffs but none of the American plaintiffs. It then stayed the litigation pending resolution of the European plaintiffs’ claims in Italian courts. The question presented is whether bilateral FCN treaties between the United States and Denmark, Finland, Italy, Norway, and Romania–all of which guarantee the foreign nationals “no less favorable” access to U.S. courts–should impact the private interest analysis under forum non conveniens. Here is how the Eleventh Circuit ruled on the question:
The Council resolution is significant less for what it says than for the fact of its adoption, which reflects the growing interconnections between the worlds of climate change and human rights. The resolution notes that “climate change-related effects have a wide range of implications … for the enjoyment of human rights” and “affirms” that “human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.” But the Council’s only concrete decision was to hold a panel discussion on climate change and human rights next year.
I’m all in favor of letting a thousand flowers bloom in the effort to combat climate change, and can understand the appeal of human rights approaches. . .
January 28, 2010 Barrett Commentary to "The Art and Craft of International Environmental Law"
Dan Bodansky’s new book doesn’t just explain what international environmental law is. It explains why it exists, how it develops, and, very importantly, whether it makes a difference—a difference that you and I can experience in our everyday lives.
January 21, 2010 Reflections on the Ugandan Anti-Homosexuality Bill
The proposed anti-homosexuality legislation introduced by Ugandan parliament back-bencher David Bahati is creating an international outcry. The bill--introduced as a private member's bill without government support--would impose the death penalty for "aggravated homosexuality," defined as "sex with a minor or a disabled person, where the offender is HIV-positive, a parent or a person in authority over the victim, or where drugs are used to overpower the victim.
January 15, 2010 Innovative Aid to Haiti
The current issue of Foreign Affairs has an article called A Few Dollars at a Time: How to Tap Consumers for Development, which describes the "innovative financing" movement in which private companies find ways for their customers to contribute to international development. This morning, I came across an example that I guess you could call "innovative aid" as it isn't so much development financing but rather disaster relief to Haiti.
January 10, 2010 Carl Schmitt's Nuremberg Near-Miss
I've been writing Chapter 3 of my book on the Nuremberg Military Tribunals, which traces the evolution of the Office of the Chief of Counsel's trial program -- how it selected the twelve cases, why it abandoned others, which suspects it included and which it excluded. It's a fun chapter to write, both because no one has ever done it and because it gives rare insight into the thought processes of Telford Taylor and the other prosecutors.
January 5, 2010 D.C. Circuit Speaks on Gitmo Habeas Merits
Cross-posted at Balkinization
The new year starts with no shortage of Gitmo-related matters to blog about, starting with today’s important decision from a panel of the D. C.
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