One aspect of Amos’ proposal that I think needs to be emphasized is that he suggests curtailing certain types of speech because of certain hoped-for practical advantages in counter-terrorism. It is, essentially, a utilitarian argument. However, taking his suggestion on its own terms, I am not persuaded that the U.S. undertaking a new policy of curtailing religious speech would in fact enhance security. As Mark Movsesian mentioned in his recent post, I look forward to some concrete examples of how Amos suggests effectuating such a policy. But, based on my current understanding of Amos’s proposal, I think that regulating religious speech in the interest of national security would at best have little impact and at worst may be counterproductive.

The problem of being ineffective comes is due to two independent problems: the problem of secular terrorism and the problem of metaphorical speech.

Mark Movsesian laid out the secular terrorism issue in his two posts and I largely agree with his observations and argument. I would like to underscore that terrorism around the world is just as often (if not more often) wrapped-up in the language of nationalism, race, class, or ethnicity. To target religious speech would be target only part of the overall problem of terrorism. I am as yet unconvinced that this would warrant such a profound incursion into the First Amendment.

Moreover, it is unclear to me that the root cause of much of today’s supposedly religious terrorism is in fact religion. So many of the “foot soldiers” of terrorism are recruited out of slums where there is little sense of hope. Yes, there are also the Mohammed Attas of the world, relatively well-off and willing to murder civilians for a religious cause—but the story of terrorism recruitment is still primarily a story of targeting people (usually adolescent boys) who have little hope for a better future. Desperationis the lifeblood of terrorism; religious speech is often simply a motivational and organizational technique. Strike at religious speech and you have not eradicated the root of terrorism; it will simply continue under one of the secular organizational logics (class, race, nation, etc.) that are used so often.

There is also the problem of metaphorical speech. While issuing a proclamation that someone must be killed is clear enough, what do we make of a cry from a pulpit for “God to rain down his judgment on [some person or people]?” Is that an actual call to violence? What if one asks for “lashes of fire”(to use Amos’s example)? Some might view that as merely metaphorical language. Others may interpret it as an order for a hit. Would Amos suggest an regulating religious speech beyond our current laws concerning incitement? If so, to prohibit metaphorical language that could be interpreted as a call to violence is to give the secular government the role of religious interpreter. This would not only degrade religious speech but place the government in a no-win situation in which it would essentially have to decide which religious speech or metaphor is important to a religion and which is not. The true bad actors can always further hide their intentions in further coded or metaphorical language.

These concerns all make me wonder whether the regulation of religious speech in the interest of national security would be effective. But I am also concerned that it would actually be counter-productive. If terrorist recruiters feed on a sense of grievance, of “otherness,” then we would ratify their arguments by outlawing people simply talking about God or religion in the way that they want. Even if each assessment was on a case-by-case (or metaphor-by-metaphor?)basis, given the risk of misinterpreting a religious tradition that one does not understand well, there is a real risk of over-regulation the U.S. government of Islamic religious speech and possibly “under-regulating” ostensibly Christian speech. Each such slip-up either way could be a public relations bonanza for the al Qaedas of the world. Better, perhaps, to leave theology to the theologians.

I thank Professors Guiora and Cliteur for their thoughtful interventions. As I see it, the basic distinction Prof. Guiora draws is between terrorism motivated by religious convictions – “religious terrorism” – and terrorism motivated by non-religious convictions – “non-religious terrorism.” Despite their arguments, though, I fear I am still not persuaded that this distinction is very helpful.

For instance, Prof. Guiora asserts that we should focus on religious terrorism for a practical reason: although non-religious terrorism was important in the past, terrorism today is of the religious variety. He’s right that much contemporary terrorism is religious in nature, maybe even most. But he minimizes the endurance of non-religious terrorism. I’ve already mentioned the Shining Path in Peru. Other examples include ETA in Spain, N17 and its splinter groups in Greece, the New People’s Army in the Philippines and the Tamil Tigers in Sri Lanka. None of these groups fits within the category of “religious terrorism,” and, while they are not as effective as they were, one can’t dismiss them as unimportant or merely relics. The Tamil Tigers, the group that invented suicide bombing, were defeated by the Sri Lankan military only last year.

As I understand him, Prof. Cliteur agrees with Prof. Guiora that religious terrorism is distinct from non-religious terrorism – and distinctly dangerous – because religion motivates violence in a way non-religion does not. Although important elements of the three monotheistic faiths encourage violence, he writes, atheism and secularism, in themselves, do not. It’s certainly true that some religious ideologies encourage violence, as I said in my last post. But some non-religious ideologies encourage violence as well, at least if one is to judge by the understanding of the movements that espouse them. Besides, does it really make a difference, practically speaking, if a group believes it must eliminate its opponents in order to instantiate God’s rule on earth rather than to achieve a workers’ paradise or a “homeland for our own kind”? In each case, the group is a threat to civil society that must be contained. For this reason, I would prefer a treatment of extremism full-stop, rather than extremism in the name of religion.

Finally, about extreme religious expression. Prof. Guiora gives the chilling example of the rabbis who incited the assassination of Yitzhak Rabin by reciting a pulsa denura outside his home. Prof. Guiora knows much more about the Israeli context than I, but let’s try a thought experiment. Suppose, instead of conducting a religious ritual, a group of ultra-nationalist Israelis gathered outside Rabin’s house with signs depicting him as a traitor and calling for his death. Isn’t it possible that some impressionable person could have been incited by these signs to murder the prime minister? Would that have been any less chilling? Again, what does the religious motive really add?

Perhaps we can discuss Prof. Guiora’s policy prescriptions in more detail in the next go-round. For now, I should just point out that any attempt to single out extreme religious expression, rather than extreme expression itself, would face serious problems under the American Constitution.

Certainly Professor Guiora has raised very profound issues.  

It would help me to have a specific scenario of how this would play out.   For example – some well known Christian radical fundamentalist preacher (who has been known to call on God’s wrath against some group) gets up in the pulpit one Sunday and says; “I have had a direct revelation from God and today, if you believe, you will go out and kill so-and so. (the preacher names an individual).”  

If the FBI had been forewarned would it be illegal (under present statutes) for them to plant agents?  Would they be allowed to arrest or at least hold preacher for a time?  

Is there really a difference between what you may be calling for in terms of limiting free speech and assembly and what in fact happened with the FLDS or the Hutaree militia?  

J. Lentz

Thank you to Prof Movsesian, Prof Cliteur and Rev. Lentz for their thoughtful and informed comments in response to my initial posting. With respect to Prof Movsesian’s concern regarding my identification of religious extremism as posing the primary threat today, I would suggest that analysis of contemporary terrorism clearly suggests that religious extremist actors (in all three monotheistic faiths) are, in the main, today’s terrorists. While–as Prod Movsesian correctly suggests—secular terrorism previously presented direct threat to civil society the danger today is posed by religious extremists.

 It is for that reason that I propose limiting the freedom of speech of religious extremist faith leaders because of the incitement in which they engage. Yigal Amir’s assassination of then Prime Minister Rabin is but the clearest manifestation of clerical incitement. Rabbi’s who issued a ‘pulsa denura’ (‘lashes of fire’) calling for Rabin’s murder because of the Oslo Peace Process directly incited Amir.

 Similar examples of direct incitement abound in other faiths; to that end, Prof Cliteur’s distinction between religious terrorism and secular terrorism is profoundly important because it highlights the fundamental distinction between the two. Religious extremists are motivated by their understanding—largely facilitated by the interpretation of religious texts by faith leaders—of ‘divine command’ (to quote Prof Cliteur) which is distinguishable from secular terrorism.

With respect to Rev Lentz’s comments, addressing incitement/limits of free speech is inherently problematic, whether with respect to religious speech or secular speech. However, because of the ‘clear and present’ danger posed by religious extremist faith leaders the present focus must be on religious extremism. The question—raised by both Prof Movsesian and Rev Lentz–is to what extent does society protect itself. While freedom of speech and freedom are both constitutionally guaranteed they are not absolutes; the question is under what conditions, circumstances, standards and criteria can limits be imposed.

Clearly, because I share many of the concerns raised by the comments, I recommend imposing limits subject to strict scrutiny with an eye to protecting both society and guaranteed rights in the context of the threat posed.

In its motion to dismiss the ACLU/CCR lawsuit, the government argues that the plaintiffs lack standing to bring the lawsuit on al-Aulaqi’s behalf, because al-Aulaqi has the option of surrendering to the government and bringing the lawsuit himself:

Defendants state that if Anwar al-Aulaqi were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances…   Anwar al-Aulaqi would have the choice at that point, as he does now, to seek legal assistance and access to U.S. courts.

Ben Wittes made the same argument a few weeks ago:

The idea that Anwar al-Alauqi is being targeted for death and has no means of availing himself of his rights as a U.S. national is wrong. Like the hostage-taker, he has a remedy that will ensure his safety and give him the opportunity to defend himself: He can turn himself in. He can knock on the door of any U.S. consulate and say, “I hear you guys are looking for me.” No special forces guys, Predator drones, or air strikes are going to take him out if he does this. In other words, this situation is, in conceptual terms, a fairly close analogue to the one in which cops surround a building and say, “Come out with your hands up or we’ll shoot.”

Ben and I disagreed about the “surrender” option at the time, and I continue to find it unconvincing even with regard to al-Aulaqi.  But a post by Glenn Greenwald today reminded me that there are three other Americans whose targeted killing has been authorized by the President.  Which raises the question: do those Americans have the “surrender” option?  Have they been notified that, if they want to assert their constitutional rights, they need to turn themselves in to “the proper authorities” before the government kills them?  Or are they completely oblivious to the fact that the President has approved their execution?

It’s an important issue.  The government’s standing argument may be plausible with regard to al-Aulaqi, whom we can safely assume knows that he is on the President’s hit list.  But it is only plausible with regard to the other three Americans if they have been notified of their status. If they haven’t, how do they assert their rights?  Either they must be informed that they can be killed at any time — something I think the government is unlikely to want to do — or an appropriate party must be allowed to assert their rights on their behalf.

Here’s a suggestion: how about the ACLU and CCR?

Thanks to Opinio Juris for inviting me to comment on Professor Guiora’s new book. I look forward to the interchange with him and the other participants.

Professor Guiora deserves credit for tackling the very controversial and timely topic of religious terrorism. Much of what he says is thought-provoking. He tries to be fair and avoid “religion-bashing.” He concedes that religion can have beneficial as well as harmful social effects and cautions the state against over-reaching in response to religious speech.

Yet I must disagree with his central assertion that religion constitutes a uniquely dangerous threat to national security and public safety. For example, he writes that “religious extremists are fundamentally, philosophically, and existentially different from secular terrorists for they claim to be acting in the name of the divine.” I don’t know about “philosophically and existentially,” but, practically, there is not much difference between religious and secular terrorism. In the last century, atheist state terrorism murdered many millions and suppressed whole civilizations. Atheist ideology motivated much “non-governmental terrorism” as well, as in Peru (the Shining Path) and Germany (the Red Army Faction). Indeed, in terms of sheer numbers, secular terrorism has been dramatically more successful than its religious counterpart.

It doesn’t seem, then, that religiously-motivated terrorism is qualitatively more virulent than the secular variety. This shouldn’t be a surprise. Terrorism can be motivated by many factors. Some religious beliefs encourage terrorism, but so do some secular ideologies. The key thing is the terrorist psychology: the terrorist’s emotional conviction that his goals, whether in this world or the next, justify violence against the people who oppose him. Society obviously needs to defend itself against such violence and I agree with Professor Guiora that religiously-motivated violence shouldn’t get a free pass. (Who argues that it should?) But focusing on “religious” terrorism distorts the nature of the problem.

Professor Guiora’s assumption that religion is uniquely dangerous also causes him to say some unfortunate things. For example, he states that “society has historically – unjustifiably and blindly – granted religion immunity.” This assertion is not correct. It is not even close to correct. Historically, society has persecuted religious dissent. The freedom that religion enjoys in the West today is the result of centuries of struggle. In many parts of the world, governments continue to suppress religious liberty. A recent Pew study revealed that 70% of the world’s population lives in countries with high or very high levels of restrictions on religious freedom. Even in the United States, believers who seek religious exemptions from generally applicable laws face an uphill battle, and always have. Under the old Sherbert test, courts routinely rejected religion-based claims for exemptions, and the current Smith standard is of course less accommodating. On an objective view of reality, religious communities around the world are more often victims than victimizers, a fact of which the reader of Professor Guiora’s often provocative work might lose sight.

As a pastor of a church I find Professor Guiora’s words both challenging and problematic.  Here are four points:

1.  Professor Guiora writes, “Society has historically – unjustifiably and blindly – granted religion immunity.”   What society?  Separating “society” from “religion” is very much a modern issue. Society didn’t grant immunity to anything.  Rather, society was shaped by religion and was pretty much identified religiously in the West and in the East until the beginnings of the critical/historical/scientific “Age of Reason” stirrings.   In the West it was the Church that granted immunity not the other way around.

2.  I don’t know if it is all that helpful to differentiate religious extremism which leads to terror from “secular terrorism.” Terrorism is terrorism.   Even secular terrorism is action taken by an individual who – or group that – presumes his/her/their world view is superior to another’s perspective – religious or otherwise.  The results of god-less terror is not better or worse that the results of god-full terror.

3.  In the 4th paragraph where Prof. Guiora describes the Huratree Christian militia – they were caught before they committed any terrorist act. Doesn’t this show that the system works without changing constitutional law?  Their “sacred”  right of assembly and speech had to have been compromised to some degree so that the agents could make their arrests, no?

4.  It is exactly the “grey” area between action and “over-reach” that suggests we will never get this right.  From Nazi Germany to the FBI during the Civil Rights movement, government agents have tried to infiltrate faith communities deemed dangerous to the group in power with horrendous results.  It seems to me that religous speech should be treated the same way we treat any other speech: you can’t yell “FIRE” in a crowded theater.  We have hate speech laws as well as libel laws.   Our “sacred” free speech and assembly have always had limits.    This is the best we can do, I believe, without compromising our identity and soul.

Society has historically —unjustifiably and blindly—granted religion immunity. That immunity has been expanded to include religious extremism; doing so, presents an imminent danger to civil society. In many ways the failure to adequately protect society falls squarely on the shoulders of society; the refusal to directly address religious extremists is purely self-imposed. Religious extremists manipulate society’s sensitivities which, in large part, results in unjustifiable acquiescence. As one reader of the book commented “we gotta stop this “kill the infidel” bullcr*p.”

Religious extremism is when the actor believes his or her tenets and principles are infallible and that any action, even violence, taken on behalf of those beliefs is justifed. The action can be directed both at people of other faiths (or those of no faith), as well as members of the same religion who have violated the extremist’s understanding of how their religion is to be practiced. Religious extremists are  fundamentally, philosophically and existentially different from secular terrorists  for they claim to be acting in the name of the divine.

Disagreement regarding how to respond is welcomed and inevitable; critical is acknowledgment of the threat. Prof Nadine Strossen, in  commenting on the book, correctly noted that the fundamental question is “whether legal protections for religious speech and conduct should be reduced in order to counter the threat posed by religiously motivated terrorists.” I am convinced that the answer must be a resounding ‘yes’. While freedom of speech and freedom of religion are sacred, the right to life is similarly sacred.

A short ‘laundry list’ demonstrates the extraordinary danger posed by religious extremism and religious extremists: the attack on American military personnel in FT Hood, Texas by Major Nidal Malik Hasan; Umar Faisal Shahzad’s 42nd Street bombing; Comedy Central’s self-censorship of a South Park episode referencing the Prophet Mohammed in the face of threats by a radical Islamic group; child endangerment (child brides) and abandonment (‘lost boys’) in the Fundamental Church of Latter Day Saints (FLDS)  and the burning of mosques in the West Bank by Jewish extremists.  Essential to these acts is the role of faith leaders. Their words—and the potentially tragic impact of their carefully chosen, oft-repeated, mantra-like interpretation of religious texts—pose a danger to society..

Whether and how  we directly, proactively and fairly,  restrict their words is a critical challenge facing the public and decision makers. Religious extremist speech that, articulated by extremist faith leaders in Houses of Worship, incites followers to violence should enjoy a lower standard of protection than other speech. Punishing speakers violence after violence has occurred is both ineffective and does not deter other religious extremists. Therefore, in known cases of religious extremist speech, government—in order to protect larger society (external community) and vulnerable members of an internal community—must act proactively seeking to prevent harm to potential targets of religious extremism.

On the other hand, over-reach is equally dangerous. With respect to religious symbols nowhere is that over-reach more telling than how various European government stumble their way through the veil and burkha issue. While religious extremism justifies proactive measures by government, it is important to avoid over-reaction. The continued debate in Europe with respect to the head-scarf symbolizes over-reaction; the scarf—unlike speech—does not pose a danger to civil society. Legislative efforts in Belgium and France to ban the scarf and burkha would not meet American constitutional law  tests regarding void for vagueness and over-breadth. While a cogent and compelling public safety test can be articulated for banning the burkha on public transportation and other public venues, an all-encompassing ban both on the scarf and burkha does not meet rational based balancing tests.

We are very pleased to host for the next three days a discussion of Amos Guiora’s new book, Freedom from Religion: Rights and National Security(Oxford 2009).  Amos is probably well known to many readers of this blog, a professor at the University of Utah’s S.J. Quinney College of Law and a retired Lieutenant Colonel from the Israel Defense Forces Judge Advocate General’s Corps, Amos is a frequent writer and commentator on issues of national security and the law of armed conflict. He was also a regular blogger at National Security Advisors.

Amos’ new book has been getting much attention for its provocative argument concerning the interrelationship of religious freedom and national security policy. Between the controversies over the construction of an Islamic cultural center near the Ground Zero site and the proposed burning of the Koran by a conservative Christian pastor, it is hard to think of a more timely or more contentious topic. I will leave to Amos the explication of his argument.  Unlike some corners of the blogosphere and cable outlets, we make a real effort at shedding more light than heat and so we have put together a group of thoughtful commentators to guest with us for this symposium.

Joining us for this discussion are Paul Cliteur, a professor of jurisprudence at the University of Leiden and the author of the recent book The Secular Outlook: In Defense of Moral and Political Secularism (Wiley 2010),  as well as Peggy’s and my colleague Mark Movsesian, the Frederick A. Whitney Professor of Contract Law st St. Johns Law School and the founding director of the Law School’s Center for Law and Religion. Mark contributes the the blog Law, Religion, and Ethics: A Multifaith Dialogue. We also hope to be joined by the Rev. Dr. John C. Lentz, the pastor of the Forrest Hill Presbyterian Church in Cleveland Heights, Ohio. We are fortunate to have such a group of experts guest blogging with us on such an important issue.

We encourage our readers to comment and look forward to what promises to be a lively discussion.

Between Jose’s guest blogging and book discussion we are about to start on Amos Guiora’s book on religious freedom I  want to sandwich a short notice about my recent favorite topic: no-holds-barred full contact chess arbitration.

Backstory: here for the arbitration, here for the Russian regional politics and space aliens,and here for how it relates to the proposed Islamic center near Ground Zero.

I know you have been waiting with bated breath and I have news to pass along: first the case before the Court of Arbitration for Sport has been dismissed.

You can find a copy of the decision in a link from the FIDE press release.

The ChessVibes blog has posted a good analysis with lots of color commentary and background info. The main issue was whether Ilyumzhinov and others on his slate had been members for more than a year of the national federations that nominated them. According to the CAS, the FIDE Electoral Regulations are drafted such that a nominee only “should” as opposed to “must” or “shall” be a member in good standing. Talk about first year drafting. The analysis at ChessVibes concludes:

In other words: Ilyumzhinov’s ticket wasn’t disqualified by the CAS in Lausanne because of poor formulated regulations, which was never discovered before because thus far nobody needed to check these regulations. And it seems the chess world got stuck in a Catch-22 in that it might need a new FIDE President to improve the regulations that kept the incumbent one for running for a new term.

For a more idiosyncratic take (as well as various crimes against typesetting) check out the Ilyumzhinov campaign’s release about the case.

Ilyumzhinov was subsequently re-elected the World Chess Federation president.

So four more years of space aliens, Chess Cities, and who knows what else. I think a galactic ambassadorship might be in order!

On behalf of my co-bloggers, I want to thank Professor Alvarez for his recent spate of posts as a guest-blogger.  I hope we can persuade him to revisit us in a few months to tell us what he does with his winter break.

As a member of the U.S. State Department’s Advisory Committee on International Law, I was asked to give my reactions to the International Law Commission’s release, on first reading, of a set of proposed articles on the Responsibility of International Organizations. (For the ILC’s report containing these draft articles and commentaries, see here). I was probably asked to undertake this task given my prior interest in these matters (see my 2006 speech to the Canadian Council of International Law, “International Organizations: Accountability or Responsibility?”).

As my memorandum produced for the Advisory Committee meeting on June 21st indicates (see my memo on the “ILC’s Draft Articles on the Responsibility of International Organizations”), time has not ameliorated my concerns about the direction of the ILC’s work. On the contrary the newly completed set of 66 articles heightens my worries that, on this occasion, the ILC’s experts have opted to alter their normal ratio of codification vs. progressive development. In this case, the latter has vastly overtaken the former. In my view, the ILC’s latest effort is likely to encounter considerable resistance where it matters the most, among states. (Of course, my memo reflects my own views and do not necessarily reflect those of the rest of the Advisory Committee or of the U.S. State Department.)

There is scarcely any doubt that the accountability and responsibility of international organizations (henceforth “IOs”) is among the hottest topics in public international law. Scandals involving the UN’s oil-for-food, the actions of UN peacekeepers, the sexual harassment of UN employees, and the (in) actions of the UN Security Council in too many sites of atrocity to mention have kept the issue on the front burner for some time. Accountability concerns also help to explain the proliferation of inspection panels in international financial institutions and have given rise to a number of high profile cases before European courts. Political scientists and legal scholars have repeatedly turned to the question, proposing a variety of solutions, extending from political “checks and balances” among institutional organs to more familiar approaches to control or supervise the discretion of agents drawn from principal-agent theory. (See, e.g., Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” 99 Am,. Pol. Sc. Rev. 29 (Feb. 2005); Karen Alter, “Agents or Trustees?”)  From a legal standpoint, the difficulties of turning to courts – national or international – to impose liability on an IO such as the UN are familiar. National courts, including those in the United States, usually recognize the immunity of IOs under binding treaties, such as the UN Convention (which grants the UN absolute immunity) or domestic laws. Comparable immunities make it difficult for claimants, even IO employees victimized by their superiors’ sexual harassment, to secure a judicial remedy against IO officials – except within the internal mechanisms provided by the organizations themselves. (See, e.g., Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983). But see August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” 7 Chinese J. In’tl L. 285 (2008) (noting a trend among a small number of national courts to withdraw immunity where needed to avoid a denial of justice).) International courts rarely even have jurisdiction to consider such questions since only states can be parties to contentious cases before the ICJ, and IOs are not even capable of joining instruments such as the European Convention on Human Rights. The rare example where an IO can be regularly sued in court – suits against EU institutions within the European Court of Justice – suggest how rarely the question can come up as the European Union, in the views of most, is probably sui generis, belonging neither to the genus of international organization nor sovereign state.

The prospect of using a court to secure a remedy against members of an IO has come up somewhat more frequently. Some European courts have suggested that such liability might be possible, for example, based on the principle of abuse of right, estoppel or unclean hands. (See, e.g., Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 Feb. 1999, ECHR 13, 116 ILR 121, 134.) Essentially the idea is that states should not be able to undertake action through an organization that would be illegal or wrongful if committed by any of them individually – as under human rights treaties – and that on such occasions courts should pierce the IO veil and render states (or particular members) liable. But these suggestions have been mostly relegated to dicta. For the most part, rendering states liable for their actions as members of a global IO such as the UN have been resisted by scholars and understandably, by states themselves. (See, e.g., Institut de Droit International, The Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations toward Third Parties, Session of Lisbonne (1995).)

What this means is that but for instances involving European institutions, rare cases where IOs have assumed territorial responsibilities (as in Kosovo), and the special case of UN peacekeepers – for whom the UN has accepted responsibility historically – the responsibility of IOs has been a topic for academic speculation but relatively little practice. The combination of organizational immunities (qualified or absolute) and absence of judicial (or other) forum with jurisdiction to hear complaints has made the suggestion — drawn from the ICJ’s affirmation of “legal personality” for the UN in the Reparation Case that like all other subjects of international law, IOs have rights and responsibilities — an intriguing question for scholars but not one that not engaged the attention of many practitioners or judges. This is, of course, very different from the position of the leading subject of international law, states, for whom the enjoyment of privileges and immunities has not been the end of the story. Given their reciprocal needs vis-à-vis each other, states have generally recognized that they are not immune from responsibility for their internationally wrongful acts and that their mutual responsibilities embrace, as was recognized by the ILC’s Articles of State Responsibility, diverse means — from apologies to countermeasures to financial liability. Accordingly, when the ILC turned its attention to that topic, its nearly multi-decade-long effort involved far more codification of the abundant practices of states and courts than progressive development. The last only occurred on the margins of enumerating the black letter rules for which the ILC found real world support.

With respect to the IO responsibility project, the ILC was not hindered by the absence of practice. It bravely (rashly?) undertook to delineate rules with respect to not only IOs, but with respect to states in connection with acts that they commit within IOs. (At a minimum, truth in advertising would suggest that the ILC re-title its effort, “articles on the responsibility of IOs and with respect to states in connection with their acts within IOs.” Such an awkward mouthful has not hindered other ILC efforts in the past.) Further, the ILC’s view of its ambit is exceedingly broad as its proposed rules apply to all international (not just “intergovernmental”) organizations, from the WTO to the OSCE to OPEC, whether established by treaty or other instrument in international law and whether or not the organization includes non-state parties. In addition, the articles purport to extend to both the acts and omissions of such organizations.
The ILC took as its model its earlier articles of state responsibility. (This is demonstrated by the chart comparing the two sets of articles attached to my memorandum to the State Department). That chart was prepared by Santiago Villalpando, a UN lawyer. Mr. Villalpando, who prepared this chart for presenting this subject to my class, was not consulted in preparing my memorandum to the State Department Advisory Committee and that memo does not represent his views or those of the UN.) The IO articles substantially replicate in structure and often in wording, the earlier provisions for states, sometimes merely replacing the word “state” for “international organization.” As the draft commentaries to the new set of articles repeatedly suggest, the ILC concluded that even where little or no practice existed (as was most often the case), “there was no reason” not to apply the same provisions that applied to states. The rationale for this inference appears to be the ILC’s assumption that since states and IOs are both legal persons or subjects of international law, the same rules should presumptively apply to both.

Ben Wittes at Lawfare and Adam Serwer at TAPPED traded posts today on the government’s motion to dismiss the ACLU/CCR lawsuit.  I think the exchange — particularly Wittes’ response to Serwer — illustrates perfectly why discussions about national security between conservatives and progressives always seem to have a Pinteresque quality.  Here is the point to which Wittes responded:

I think it’s really easy to get sucked into acquiescing to this kind of authority out of the belief that terrorists are really scary, or that such powers only apply to “the bad guys.” On an individual basis, some of these arguments may seem really reasonable. But ultimately, like Greenwald and Marcy Wheeler, I can’t get past the fact that what they add up to is the idea that the president can have someone executed on his say-so based on mere suspicion of a crime, as long as it declares doing so a state secret. We’re so frightened of terrorism that we forget that there’s a reason democracies limit the government’s legitimate use of force, particularly against their own citizens. It’s hard to imagine a more direct or final deprivation of liberty without due process.

I’d only add that whether or not al-Awlaki is a very bad person is irrelevant to the question — which is whether or not the president has the authority to kill anyone he wants with no judicial review based on having simply labeled them a terrorist. If due-process rights only applied to “good people,” they wouldn’t be rights, and if the government can deprive you of such rights merely by labeling you a “bad person,” then ultimately none of us is safe.

And here, in relevant part, is Wittes’ response (emphasis mine):

So the real authority is limited not just by geography and governance but by the nature of the target himself. That is, the president may only target an American national when when he has concluded in good faith that this person is either covered by the AUMF or poses a sufficiently-immediate threat to the country so as to trigger its right to self-defense.

In other words, Adam’s fear that “the president can have someone executed on his say-so based on mere suspicion of a crime” does not describe the claimed power properly. The better description would read: “The president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”

This response completely misses the point.  Wittes treats Serwer’s claim as fundamentally one about the class of people who can legitimately be killed — hence Wittes’ insistence that we are not talking about killing “criminals,” but only killing terrorists “at war with the United States.”  Serwer’s claim, however, is only secondarily (if at all) about the class of Americans who can be summarily executed. His basic point is about the process used to determine whether an American falls within that class.  Serwer believes — as do I, as do most progressives — that, except in the most desperate circumstances, no American should be summarily executed without judicial review of the President’s claim that he is “at war with the United States.”

Unfortunately, Wittes simply ignores the issue of judicial review, as is evident from his claim that the “better description” of the President’s claimed power is “[t]he president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”  Notice what is lost in that redescription: Serwer’s insistence on a meaningful judicial check on the President’s power.

Put more simply: progressives don’t trust the President to make such determinations in good faith.  Not President Bush, not President Obama, and certainly not President Palin.  We will defer to the President — in the hope that he or she will genuinely act in good faith — when the U.S. is possibly faced with an imminent terrorist attack.  (As the ACLU/CCR lawsuit makes clear.)  But we insist on judicial review when the threat of an attack is merely speculative.  (And recall, Wittes has admitted that he does not believe imminence is required for the use of deadly force against an American; he believes such force is also justified whenever “the individual is covered by the AUMF, reasonably interpreted” — an explicitly non-temporal criterion.)

Wittes concludes his post with the following (emphasis mine):

Now, I don’t mean to suggest that this power is less than awesome. It is terrifying. Indeed, I can think of only a few things in this space more terrifying than a presidency with the power to kill its citizens, even under these very limited circumstances. One of them, however, is a presidency that lacks this power–one barred by law from attacking citizens even when those citizens make war against it and when it has no other available means of neutralizing them.

Once again we see the disconnect.  No progressive is arguing that the President should be “barred by law” from killing Americans who pose an imminent threat to the security of the U.S.  We are not even arguing that the President should be “barred by law” from killing an American who does not pose such an imminent threat.  Instead, we argue that the decision to kill an American who does not pose an imminent threat should be submitted to law — to the judicial process — not left to the “good faith” of the President.

Differently put: progressives are not asking for Presidents to be barred by law; conservatives are asking that they be exempted from it.

UPDATE: Jack Goldsmith responds to my post by arguing that it “is not right to claim that those who support the President’s authority to make such decisions free from judicial review do not believe in legal constraints on the presidency.”  No, they simply believe that the only applicable legal constraints are those that the Executive imposes on itself.  Indeed, after touting the untestable claim that “the program under review in Al-Aulaqi was thoroughly vetted by scores of lawyers across many agencies, with precise limitations and guidance attached,” Goldsmith then admits that those “legal constraints” are, in fact, not constraints at all: “There is, moreover, a very good argument that our fundamental law, the U.S. Constitution, commits wartime targeting decisions to the President alone, subject to his self-compliance with law” (emphasis mine).  I’ll leave it to readers to decide whether such unreviewable “self-compliance” qualifies as a “legal constraint.”

Amidst the discussion of the ACLU Aulaqi lawsuit – both the procedural moves made in court and the underlying debates over the lawfulness of targeting – as well as new revelations from the Woodward book about the size of the CIA’s proxy ground forces in Afghanistan, cross-border “overt” raids made by US military forces into Pakistan, and finally reporting in today’s papers of CIA drone strikes intensified in Pakistan for the specific purpose of disrupting a feared terrorist attack presumably in Europe … well, there’s a lot going on.  I will comment on several of those issues at some point, but for now I wanted to add yet another item to the ferment – this being the matter of covert activities oversight by Congress.  (This thanks to Jeff Stein (Spytalk blog) writing in the Washington Post newspages today, September 28, 2010, A4).

Stein reports that the Senate has reached agreement on revisions to Congressional oversight and reporting on covert activities by the intelligence community under USC 50; it now goes to the House, but the article seemed to think that something like this version would finally emerge.  The net effect is to widen the group of legislators that has to be notified of covert activities; the compromise involves giving the White House more time in which to do so (including the ability it already has to do so after the fact):

Under a bill approved by the Senate on Monday night,the White House would be required to notify the full membership of both congressional intelligence committees of presidential directives to conduct covert action, known as “findings.” At present, the administration is required to notify only the “Gang of Eight”: the chairmen and ranking members of each committee and the party leadership in both chambers.

But the new language still gives the White House flexibility, including a 180-day period in which to notify all 22 House and 15 Senate intelligence committee members of a finding.

The White House can defer full notification even longer, according to the bill, if it provides “a statement of reasons that it is essential to continue to limit access” because of “extraordinary circumstances affecting vital interests of the United States.”

The Senate bill also contains a couple of specific provisions of interest in today’s environment, including a new cybersecurity element of reporting, and a provision requiring that the “White House provide the legal grounds for certain intelligence operations and estimates of whether “significant” costs or a “significant risk of loss of life” might be involved.”

My own general view is that Congressional oversight of covert activities needs to be strengthened and reformed – not because I think the CIA is out doing rogue stuff with, say, targeted killing, but instead because I think it is the only way to ensure that the political branches are on the same page on policy, what is acceptable and lawful and what is not.  It is an essential element in protecting intelligence agency personnel from actions by courts or, for that matter, Congress itself claiming that they overstepped their authority.  Likewise it is a crucial element in ensuring that the political branches retain their role – Steel Seizure cases-style – in foreign policy and the conduct of self-defense operations abroad and armed conflict.   Continue Reading…

In the same month that I traveled to Barcelona, I went to Paris to attend a conference organized by Paris I Professors Emmanuelle Jouannet and Hélène Ruiz Fabri and Professor Mark Toufayan of the University of Ottawa. According to its organizers, the purpose of the symposium, on “The Third World Today: Assessment and Perspectives,” was to “evaluate the situation of contemporary legal thought on the Third World” taking special account of the contribution of “Anglophone internationalists” who founded the Third World Approaches to International Law movement (TWAIL). The conference program suggested that the French and English international law academies had diverged with respect to the study of the Third World: whereas interest in the topic had waned in France, it continued to flourish at least within TWAIL. The purpose of the conference was accordingly to “re-launch reflection on the Third World in France from an independent and critical perspective” that would assist French scholars who want to reexamine contemporary international law “in order to recreate a critical legal humanism making the individual the ultimate beneficiary of international law.”

Who could resist participating at a conference with such a normatively packed agenda in such a city and with such an interesting (and decidedly diverse) assortment of participants?

The principal presenters at the two day event, a veritable “who’s who” of TWAIL scholars — including Antony Anghie, Buphinder Chimni, and Balakrishnan Rajagopal — faced off with prominent academic commentators based in Europe and beyond. My role, along with that of Georges Abi-Saab, ICJ Judge Mohamed Bennouna, and Professor Vasuki Nesiah (now of NYU), was to provide closing remarks. As part of our assignment, all of us were given as homework prominent TWAIL scholarship to read or reread.

As my closing remarks suggest (see What is to be done?), the organizers’ notion that TWAIL scholarship was worth re-examining given the contemporary challenges facing both the Third World and international law paid off handsomely. I argued that, like the good wines that we were served during the symposium by our gracious hosts, the central insights of TWAILERs have legs: they have, for the most part, withstood the test of time. Chimni’s opening remarks at the conference, which distilled ten central TWAIL tenets, had the elegance (and resonance) of Moses’ commandments. (They included, most controversially, a commitment against any form of violence.) My own remarks – perhaps inspired by Mel Brooks’ memorable dropping of one of the original three tablets in his immortal The History of the World Part I – further distilled (or cheapened?) these to five.

I suggested that TWAILERs have provided us with five abiding insights: (1) that colonial patterns of thinking persist and continue to structure our international law sources and foundational concepts; (2) that the “civilizing mission” continues to drive, often to ill effect, current legal phenomena (from the turn to international organizations to concepts like “good governance” and the responsibility to protect (R2P)); (3) that racism and misplaced notions of cultural superiority continue to obliterate the contributions of and concerns expressed by non-Europeans; (4) that commercial/economic concerns, including Marxist notions of “class,” remain central to understanding our legal regimes; but that (5) contemporary forms of globalization have rendered geographically based notions of “imperialism” or “hegemony” overly facile in understanding the Gramscian forms of collaboration that now characterize the “Third World” itself.

My largely laudatory closing remarks about TWAIL were partly inspired by what occurred at the conference. Many of the commentators, particularly those based in Paris, were skeptical that TWAILERs had much to contribute either with respect to any “rethinking” of Third World concerns or with respect to the larger humanistic program anticipated in the symposium program. The criticism of TWAIL by some of the European-based scholars fell into two strands. TWAILERs, it was suggested, brought nothing new to the table that had not been anticipated by others, including those closer to the 1960s’ struggles for decolonization and economic independence from the West. On the other hand, it was also suggested that TWAILERs’ radical deconstruction of international law, like the crit movement of which it was a part, was nihilistic, disinterested in the kinds of pragmatic reforms that remain relevant, and ill-suited to the needs of practice. One professor questioned the relevance of TWAIL for academics at the Sorbonne who needed first, to weed out students not qualified to continue to study law and second, to distill practical real world legal skills that would enable graduates to pass the professional examinations that would permit them to become lawyers. My own (mis?) understanding of these criticisms might have been due to the difficulties of simultaneous translation but it appeared to me that these twin concerns were contradictory, especially when uttered by the same commentator. Either TWAILERs were rehashing old insights or they were too radical to be of use; to suggest that they were doing both seemed a bit unfair. It also seemed ironic to castigate TWAILERs for inspiring criticisms of international law that were difficult to encompass due to the structures of the European or French academy or the (narrow?) role allocated to legal training (particularly when this begins with undergraduates). One alternative would surely be to use TWAIL (and other critical insights) to suggest reforms to the academy or even, God forbid, to the sacred traditions of the Sorbonne.

Under the circumstances I sought in my remarks, presented as a “fellow traveler” but not a card-carrying member of TWAIL, to suggest why their insights had contemporary resonance and why what they had to say should matter to those interested in real world legal practice. To this end, I suggested that the five TWAIL insights enumerated above provided a new vantage point from which to study three contemporary characteristics of public international law: the increasing turn to treaties – what some have dubbed its “treatification;” the rise of non-state actors; and the proliferation of international courts and tribunals (“judicialization”). TWAILERs made us skeptical of the progress narratives that usually accompany descriptions of all these developments – all of which mattered deeply to the practice of international law. I suggested that TWAILERs exposed the alleged benefits of treatification, of the enhanced power of non-state actors, and of the turn to judicialization to the harsh light of day, exposing the power dynamics that render each of these of dubious benefit to ‘the wretched of the earth.’ I also suggested that those looking for a specific set of normative reforms from the motley collection of scholars who self-designate themselves as TWAILERs’ were looking for the wrong thing in the wrong place since the critical mindset towards the status quo – the subversive act of re-imagination that is the essence of TWAIL –is precisely what it brings to the table. I suspect that my brief remarks came off as a predictable, ringing endorsement of this “Anglosaxon” school of thought.

What I did not lay out in my original remarks but will state here now, en famille, were other, more serious criticisms of TWAIL suggested by that symposium.

The IISD’s paper on transparency I mentioned this morning demonstrates why the investment regime is globalization’s Rorschach test. Recent scholarship (most prominently the work of one of the participants at Barcelona, York University Professor Gus Van Harten (see, e.g., “A Case for an International Investment Court,” available here) contends that investor-state arbitration is nothing like the commercial arbitration between private parties on which its procedures are based but more like public litigation that belongs in national constitutional courts but has been erroneously “privatized.” The IISD paper takes the same approach, arguing that investor-state arbitration raises public interest concerns because (1) these involve states as parties; (2) they often involve disputes in public service sectors (such as the privatized gas utilities involved in several of the most prominent Argentina cases); (3) they often challenge regulatory measures justified on the basis of protecting the public; (4) such arbitrations affect taxpayers’ interests given their potential impact on the public purse; and (5) the resulting arbitral jurisprudence constante is now the principal driver of international investment law. (For my own, more controversial, contention that BITs and FTAs are having an impact on general customary law, see José E. Alvarez, “A BIT on Custom”).  The IISD paper also contends that all of the regime’s stakeholders, from investors to states, should have an interest in greater transparency since all want public, harmonious and stable rules of the road.

The IISD’s articulated reasons for the “public-ness” of the regime are more convincing than its second contention which is either that everyone wants transparency or that they ought to do so because transparency produces the most economically efficient outcome. IISD’s five-fold public rationale is, in capsule form, the backdrop for my NYU colleagues’ contention that the investment regime is part of, and is constructing, “global administrative law.” (See, e.g., Benedict Kingsbury and Stephan Schill, “Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality, and the Emerging Global Administrative Law”). The strongest case for transparency is precisely that a process that imposes principles of “good governance” should itself adhere to them; that is, that the arbitral process – from the briefs to the hearings to the awards and annulment rulings — should itself be fully transparent because this is the only way to assure that the resulting law is coherent, fully reasoned, and harmonious. IISD’s five reasons suggest that, if anything, the IISD’s focus only on investor-state arbitrations under existing BITs and FTAs is too modest. Its concerns should equally apply with respect to any arbitrations that arise under investors’ contracts with states, irrespective of whether a BIT or FTA is in place. Most of IISD’s transparency concerns arise equally with respect to host state’s contracts with investors, including mining and oil concessions, and many of these contracts also rely on arbitral enforcement. Such contracts are increasingly drawing concern, and not only because most remain confidential. (For a recent study of publicly available investor-state contracts, suggesting that surprisingly, many still contain controversial “stabilization” clauses purporting to “freeze” local law, see IFC, Stabilization Clauses and Human Rights, Mar. 11, 2008).

But it is not so clear that all of the regime’s stakeholders desire openness or that they ought to do so because an open airing of investment disputes produces the best outcome.

The opportunity to guest blog on Opinio Juris is most appreciated. It is almost like having the ASIL Presidency forum all over again. 

My first topic emerges from a conference hosted by the Canadian-based Institute for Sustainable Development in Barcelona in July 2010. The Institute invited a number of practitioners and scholars to address the topics of transparency and independence in the course of investor-state arbitration. Some 20 of us, including staff members of the IISD, officials of relevant organizations (e.g., the European Commission, the Permanent Court of Arbitration, UNCTAD), academics and members of the private bar gathered in that sultry city, just prior to when it became even hotter over the World Cup, to exchange views with respect to two draft papers written by IISD. Like most others, I had no prior connection with IISD, presumably was invited to provide my own independent assessment, and did not rely on IISD for my travel expenses.

Although IISD has a reputation as a strong (and early) critic of the investment regime (consisting of nearly 3000 bilateral investment treaties (BITs) and investment chapters of free trade agreements (FTAs) and a bourgeoning number of investor-state arbitral decisions interpreting them) its draft discussion papers on the contentious questions of transparency and the possibility of conflicts between investor-state arbitrators and those who also act as counsel in such cases were not the conventional agitprop disguised as research sometimes produced by left-leaning NGOs. This blog will use the IISD paper on transparency, which is still in draft and unpublished, to explore broader challenges facing the investment regime. (For prior IISD positions see here).

As I, among many others, have noted (see “What and Why are we ‘re-calibrating’?” (a working draft)), the investment regime is at a crossroads. BITs, which originated with Western capitalist exporting nations anxious to provide better protection to their foreign investors abroad, proliferated globally with the end of the Cold War. Although these treaties differ among themselves and the investment regime is more of a spaghetti soup bowl than a harmonious “system” as compared to the GATT covered agreements, most of these treaties provide investors from either party national and most favored treatment, fair and equitable treatment and full protection and security, guarantees that they will be able to freely export capital (such as profits), and prompt, adequate and effective compensation in case of direct or indirect expropriation. Some BITs and FTAs also contain “umbrella” clauses under which the state parties agree to abide by their contractual or other obligations to foreign investors. The vast bulk of BITs have taken advantage of existing venues facilitating international arbitration (such as the International Centre for the Settlement of Investment Disputes (ICSID) under the World Bank) as well as other agreements that removed obstacles to the enforcement of arbitral awards rendered in the course of commercial disputes among private parties (such as the New York Convention on the Enforcement of Arbitral Awards). The investment regime is characterized by an enforcement mechanism that is similar to (but goes beyond) those that apply under regional human rights courts. Under BITs and FTAs, foreign investors can directly enforce their treaty rights against respondent states without, in most instances, exhausting local remedies or seeking the permission of their home states.

During the decade of the 1990s, developing states that were at the receiving end of IMF demands or that needed cash in the midst of a global credit crunch turned to these treaties because David Ricardo’s theory of comparative advantage seemed the only game in town. (For my take on the origins of the investment regime – and my disagreements with the most popular account of the spread of BITs – see “The Once and Future Foreign Investment Regime” (a working draft). Most states – including eventually even formally “communist” ones like Cuba and China, and others not normally associated with “the West” such as Egypt, turned to such treaties to signal their capitalist bona fides.

The investment regime has now outgrown its origins. Although originally conceived in neo-colonist terms, it no longer consists solely of North/South agreements between Western capital exporters and Southern capital importers. Today’s web of investment agreements is less easy to characterize. (For my contention that the regime no longer can be described as a form of imperial rule defined in traditionally territorial terms but may continue to be an “empire” of capital and of law, see “Contemporary Foreign Investment Law: An ‘Empire of Law’ or the ‘Law of Empire’?”  Today, as many as one-third of BITs and FTAs are between countries of the Global South.  Western states have entered into investment agreements among themselves (such as the NAFTA and the Energy Charter), and the ten states that have most frequently been sued by investors include Canada, the United States, the Czech Republic, and Poland. (As this update from UNCTAD indicates, Argentina, with over 50 investor claims, most growing out of its emergency legislation passed in the midst of its 2001-2002 economic crisis, leads the pack. States that some would expect to see among the top ten – such as poor African states with a history of investment problems – are not among the most frequent respondents.)  When two of the leading capital exporters of the world – the United States and China – are also two of the leading capital importers, those countries’ respective investment protection treaties can be expected to cut both ways. Countries like these, which also include capital exporters/importers like India and Russia, have to worry both about protecting their foreign investors abroad as well as being sued by foreign investors that they host. Therein lies the regime’s current dilemma: investor-state arbitrations have become so popular – and visible, including in countries with hyperactive civil societies – that they have displaced the WTO as the focal point of competing contentions over the merits of economic globalization.

I’m delighted to introduce José Enrique Alvarez as our guest blogger for the next few days.  Professor Alvarez is the Herbert and Rose Rubin Professor of International Law at NYU Law School, and serves as a special adviser to the Prosecutor of the International Criminal Court on a pro bono basis.   He is also a past President of the American Society of International Law.  Professor Alvarez’s expertise includes a range of international law topics, most notably foreign investment (which he’ll be talking about at the upcoming International Law Weekend) and international organizations (see, e.g., International Organizations as Law-Makers).  Prior to entering academia, Professor Alvarez served for several years in the Office of the Legal Adviser at the U.S. Department of State where he worked on cases before the Iran-U.S. Claims Tribunal, served on the negotiation teams for bilateral investment treaties and the Canada-U.S. Free Trade Agreement, and was legal adviser to the administration of justice program in Latin America coordinated by the Agency of International Development.   Educated at Harvard College, Harvard Law School, and Oxford University, Professor Alvarez has previously taught at Columbia, Michigan, GW and Georgetown law schools.  He also worked in private practice and was a judicial clerk to the late Hon. Thomas Gibbs Gee of the Fifth Circuit Court of Appeals.  Welcome Professor Alvarez!

I am struck by the remarkable number of legal fictions salted throughout our discussion of failed states. All states, of course, are fictions. But the fictional norms of statehood carry with them a series of assumptions of how states will function and how they can be persuaded or compelled to act. Thus, as Chiara discusses at length, the requirement that new states possess a government assumes that government will be capable of functioning. A non-functional government leaves a state without human agents to direct its affairs and the requirement might as well not be imposed in the first place. It is one thing for the law to assign sentience to a group of people in a territory – the routine fiction of statehood. It is another to pretend that sentience actually exists and that the state can participate in processes of the legal community that assigned it sentience in the first place.

A failed state’s ability to carry out the obligations of UN membership (UN Charter, art. 4) is thus a fiction. As Chiara points out at length, it is also a fiction that failed states can perform existing treaty obligations and a fiction that they enter into new treaties in good faith. This is especially true of any treaties involving concrete reciprocal obligations. It is a fiction that failed states can benefit from the erga omnes obligations of other states.  And it is a fiction that any real agency relationship exists between a failed state and individuals purporting to represent it internationally, since the agent’s authority is derivative of the principal’s (i.e. the government’s) authority.  Of course the essence of a failed state is that the government exercises no real authority.

The ultimate fiction arises when the international community purports to exercise authority over a failed state pursuant to that state’s consent. During the first UN Somalia intervention in 1993, UNSOM II created a Transitional National Council to serve as “the repository of Somali sovereignty” during a two-year transition period. The Council was modeled on a similar body created for Cambodia in the Paris Peace Accords.

The consent in these cases was given by entities created by those to whom the consent was given. But if consent was to be had it could only come from manufactured bodies. In the case of Somalia no governmental authority existed. In the case of Cambodia the politics was so fractious that the UN determined it would be unable to secure the authority it would need to mediate disputes in the run-up to elections in 1993.

A variation on this theme was the consent of the Bosnian Serb party to the Dayton Accords. President Milosevic purported to act on their but this arrangement was an outright falsehood at worst and the result of coercion at best. But the arrangement was critical. On the one hand the Accords could not be completed without Bosnian Serb consent. On the other, the Bosnian Serb leaders (Karadzic and Mladic) had been indicted by the ICTY prior to the Dayton meeting and the U.S. would have had no choice but to arrest them if they had arrived for the negotiations. Thus the legal fiction of their delegation of authority to Milosevic was the only route to an agreement that included all the parties. (Self-promotion alert: I analyze these and other like cases of fictional and coerced consent in my book Humanitarian Occupation).

So far international law has not taken this elaborate fictional façade as a sign that failed states should be treated, in some or all respects, as legally different from functional states. Political scientists observing the same phenomena have not been so reticent. Robert Jackson famously refers to failed states as “quasi-states” and distinguishes been the empirical and juridical function of states, the former being missing in cases of failure. Of course there are compelling reasons for not creating separate legal categories. For one, shearing attributes of statehood from a territory might begin its descent down a slippery slope to terra nullius open to acquisition by others. But these dangers must be weighed against the costs to the coherence and legitimacy of international law. Can we continue to say that politically moribund states are juridically equal to their fully functional brethren?

Congratulations to David Bosco and the rest of the folks at American University’s School of International Service on the conference over the last couple of days on the future of global governance.  I took part on a panel on how to globally govern for which my advice, readers will not be surprised to learn, was very little if at all.

That said, I was intrigued to see how much David Bosco and I actually overlapped in our views specifically on the genuine utility of the Security Council, given the many areas on which we would disagree.  The overlap seemed to include a shared prescription for caution in messing around with a SC structure that has accomplished certain things, if properly understood as a great power confabulation and not as what Kofi Annan took to calling it in his final days, the “management committee of our fledgling collective security system.”  David stressed, correctly in my view, the ways in which the Council had been a success since 1945, if one had a set of criteria in mind that were not about global governance or collective security in any strong sense, and if one looked to the informal processes and results of being able to consult and discuss behind closed doors.

I agree.  This is why I argue in my upcoming book on US-UN relations, while there are elements at the UN with which to engage only sometimes, and others with which to engage never (e.g., the Human Rights Council), the Security Council is the organ with which the US should always engage without hesitation.  If you have not read David’s splendid new book, Five to Rule Them All, on the Security Council, it’s well worth it.  Likewise his blog at Foreign Policy, The Multilateralist.

But all that pales beside the important news from the UN this week.  News.com.au reports:

Curiously, this coincides with a long held view of mine – not that the UN need be the “take me to your leader” point of entry – but instead that global governance, in the strong planetary sense, is really only a serious possibility, once the Vulcans arrive in our skies, passing through at the very moment that we achieve faster-than-light drive.  At that point, assuming that the Vulcans actually engage with us on a pretty continuous basis and don’t flee, never to return, we are the defined by something else out there, so to as to create sufficient possibilities of uniting in order to deal with what is beyond.  Governance is defined by borders, by what is excluded as much or more by what is included.  (Cf. the great Stephen Krasner.)

Even in that case, however, it is not really evident to me (I’m rethinking my earlier view a bit) that dealing with aliens requires a planetary coordinated response.  Quite apart from whether that would actually happen.  Much depends on what the aliens want, or what we seek.  It is a tenet of Star Trek Whiggish history that of course political organization must eventually coincide with planets, but that’s hardly self-evident.  Continues Othman:

[W]e should have in place a coordinated response that takes into account all the sensitivities related to the subject. The UN is a ready-made mechanism for such coordination.

Not everyone thinks the UN is a ready made mechanism for coordination, with aliens or anything else.  As for take me to your leader … well, my estimation is that whether the aliens go to the UN or the US or China or Bhutan, we are easy pickin’s for a divide and conquer strategy, no matter who one talks to first.  I think that the arrival of the Klingons or the Romulans would result in something very much like Cortes arriving in the Aztec empire.  Lots of unhappy vassal states willing to make deals.  I think Earth would be enslaved and perhaps turned into a giant alien ‘long pig’ factory farm faster than you can say, Have Spacesuit Will Travel.

In the past few hours, both Jack Goldsmith and Ben Wittes have argued that the Obama administration has “reluctantly” claimed that the ACLU/CCR lawsuit must be dismissed because of the state-secrets privilege.  Here, for example, is Ben:

This is not in any sense a chest-thumping invocation of the privilege but a most reluctant one that quite overtly attempts to steer the court away from the question. It is a preservation of the argument, not a full-throated advancing of it. I would defer to Bobby on the empirical question of how much this really differs from the manner in which the prior administration asserted the privilege, but it certainly seems at least tonally different.

Seriously, who cares if this invocation of the privilege is “tonally” different?  The Obama administration included the claim in its motion to dismiss.  If it loses all of its other arguments, will it allow the lawsuit to go forward because it is “reluctant” to invoke the privilege?  Of course not.  So of what possible relevance is the “tone” the motion uses?

The Obama administration recently filed its motion to dismiss the ACLU/CCR lawsuit that seeks to enjoin the government from using lethal force against Anwar al-Aulaqi.  Predictably, the motion relies on a potpourri of reasons why no court should ever review the lawfulness of Obama’s determination that an American citizen abroad should be summarily executed, including everyone’s favorite “state secrets” privilege.  I’ll leave analysis of those reasons to others.  I just wanted to flag here the following truly remarkable piece of legal reasoning in the motion:

The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court recognized in Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006).

[snip]

Plaintiff contends that “armed conflict” does not extend outside of Iraq and Afghanistan. But if (as the Complaint appears to argue) the Court must concur in that judgment in order for plaintiff to prevail, then plaintiff’s claims are non-justiciable, because whether and in what circumstances the U.S. armed conflict with al-Qaeda and associated forces may extend—now or at some later point—is itself a question that involves predicate foreign policy and national security determinations beyond the purview of the Court.

Recall that, in Hamdan, the Supreme Court rejected the Bush administration’s claim that the Geneva Conventions did not apply to detainees at Guantanamo because the “conflict” between the U.S. and al-Qaeda was neither an international (IAC) nor a non-international armed conflict (NIAC).  The Court held that, at a minimum, the “conflict” was a non-international armed conflict to which Common Article 3 applied.

The Obama administration, as the first quote indicates, now accepts the Supreme Court’s conclusion that the “conflict” between the U.S. and al-Qaeda is a NIAC.  Yet when the ACLU/CCR challenges the geographic scope of that NIAC, the Obama administration argues, as the second quote indicates, that the issue is “non-justiciable.”  Differently put: according to the Obama administration, a challenge to a judicial determination of the scope of an armed conflict is non-justiciable.

Note, finally, that this appears to be yet another area in which the Obama administration is advancing even more radical claims than the Bush administration.  Readers should correct me if I’m wrong, but I do not believe the Bush administration ever claimed in Hamdan that its determination the U.S. was not engaged in either an IAC or a NIAC with al-Qaeda — the basis of its claim that the Geneva Conventions did not apply — was “non-justiciable.”  By the Obama administration’s logic, however, it should have.

Bobby Chesney has graciously responded at Lawfare to my post about detention in non-international armed confilct (NIAC). Unfortunately, I think Chesney’s response not only misconstrues what Steve Vladeck and I have been arguing, but also demonstrates some important misconceptions about IHL.

To begin with, we need to understand exactly what we are arguing about. As Steve pointed out in one of his early posts, Sen. Lindsey Graham’s proposed “Terrorist Detention Review Reform Act would permit the government to detain without trial anyone who “has purposefully and materially supported hostilities against the United States or its coalition partners,” regardless of where that person is apprehended.  Steve’s criticism of the TDRRA focused on “stateside” detention — the detention of American citizens who are apprehended in the United States.  He argued that the rules of IHL applicable in NIAC do not authorize such a broad detention power.

I would not have framed the argument that way, because it assumes that IHL applies to such detention in the first place.  (More on that below.)  Regardless, Chesney and Wittes responded to Steve by claiming that “[i]nsofar as this is an argument that the law of war permits detention in this setting (i.e., non-international conflict) only as to persons who directly participate in hostilities, well, suffice to say that no U.S. court has yet accepted that position and that several of the district judges in the habeas litigation have rejected it.”  My post then addressed the claim that I believed was implicit in Chesney and Wittes’ response: namely, that the laws of war applicable in NIAC authorize the detention of at least some individuals who cannot be said to have directly participated in hostilities — i.e., those who are accused of at least some kinds of material support.  I argued that, although IHL detention rules in NIAC are unclear (and may not even exist), even the most generous reading of those rules would not authorize the detention of individuals whose material support for terrorism does not rise to the level of what we normally think of as direct participation in hostilities (DPH).

Chesney now says I misunderstood his and Wittes’ argument…

In the last couple of days I explained why I argue that State failure is a problematic phenomenon of contemporary international society which could endanger domestic population and the international community.

State failure is the prolonged implosion of governmental structures and the ensuing incapacity of the government to provide political goods to both internal and external actors. At the same time, State failure is better described as a phenomenon in evolution, which, in a graphical representation, is better visualized as a line, not a point. While complete State collapse is the final stage of the phenomenon, there are several stages that link complete failure to a fully functioning State, depending on the residual capacity of a State to fulfill its obligations. I believe that any approach to address crisis situations of State failure and fragility must take into consideration these differences.

I suggest that the adoption of a set of recognized, common and agreed principles could be useful in guiding actions by the international community in situations of State failure and fragility.  These principles would ensure the lawfulness and consistency of planned interventions to assist in fulfilling State actions. These principles should be based on the assessment of the risks that the international community would suffer in case of inaction. Risks should be valued in terms of lower and higher threats to the security of the international community, urgency to act in terms of immediacy of the threat, availability of alternative responses and in terms of the consequences at home and abroad for action and inaction.

In graphic form, assistance by the international community in situations of state failure and fragility should therefore be guided by, on one axis, the particular condition of fragility in which a State is found and, on the other, the risk and danger to the international community that would result from lack of action. Competent agencies of the United Nations or NGOs in the field may be mandated with routine and low-impact actions, such as monitoring and reporting. For example, specific international actors in loco could be mandated to perform specific actions. For example, in the case of Somalia, UN bodies, like the Food and Agriculture Organization or WHO, could be given the power to certify public health requirements or monitor and report health emergencies. More complex situation would require a higher level of threat. Thus, more complex actions, including the maintenance of air space and boundary security, would also require a higher level of consent and decision-making ability. For example, the United Nations Development Program and the International Civil Aviation Organization have been tasked to manage the airspace of Somalia. Actions to deal with the most urgent and highest levels of threat to the peace and security of the international community could only be done with the approval of the United Nations Security Council (like in fight against piracy off the coast of Somalia) or by an a representative committee created for that purpose.

I am not advocating for a return to protectorate or trusteeship, far from that. I suggest that state failure and fragility require a common and agreed action plan that can be implemented when needed. While at hoc arrangements have been found, I believe it is important to have a systematic approach to the risks that may derive from the non-performance of certain actions.

These principles would not violate national sovereignty. In fact, the tension between the duty of non-intervention identified in Article 2 of the UN Charter and the necessity to fulfill international obligations is only potential. It does not need to surface if the meaning of intervention is rightly considered. The issue of “intervention” in a territory of a State that is unable to perform international obligation must be assessed within the interests of other States in reducing threats to security, as it is now defined. Thus, the principle of non-intervention in internal affairs is limited in this context because it needs to be balanced with the general interest of States in upholding peace and security and enforcing international law. Moreover, it also needs to be qualified by the existing duty of cooperation and of interaction that exists in the international community. Actions taken to fulfill international obligations in fragile and failed States could be framed as included in this exception.

What I suggest is a  series of principles that would ensure a temporal, multilateral and consistent approach to the challenges that failing and failed states pose.

One way to build political coalitions for greater use of international law in the U.S. would be to use international law to advance political goals of folks who would otherwise be suspicious of international law.  So I wonder if there is some reason to think liberal internationalists would be willing to embrace the argument made in a recent book by Rita Joseph, Human Rights and the Unborn Child. As described over at National Review’s Bench Memos blog, Joseph’s book argues that international human rights law, properly understood, supports the protection of human fetuses and limits or prohibits abortions.  Here is a description of her argument:

Joseph concludes that “the human rights of the unborn child were recognized…in the foundation documents of modern international human rights law.” Her argument is impressive, demonstrating an informed grasp of the textual and contextual development of the relevant instruments. An instrument central to her case is the U.N. Declaration of the Rights of the Child (1959). A crucial paragraph in its preamble reads:

“Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”

This Declaration confirms, she contends, international agreement that the UniversalDeclaration of Human Rights (1948) recognizes the rights of the unborn. She adds that the word “child” was understood in 1948 to include the child before birth. (She could have noted that the first definition of the word in the Oxford English Dictionary is the “unborn or newly born human being”). She recalls the historic legal prohibition on aborting any woman “with child” and the even longer Hippocratic prohibition on abortion, which was reaffirmed by the World Medical Association’s Declaration of Geneva only three months before the UniversalDeclaration: “I will maintain the utmost respect for human life from the time of conception, even under threat…”

I haven’t read the book, but it certainly looks like a pretty interesting argument.

My earlier post on Somalia received some interesting comments which I would like to develop further.

First, framing state failure as a continuum is important because where a state stands in this continuum (i.e. its ability to react to international security emergencies that occur in its territory) informs decision makers on what (and if) actions are required by the international community. It is important that the decision is taken multilaterally and not by single states. The United Nations is, in my view, the organization that is best placed to decide whether and which kinds of international actions are required.

It is also important to note that the definition of what is a threat to the international security has evolved and is now more expansive. For example, as Gian Luca notes, it now includes health emergencies. The rationale of a military intervention to vaccinate or treat civilian populations is rightly questioned by Gian Luca, but it is important to note the international community is in the process of acquiring additional tools that will allow it to address common security concerns that are can be the consequences of failing states and their inability to work within the system. Natural and man-made environmental emergencies can also be a threat to the international security and need also be addressed in the same way.

I sympathize with the view that certain aspects of the analysis of state failure may recall unpleasant paternalistic visions. However, I think it is important to focus on the consequences of state failure and move away from a vision that frames actions by the international community as intrinsicaly “neo-colonial.” When states are failing and fail, and are unable to perform their obligations, domestic populations and the international community suffer. What is important is to focus on how the situation is remedied and assistance is provided. The international community made terrible mistakes in providing assistance in the past, both by creating protectorates and by sending peacekeeping forces which were often untrained, ineffective and lack clear mandates. It is paramount to learn from these mistakes, but should not exclude coherent, necessary and responsible actions.

Gian Luca points out that the need to be “creative” to find solutions and work around the obstacles that state failure. He points out the example of WHO’s action in Somalia in relation to polio eradication. Other international organizations have demonstrated similar creative powers. For example, in certain instances( including at times in Somalia) the UNDP administrator waived the requirement that receiving governments sign planned development projects, when central authority was lacking. Similarly, UNICEF negotiated Days Of Tranquillity with local communities to guarantee access to local populations for vaccination in conflict situations (for example in Sudan and Afghanistan). As Guglielmo notes, the international community has seldom remained completely inactive as adopted diverse actions to confront emergencies in failing states. I think it is important to take a step further and develop a consistent and predictable approach to security threats resulting from state failure.

Here is the letter of the EU Ambassador to the US to Virginia Governor Robert McDonnell protesting the (then) imminent execution of Teresa Lewis, among other international voices attempting to win commutation for the convicted killer.  Obviously the effort failed.  I’m not sure that there has been any episode in which one can establish a causal link between such international condemnation and a canceled execution (other than the Torres case, which of course involved a directly applicable ruling from the International Court of Justice).  (Ambassador Vale de Almeida also has this out to Governor Schwarzenegger, prompting a caustic response from one British columnist decrying EU arrogance — imagine how it will go over in Orange County.)

Two things about the letter’s form are interesting.  One is that the letter takes the form of a “demarche”.  I would have thought the term would be reserved for formal diplomatic exchanges at the national level.  (The Department of State’s Foreign Affairs Manual, a kind of how-to guide for U.S. diplomats, defines a demarche as “a formal diplomatic representation of one government’s official position, views, or wishes on a given subject to an appropriate official in another government or international organization.”)  So I wonder if this communication with a substate jurisdiction marks a new twist in diplomatic practice.

Second is the letter’s closing paragraph, stating the EU’s “respect” for the Commonwealth of Virginia and highlighting the “mutual benefit of the more than four hundred years of history that we share.”  The proverbial Martian would hardly be able to tell that Virginia is part of the United States!

My apologies for this late entry in the discussion of state failure. I’d like to address what I see as the central legal paradox that Chiara raises in her fascinating new book. That is the disjunction between the criteria for creating states and the criteria governing their extinction. Chiara demonstrates that many failed states might well be ineligible for statehood under the former but are clearly entitled to remain as states under the latter. Indeed, as she also demonstrates, contemporary international law provides remarkably few legitimate means by which any state may be extinguished short of its voluntary merger with another state. Even then questions would likely arise about the legal effect on individual citizens. To the extent the causes of state collapse are unlikely to disappear any time soon, then, it would appear that failed states will remain a fixture of the international agenda.

The first point to be made about this state of affairs is that it is partly of international law’s own making. Not completely, of course, but the legal contribution is clear. Most of the worst examples of state failure (according to the useful Index on State Failure) occur in former colonies. General Assembly Resolution 1514 famously declared that “Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.” There was more than good reason for this at the time. But the consequence was that many colonies entered statehood with only a minimal capacity to govern their territories. Many, moreover, were ethnic polyglots with borders drawn by colonial authorities with no regard to local preferences. But the principle of uti possidetis precluded (in most cases) redrawing those borders. Finally, when faced with states fragmentation, secessionist movements, predatory states seeking to annex their neighbors and mass expulsions of people, international law has overwhelmingly sought to maintain existing borders and populations. Even where states ultimately do fragment that outcome is hardly the international community’s first preference.

All these legal choices closed doors on opportunities to enhance, rework or just do away with failing states. I am not saying these were the wrong choices. My point is rather about their (hopefully) unintended consequence of supporting failed states.

Second, one reason international law may prevent the extinction of failed states is that it has other remedies available for the causes of failure. Although Chiara makes the important point that state failure exists on a continuum, I think she is speaking mostly about the degree of failure. Equally important in my view is that different reasons for state failure may engage different legal principles and objectives.

Thus, some states fail because of civil wars (Uganda, Nepal currently #21 and #26 respectively on the State Failure Index). Some fail because they are governed by a vindictive authoritarian regime (Zimbabwe (#4) and North Korea (#19). Some fail because of profound ethnic/national/religious cleavages (Sudan (#3)). Some fail because the ruling class seems incapable of effective management (Haiti (#11)). Some fail because of the many consequences of external intervention (Iraq (#7) and perhaps Haiti again). And some fail because anarchy seems to have acquired its own destructive inertia (Somalia (#1)).

These situations are not the same in the eyes of international law. International law generally regards the fact of civil war (as opposed to the tactics used) as representing a profound disagreement among citizens over governance in their state. That is a largely a matter for citizens to resolve themselves. A more exacting view of internal conflict might further distinguish “legitimate” disagreements over state policy from mere conflict for power between armed militias (DR Congo (#5). Moving to another reason for state failure, there are increasing pressures for regime change in authoritarian failed states – for example, the refusal of the Commonwealth to recognize the results of flawed elections in Zimbabwe. The objective of such democracy-based norms is not to build up state authority where it is lacking but transfer authority to new leaders. In yet another category, the international community seems poised to abandon its traditional commitment to existing borders in the case of Sudan and allow the south to secede if it prevails in an upcoming referendum. It seems international law lacks a strategy only in cases of endemic mismanagement or outright governmental collapse. Here Chiara proposes a trustee-like solution that will be the subject of a future post.

Finally, while international law has certainly lacked a coherent set of tools to assess state failure, I think we should be wary of creating a distinct legal category of failed states. This was famously attempted by John Yoo in a U.S. Justice Department memorandum that has been overshadowed by the more notorious torture memos. Yoo argued in January 2002 that because Afghanistan was a failed state it had ceased to be a party to the Geneva Conventions. The State Department properly responded to this claim that international law did not regard a state’s political failure as involving its legal failure; that is, a change in the state’s legal status or rights and obligations. In one of the few acts of courage by Bush administration lawyers, Legal Advisory Will Taft told Yoo that his argument was “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.” I don’t at all suggest Chiara makes this sort of proposal. But Yoo’s effort to use the idea of state failure to undermine critical international legal principles should remain a cautionary tale.

Chiara Giorgetti devotes a good part of her book to the reactions of the international community, and the tools available to it, with regard to the lack of a functioning government in Somalia since 1991 and the consequent ripple effects that the failure of functioning governance there has produced on other countries.  The example she gives of the management of Somali airspace by UNDP and ICAO is particularly interesting and instructive about the tools available to the international community, in particular through international organizations.  The United Nations then attempted, with very mixed success, to establish a form of international protectorate under Chapter VII of the Charter.  The experience of UNOSOM shows the potential but also the limits of international action in the case of a failed state.

Besides the case studies in Chiara’s book, I would like to add a couple of examples from my involvement in UNOSOM’s deployment while working at the UN legal office, and from my current job in the WHO legal office.  When the Security Council authorized the initial non-Chapter VII deployment of UNOSOM in 1992, in the absence of a central government the UN secured the approval of the main factions controlling Mogadishu and used them as the legal basis for the deployment of the operation in lieu of the approval of a government representing Somalia internationally.  Whereas other peace-keeping operations have had to deal with de facto authorities for the discharge of their mandates (e.g. Bosnian Serbs or Turkish Cypriots), this is to my knowledge the only case when the UN entirely dispensed with the approval of a sovereign government as the legal basis for the deployment of a peace-keeping operation.  In terms of the management of health risks that could spread internationally, WHO has been concerned with the possible importation of wild poliomyelitis virus into Somalia and its spread to the rest of the region due to the collapse of a functioning health system.  Since the current UN security phase in most of Somalia makes the deployment of WHO staff impossible, the Organization had to be creative and work around those obstacles in order to pursue its primary objective of finally eradicating polio.  One way has been to stretch the use of consultancy contracts as a form of retainer for local officials (doctors, nurses, teachers, civil servants) who perform polio surveillance functions within their communities on a part-time basis.  These persons then meet periodically at a sub-regional level and report their findings which are communicated to the WHO office in Nairobi.  By doing so, WHO has managed to retain indirectly a presence in Somalia to at least monitor a possible resurgence of polio in that country.

As noted by Chiara, the revised International Health Regulations (IHR) offer additional tools to address the problem of the lack of an accountable and functioning government for the prevention and control of the international spread of disease.  The IHR, for example, allow WHO to take into account and use information about the sanitary situation in a country coming from sources other than its government.  Those sources can be other international organizations, NGOs or even individuals and WHO uses them to assess and communicate health risks with a potential for international spread.  The lack of a central government would hinder WHO in seeking verification of information coming from non-governmental sources, as also prescribed by the IHR, but it could at least inform neighbouring countries about a potential health risk coming from inside Somalia and enable them to adopt surveillance and response measures.

At a more extreme level, the interaction between health emergencies and international security offers possible tools to react to grave international health risks coming from a failed/failing state.  It should be recalled in this connection the proposals and recommendations made by the group of experts convened by Secretary-General Kofi Annan and who analyzed the broadening meaning of international security in the report of 2005 “in Larger Freedom”.  The panel did not hesitate to recommend that, in case of unwillingness or inability of a state to take urgent measures necessary to control deadly infectious diseases with pandemic potential, the threat of such a situation to international security would justify the Security Council in using Chapter VII to request urgent sanitary measures or even to authorize international intervention to address the health situation inside that country.  The rationale of a military intervention to vaccinate or treat civilian populations can be questioned, but the growing interlinkage between health and security certainly gives the international community additional tools to address the consequences of state failure.

President Obama’s UN General Assembly speech this morning highlighted the place of civil society as an agent of progress:

Civil society is the conscience of our communities, and America will always extend our engagement abroad with citizens beyond the halls of government. We will call out those who suppress ideas, and serve as a voice for the voiceless. We will promote new tools of communication, so people are empowered to connect with one another – and, in repressive societies, to do so with security. We will support a free and open Internet, so individuals have the information to make up their own minds. And it’s time to embrace – and effectively monitor – norms that advance the rights of civil society, and guarantee its expansion within and across borders.

I’m on board with the global first amendment riff.  But to center civil society as a vehicle for association and expression and community is not at all to say that it is our “conscience.”  Civil society obviously can be a force for good (as in the examples Obama cited, South Africa, Argentina, and Poland), but it’s not necessarily progressive.  The right-wing is globalizing, too.

“Conscience” also implies a kind of inherent selflessness.  But even where it’s progressive, civil society represents constituencies.  Various transnational identity groupings (women, children, gays, the disabled, etc.) are representing the interests of those communities first and only incidentally move the ball forward for others.  Even the generalist human rights groups (Amnesty and Human Rights Watch) are mostly representative of Northern donors, which results in the heavy emphasis on political and civil rights over economic and social ones.  (There have been pointed internecine exchanges in the human rights community on this; see for example the testy back-and-forth between Ken Roth and Neera Chandhoke in this edited volume.)

This is not to fall into step with Ken.  I think accountability concerns relating to NGOs are overblown and largely self-correcting.  In any case, civil society is a power that has to be reckoned with.  On that score, Obama’s foregrounding in the state-based forum of the UNGA supplies yet further evidence.

I’d like to pick up a thread is in Chiara’s book and is teased out in both Gian Luca’s post and Ben Davis’s comment on Chiara’s most recent post on Somalia: the view that state failure is notan “on/ off” characteristic, but rather is a continuum ranging from governments that are somewhat incompetent (insert your state of choice here) to essentially nonexistent (Somalia). I like Ben’s insight that there is a temporal factor to this and that states may move up and down this continuum. Haiti, I think, is an example of a state that, especially between 1987 and today, has slid up and down the continuum of levels of dysfunctionality.

Chiara’s book is in part concerned with expanding the toolbox available to the international community to respond to when a state starts sliding down the continuum. In her opening post in this discussion, she wrote:

States can gain statehood quite easily, but there is no method to assess changes in the constitutive elements of a State, and thus adjust the standing and responsibilities of States when they start to fail.

In other words, as states become more dysfunctional, should we adjust their status as members of the international community? That we should get rid of the binary view of statehood–either you are a state or you are not–and have a conception that is more flexible and nuanced?

One resultant question would be who decides if a state has slid down the continuum of dysfunction and, equally importantly, what may (or may not) be done by members of the international community who believe a state is becoming increasingly dysfunctional, but the government (and perhaps a portion of the population) of that state disagrees with the assessment of those members of the international community?

If statehood should no longer be binary, this may make that the act of recognition itself much more complex. If states may “adjust the standing” of other states as those countries become increasingly dysfunctional, isn’t this like “de-recognizing” a state? If so, doesn’t this take the politics of recognition and instead of making it effectively a one time “on/ off” choice (think Kosovo or South Ossetia), it turns it into an ongoing debate as to how much recognition a state should receive?

The U.S. Congress is just about to have their much-dreaded midterm elections, and they will probably not do much before November 2 except to spend millions of dollars on annoying campaign ads.  But it looks like before they break for the election, Congress may vote on two bills that may violate U.S. obligations under the WTO and NAFTA.

First, Congress is about to approve the “Foreign Manufacturers Legal Accountability Act“, which would require all foreign manufacturers exporting goods to the U.S. to have a registered U.S. agent able to receive service in case of a domestic U.S. lawsuit.  Aimed primarily at sketchy drywall manufacturers in China, the law is causing lots of angst in Canada, whose ambassador has recently warned the law would violate both the WTO and NAFTA. I am actually not exactly sure why this law, which does not seem to impose any obligations on foreign manufacturers not already borne by domestic ones, would violate the WTO or NAFTA.  But the Canadians are sure up in arms about it.

Second, Congress may be close to passing a bill authorizing anti-dumping or countervailing duties on Chinese imports due to an alleged undervalued Chinese currency.  This too is highly sketchy as a matter of WTO law, and is sure to spark at least a  WTO case, if not an actual trade war.

Ironically, these two acts have very broad bipartisan support, maybe the only two acts that the Democrats and Republicans currently agree on.  It’s nice to know Americans can come together, even if it is to result in violating international treaty obligations.

Between 1998 and 2000, I worked in Somalia for the UN Development Program. This experience very much informs my view on how international system deals (or does not) with state failure.

As it is known, Somalia has been without a functioning government for the past 20 years. And Somalia is often referred to as the main example of State failure. In the absence of a viable government, Somalia has become the center of a civil war as well as source of regional and international instability. Somalia is the center of arms, drugs and human smuggling, it is the host of active al-Quaeda cells and its training camps; Somali pirates attack international shipping off its coasts, and Muslim radicals control significant part of the territory. Somalia is also one of the poorest countries in the world. Life expectancy reaches slightly above 47 years of age. Famine struck its population, the great majority of which has been internally displaced for many years or has left the country all together.

Although, as Burci rightly says “there is no other case quite like this” the study of Somalia and how the international community has acted towards it is quite instructive. Several UN agencies and NGOs are active in Somalia and their activities provide de facto several basic goods and services that would normally be provided by state authorities. This includes basic education and health care.  However, the international community has not (and could not because of the lack a univocal approach) comprehensively taken action in Somalia. There is an attempt to provide the bear minimal standards to domestic population, but there is no overall strategy. Verdirame correctly notes that the practice of international organizations and states, albeit idiosyncratic, has not been one of complete inaction.

Interestingly, the international community has been quite resourceful in two situations which are at the core of the functioning of the international aviation system and to maintain international security.

First, it has taken charge of managing the airspace of Somalia, which extends from the territory of Somalia to the Seychelles and is one of the main routes to go from Africa to Asia and from Northern to Southern Africa. During the UN peacekeeping operations in the early 90’s, UNOSOM was mandated to secure all ports and airports for the delivery of humanitarian assistance. It thus agreed with the International Civil Aviation Organization (ICAO) that the later would provide civil aviation functions, including in the airspace of Somalia. When UNOSOM left, this arrangement continued and the airspace of Somalia is still now managed by the UNDP and ICAO together. The United Nations in this case assumed the role of caretaker of a specific internal matter of a State. The absence of such mechanism would have severe consequences for the safety of the air space and would significantly disrupt air traffic. It is therefore a correct and important decision. One wonders, however, if such mechanisms should be institutionalised and not resolved on an ad hoc basis.

The international community has demonstrated a similar political will in its effort to combat piracy off the coast of Somalia. The safety of territorial and maritime borders is paramount for order and stability of the international community. The interest and relevance of Somali maritime borders has resulted in unique actions by the United Nations. As such, the fight against piracy in Somali waters is a particularly relevant example of possible actions the international community has recently been ready to take to address this problem. Piracy in the territorial waters of Somalia and in the high seas off the Somali coast has been a problem for many years. Several ships have been hijacked for ransom, even while attempting to deliver food aid to Somalia. Commercial shipping has also been targeted, including from the US and Egypt. On June 2, 2008, after extensive deliberation, the UN Security Council issued a unique Resolution – 1816 (2008) – in which it decided to allow foreign military ships to enter Somali waters to repress piracy under specific conditions. A second Resolution was approved by the Security Council on 7 October 2008 which further extends the mandate of foreign forces. The Security Council called upon State “whose naval vessels and military aircraft operate on the high seas and airspace off the coast of Somalia to use on the high seas and airspace off the coast of Somalia the necessary means, in conformity with international law, as reflected in the Convention, for the repression of acts of piracy.”The initial mandate has been renewed and several naval vessels and military aircrafts are now present and active in the Gulf of Aden, including vessels from NATO, the US, the EU, Russia, as well as a combined international force (CTS-150).

These examples are important and demonstrate the ability and willingness by the international community to act to protect its common interests and security. For other matters, however, a common approach has not been found and domestic populations continue to suffer. Moreover, what possible actions can be taken in situations of health emergencies or environmental crises in failed and failing states?  WHO, UNICEF and other international organizations have developed interesting mechanisms to resolve and address emergencies. These include the New International Health Regulations and extensive monitoring and reporting structures. They may provide an interesting blueprint to address emergencies in failed and failing states.

State failure is an almost intractably thorny question for international law. Its intractability is both practical and conceptual. It is practical because state failure – defined by Giorgetti as ‘the prolonged implosion of governmental structures and the ensuring incapacity of the government to provide political goods to its internal and external constituencies’ – poses tremendous political, social and humanitarian challenges to the local population, to neighbouring states and to the international community as a whole. There is, and there can be, no universally effective blueprint for saving states from failure and for returning them to a basic functioning (let alone to “success”, whatever that might mean).

The conceptual intractability of state failure is in a nutshell this: as James Crawford explains at the beginning of his seminal book The Creation of States in International Law (2006, 2nd ed.), statehood is both norm and fact; a state ‘is not a fact in the sense that a chair is a fact … [but in the sense of] a legal status attaching to a certain state of affairs by virtue of certain rules or practices’ (at p. 5). A state is, in other words, a fact in a normative and social sense. But if one of the key factual pillars of statehood, that is an effective government, collapses in its entirety for ten, or even twenty or more years, does it really make much sense to insist that the state still is? Can this fact-based concept survive the demise of one of its founding facts?

In terms of positive law, the answer is that statehood does survive a complete and lasting loss of effectiveness, for the modalities of state extinction do not include extinction by failure of government. The continued existence of a state in these circumstances might be described as a fiction. But, as every jurist knows, fictions are often there for a reason. The reason in this case is that to declare a state extinct because of the total failure of government might render the political problem behind state failure only more intractable.

Giorgetti does not use the concept of state failure to make a novel –and frankly improbable – argument about state extinction. Her concern is to find a way of dealing with the fact of state failure that is both principled and practical. As shown by the case of Somalia, to which she devotes a significant part of the book, the practice of international organisations and states shows that responses to state failure, while idiosyncratic, have not normally been characterised by complete inaction. Inaction is not in fact an option because the nature of modern-day society requires that someone somehow be in charge of some basic functions. It is therefore no surprise that certain functions of failed states like Somalia, for example in the area of aviation and shipping, have been taken over by international organisations. Such take-overs of functions have not always happened under formal mandates by the UN, and they have seldom – if ever – been accompanied by a comprehensive principled assessment.

Giorgetti’s work aims to provide the basis for such a principled framework. One of her premises is that, while the state may have failed, its sovereignty still stands. In her view the interventions of the international community cannot proceed on the basis that the principle of sovereignty does not need to be observed in these cases. Some may criticise her for going at such lengths to reconcile international interventions in failed states with sovereignty, but I tend to agree with her approach. ‘Sovereignty shorn of the last vestige of power’ [Lighthouses in Crete and Samos (France v. Greece), (1937) PCIJ Series A/B, No. 71 at 127, diss. op. of Judge Hudson] may strike some as yet another idea that stretches the relationship between norm and fact to the point of incredulity; and they are probably right. But the function played by the principle of sovereignty in these circumstances is to protect states, territories and ultimately people from being taken over by other states.

Chiara’s book is quite timely and topical and fills a puzzling gap in international legal studies.  The concept of failed state, mostly epitomized by Somalia after 1991, became fashionable in the United Nations in the 1990s as the Security Council discovered its muscles under Chapter VII of the Charter and broadened the notion of threat to the peace to encompass humanitarian crises, massive violation of human rights and humanitarian law, and breakdowns in national governance – all features of a situation of state failure.  Still, the theoretical and practical challenges and conundrums raised by the failure of state institutions at the international level may have discouraged legal scholars from approaching this issue in a systematic way.

One of the complexities raised by Chiara’s approach to state failure is her notion of a progressive process of inability of a state to perform its obligations, from which certain consequences should derive under international law at different points of this continuum.  Identifying state failure with an extreme example such as Somalia probably simplified the analysis but also narrowed the field of research since there is probably not other case quite like it.  In the case of Chiara’s analysis, is there a point in the line of progressive inability of governments to perform its functions and comply with its obligations that triggers certain consequences and may lead to collective measures under international law? If we take Chiara’s approach too literally, there are many states whose sovereignty is not seriously questioned which may be chronically unable to provide some of the political goods that Chiara identifies as an essential element of a “functioning sovereignty”.  Doesn’t this risk broadening too much the concept of failing states and make it less relevant for a serious analysis of the theoretical and practical consequences of state failures?  I wonder whether it would help the analysis to set the bar higher and narrow the very concept of state failure to more extreme cases of collapse of state institutions or of their basic functions.

Another initial consideration I would like to make concerns the causes of state failure identified by Chiara in chapter four of her book.  She focuses on political causes such as the aftershocks of the end of the cold war and of colonial regimes, or on pathological social phenomena such as extreme ethnic or religious imbalances.  However, an aspect of contemporary state failure that Chiara doesn’t seem to consider but that could become widespread in the next decades is the failure of states for natural causes.  Small island states such as Nauru, Tuvalu or the Maldives may soon become uninhabitable because of the rise in sea level or depletion of natural resources due to global warming, and their worsening conditions is making them already now progressively unable to comply with their domestic and international obligations.  Nauru, for example, is constantly on the verge of bankruptcy and is unable to provide basic services to its (admittedly small) population or to comply with its financial obligations at the international level.  At the same time, the failure of states such as those I just mentioned does not pose a credible threat to international security or other fundamental interests of the international community.  Would Chiara include this category of failed states into her analysis, and what legal consequences would she draw?

Failed and failing states are relatively new phenomenons that have not yet been recorded in the international law radar screen. However, the rise of piracy off the coast of Somalia, and increased instances of terrorism and international organized crime underline their relevance in the international legal system.

In my book, A Principled Approach to State Failure: International Community Actions in Emergency Situations, I study the theoretical importance and practical consequences of state failure. The aim of the book is to provide a viable, consistent approach for the international legal system to deal with state failure. My conclusions are supported by several case-studies, which include Somalia, health and environmental emergencies and actions taken by the international community to assist domestic populations in failing states.

State failure is best defined as the incapacity of a State to perform its obligations towards its citizens and towards the international community in general. Failed States are characterized by an implosion of States’ structures, which results in the incapability of governmental authorities to perform their functions, including providing security, respecting the rule of law, exercising control, supplying education and health services, and maintaining economic and structural infrastructures. In fact, a failed State is unable to provide political goods to its citizens and to the international community. These goods include security, border control, a political structure, physical infrastructures, a judicial system, education and health-care, and commercial and banking systems.

State failure is multi-formed and can be depicted as a continuum, as the State becomes progressively less capable of performing its functions and becomes more and more ‘failed.’ Complete State collapse is the ultimate, and rare, result, while different stages of State failure can be encountered along the continuum.

State failure implies the possibility that a State cannot – rather than does not – perform its functions, even after its statehood is recognized. Legally, State failure epitomizes a fallacy in international law, as failed and failing States continue to be considered fully fledged sovereign and are required to fulfill their many obligations towards other States and the international community in general. In fact, while international law carefully considers the creation and dissolution of States, it has not recognized their evolution while in existence. States can gain statehood quite easily, but there is no method to assess changes in the constitutive elements of a State, and thus adjust the standing and responsibilities of States when they start to fail.

This is unsatisfactory because it demonstrates that the defining elements of statehood, the pillar of international law, provide only a very limited elucidation of what constitutes a State.

It is also inadequate because State failure has profound consequences for domestic populations and the international community in general. When States fail, people suffer and the international community is put at risk. I think that it is fundamental for international law to address the problems that failing and failed States pose.

I look forward to exchanging views on this issue in the coming days.

We are very pleased to host from today through Friday an online symposium considering Chiara Giorgetti‘s book A Principled Approach to State Failure: International Community Actions in Emergency Situations (Brill 2010).

Dr. Giorgetti, an attorney at White and Case and an adjunct professor at Georgetown Law Center, will be with us for the rest of the week, discussing various of themes from her book. Moreover, we will also be joined by Gian Luca Burci, the Legal Counsel of the World Health Organization; Greg Fox of Wayne State University Law School; and Guglielmo Verdirame of the University of Cambridge and the Lauterpacht Centre for International Law. We are honored to have such a distinguished group of guest bloggers.

The terms “failed state” and “fragile state” are thrown around all too often in international legal and political commentary (and sometimes in OLC memoranda…) with just a general sense that “we’ll know one when we see one.” Chiara’s study attempts to unpack what these terms actually mean and assess the efficacy of the international legal tools and techniques we use to address failing or failed states. Weaving together analyses drawing from multilateral responses to health, environmental, and human rights emergencies, as well as examples of foreign military interventions into failed states, this book not only attempts to describe in detail what it means for a state to falter and collapse but also considers the role (if any) that international law and institutions may play regarding the problem of failing states. It is a wide-ranging and timely book that has already sparked debate.

We at Opinio Juris look forward to the discussion and encourage our readers to get involved by posting comments and queries of their own.

The following is a guest post from Chimene Keitner, Associate Professor of Law at Hastings.  My thanks to her for contributing it!

The Second Circuit’s recent panel opinion in Kiobel v. Royal Dutch Petroleum has justifiably spurred much talk in the blogosphere, including posts by Trey Childress, Ken Anderson, Julian Ku, and Kevin Jon Heller. Here are my preliminary thoughts.

First, it is premature to hail the “end of the ATS.” It may be true that some plaintiffs have sought to hold corporations accountable for their complicity in human rights abuses under the ATS’s jurisdictional grant. But not all ATS litigation is about corporate liability. To the contrary, the Second Circuit’s landmark opinion in Filartiga v. Pena-Irala involved an individual human rights violator, and cases against individuals continue to be filed under the ATS and the Torture Victim Protection Act of 1991. It is important not to lose sight of these cases, which the Supreme Court explicitly approved in Sosa v. Alvarez-Machain (2004).

Second, whether or not the ATS is good policy, the jurisdictional grant it embodies must be interpreted within the context of U.S. law. This does not mean that U.S. law governs all aspects of ATS litigation—in my 2008 article on Conceptualizing Complicity in Alien Tort Cases, I argued that international law provides the “conduct-regulating” rules applied under the ATS, whereas U.S. law governs other aspects of ATS litigation. Although I focused on the standard for aiding and abetting, I also suggested that “the most coherent approach would look to U.S. law on the question of personal jurisdiction, including the type of entity against which a claim can be asserted, [while] international law would supply the substantive, conduct-regulating rules that apply to private actors” (p. 72).

Kiobel misconstrues language in Sosa about whether private actors can violate international law to conclude that corporations cannot be held liable for certain conduct in U.S. courts. In terms of my proposed framework, Kiobel miscategorizes the question of whether corporations can be named as defendants as a conduct-regulating rule akin to aiding and abetting. This is wrong because aiding and abetting liability, unlike corporate liability, does not involve the attribution of the principal’s conduct to the accomplice by virtue of a preexisting legal relationship. Rather, it prohibits the accomplice’s conduct in providing substantial assistance to the principal. Consequently, under the ATS, the accomplice’s (and the principal’s) conduct is governed by international law. By contrast, whether or not the accomplice’s (or the principal’s) conduct can be attributed to a corporate entity is governed by U.S. law. Corporate liability is thus possible under the ATS whether or not corporate entities have themselves been subject to the jurisdiction of international tribunals or found liable for international law violations by such tribunals.

Kiobel indicates that “[t]he singular achievement of international law since the Second World War has come in the area of human rights, where the subjects of customary international law—i.e., those with international rights, duties, and liabilities—now include not merely states, but also individuals” (p. 7). In fact, this is not such a novel development: the paradigm violations of piracy, violations of safe conducts, and offenses against ambassadors identified in Sosa also would typically have been committed by private actors, rather than by states (see Conceptualizing Complicity, p. 70). The ATS’s jurisdictional grant should be understood in this context. In an amicus brief filed on behalf of professors of federal jurisdiction and legal history in Balintulo v. Daimler AG (2d Cir., No. 09-2778-cv), my colleague William Dodge documents that “[l]egal actions for violations of the law of nations were not limited to natural persons in the late-eighteenth and early-nineteenth centuries” (p. 15), and that “no distinction would have been drawn between individual and corporate defendants” (p. 14) in these early cases. Any serious consideration of jurisdiction under the ATS needs to grapple with these historical foundations, and with the relationship between the law of nations and U.S. law, not simply “international law” in the abstract.

Looking at the big picture, there certainly need to be—and are—robust mechanisms to contain cases that are non-meritorious or vexatious, that impinge excessively on the Executive’s conduct of foreign relations, or that should be heard in a non-U.S. forum that is willing and able to provide redress. At the front end, I would hazard that, although the increasing involvement of plaintiffs’ law firms (as opposed to human rights lawyers associated with non-profits, or attorneys working strictly pro bono) in bringing ATS cases may have some benefits in terms of reaching a greater swath of deleterious conduct, it may foster less coherence and restraint in case selection. At the back end, certain judges may be tempted to overcompensate by creating doctrinal barriers to entire categories of cases. This impulse might be understandable, but it does not justify judicial rewriting of the ATS.

The AsianSIL has a call for papers for its Third Biennial Conference which will be held August 27-28, 2011 in Beijing. The conference theme is Asia and International Law: A New Era. (Note: no “?” at the end of the theme like a confernce organized by hedging U.S. academics. I can say this becuase I have stuck my share of question marks at the end of conference themes.)

Further information on the call for papers after the jump.

Steve Vladeck has been having a fascinating debate with Ben Wittes and Bobby Chesney about the merits — or lack thereof — of Sen. Lindsey Graham’s proposed “Terrorist Detention Review Reform Act,” which Wittes and Chesney support and Steve opposes.  Steve doesn’t need my help in the debate, which I think he’s clearly winning.  But I couldn’t let one point go, because Wittes and Chesney make a categorical claim about an issue in IHL that in no way admits of a categorical answer — particularly the one that they favor.

The issue concerns what the law of war (IHL) says about detention in non-international armed conflict (NIAC).  That question is relevant to the TDRRA, because the Act permits the government to detain without trial anyone who “has purposefully and materially supported hostilities against the United States or its coalition partners,” regardless of where that person is apprehended.  In his most recent post, after discussing constitutional problems with the TDRRA’s capacious definition of “material support,” Steve argues the following:

Third, even if the material support statute doesn’t violate the First or Fifth Amendments, “material support” as a concept has never been endorsed as a basis for detention under international humanitarian law, let alone as a basis for trial by military commission. There’s certainly a lot of disagreement over just how far IHL goes in defining belligerency, especially in a non-international armed conflict, but the provision of “material support,” without more, goes well past any recognized precedent, decoupling detention authority from any meaningful requirement of active participation in hostilities.  In this sense, then, the Graham bill would provide detention authority that fundamentally transcends not just the limits of international humanitarian law, but its analytical underpinnings.

Wittes and Chesney casually dismiss this argument.  Here is what they say (my emphasis):

Steve’s argument appears to be that “material support” reaches conduct that would not constitute “direct participation in hostilities” or any other formulation approximating the idea of being a belligerent, and hence either that it is a waste of time to use this as a detention standard in a statute (an argument that requires a theory as to why the statutory judgment would not control) or else that it is simply undesirable to do so (an argument that requires a policy justification).   Insofar as this is an argument that the law of war permits detention in this setting (i.e., non-international conflict) only as to persons who directly participate in hostilities, well, suffice to say that no U.S. court has yet accepted that position and that several of the district judges in the habeas litigation have rejected it.

I assume the theory behind Steve’s argument is that if the AUMF’s detention power is “informed by the laws of war,” as the administration claims, the TDRRA’s detention power should also be so informed — in which case it matters what IHL actually says about detention in situations other than international armed conflict (IAC).  And I assume the policy justification is that it is bad to detain at least some kinds of people without trial who have engaged in “material support” for terrorism, given Humanitarian Law Project‘s ridiculous conclusion that things like training terrorist groups in IHL qualifies as “material support.”

More importantly, Wittes and Chesney don’t bother to defend their claim that the rules of IHL in NIAC permit detention of individuals who “materially support” terrorism.  Instead, they simply point out (with no links or citations) that “several district judges” have taken that position…

The draft Resolution of Ratification for the New START treaty approved last week by the Senate Foreign Relations Committee is now up on Senator Richard Lugar’s webpage.  It contains all sorts of required certifications, reports, and briefings.  I can’t tell if any of it is really significant by way of constraint.  (Lugar claims in his press release that the required certification of capacity to monitor for Russian noncompliance is unprecedented; presumably, that capacity exists.)  I assume the Democrat acceptance means that the President is on board, on both policy and constitutional fronts.

One provision that isn’t new but is meaningful: the closing declaration that all arms control agreements shall be undertaken only as article II treaties, something now boilerplate in all such resolutions.  You have to wonder if the Administration didn’t consider going the congressional-executive agreement route on this.  It would surely have been easier to get the simple bicameral majority than supermajority Senate approval, and they would have had some pedigreed academic work by way of ammunition.  But in the end it probably wasn’t worth a constitutional showdown; the result is a landscape in which congressional-executive agreements are acceptable for some types of agreements, but not others.  Full interchangeability may come some day, but we’re not there yet.

Alan Feuer has a very interesting article in today’s NY Times about the Analytic Unit of the NYPD’s Intelligence Division. Feuer piece explains

To bolster counterterrorism operations after 9/11, the Police Department expanded its Intelligence Division — run by David Cohen, a 30-year veteran of the C.I.A. — with detectives who had mainly spent their careers chasing street gangs, drug lords and violent Mafiosi. Such trained investigators brought with them specific skills the department thought would translate into the fight against terror: the ability to read a suspect’s manner and the talent for managing secret informants.

What they needed, in turn, were people to help them translate their skills to new terrain, people with a firm cultural grasp of the suspects they were meant to be pursuing. Over the years, a gang detective in the Bronx will probably have developed a radar able to determine at a glance the meaning of a hand gesture or a prison tattoo. But, as one former intelligence detective said of potential Islamic extremists, “when we first started, we didn’t even know they prayed on Fridays.”

Enter the Analytic Unit, which Samuel J. Rascoff, who ran it from 2006 to 2008 and is now a law professor at New York University, described as an attempt to bring “the culturally exotic world of the ivory tower to bear on the gritty problems of counterterrorism as experienced by beat cops and seasoned detectives.”

The Analytic Unit:

stands as a unique experiment in breaking traditional law-enforcement boundaries, comprising two dozen civilian experts — lawyers, academics, corporate consultants, investment bankers, alumni of the World Bank and the Council on Foreign Relations and even a former employee of the Foreign Ministry of Azerbaijan.

I think there is a compelling case that, due to its high-profile as terrorist target, the NYPD needs to have wide-ranging analytical prowess. For more on the NYPD’s Intelligence and Counterterrorism Divisions, see Christopher Dickey’s book Securing the City. However, the rise of these divisions has not been without controversy. At times, there have been issues regarding the protection of civil liberties. But, even within the intelligence community, there has been some friction. See, for example, this post from the Washington Post’s SpyTalk blog.

One thing is certain, how intelligence analysis is integrated with local policing is a topic of great importance. To get a sense as to how this is being done in New York, Feuer’s article is a great place to start.

OK, I never thought I’d write a post tying international arbitration, chess federation elections, and post-Soviet politics together.  Nor did I think that I’d follow that up with a post expanding on the post-Soviet politics issue and also throwing allegations of UFO abductions into the mix. And now, in the midst of all this other drama, World Chess Federation President (and President of Kalmykia) Kirsan Ilyumzhinov has put in a bid for the site of the proposed Islamic center near Ground Zero (outbidding Donald Trump).  According to the NY Post:

Kirsan Ilyumzhinov said he sent a letter on FIDE’s [the World Chess Federation’s] behalf to New York City Mayor Michael Bloomberg “with an offer to buy this land for $10 million,” the RIA Novosti news agency reported.

The land near the site of the Sept. 11, 2001, attacks would be used for an international chess center and academy, Ilyumzhinov said.

“We named the sum of $10 million because last week billionaire Donald Trump gave an offer of $7.5 million and we decided to outdo him,” RIA Novosti quoted him as saying.

Via ChessVibes and OneFIDE, Ilyumzhinov is quoted at having said:

“As President of the World Chess Federation (FIDE), and as a person who has always supported inter religious understanding, I propose the construction of an International Chess Center at the site in question. Chess is a unique and intellectual game, it came to the West from the East, unites every country, and it has affinities with every religion equally. My dream as President of the World Chess Federation (FIDE) is that chess becomes the only “battlefield” between East and West. Perhaps this is not yet possible, but we will do all we can to ease these tensions. At the International Chess Center, which would be erected in the immediate vicinity of Ground Zero, there would be a free chess school for children, national and international tournaments, and other educational and charitable activities. The Center would also hold annual memorial tournaments to benefit families of victims of the tragedy of September 11, 2001.”

This, from the man that brought you (or rather Kalmykia), Chess City.

Anyway, while I like this view of chess as an intellectual alternative to rollerball, I would prefer that we as Americans just show the religious toleration we proclaim in regards to an Islamic cultural center being built in lower Manhattan.

This might be my last dispatch from the crossroads of chess and international politics (although I do have to find out what happened with that CAS arbitration) but, as far as fodder for blogging goes, the presidency of Kirsan Ilyumzhinov is like a gift that keeps giving.

It’s always dangerous to opine on a judgment you have only skimmed, so I’ll phrase my thought as a question instead.  Here is what the ATS Statute says:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The key expression is “committed in violation of the law of nations.”  Whether an act violates the law of nations is determined by the substantive rules of international law: the definitions of international crimes, the modes of participation available for those international crimes, and the possible defenses to those international crimes. Jurisdictional rules are completely separate from those substantive rules; jurisdictional rules determine who can be prosecuted for a violation of the law of nations, not whether substantive rules have been violated.

Consider, for example, a 12-year-old child soldier who aids-and-abets a war crime during a non-international armed conflict and has no defense for his actions.  International law would not permit an international tribunal to prosecute that child soldier, nor is there a general principle of criminal law that permits prosecuting child soldiers that young.  But we would not say that the child soldier has not committed a “violation of the law of nations.”  He has — he simply cannot be prosecuted for that violation.  So how is the situation in Kiobel any different?

Readers?

I’ve now had a chance to read a little more closely the decision, majority and concurrence, in Kiobel v. Royal Dutch Petroleum (issued today by a 2nd Circuit panel of Judge Cabranes writing for himself and Judge Wood, and a concurrence in the judgment by Judge Leval).  On second reading, it still looks to me like a blockbuster opinion, both because of the ringing tone of the Cabranes decision and the equally strong language of a concurrence that, on the key point of corporate liability, amounts to a dissent.  With circuits having gone different directions on this issue, this perhaps tees up a SCOTUS review that would revisit its last, delphic pronouncement on the Alien Tort Statute in Sosa v. Alvarez-Machain. Here are a few thoughts that add to, but also partly revise and extend, things I said in my earlier post today. Continue Reading…

[I posted this about the same time that Ken posted his discussion of the same case below, which is definitely worth reading. Please forgive any repetitions. But we are both on the same page.]

In a blockbuster opinion that could spell the end of the vast bulk of Alien Tort Statute litigation, the U.S. Court of Appeals for the Second Circuit has held that corporations cannot be liable for violations of customary international law under the Alien Tort Statute.  The decision, Kiobel v. Royal Dutch Petroleum, dismisses an ATS lawsuit against Royal Dutch Shell for allegedly aiding and abetting the Nigerian government in the commission of serious human rights violations.  Writing for two members of the panel, Judge Jose Cabranes held that (in my very quick and dirty summary):

1) International Law governs the scope of liability for violations of international law, hence the question of whether a corporation is liable for violating international law is itself governed by international law.

2) Under Supreme Court precedent, the Alien Tort Statute requires courts to apply norms of international law, and not domestic law, to the scope of defendants’ liabilities. Such norms must be “specific, universal, and obligatory.”

3) Under international law, corporations are not liable for violations, and any such norm of corporate liability is far from “specific, universal, and obligatory.”

I should note that one judge on the panel, Pierre Leval, took sharp exception to this holding in his concurring opinion. It is worth noting that his criticism is not on the question of whether corporations are liable for violations of international law, but whether international law should even govern this question.

I have an article coming out later this fall in the Virginia Journal of International Law which takes the same position on this question as Judge Cabranes. So I am both pleased that someone agrees with me, and horrified that I may have to seriously revise and update that article. Judge Cabranes’ analysis is very strong on points two and three above.  Indeed, I don’t think Judge Leval or the plaintiffs in this case seriously challenged these points.  The only bone of contention is with point one, whether international law is indeed the governing law for the question of corporate liability. And I assume that will be the main issue if this case (as I fully expect), an appeal to the U.S. Supreme Court is made to this decision.

But taking a step back, what I find fascinating is that there appears to be no serious argument left that customary international law can impose duties on private corporations.  I think this is right, and foreign academics, most notably James Crawford, have strongly rejected corporate liability.  But I think the vast weight of U.S. legal academic opinion has gone the other way on this point.  I have personally participated on at least three conferences where I was the only one arguing against corporate liability.

In any event, I will have more thoughts about this case and this issue soon. There is a lot here to digest and think about.  The bottom line for litigants though:  The wave of ATS lawsuits against corporations is, at least for the moment, DEAD in the Second Circuit.  And I wouldn’t feel good about ATS suits in other circuits either.

I have just now been forwarded a copy of the 2nd Circuit opinion released today in Kiobel v. Royal Dutch Petroleum.  I say “apparently” because I have hastily read it in the last couple of minutes; see also Julian’s post above.  But unless I am greatly mistaken, it is a blockbuster opinion on the basics of ATS litigation.  However, the most provocative and important holding seems to be that the ATS does not embrace corporate liability … at all:

Plaintiffs assert claims for aiding and abetting violations of the law of nations against defendants—all of which are corporations—under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a statute enacted by the first Congress as part of the Judiciary Act of 1789. We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs’ ATS claims must be dismissed for lack of subject matter jurisdiction.

I cannot resist pointing out that the court’s view of this point appears to be nearly identical to the position I first took in two expert declaration, here (Declaration) and here (Reply), on this point in the Agent Orange Litigation, before Judge Weinstein and eventually reviewed by the 2nd Circuit.  That is actually a couple of specific points.  One is, as the bit above says, the scope of liability is determined not under some Federal standard, but instead by customary international law itself.  Second, the court notes that customary international law does not subject corporations to civil or criminal liability.  The question of corporate liability has always been two distinct issues – the question of whether there is such a thing as civil liability in international law (or at least for non-state actors) and whether there is liability of any kind for corporate actors, as opposed to individual persons for whom there is sometimes individual criminal liability.  The court seems, on my first read, to have rejected each of those propositions.  I grant, though, that I have raced through this, and perhaps I have read this too favorably to my own position.  Still, I had not expected to read the above holding in language quite that plain.

(My thanks to my old friend AC, going back to the days when I was drafting these expert declarations in the Agent Orange litigation, for forwarding this to me.)

Just bumped into Independent Diplomat, “The Diplomatic Advisory Group,” while casting around.   Along with the Public International Law & Policy Group, this seems to part of what may be the growing phenomenon of private contractor diplomacy, of the non-profit kind.  I first noticed the phenomenon in the context of small island states and their use of the Foundation for International Environmental Law and Development (FIELD — Philippe Sands and James Cameron) for multilateral negotiations.  In that case, FIELD had a substantive agenda, and AOSIS gave it the ideal vehicle literally to sit at the negotiating table.

PILPG and Independent Diplomat, by contrast, appear interested only in assisting states and other entities that may have trouble doing it on their own, legal services for states and would-be states.  Independent Diplomat describes itself as consisting of “experienced former diplomats, international lawyers and other experts in international relations. They have no allegiance or affiliation to other governments or institutions. ID’s advice is impartial and disinterested.”  It looks like a serious outfit, if a big-name board is any measure. (More on the group here.)

Not quite sure what to make of this, other than it would have been unlikely 25 years ago, for the very reason that mere citizenship in another country would have implied “allegiance or affiliation” to another government.  Perhaps it’s a move back to the 19th century tradition of non-national diplomats, French aristocrats representing Russia, for example.

At risk of getting flooded with emails from various publicists in the case, disputing this or that, I point readers to a good summary article of the background dispute, the allegations and responses on the issue of plaintiff lawyer behavior, and a set of new materials that have come out since Roger posted on the July video outtakes a couple of months back.  It is by Roger Parloff, in Fortune.  As for the new materials since the summer, Parloff ends with a quote from a US magistrate in North Carolina in September:

The plaintiffs’ argument isn’t playing well before U.S. judges so far. In a ruling issued last week, U.S. Magistrate Judge Dennis Howell in Asheville, North Carolina, put it this way: “While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.”

Regardless of how the Indians’ case against Chevron should be resolved, and regardless of where anyone’s heart might be, there’s little question that the plaintiffs have been dealt a severe setback. And that their own top lawyers bear much of the blame.

Chuck Lane makes this case for rejecting a “cry fire” analogy on Koran burning, as suggested by Justice Breyer in a book-flacking recent interview with George Stephanopoulos.  The logic is pretty clear: that where an expressive act creates an immediate danger, it’s not constitutionally protected.  If the burning of a Koran in Florida was going to cost lives in Afghanistan, then maybe there is a compelling interest in suppressing the expression, or so Breyer seemed to suggest.

I will defer to Chuck on how this doesn’t work under a historical conception of “cry fire.”  I wonder though if the international context changes the picture to broaden its applicability, especially if Koran burning were deemed inconsistent with international norms (as well it may be or become, as norms requiring the prohibition of hate speech start to harden).

One case that’s gone missing from the discussion is Boos v. Barry, which considered a District of Columbia statute prohibiting protests within 500 feet of diplomatic facilities.  There Justice O’Connor recognized that “[a]s a general proposition, it is of course correct that the United States has a vital national interest in complying with international law.”  While (unsurprisingly) stopping short of finding that an interest recognized in international law “automatically render[s] that interest ‘compelling’ for purposes of First Amendment analysis,” she did float the possibility that in some cases could “require that First Amendment analysis be adjusted” to accommodate that interest.

That seems plausibly applied here, and distinguishable from the domestic context in which relevant actors (those who would be provoked) will be subject to governmental control.  In the long run, judicial interest balancing is another way in which the international norms will insinuate themselves into US law, even absent a treaty obligation.  Justice Breyer’s mindset indicates it may happen sooner than we think.

Not infrequently, I have lamented what I perceive as the lack of due attention in the scholarly literature to the actual circumstances of international organizations, starting with the UN.  One of those fundamental issues concerns accountability, in the special sense that there is no obvious judicial forum for reviewing actions even of individuals alleged to have engaged in serious misconduct, such as fraud, embezzlement, etc.

On the one hand, the treaties put the organizations and their civil servants beyond the reach of national courts – leaving at most in some cases the often highly unlikely possibility of a prosecution or civil action in the person’s national jurisdiction, but that too seems put out of reach in many if not all cases.  On the other hand, such accountability as supposedly exists rests in various internal review processes.  These internal review processes vacillate between being tools by which senior managers are able to punish whistleblowers and protect themselves or their underlings or national confreres or what have you, or else being captured by the other side of the process through what amounts (in my jaundiced view, admittedly) to the world’s strongest public employee union at the UN.

I suppose I am not surprised that legal academics find it hard to get too interested in the hard material facts of UN budgets and fiscal accounting, although as Marx often advised, follow the money.  But it is more surprising to me that so little attention has been paid to the legal issues involved in whether and which courts might have jurisdiction in any of the remarkably varied cases that in an accountable domestic society might have attracted the attention of regulators or prosecutors or someone, by agencies and organizations also remarkably varied, and finally individual actors who also vary quite a lot in their legal situations, perhaps diplomats, perhaps not, and so on.

At the height of the Oil-for-Food scandal at the UN, when the General Secretariat was at its politically weakest as the reach of the scandal went all the way up to Kofi Annan (whom the Volcker reports left seriously wounded, with clear implications of some level of culpability, while leaving a barely sufficient shred of cover to not force a fight over pushing Annan to resign), there were calls for someone to prosecute someone for something.  It was not just the Oil-for-Food scandal, as anyone familiar even superficially with the opportunities for fraud, self-dealing, and rent-seeking in a system at once as byzantine and unaccountable as the UN’s would recognize.  As more rocks began to be overturned, evidence serious graft, embezzlement, kickbacks, and other serious financial fraud of a kind that would plainly be criminally prosecutable, if only there were someplace to prosecute it, began to emerge in other UN programs.  The procurement program for the politically crucial peacekeeping operations – in my view, one of the (very few) UN activities worthy of serious support by the US – was particularly at risk, for example, as its budget has ramped up in recent years, outstripping the regular organization budget.  Nor am I raising political or policy questions here – just “simple” fraud by well-placed officials.

In the midst of this turmoil at the UN in 2005, the then-Manhattan DA, the legendary Robert Morgenthau, announced an investigation into the senior UN official in the Oil-for-Food scandal, Benon Sevan (who departed to his native Cyprus, and, if I recall correctly and I might not, following “internal reviews” at the UN, had his legal fees paid and saw no reduction in his pension benefits).  The legal basis for this was never exactly clear to me.  Because the UN is located in Manhattan?  Because some of the conduct involved might have taken place in Manhattan but outside of the UN territory, or involved non-UN assets such as telephone lines, etc.?  This is, after all, an investigation by a state DA, and not even a federal prosecutor.  Although somewhat weirdly, given the politics at that moment, a local level investigation by a state DA of unimpeachable integrity and also a stalwart of the Democratic establishment – rather than a DOJ investigation by the then-Bush administration, turned out to be far more politically palatable.

In any case, the weakened Annan did not do what might otherwise have been an inflexible and categorical response of the UN – quite naturally, to be sure, for any sovereign – to disclaim any jurisdictional basis for a Manhattan DA to get involved at all.  Benon Sevan had diplomatic immunity, but the General Secretariat indicated that it would waive it if requested by a prosecutor – clearly meaning Morgenthau.  Perhaps the senior UN management understand perfectly well that Sevan would depart to his native country which of course would do nothing; perhaps some small number of top UN leaders understood that this lack of accountability was a genuine problem and that Morgenthau was a decent option.  (I skip over some other Manhattan DA investigations, particularly involving corruption in UN peacekeeping procurement.)  (Update: see Jeffrey Meyer’s correction in the comments – re indictment of Sevan, not just investigation, and also filling in other prosecutions in the procurement and other situations – thanks.)

It is not hard to see, in other words, that international organizations such as the UN have massive agency failure problems.  That is a somewhat anodyne way of putting it; the problems range from rent-seeking to major criminal corruption and fraud.  They arise from a treaty structure deliberately designed to shield the organization and its agents from judicial accountability – for perfectly understandable reasons, to be sure.  And from the predictable “capture” of internal review mechanisms.  The result is to put the UN and international organizations and their agents in fundamental ways outside of the rule of law in the most ordinary sense.  That’s not too strong a way of putting it.  But again, this receives remarkably little attention from academics.  The reflexive position of observers tends to be to define today’s deviancy down, discounting today against the glorious, but always-receding, always-promised future of international institutions.  Mostly, I think, people just want to focus on the idealistic stuff about tomorrow and plug up their ears about anything that actually happens today.

So let me welcome a new paper up on SSRN by Matthew Parish, of the British Institute of International and Comparative Law, writing in the International Organizations Law Review, “An Essay on the Accountability of International Organizations,” offering a detailed look at the problems of legal accountability for a wide variety of international organizations and their agents.  It is a fine paper on a neglected topic.  I don’t say this from complete agreement; I have reservations about the paper’s proposals for accountability for national peacekeeping forces on missions in the field, for example.  Nor does Parish share my fundamental skepticism about the UN and its imagined mission; far from it, he is looking for ways to make it better on its own terms.  But overall I think it has many sensible things to say, and in any case offers a cogent account of the many agency failure problems at issue, from the standpoint of legal jurisdiction.  I’ve put the abstract from SSRN below the fold. Continue Reading…

Ben Wittes has a post at Lawfare today discussing ways in which the Obama administration might be able to avoid litigating the ACLU/CCR lawsuit challenging Al-Aulaqi’s targeting.  One of his preferred responses is the “political question” doctrine; in his view, “enemy targeting” is a classic example of a political question with which the judiciary should not interfere.

I would not be surprised if the court ultimately agrees with Wittes. I would, however, ask him (or readers) to answer two questions:

1. Politics aside, does the Obama administration have the legal right to kill an American citizen allegedly associated with Al-Qaeda who is living in Phoenix?

2. Standing aside, if word leaked out that the Obama administration intended to kill that American citizen living in Phoenix, should the judiciary should invoke the political-question doctrine to avoid litigating a challenge to the planned attack?

I have been waiting a long time for someone who defends the targeted killing of Americans away from the battlefield (i.e., in a situation that is not covered by IHL) to answer the “inside America” hypothetical.  It is obviously exceedingly unlikely that an administration would ever order a drone strike in a domestic location.  But it is certainly not outside the realm of possibility that one would rely on more traditional methods to conduct an assassination inside the U.S.  So I am curious what conservatives believe are the legal limits on such targeted killings.

Georgetown law professor Randy Barnett and Virginia legislator William Howell lay out the case for a new “Repeal Amendment” to the U.S. Constitution in tomorrow’s WSJ.  Such an amendment would permit repeal of any federal law if two-thirds of the state legislatures approved resolutions to do so.  I don’t know what I think about this proposal, which would quite dramatically restructure the U.S. public lawmaking system.  Then again, perhaps we need some dramatic restructuring. In any event, such an amendment will be proposed soon to the Virginia legislature.

One wrinkle that I am not sure the proponents of the Repeal Amendment have thought through: could the states also “repeal” a treaty or executive agreement?  The proposed text of the treaty leaves this somewhat ambiguous:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Under current U.S. doctrine, Congress may “repeal” or, more precisely, nullify the domestic effects of a self-executing treaty.  This is a moderately contested doctrine, since the Constitution doesn’t exactly spell out this framework and seems to treat treaties differently from “Laws of the United States.”

The Repeal Amendment’s reference to “law…of the United States” could very well refer only to acts of Congress, but it is not obvious.  If this power would include treaties, this would be a potentially serious shift in the foreign policy power of the U.S. and give states a mechanism to, essentially, repeal treaties. I’m not sure this is a bad thing, and it might even be a good thing.  But it certainly is something worth trying to clarify before the proposed amendment is submitted.

The conventional wisdom among many international law folks is that the U.S. has (wrongly) embraced American exceptionalism in world affairs, often to the detriment of compliance with international law.  I don’t disagree that American exceptionalism exists, but I think the main problem with the “exceptionalism” meme is the idea that the U.S. is unique in its “exceptionalist” philosophy.  Other countries can, when push comes to shove, be just as “exceptionalist” as the United States. France’s recent outburst of exceptionalism is a nice case in point.

Today, France’s legislature voted overwhelmingly to ban the wearing of the burqa in public, despite the fact that the ban could in fact violate various international human rights treaties.  Separately, France has been aggressively deporting Roma (albeit with a plane ticket and cash voucher), despite the fact that this too could violate various international treaty obligations.

I actually don’t think the legal challenges to these two actions are really all that strong, but what is interesting to me is that France’s government is fighting back to international criticism by invoking France’s exceptional role in the development of human rights.  As France’s European Affairs minister said yesterday in response to a serious tongue-lashing from a EU commissioner,

“The tone she took … is not the manner one uses to address a great state like France, which is the mother of human rights,” he told French radio. “We are not the naughty pupil of the class whom the teacher tells off and we are not the criminal before the prosecutor.”

This sort of exceptionalist reaction to international criticism should sound familiar to Americans, although they may disagree about who is the true “mother of human rights”!

The American University School of International Service – not my law school, but SIS – is holding a conference on global governance on Friday-Saturday, September 24-25, at the spanking new and quite lovely new SIS building at AU.  It’s a great line-up of speakers and panelists; kudos to the organizers.  One of the convenors is David Bosco, whose book on the Security Council, Five to Rule Them All, is essential reading for those who work on international organizations, and whose new blog, The Multilateralist, is hosted at Foreign Policy (KJH mentioned this a couple of weeks ago). Continue Reading…

I have long enjoyed my association with Opinio Juris.  But what do you readers think of us?  Here in the United States, the ABA Journal is once again compiling a list of what it considers to be the 100 “best” law blogs.  Now, we can debate whether and how the ABA Journal is positioned to judge the “best” legal blogs.  Similarly, I suspect some might challenge any ABA-effort as inherently U.S. centric, rather than offering a truly global “best of” list. 

Still, if you like us, you might consider telling the ABA why here.  Note: this is not just a check-the-box survey.  You will be asked for a short narrative explanation of what, if any, value we add to the blogosphere or the field of international law itself.  I think we do add value, but also recognize that there’s always room for improvement.  So, in addition to encouraging you to submit to the ABA Journal, feel free to use the comment section below to tell us what areas we are doing well on, as well as where we might think about improvements.  I can’t guarantee that we’ll respond to every comment, but I am confident that my co-bloggers and I will continue to strive to have Opinio Juris provide a forum for current, thoughtful, and diverse commentary on the manifold issues involving international law and international relations. 

H/T:  Faculty Lounge.

Reading a justifiably nasty review of Meghan McCain’s Dirty, Sexy Politics, I came across this unintentionally funny gem:

The most obvious problem with Dirty, Sexy Politics is that grammatically, the book appears to be the work of a high school sophomore.  To be more accurate, it appears to be the first draft of an essay written for a high school English class; the one turned in before the teacher makes all the pretty red marks in the margin that helpfully keep students from turning in final papers riddled with comma abuse, sentence fragments, and incorrect punctuation.  Each subsequent page of this book contains one grisly crime against the English language after another.

Pop quiz: how many of the errors decried by the reviewer does the reviewer himself commit?

Gerald Steinberg, the head of right-wing propaganda outlet NGO Monitor, is not happy about George Soros’ recent $100 million gift to Human Rights Watch:

In accepting a huge grant from George Soros, Human Rights Watch has spurned the public advice (and warning) offered nearly a year ago by its founder Robert Bernstein. Rather than grapple with the serious problems of credibility and bias, HRW Executive Director Kenneth Roth has cemented relations with Soros — a partisan ideologue who also supports Moveon.org, a controversial advocacy group.

[snip]

The bias is indisputable: HRW’s publications on “Israel and the Occupied Territories” made up 28 percent of its total Mideast output in 2009.

Which makes it a fine fit for George Soros, whose own biases are well-established. In the Middle East, for example, his Open Society Institute exclusively supports advocacy groups that campaign internationally to undermine the elected governments of Israel — organizations such as Adalah, Peace Now, Breaking the Silence, Gisha and Yesh Din.

In extending his control over HRW, Soros seeks to increase its staff by 40 percent, reposition it as a major international player and restore its influence as an arbiter on universal human rights. But while his grant will alleviate the crisis caused by HRW’s declining income, it only deepens the moral crisis.

The fact that Steinberg attacks Moveon.org, a middle-of-the-road progressive organization, tells you all you need to know about his and NGO Monitor’s extremism.  But Steinberg’s claim that Soros is “extending his control over HRW” is truly laughable, given that — as I’ve documented before — NGO Monitor steadfastly conceals the source of its own funding.  We have no idea who controls NGO Monitor by funding it, and Steinberg is not about to tell us.  HRW, by contrast, has been nothing but open about Soros’ donation.

An NGO that claims to promote “transparency” that is completely non-transparent.  Moral crisis, indeed!

I have received a significant amount of feedback on my previous post on apportioning responsibility for international violations and therefore I wanted to do a couple of follow up posts on the subject. As Judge Simma indicated in his Separate Opinion in the Oil Platforms case, there arguably is a general principle of international law that joint tortfeasors are jointly and severally liable. But how large a consensus? It depends on the circumstances.

There is no comprehensive analysis of domestic tort laws on this question. However, preliminary research regarding the practice in almost two dozen countries suggests that joint and several liability is the accepted standard for apportioning liability, at least when the defendants are acting in concert. The practice is sufficiently consistent that one can accurately describe it as a general principle of law, embodied in the major systems of the world.

What is far less clear from a comparative analysis is whether joint and several liability is the accepted standard when multiple tortfeasors are not acting in concert. In undertaking his analysis of American law, Judge Simma relied on the Restatement (Second) of Torts and the famous case of Summers v. Tice to support his conclusions regarding joint and several liability. But he ignored the Restatement (Third) of Torts published three years before his Separate Opinion in Oil Platforms. The most recent Restatement concludes that “there is currently no majority rule” on the question of liability for independent tortious conduct of multiple tortfeasors who cause an indivisible harm. Instead, the Restatement presents five independent tracks for apportioning liability: (1) joint and several liability; (2) several liability; (3) joint and several liability with reallocation; (4) hybrid liability based on a threshold percentage of comparative responsibility; and (5) hybrid liability based on the type of damages. These different tracks reflect different approaches adopted by the fifty States, which take a number of factors into account, including allocating the risk of a tortfeasor’s insolvency or immunity, the relevance of the plaintiff’s comparative responsibility, the degree of fault among joint tortfeasors, and the type of harm caused by the tortious conduct. Significantly, the approach suggested by Judge Simma—that of pure joint and several liability—is embraced by less than one-third of the jurisdictions in the United States, fewer jurisdictions than the number that employ pure several liability.

Other countries also employ several liability for independent actions of multiple tortfeasors. For example, China utilizes joint and several liability for joint action, but otherwise each tortfeasor who commits independent acts will “bear corresponding compensation liabilities respectively in appropriate proportion to the extent of their faults….” New Zealand has a similar approach, applying joint and several liability for the joint action, but several liability where “there is a coincidence of separate acts that by their conjoined effect cause damage.” If two tortfeasors act independently of one another, then each is liable only for that portion of the damage caused. Israel also has adopted joint and several liability where tortfeasors act in concert, but several liability where there is independent action. “The general rule is that tort liability is individual: every tortfeasor is held liable for the damage caused by his own person.”

These disparate approaches suggest that there is no settled standard for apportioning liability for independent acts of multiple tortfeasors. One comparative scholar surveyed the laws of fifteen countries and concluded that an appropriate standard would impose several liability for independent tortfeasors who cause divisible harm, but joint and several liability where they cause indivisible harm.

This approach of using general principles of international law is most apropos for international courts and tribunals apportioning responsibility for violations involving non-State entities. My next post will address the private international law approach that the courts in the United States will likely use to apportion liability for international law violations.

Something that our European readers have already probably heard as it is one of the most viewed stories on the BBC website (but not so much here in the U.S.), the Basque separatist terrorist organization ETA has renounced (at least for now) the use of violence: 

Armed Basque separatist group Eta says it will not carry out “armed actions” in its campaign for independence.

In a video obtained exclusively by the BBC, the group said it took the decision several months ago “to put in motion a democratic process”.

The Basque interior minister called the statement “insufficient”. Madrid has previously insisted that Eta renounce violence and disarm before any talks.

Eta’s violent campaign has led to more than 820 deaths over the past 40 years.

It has called two ceasefires in the past, but abandoned them both.

This latest announcement comes after the arrests of numerous Eta leaders and during an unprecedented period of debate within the Basque nationalist community over the future direction of policy, says the BBC’s Clive Myrie in San Sebastian…. [snip]

The pro-Eta party Batasuna, which has been banned since 2003 on the grounds that it is Eta’s political wing, is one of two Basque nationalist parties to have called on Eta to declare “an internationally verifiable ceasefire” days earlier.

In further analysis, the BBC’s Sarah Rainsford is not so sanguine:

It is widely accepted that Eta is weaker than ever in its 51-year history. So to many people, Eta’s retrospective ceasefire will look like an attempt to disguise its weakness as a desire for peace. Some will shrug it off as irrelevant; others will dismiss it as a way to regroup and re-arm.

Eta’s hope must be to negotiate the legalisation of Batasuna, and achieve its aims through the ballot box.

According to the Vancouver Sun, the chairperson Basque Socialist party seems to believe that there is some reason for hope, saying

that after talking over the summer to Brian Currin, a South African mediator who has worked with Batasuna, he believed the process towards laying down arms would come in two phases.

“The first, the truce, and the second, the verification by international individuals. What he (Currin) was saying is that Batasuna has said that ETA has to end (violence) and for the past year its assemblies have been voting 90/10 in favour.”

Let us hope that this really is an end, and not just a pause.

(And, by the way, yes, I know Hemingway’s A Farewell to Arms was set in Italy, not Spain.)

[CORECTION: A reader has corrected me– part of A Farewell to Arms also took place in what is now Slovenia. And, I guess, there was some in Switzerland, as well. But the point was I knew that the title wasn’t from one of Hemingway’s novels on Spain. Opinio Juris readers sure keep us on our toes!]

Next week the ICJ will have oral proceedings in the case Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). The .pdf of the press release is here. As far as I can tell, unlike in the Kosovo proceedings, there will not be an internet simulcast. (The Kosovo simulcast was very glitchy anyway, but now you can watch it archived.) Provisional measures have already been granted in this case; my take on the order is here.

Monday will also see the swearing in of Joan Donoghue and Xue Hanqin. The Court’s press release (pdf here) notes that this is the first time the ICJ has included two women.

As you may remember from my previous post on this topic, Kirsan Ilyumzhinov, the President of the autonomous republic of Kalmikia the President of FIDE (the world chess federation), has been named in a suit before the Court of Arbitration for Sport seeking the disqualification of his FIDE candidacy. While that case is still set to be argued next week, he has announced that he will not seek re-election as the Presidentof Kalmykia. According to the New York Times, this may be less about chess and more about Russian politics between Moscow and the autonomous regions:

Mr. Ilyumzhinov said that he made the decision voluntarily so that he could devote more time to promoting chess. But he may not have had a choice. In recent months the Kremlin has been cleaning house — forcing many long-time leaders of Russian republics to step down at the end of their terms, among them Murtaza G. Rakhimovof Bashkortostan; Eduard Rossel of Sverdlovsk Oblast; and Mintimer Shaimiyev of Tatarstan.

The Russian central government appoints the presidents of the republics and they serve at the discretion of the Kremlin. Mr. Ilyzumzhinov’s term in office was due to expire next month.

There had been rumors for months that Mr. Ilyumzhinov would not be reappointed…. [snip]

Though the Kremlin has never said anything about whether Mr. Ilyzumzhinov would be reappointed, it is possible that his penchant for talking about his abduction by aliens, which he has mentioned many times, as well as the mysterious source of his wealth and the impoverished state of Kalmykia finally weighed too heavily on him politically.

More on Ilyumzhivov’s announcement, and on the FIDE election dispute, here.

Mike Scharf and Paul Williams have published an interesting collection of recollections and colloquys among all ten living State Department legal advisers, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, released by Cambridge UP earlier this year.  In addition to essays from each, recounting particular episodes from their tenures, there is useful bookend material on the history of the office, theories of compliance, and a chapter devoted to “L” and the inter-agency process (or lack thereof) on post-9/11 anti-terror practices.  There is some great stuff here, very accessible, some of which would go a long way in helping students understand the role IL plays in the policymaking process.

It brought to mind Richard Bilder’s superb 1962 AJIL piece on the office which I remember studying when I was a young lawyer there in the late 1980s.  We could use an updated integrated analysis of the legal adviser’s role (have I missed one?).  The Scharf and Williams compendium would provide a lot of material for any such effort.

Columbia University historian Samuel Moyn has a new book out, The Last Utopia: Human Rights in History (Harvard/Belknap).  I haven’t read it – but I have ordered it from Amazon! – and I’m sure I’ll have more to say about it once I’ve read it.  However, it received a positive (and quite interesting in its own right) review from Brendan Simms, a well-known Cambridge international relations professor, in the Wall Street Journal.  And Professor Moyn has written a summary of the book’s argument that appears as an article in this week’s Nation.  The Nation piece is good reading on its own, and this part drew my attention:

Beginning in the 1990s, when human rights acquired a literally millennial appeal in the public discourse of the West during outbreaks of ethnic cleansing in Southeastern Europe and beyond, it became tempting to treat 1948 as a moment of annunciation, with large political consequences. Carter, and the 1970s, were rarely mentioned. It became common to assume that, ever since their birth in a moment of postgenocidal revulsion and wisdom, human rights had become embedded slowly but steadily in humane consciousness in what amounted to a revolution of moral life. In a euphoric mood, high-profile observers like Michael Ignatieff believed that secure moral guidance, born of incontestable shock about the Holocaust, was on the verge of displacing self-interest and power as the foundation of international relations. In Samantha Power’s “A Problem From Hell”: America and the Age of Genocide (2002), Raphael Lemkin, who crafted the draft resolution of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was dusted off as a human rights sage and hero, with Carter earning attention only for failing to intervene against Pol Pot’s atrocities.

In fact, when “human rights” entered the English language in the 1940s, it happened unceremoniously, even accidentally. Human rights began as a very minor part of a hopeful alternative vision to set against Adolf Hitler’s vicious and tyrannical new order. In the heat of battle and shortly thereafter, a vision of postwar collective life in which personal freedoms would coalesce with more widely circulating promises of some sort of social democracy provided the main reason to fight the war.

It’s important to enumerate what human rights, in the 1940s, were not. Ignatieff was wrong. They were not a response to the Holocaust, and not focused on the prevention of catastrophic slaughter. Though closely associated with the better life of social democracy, only rarely did they imply a departure from the persistent framework of nation-states that would have to provide it.

Above all, human rights were not even an especially prominent idea. Unlike later, they were restricted to international organization, in the form of the new United Nations. They didn’t take hold in popular language and they inspired no popular movement. Whether as one way to express the principles of Western postwar societies or even as an aspiration to transcend the nation-state, the concept of human rights never percolated publicly or globally during the 1940s with the fervor it would have in the ’70s and the ’90s, including during negotiations over the Universal Declaration.

What if the 1940s were cut loose from the widespread myth that they were a dry run for the post–cold war world, in which human rights began to afford a glimpse of the rule of law above the nation-state? What if the history of human rights in the 1940s were written with later events given proper credit and a radically different set of causes for the current meaning and centrality of human rights recaptured? The central conclusion could only be that, however tempting, it is misleading to describe World War II and its aftermath as the essential source of human rights as they are now understood.

From a global perspective, the brief career of human rights in the 1940s is the story of how the Allied nations elevated language about human rights as they reneged on the earlier wartime promise—made in the 1941 Atlantic Charter—of the self-determination of peoples. Global self-determination would have spelled the end of empire, but by war’s end the Allies had come around to Winston Churchill’s clarification that this promise applied only to Hitler’s empire, not empire in general (and certainly not Churchill’s). The Atlantic Charter set the world on fire, but because similar language was dropped from the Universal Declaration, human rights fell on deaf ears. It is not hard to understand why. Human rights turned out to be a substitute for what many around the world wanted: a collective entitlement to self-determination. To the extent they noticed the rhetoric of human rights at all, the subjects of empire were not wrong to view it as a consolation prize.

Without, as I say, yet having read the book, I find this both intriguing.  No, more than that – it accurately captures in my own experience as an NGO person who first volunteered to do work for Human Rights Watch in 1983 when it was still two somewhat separate organizations, Helsinki Watch and Americas Watch.  This was a time when Aryeh Neier was operating out of a tiny dark office in the New York City Bar building, and the organization was not in its current position of glorious NGO hegemony and a $44 million annual budget – meaning, an offer from a Harvard Law student bringing his own funding was not an occasion to giggle at the presumption.  Ken Roth was still working as a Federal prosecutor. Continue Reading…

There are some interesting comments in the live blog of the UNCTAD International Investment Agreements Conference from the likes of Todd Weiler, Susan Franck, and Jason Yackee. (You can also watch the proceedings here). Much substance in the coverage, but also some fun. Here’s a taste:

Todd Weiler:

As I see Prof Franck is performing the live blog function, I will take the guerrilla blogger role…. Guerrillas strike and retreat. They don’t stand and defend (at least not with this kind of word count limit!).

…

Todd Weiler:

One of the minor ways in which it might be said that China is still a developing country can be seen in men’s washrooms… It reeks of the surreptitious adventures of desperate smokers.

…

Lisa Blomgren Bingham:

The important observation is how investment dispute systems need to provide for public participation and transparency given the important public policy issues at stake.

Jason Yackee:

But nobody actually wants to watch ICSID proceedings. They are boring.

…

Jason Yackee:

African “VIP” next to me is falling asleep. Is that a sign of something meaningful?

No doubt many readers have seen the press articles announcing George Soros’ gift of $100 million to Human Rights Watch.  Most interesting to me was that the gift is aimed, in part, at diversifying the organization, staff, and board away from its current US-centric arrangement.  As the AP puts it:

But the money also is meant to make its donor base as international as its outlook. Plans call for Human Rights Watch to draw at least half its income and most of its board members from outside the U.S. within five years. Now, about 70 percent of the money and 80 percent of the board members are U.S.-based.

Soros considers that a liability — one he blamed on a frequent target of his, former President George W. Bush.

“They’re basically an American organization advocating human rights all over the world. But the United States has lost the moral high ground, during the Bush administration, and, therefore, it runs into opposition because there’s resentment of American interference,” Soros said in an interview in his sleek office in a midtown Manhattan high-rise. ” … It’s a drawback, to be American in this context.”

HRW agrees, although it already believes it is seen as independent of the US government.

“But it is helpful for our organization to personify the global values we promote,” Executive Director Kenneth Roth said.

I wonder if it is quite so easy to personify global values in that way, however.  Multinational corporations, for example, often talk about how global they are, in outlook, in values, in all those ways.  Query whether it actually works that way in MNEs.  The Daimler-Benz model, for example, in which it was supposed to be a merger of equals between the American car company and the German one.  Under a surface veneer of the “global” company, in fact the true owners of the enterprise, Daimler, quickly asserted itself, and for a simple reason – the post-merger was turning into a disaster, and the immediate response was for management to seek to reduce its internal transaction and agency costs by asserting a command and control decisionmaking model that relied upon one side of the enterprise.  That is, a “mixed” culture inside an enterprise is a costly one in terms of many decisionmaking factors, because it invites much more negotiation inside.  

I have no desire to have the final word with Ken.  But I would like answers to two questions. First, where does Melzer or the ICRC say that armed conflict is a geographically-bounded concept, such that a participant in an armed conflict ceases to be targetable as soon as he leaves the battlefield?  I cited pages in Melzer’s book on targeted killing that indicate otherwise, but instead of addressing my counter-argument, Ken simply reiterated his initial claim.  No cites, no quotes, no links, nothing.

Second, if we assume — as Ken and I do, and as I’m confident both Melzer and the ICRC do — that LOAC goes where the participants in armed conflict go, how does that justify targeting someone like Al-Aulaqi, who has never set foot in Afghanistan or Pakistan during the armed conflicts there and does not appear to have any operational ties to any of the participants in those conflicts?  Is it enough for a terrorist to self-identify as “al-Qaeda,” regardless of geography or functional connection to Afghanistan or Pakistan?

Ken has already indicated that he will not continue the discussion.  Perhaps a reader will?

Re the Volokh post to which Kevin refers below. Fear not, I was not trying to withhold content from OJ readers, but it did seem to me that I was days late in arriving at the issue that Ben and Kevin had already been discussing, whereas my VC post went into a lot of other stuff that didn’t strike me as relevant to OJ readers.  Although we are pretty eclectic in our tastes here, as my personal drone post shows, I’ve sometimes had email complaints from readers wondering what the connection to international law is re some post of mine.  Am I wrong about that among our readers?  But anyway, my fundamental motivation in posting it to VC and then linking back to the OJ discussion was blog-strategic – drive some traffic over to OJ from Volokh.  I’m not trying to deprive OJ or its readers of my ‘invaluable’ thoughts.

Very quickly as to substance in one matter of Kevin’s response.  Kevin says I’m offering a caricature of Nils’ view on territoriality and armed conflict.  Maybe.  But what Kevin calls caricature, I’d say is a reasonable statement in a couple of paragraphs on a blog of the center of Nils’, and the ICRC’s, views.  That’s not a criticism.  There is a lot to be said for the view that armed conflict has geographical limits on it.  The ICRC, if I may summarize, or caricature, as you will, reached this view on the perfectly sensible and understandable grounds of its alarm over the Bush administration’s Global War on Terror claims.  I think that the GWOT reached too far – as I have said many places, in my view – once again, a summary or caricature, as you will – what the Bush administration sought was the tail of law wagging the dog of war, the ability to use the law of war anywhere in the world with or without actual hostilities.

The ICRC unsurprisingly became alarmed at this, and has – including through Nils’ work – moved to a largely geographically based view of armed conflict.  I understand and sympathize with the reasons, in part because I share them and in part because even where I don’t share the final conclusion and come to a different view, I do try to start with a sympathetic view to the argument and understand it on its own terms.  The sympathetic read of that argument is that the Bush administration wanted a global war in order to invoke the law of armed conflict anywhere, at any time, but without any connection to actual hostilities.  As I say, I reach a different view – different from the GWOT view or Nils’ view, but I think I am starting from a position of seeking to understand it.  And for that matter, one of the reasons I think I understand it as a “large” view in the law of war is that some of the senior ICRC staff deliberately reached out to me for exactly the same reason – they heard what Koh was saying, what I was saying, what different people were saying, and they were admirably trying very hard to understand the positions and how they differed from their own. Continue Reading…

I’ve got a new draft article on cyberthreats (you can download it at SSRN here).  I’d planned to wait before blogging about it, but events have overtaken my plans since Orin Kerr and Dave Hoffman are already discussing my ideas over at Concurring Opinions.  So, let me offer some responses to their questions here, and in the process explain (a) why some new regulatory process is needed for severe cyberthreats; and (b) why my idea may represent the best (if not the only) currently feasible regulatory response.

But first, here’s my abstract: 

Individuals, shadowy criminal organizations, and nation states all now have the capacity to devastate modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk. And the threat is growing in scale and intensity with every passing day.

The conventional response to such cyberthreats is self-reliance. When self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws proscribe what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors – whether criminals or states – to deter cyberthreats.

This Article challenges the sufficiency of existing cyber-law and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.

Instead of regulating bad actors, this Article proposes states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient to any harm they impose. At the same time, an e-SOS would compliment, rather than compete with, self-reliant measures and the existing legal proscriptions against cyberthreats.

Orin has questioned if a duty to assist (DTA) will work “as it seems to be based on assumptions about the physical world that don’t translate to the Internet.”  Orin suggests, for example, that defining what “is a ‘severe’ computer crime” will be much harder than defining what is sufficient distress to trigger a DTA at sea.   I agree with him in one respect, and disagree in another.  For starters, I think Orin’s question–in its reference to computer “crime”–contains its own assumptions about regulations in the physical world that do not, in fact, translate to the Internet.  Indeed, my paper’s first claim is that the ability of high-level cyberattackers to remain anonymous means traditional methods of proscribing bad actors from unwanted behavior will not work in cyberspace.  Victims will often not know when they are the victim of a severe computer crime, because if the perpetrator is a nation state, cybercrime rules do not apply.  Instead, any relief for victims would come under the applicable rules governing the use of force or nonintervention.  Of course, given anonymity, the victim may not be able to count on those rules applying either.  Simply put, victims may never know if their problem is the result of computer error, criminal behavior or a state cyberattack.  Thus, I agree with Orin that defining what constitutes a severe cybercrime is difficult, if not impossible in most cases.

Thanks to the independence of two independents — Tony Windsor and Rob Oakeshott, who come from conservative electorates.  That, my friends, is putting the good of the country ahead of short-term political interest.

Go Julia!  And thank you, Tony and Rob, for sparing us from three years of Tony Abbott.

I have no idea why Ken posted his thoughts on the Washington Post editorial only at Volokh Conspiracy, but I wanted to respond to his post, because I think it is based on a critical misapprehension of the laws of war.  Here are the relevant paragraphs (my emphasis):

[G]oing to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims — although heroically urged by the advocacy groups and their academic allies — have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US — and the traditional view of war-fighting states — has always been that the fight can lawfully go wherever the participants go. It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious — if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

To begin with, this is a caricature of Melzer’s position.  He does not claim that combatants can be lawfully targeted only when they are on the battlefield; his discussion of the extraterritorial reach of non-international armed conflict on pages 257-61 of his book, for example, is replete with situations in which states lawfully targeted insurgents outside of the “theatre of conflict.”  On the contrary, he simply insists — correctly — that the extraterritorial targeting of an individual is governed by the laws of war only if (1) the target does, in fact, qualify as a combatant in the armed conflict in question, or (2) the target is a civilian who is directly participating in that armed conflict.

The distinction is important, because it leads to a conclusion that Ken’s argument ignores: although the laws of war permit the extraterritorial targeting of “participants” in an IAC or an NIAC, not every terrorist qualifies under the laws of war as a “participant” in the IAC in Afghanistan or the NIAC in Pakistan. Al-Aulaqi is a perfect example.  He is not a “member of the armed forces of a Party to the the conflict” in Afghanistan, as that category is defined in IHL, nor is he a member of an “organized armed group” that is involved in the NIAC in Pakistan — there are many al-Qaedas, not just one. The laws of war govern his targeted killing, therefore, only if it can be said that he is directly participating in the hostilities in Afghanistan and Pakistan.  And that is a very difficult argument to make, given that his terrorist activities appear to have been focused exclusively on Yemen, the US, the UK, and Canada.  To be sure, there is no question that Al-Aulaqi approves of al-Qaeda’s activities in Afghanistan and Pakistan.  It is even possible that his inflammatory speeches incite young Muslims to join al-Qaeda in those countries.  But such incitement does not qualify as direct participation in hostilities (DPH); it is at best indirect participation.  And even if it did qualify as DPH under a more relaxed (and less acceptable) definition, Al-Aulaqi would be targetable only while giving his speeches; he could not killed at other times, because DPH is an action, not a status.

We see, then, the real motivation of conservatives like Ken: not to reaffirm the “traditional” understanding of the laws of war, but to dilute traditional notions of combatancy and DPH so that targeted killings with no connection whatsoever to the conflicts in Afghanistan and Pakistan will be governed by IHL instead of by international human-rights law or — worse — American constitutional law.  And they accuse progressives of misunderstanding the laws of war!

The day approaches when everyone will have their own drone.  I think I’d like this a Christmas present.  Behold the Parrot.AR ipod-itouch-ipad controlled drone – available for pre-order at Amazon, coming out later this year.

The Parrot Drone

Following on Kevin and Ben’s exchanges on the targeted killing and American citizen discussion – and the ACLU/CCR lawsuit, opinion pieces and editorial in the Washington Post – I’ve put up something at Volokh on this.  It’s not my final thought on the subject by any means, but I’m under deadline for something else.  I’m not going to cross-post it here as a text but instead refer people over to VC, and I hope from there back to Kevin and Ben’s exchanges as well.  I feel like I would be joining the conversation a little late and re-stating a bunch of things that have already been said to re-post the whole Volokh thing, so in this case I’ll just send people there.

Ben Wittes calls attention today to a Washington Post editorial defending the targeted killing of American citizens like Al-Aulaqi:

[W]hen a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens. “The imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat” are taken into account before striking, he added.

In the case of an American, the government should go to even greater lengths before carrying out an attack. For example, the president should consider whether the target can be notified of his status and given the opportunity to turn himself in. The executive should also consider making public the general criteria — excluding ultra-sensitive methods and sources — that it uses to designate an individual for the target list.

U.S. citizens do not lose all their constitutional rights when they head overseas, but they also cannot use their citizenship as a shield when they join enemy forces with the intention of carrying out violent attacks against the country or its interests.

The editorial illustrates the fundamental problem with the targeted killing of American citizens.  The Washington Post says that citizens do not lose their constitutional rights when they head overseas, but at the same time it endorses depriving a citizen of his right to life whenever the President determines — unreviewably — that he has “join[ed] enemy forces with the intention of carrying out violent attacks against the country or its interests.”  We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process.  So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime.  If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding. Either way, the process will strike the appropriate balance between the target’s rights to life and due process and the government’s need to protect the U.S. against terrorist attack.

Proponents of targeted killing should have no problem with this judicial solution, but I can hear the objection now — what if time is of the essence?  What if, instead of having already committed a terrorist act, the American citizen is about to commit a terrorist act?  The objection refutes itself, however, because no one — including the ACLU and the CCR — questions the US’s right to use targeted killing in such a situation.  What progressives object to is what conservatives actually want: a diluted imminence requirement that allows the government to pre-emptively kill any American citizen it believes is playing (to use Wittes’ expression) an “operational leadership role” in terrorism, even if the terrorist group of which the citizen is a part is not planning an immediate attack.

Notice, though, that conservatives’ desire to dilute the imminence requirement actually supports predicating targeted killing on judicial authorization.  First, the less temporally imminent the terrorist attack, the more reasonable it is to require judicial authorization for a targeted killing.  Only when an attack is truly imminent is judicial authorization unduly burdensome. (And again, progressives accept that presidentially-authorized targeted killing is legitimate in such a situation.)  Second, the less temporally imminent the terrorist attack, the more important it is to not deprive the American citizen of his rights to life and due process solely on the basis of an unreviewable presidential determination that he is involved in planning the attack.  Determining with any certainty that a terrorist attack is imminent is difficult enough; determining that a terrorist attack may occur sometime in the future is nearly impossible. So if we are going to permit the government to kill an American citizen because it believes that he is planning a future attack, the last thing we want to do is entrust that determination to the politicized, confirmation-biased, and frequently univocal atmosphere that surrounds the President.  Only an adversarial judicial hearing will do.

Via BLDGBLOG and Pruned (1, 2), here are two suggestions that are not so much literal proposals but rather thought experiments, each meant to prod the viewer. (And a third one from me.)

The first is one of the winners of SeaChange 2030+, an “ideas competition” sponsored by the Australian Institute of Landscape Architects with the goal of addressing the effects of sea-level rise on coastal communities. Noting that Australia is the one of the world’s highest per-capita producers of carbon dioxide pollution, OCULUS, the firm that designed the Embassy of the Drowned Nations, would set the embassy in Sydney Harbour. Using an inverted cone that would allow for increased area as sea levels rose, the embassy would provide housing and services for people whose communities have been destroyed by the rising waters. Environmental refugees would use the embassy as a way-station before relocation in Australia (and in other greenhouse gas-polluting nations, I assume). This is definitely a novel take on the “sunken states” issue and if there’s one thing that can focus voter interest, it’s the prospect of immigration, especially when it would be of poor, huddled masses, the wretched refuse from teeming shores, homeless and tempest-tossed. I am sure voters of the major greenhouse gas emitting nations would love to find room in their communities to house such refugees. My kudos to OCULUS for a bit of sly architecture.

The other idea was for a conflict zoo, “an urban zoo that only exhibits animals affected by man-made disasters.” 

In addition to refugees from the Gulf Coast oil spill, it would also house samples of local fauna affected by other large oil spills, including the one in Dalian, China, koalas saved from bushfires, elephants displaced by civil wars, gorillas smuggled out during outbreaks of genocide, and tropical birds caught in the crossfires between loggers, indigenous tribes and the Landless Workers’ Movement. In other words, it’s not only environmental destruction that’s being catalogued here but also its accompanying social violence and human strife.

I think the zoo could also have a gift shop that included the best blood diamonds, conflict cell phones, and gang-supported electric cars. While the items in the gift shop would not be related to the animals in the zoo, the real issue would be whether you would choose to buy the items in the shop. Or whether you already have, I guess. (I assume I have.) So much of our modern economy seems more and more like a gaudy, but bloody, gift shop.

Julian noted a couple of days ago that the ACLU and Center for Constitutional Rights have challenged the Obama administration’s “asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The lawsuit claims, inter alia, that such killings violate the due-process rights of the targeted citizens. As Anthony Romero of the ACLU and Vincent Warren of the CCR explain in a supporting op-ed — one that focuses on the administration’s desire to kill Anwar al-Alauqi — in The Wall Street Journal:

In zones of armed conflict, targeted killing can be a lawful tactic. But outside the context of armed conflict, targeted killing is legal only as a last resort and in the face of a truly imminent threat to life–and then only because the immediacy of the threat makes judicial process infeasible. Outside these narrow circumstances, targeted killing amounts to the imposition of a death sentence without charge, trial or conviction.

Ben Wittes disagrees with the op-ed in a post today at the new Lawfare.  His argument, however, is unconvincing:

The first is that when a criminal takes hostages, as happened the other day in Silver Spring, MD, even law enforcement will use targeted killing. The ACLU and the Center for Constitutional Rights do not take the position that such action constitutes unlawful extra-judicial killings. Rather, I presume that they accept that the preservation of the life of the hostages justifies the use of lethal force based on standards totally different from the standards of proof and evidence that would suffice before a jury. My question is whether this case is really so different. Yes, the action is being contemplated by military and covert operatives, not cops and and not pursuant to law enforcement authorities. And yes, the threatened harm is, in a temporal sense, less imminent. Anwar al-Alauqi is not, after holding hostages. In another sense, however, the situation is far less controllable and much more threatening than a mere hostage standoff. Police, after all, cannot simply surround the building and wait him out. The threat extends far beyond the people the hostage-taker has in his immediate presence. The nature of terrorist plots, which involve great secrecy and operational security, means that authorities may not know how imminent the threat is; hostage takers are less subtle. And critically, the government has no other obvious tool by which to get him. Indicting him and seeking his extradition from a country that does not have custody of him, can’t keep track of its prisoners, and lacks full control over its territory is an idea that nobody who actually has to neutralize a threat posed by a terrorist could love. Freezing his assets? I’m sure he’s shaking.

This leads to my second point: The idea that Anwar al-Alauqi is being targeted for death and has no means of availing himself of his rights as a U.S. national is wrong. Like the hostage-taker, he has a remedy that will ensure his safety and give him the opportunity to defend himself: He can turn himself in. He can knock on the door of any U.S. consulate and say, “I hear you guys are looking for me.” No special forces guys, Predator drones, or air strikes are going to take him out if he does this. In other words, this situation is, in conceptual terms, a fairly close analogue to the one in which cops surround a building and say, “Come out with your hands up or we’ll shoot.”

There a number of problems with this.  To begin with, the situation is different — as Wittes himself admits.  There is no comparison between physically taking someone hostage and providing material support for terrorism or conspiring to commit a terrorist act, the crux of the allegations against al-Alauqi.  We allow the “targeted killing” of a hostage-taker without due process only because the threat is so imminent.  If law-enforcement intercepts an email from someone telling a friend he is going to take hostages the next day, we don’t permit a sniper to take him out as he is sitting at his computer.  Instead, we require the police to arrest him pursuant to a warrant if he is in his dwelling or without a warrant if he is in a public place.  Similarly, if the hostage-taker gets what he wants and lets the hostages go (or, for that matter, kills them), a sniper can’t simply take him out the next time he surfaces in public. In each situation the hostage-taker, no matter how evil or potentially dangerous, is still entitled to due process.

That does not mean, of course, that a terrorist situation could not be sufficiently imminent to justify a targeted killing.  But the lawsuit acknowledges that possibility, as the quote from the op-ed indicates.  Wittes’ real argument, therefore, is not that targeting al-Aulaqi is in any way similar to killing a hostage-taker while he is holding hostages, but that we should dilute the concept of imminence to the point where it ceases to have any meaning.  After all, every terrorist plot involves “great secrecy,” and there are always problems getting foreign governments to cooperate an anti-terrorism efforts.  So Wittes’ is simply arguing that because terrorism is difficult to fight, any American citizen suspected of being involved in terrorism should be targetable anywhere, anytime, without any due process whatsoever — a policy that has no basis, analogically or otherwise, in the Constitution (to say nothing of international human-rights law).

Wittes’ “surrender” argument is even less convincing, because it uncritically presumes that al-Aulaqi would receive due process if he turned himself in.  Wittes is probably right that he would not simply be killed if he presented himself to, say, the U.S. consulate in Yemen.  But it is certainly conceivable that he would be quietly “disappeared” — taken to one of the CIA’s many black sites and never heard from again.  Even if he wasn’t, there is little chance that he would be tried in a civilian court.  Instead, he would be deemed an “enemy combatant,” taken to Bagram or Guantanamo, and eventually — some years later — tried in a military commission.  And what would he be charged with?  Conspiracy?  Material support for terrorism?  As scholars have explained ad nauseum, those are not actually war crimes.  So Wittes’ “solution” to al-Aulaqi’s due-process right not to be summarily executed is for al-Aulaqi to subject himself to a system that would itself violate his right to due process.

There is, of course, a genuine solution to the problem.  The Obama administration could enter into a written agreement with the ACLU and CCR, acting on al-Aulaqi’s behalf, that promises to prosecute al-Aulaqi in federal court if he voluntarily turns himself in.  Anyone want to lay odds on that happening?

UPDATE: In a later post, Wittes argues that “[w]hat the ACLU and CCR are arguing in functional terms is that Al-Aulaqi has a right not merely to go unkilled but to go uncaptured as well. And where, I ask, does the Constitution or the laws of war say that?”  That is a revealing statement on a number of levels.  First, it seems to indicate that Wittes believes the laws of war apply in Yemen no less than in Afghanistan or Pakistan, which is incorrect.  Second, the ACLU and the CCR are not arguing that al-Aulaqi has a constitutional right to go uncaptured.  What they are arguing is that al-Aulaqi does not lose his rights to life and to due process simply because the U.S. is having trouble capturing him.  Here’s my question for Wittes: where in the Constitution does it say that a person forfeits his constitutional rights by refusing to turn himself in?

UPDATE 2: Wittes has responded to my post.  It’s well worth a read — and narrows the difference between us considerably.  I should make clear, as he notes, that an American citizen cannot currently be tried by a military commission.  But that is a legislative limitation, not a constitutional one; indeed, in Ex parte Quirin, the Supreme Court upheld a military commission’s conviction of an American citizen, Hans Haupt. (Haupt was ultimately executed.)

Matt Armstrong, who blogs at MountainRunner, has an article in the current World Politics Review called Reforming Smith-Mundt: Making American Public Diplomacy Safe for Americans. While the full version is only available online for a fee, there is a brief excerpt on the WPR website:

American public diplomacy has been the subject of many reports and much discussion over the past few years. But one rarely examined element is the true impact of the Smith-Mundt Act of 1948, which for all practical purposes labels U.S. public diplomacy and government broadcasting as propaganda. The law imposes a geographic segregation of audiences between those inside the U.S. and those outside it, based on the fear that content aimed at audiences abroad might “spill over” into the U.S. This not only shows a lack of confidence and understanding of U.S. public diplomacy and international broadcasting, it also ignores the ways in which information and people now move across porous, often non-existent borders with incredible speed and ease, to both create and empower dynamic diasporas.

The impact of the “firewall” created by Smith-Mundt between domestic and foreign audiences is profound and often ignored. Ask a citizen of any other democracy what they think about this firewall and you’re likely to get a blank, confused stare: Why — and how — would such a thing exist? No other country, except perhaps North Korea and China, prevents its own people from knowing what is said and done in their name. …

Check it out, either in print or on the web…

Bobby Chesney, Jack Goldsmith, and Ben Wittes have started a new blog, Lawfare: Hard National Security Choices.  Here’s how Ben Wittes describes it in the opening post:

We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will, I am sure, construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters.

We have all written extensively in this space, both individually and collectively. Our purpose in creating this blog is to create a collective outlet for shorter writing that is more responsive to the ongoing events.

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

So far they’ve already blogged about targeted killings, detention, and al Bihani. Given the bloggers and their prior work, I’m sure Lawfare will quickly join the ranks of indispensible reading on national security law issues.

The movement for a global currency tax gains momentum.

PARIS, Sept 1 (Reuters) – A group of 60 nations, including France, Britain and Japan, will propose at the U.N. this month that a tax be introduced on international currency transactions to raise funds for development aid, ministers said on Wednesday.

Speaking after a meeting in Paris, French Foreign Minister Bernard Kouchner said the group had agreed a common position for the United Nations Millenium Objectives summit on Sept. 21.

Ministers estimated the tax could raise as much as $35 billion a year for development aid.

“For every 1,000 euros the tax we are suggesting will bring 5 cents,” Kouchner told reporters. “It’s not a lot, but enough to get things going.”

I know this idea has been kicked around for a long time and it may or may not be a good idea.  To me, it has never been clear to me how exactly this would be implemented.  Would nations create a depositary to collect and distribute the funds or would it be given to existing U.N. agencies?  Would such an international agency have the authority to collect the funds directly from banks?  If not, how would you avoid the problem the U.N. has now in collecting member dues?  As a U.S. matter, a treaty or international agreement purporting to impose a tax directly would raise lots of interesting constitutional problems.

Could anyone point me to a link giving a basic, plain language discussion of the difference between forum and jurisdiction in American law?  Something that I could use with a group of non-US lawyers – clear, not too long, basic distinctions?  Thanks.

Over at Volokh Conspiracy, I have some purely political comments – ie, criticism from a conservative stance – of President Obama’s speech last night.  I’m not cross-posting it here because it doesn’t really have a link to international law as such, but perhaps some readers might be interested.

Last spring I spoke at a Pepperdine torts conference addressing the globalization of tort law. Lots of famous torts scholars in the room, including my former classmate at NYU, Harvard Professor Jonathan Goldberg. I was the only international law guy in the crowd, which actually worked to my advantage given the topic. I chose for my topic what domestic tort law might be able to teach international law about apportioning responsibility among joint tortfeasors.

As of late I have been feverishly working on the symposium paper, and I have come to believe that there is a tremendous amount of fruitful research that could be done regarding the nexus between international law and domestic torts. It is a topic that intersects both public and private international law, a perfect issue for a guy like me who labors in both fields.

Of course the issue of apportioning responsibility for international violations is particularly relevant today, as non-state actors are increasingly charged with aiding and abetting human rights violations. Everyone is focused on whether corporations have rights and duties under international law and, if so, the appropriate standard for aiding and abetting liability (the “purpose” test vs. the “knowledge” test). Curiously, no one is focusing on whether corporations should be jointly and severally liable for a violation, or just severally liable. If a corporation was a minor player in an international law violation, should it be stuck with, say 10% of the damages, or 100%?

One of the issues that I have uncovered is whether public international law or private international law should govern the question of apportioning responsibility, and in making that determination if it matters whether the forum is a domestic court or an international tribunal. I’ll save that for a later discussion.

Assuming for the moment that public international law controls the question of apportioning responsibility, there is a vexing problem as to whether the traditional international law rule of individual liability should be applied, or if one should discern a general principle of international law based on the prevailing practices in most domestic legal systems, which arguably would impose joint and several liability on all joint tortfeasors.

Commentary to Article 47 of the ILC’s Draft Articles on State Responsibility states that:

It is important not to assume that internal law concepts and rules in this field can be applied directly to international law. Terms such as ‘joint,’ ‘joint and several’ and ‘solidary’ responsibility derive from different legal traditions and analogies must be applied with care. In international law, the general principle in the case of a plurality of responsible States is that each State is separately responsible for conduct attributable to it…. The principle of independent responsibility reflects the position under general international law, in the absence of agreement to the contrary between the States concerned.

But does that conclusion also apply now that non-state actors are subjects of international law? If a corporation, an individual, and a State jointly decide to torture someone, does the ILC rule of “independent responsibility” apply? By way of comparison, a review of most major legal systems reveals that joint and several liability is the norm for torts in which the parties acted in concert. If that is so, then one might fashion a general principle of international law from such practice and conclude that joint and several liability is appropriate.

So which is it? No one seems to be asking the question or thinking through possible answers. I’ll say more once the symposium piece is finished, but I just wanted to flag the issue for our readers now.

Our friends at the University of Goettingen in Germany have recently published another issue of the Goettingen Journal of International Law.  The latest issue contains lots of great stuff, including a series of articles focused on the recently concluded ICC Review Conference in Kampala (Talk about fast work!).  GoJIL, which is structured similarly to a U.S. law review, is still a new experiment for an European university, but they certainly have done a great job so far. And they promise more new stuff, including organizing an upcoming conference on “Resources of Conflict- Conflict over Resources.”  Their editors write:

We are proud to announce that the second Keynote-Speech will be delivered by Professor Marie-Claire Cordonier Segger, Director of the Centre for International Sustainable Development Law (CISDL) in Montreal, Canada; the first, as previously announced, will be delivered by Professor Bruno Simma, Judge of the ICJ. The response to our Conference’s Call-for-Papers was overwhelming and we are pleased to have some very distinguished scholars from all around the world present at the Conference and to publish their papers in a special issue in 2011. The Conference will take place from 7 to 9 October 2010; interested scholars and students are invited to attend the conference in the audience and can register on our website until 15 September 2010.