I want to call readers’ attention to Douglas Guilfoyle’s article “The Mavi Marmara Incident and Blockade in Armed Conflict,” which is forthcoming in the British Year Book of International Law.  (Subscription required.)  It’s absolutely superb — comprehensive, analytic, and above all fair.  Indeed, its conclusions differ in important ways from those of the UN HRC report, the Turkel Commission inquiry and the Turkish government’s internal report.  Here is the abstract:

This article examines Israel’s enforcement of a maritime blockade against the Gaza Strip implemented in the course of an ‘armed conflict’ with Hamas. The first question is the legal characterisation of this conflict and whether it is one to which the laws of naval warfare apply. The conclusion of this article is that, irrespective of the status of the Gaza Strip as an occupied territory, at the relevant time Israel was at best involved in a non-international armed conflict (NIAC) with Hamas. There is only limited support for the proposition that blockade is available in NIACs, and then only in conflicts reaching a high level of intensity. On this basis, Israel had no applicable right of blockade.

In the alternative, the article considers the requirements of lawful blockade and concludes they were not met in the present case. The central issue is proportionality. The maritime blockade was part of a comprehensive closure regime that had disproportionate effects on the civilian population of Gaza. A maritime blockade in support of other measures causing disproportionate damage must itself be disproportionate. In the further alternative, the article assesses whether Israel could have justified its actions on the basis of other belligerent rights.

Finally, the article considers the law governing the use of force during maritime interdiction operations under the laws of naval warfare. It concludes that a ‘policing’ paradigm of force is applicable. The law of individual self-defence and war crimes is also considered.

It is also worth noting that Doug’s is the first article in BYBIL — which is now in its ninth decade of life — to which Oxford University Press has ever offered advance on-line access.  That’s a great development.

Now if someone would just change “Year Book” to the more modern “Yearbook”…

VERY COOL UPDATE: OUP’s Rhrodri Jackson informs me that, as of last April, the press has officially changed the name to the British Yearbook of International Law.  Even though this post appeared in July, I credit my efforts as being responsible for the change.  Now if only the various on-line databases will accept the new spelling — I type “British Yearbook” into the Melbourne library e-journal system and nothing comes up…

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

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

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

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

Though it produced hardly a ripple in the news (given all the other drama on Capitol Hill this week), Senator Leahy held a hearing yesterday on the legislation he has introduced to enforce the notification provisions of the Vienna Convention on Consular Relations (VCCR) at the state level.  The webcast of the hearing, aptly titled “Fulfilling our Treaty Obligations and Protecting Americans Abroad,” is here and the statements of the witnesses can be found here.  I’ll be posting some more commentary on this a bit later.

David Hicks is back in the news here in Australia, because the DPP has announced that it intends to seize any royalties he receives from the sale of his book, Guantanamo: My Journey.  The DPP’s decision has received a great deal of criticism, for a variety of reasons: Hicks accepted a plea because the US government threatened to put him in isolation if he didn’t; he pleaded guilty to an imaginary war crime, material support for terrorism; and he has become something of an Australian folk hero in light of the gross unfairness of the military-commission system.

We have always known that Hicks’ prosecution was distorted by politics; as I discussed a couple of years ago, Col. Morris Davis resigned his position as chief prosecutor of the military commissions not long after Hicks pleaded guilty, alleging that his military superiors had interfered with the prosecution, and then testified on behalf of Salim Ahmed Hamdan, claiming that the selection of defendants and evidence in a variety of cases had been driven by political considerations instead of legal ones.

One of the people Col. Davis singled out for criticism in 2008 was William Haynes, the Pentagon’s general counsel, who had memorably said, “We can’t have acquittals, we’ve got to have convictions.”  A recent interview that Col. Davis gave Truthout, however, makes clear that Haynes’ role in the Hicks case was even more inappropriate than we imagined.  Here is a snippet:

When he was selected as chief prosecutor in September 2005, Davis said he made it clear to his superiors at the Pentagon that “the one case I did not want to start with was David Hicks.”

“The first case is the one that will get lots of attention,” Davis said. “Unfortunately, Hicks’ case was already in the pipeline. It was a terrible case. We told the world these guys are the ‘worst of the worst.’ David Hicks was a knucklehead. He was just a foot solider, not a war criminal. But when Congress passed the Military Commissions Act they authorized prosecuting material support, which is what Hicks was charged with, as a war crime. You could prosecute everyone at Guantanamo under that theory.”

Despite Davis’ concerns, the Bush administration was determined to charge Hicks, even if the evidence against him was thin, to help out an ally in the war on terror, US government documents obtained by Truthout show.

Davis also believes that’s what happened. He said he arrived at that decision not long after he received an urgent phone call in January 2007 from Pentagon General Counsel William “Jim” Haynes who asked him, “How quickly can you charge David Hicks?”

Davis said that was the first and only time Haynes had ever called him about a specific case and he found it to be “odd.” The phone call was made one day after US officials met with the ambassador to Australia, where Hicks’ case and its impact on Howard’s re-election campaign was discussed, according to a secret State Department document obtained by Truthout.

Davis informed Haynes, who Bush had twice nominated to serve on the Fourth Circuit Court of Appeals, that he could not initiate charges against Hicks “even if he wanted to” because the “Manual for Military Commissions” had not been prepared yet by Secretary of Defense Robert Gates and a “convening authority” who is supposed to oversee the process had not been appointed.

“The manual implements the law, in this case the Military Commissions Act of 2006,” Davis said. “It fills in the details the statute doesn’t. It fills in the elements of crimes, lays out the elements of crimes. When Haynes called me I said I couldn’t charge Hicks because I did not know what the elements of the offense are. I said, ‘wait for the manual to be written.'”

Haynes, who did not return emails or phone calls for comment, told Davis the manual was being “worked on” and the Pentagon was reviewing candidates to serve as convening authority. Haynes still wanted to know how quickly Hicks could be charged with war crimes after the military commission’s manual was signed by Gates.

“I told Haynes two weeks,” Davis said. “He said ‘two weeks! Two weeks is too long.’ Haynes then told me to ‘be ready’ and asked if I could charge other [Guantanamo detainees] in addition to Hicks. He didn’t say why.”

There is much more of interest in the article, particularly Col. Davis’s explanation of how Haynes and David Addington negotiated Hicks’ plea bargain behind his back — and how the plea bargain was designed to bolster the electoral prospects of John Howard, one of Bush’s last remaining allies, by making the Hicks case go away quietly.

Go read the whole article.  It’s ugly.

Ken Anderson, Jeremy Rabkin, and Jenny Martinez expand in various ways on the concern about constructing a grand narrative introduced on Monday by Harlan Cohen. Anderson discusses a number of questions that might have been used to frame the narrative: legitimacy, the use of international law as a sword or a shield, sovereignty versus internationalism, authority and deference, hegemony, and whether international law carries any real weight at all. Rabkin wants to know more about why doctrines changed and seems particularly interested in the changing content of international law and the rising power of the United States (Anderson’s hegemony question). Martinez also wants to know more about the why but on a more micro level, and does a wonderful job of unpacking in a few paragraphs the context of The La Jeune Eugenie (1822) and The Antelope (1825).

On the value of “insider doctrinal history,” to use John Witt’s phrase from Chapter 5 of the book, Harlan Cohen has already come to our defense, and more eloquently than we would have. Jenny Martinez also usefully points out that lawyers and historians often approach the past with different purposes and in different ways, but both equally valid. We would add just a few additional points, drawing on our long engagement in this project.

First, there a great deal of nuance and context in the book. On the transition from natural law to positivism, for example, David Bederman’s chapter on customary international law from 1861 to 1900 provides a fascinating account of the mixing of natural law and positivist language during the late nineteenth century and suggests that the change to positivism was largely rhetorical, The Paquete Habana being the leading exception where the Court really did look to state practice to determine the content of customary international law.

Second, there is a great deal of attention to “why” questions in the book. Individual authors address a number of the questions that Anderson raises and others too. What the book does not attempt to do is to view the history of international law in the Supreme Court through a single lens. Had the editors tried to impose a single viewpoint on our strong-minded contributors, we would have faced open rebellion. Indeed, the three editors could not agree among ourselves on the why questions (we initially tried to do so in writing the conclusion, but abandoned the attempt as futile with the third draft). Even if we had succeeded in overcoming these obstacles, we doubt we would have pleased our reviewers. “Whys” are always more contestable than “whats” and “whens,” and had the book attempted a more coherent account of why the Supreme Court’s international law doctrines changed, we would no doubt be reading posts about how we were wrong!

To have facilitated discussions of these questions was precisely our purpose in putting together this book. We are very grateful to Roger Alford, Ken Anderson, Harlan Cohen, Andrew Kent, Jenny Martinez, and Ingrid Wuerth for the keenness of their insights, the generosity of their praise, and the gentleness of their criticisms. We are grateful to all of our wonderful contributors. And, last but not least, we are grateful to Duncan Hollis and the OJ crew for having provide a forum for this discussion.

I want to thank the editors of Opinio Juris for hosting this forum and inviting me to participate, the editors of the Volume under review for their magnificent work in putting together such an impressive and comprehensive set of essays, and Andrew Kent for his thoughtful response to my contribution to the Volume.

Let me here take up the two main criticisms that Professor Kent helpfully offers in response to my essay. The fundamental claim of my contribution is that, while departing from past doctrinal precedents in significant respects, the Supreme Court’s War on Terror cases faithfully carry forward, in changed circumstances, a deep American constitutional tradition going back to the Founding, which, optimistically, I dub our Just War constitutional tradition. The core commitment of this tradition is to the civilized conduct of war in accordance with law. Some of its key doctrinal tenets – designed to implement the fundamental commitment to civilized warfare – were, I claim, a recognition that both the Executive and Congress were constitutionally obliged to conduct war in compliance not with the Bill of Rights (which is part of the municipal law) but with the international laws of war (which comprised the rules of civilized warfare), and, further, that the courts were to play a role both in developing the content of the laws of war and in enforcing those rules (in some contexts) against executive and military officials. However, beginning with the Cold War and with increasing intensity in its aftermath, brought dramatically into view by the War on Terror, these doctrinal tenets have slowly lost much of their force. Most importantly, the status of international law in the domestic constitutional order has been consistently downgraded and is now tenuous at best. This development, with which everyone who follows Opinio Juris is familiar, was reflected most consequentially in the Bush Administration’s open denial that the President is obliged to comply with the laws of war in conducting the War on Terror. Moreover, the emergence of a global terrorist threat, conceived of, novelly, as a “war,” stretched the traditional laws of war to the breaking point. These developments threatened to undermine – indeed, to flip on its head – the Just War constitutional tradition. My argument is that the Supreme Court’s War on Terror cases were a partially successful effort to recapture the fundamental goals of the Just War constitutional tradition, even as the Court departed from some existing doctrinal understandings.

It seems that Professor Kent is dubious about whether the doctrinal tenets I have identified with the Just War tradition were actually ever in place. However, for reasons of space, he focuses on what he rightly takes to be the most controversial claim – that even Congress was constitutionally obliged to follow the laws of war. Of course, this claim flies in the face of contemporary constitutional understandings and much (though not all) scholarship and conventional wisdom about the origins of the “last-in-time” rule. Professor Kent points, in particular, to a number of Marshall Court opinions which he reads as affirming Congress’ constitutional power to disregard international law. In my view, at least some of these opinions should be stricken from the litany of citations for the last-in-time rule, because they simply do not support it. This is a point that many have already made about, for example, The Nereide (1815). More importantly, none of these cases deal with the scope of Congress’ constitutional power but, at most, with the scope of judicial review, which is a wholly different matter. It may be that the Court would have been wary about its own authority to strike down legislation as in conflict with the laws of war, but that says nothing about the “Constitution outside the Courts” and the longstanding understandings in Congress and among leading constitutional authorities about the limits on its constitutional powers over war.

Professor Kent’s second point expresses skepticism about my claim that the courts played an active role in supervising executive war measures. In particular, he doesn’t accept my analogy between 18th and 19th century prize jurisdiction over wartime captures of property at sea and Rasul and Boumediene’s affirmation of judicial jurisdiction over wartime captures of persons. I’m glad that he raises this point, because I take this analogy to be central to the essay. In my view, prize jurisdiction has many important implications for debates over Rasul and Boudemiene. Let me focus on two. First, it shows that, contrary to what many seem to believe, the judiciary is not incompetent to exercise jurisdiction over military measures or, at least, that American constitutional tradition suggests just the opposite. For a century and a half, the judiciary was actively engaged in supervising executive wartime measures both as to matters of fact and law, and, moreover, the matters in which it became involved were sometimes both highly controversial and of signal importance to U.S. military strategies and interests. The judiciary took a leading role in developing the law of neutrality – a crucial part of the laws of war – and it applied rights derived not from the Constitution but from international law to executive military measures. Second, a close look at the 18th and 19th century practice shows that judicial jurisdiction was generally affirmed in those contexts in which it was most needed and the judiciary was most suited to the task. In particular, subject to practical constraints, the courts exercised jurisdiction in those contexts where disputes of fact were most likely to arise and in which considerations of reciprocity were least likely to bring about reliable executive compliance with the laws of war. While in the 18th and 19th centuries, those conditions were present most dramatically in the context of wartime seizures of neutral vessels for allegedly engaging in violations of neutral duties; in our time, and in the context of the War on Terror, these considerations apply most forcefully to military detentions of suspected terrorists. Hence, Rasul and Boumediene should rightly be seen as carrying forward, in contemporary circumstances, this earlier practice.

I am a bit uncertain about exactly in which respects Professor Kent disagrees with these claims. He seeks to explain active judicial involvement in prize cases as arising out of constitutional authorization and perhaps command as well as out of legislation and executive proclamations. Of course, that doesn’t explain why prize jurisdiction was so uncontroversial in the first place or its function within the larger constitutional system applicable to war. In any case, although I don’t disagree with this point, I take the issue in Rasul and Boumediene to be precisely whether to interpret relevant legislation (22 U.S.C. § 2241) and the Suspension Clause of the Constitution as commanding or authorizing judicial jurisdiction over detentions. Without engaging in methodological disputes over interpretation, I take my points to go to the proper interpretation of those provisions, countering arguments about historical practice and the competence of the judiciary in military contexts and offering affirmative support for judicial review where certain conditions (e..g., disputes of fact/lack of reciprocity) are present. Professor Kent also suggests that active judicial review in prize can be explained by the need to protect the titles of captors to the property they seized. I think this claim is, as an historical matter, seriously deficient as a general explanation for the emergence of prize jurisdiction, although it was in the mix, but I’m also uncertain how the point is relevant to the issues. It may be that Professor Kent is suggesting that the titles issue meant that there was a strong national interest in judicial jurisdiction in the prize context that is missing from the contemporary detention context. But that surely is a controversial claim. Putting aside the question of the importance of the national interest in clearing title to prizes, it is undoubtedly the case that the members of the majority in Rasul and Boumediene understood the national interest to support judicial jurisdiction over detentions, and I suspect that many observers, myself among them, agree (although others, equally certainly, disagree). (Putting the point narrowly, just as prize jurisdiction helped establish clear title in captors to seized property in foreign courts, so too Boumediene jurisdiction may help immunize U.S. government and military officials from potential civil and criminal liability in foreign courts). Of course, assessments of the national interest will diverge, but I don’t see any reason to believe that the national interest was uncontroversially present in one case and absent in the other. In any case, my argument is only that the Court’s decisions, including its extension of judicial jurisdiction, should be understood as efforts to carry forward our Just War constitutional tradition – which embraces civilized warfare under law – in the face of many legal, jurisprudential, political, and technological developments that render the traditional doctrines incapable of supporting it.

Again, let me thank Opinio Juris for inviting my participation and Professor Kent for taking the time to make thoughtful comments on my essay.

I would like to thank Opinio Juris for hosting this book discussion, and I would like to thank the several contributors for their insightful and provocative posts. This post responds specifically to Andrew Kent’s skeptical reaction to David Golove’s claim that the judiciary had an active role in policing executive branch compliance with the laws of war. I believe that the book provides a fair amount of support for Professor Golove’s claim, at least through the Spanish-American war.

After the Quasi-War with France, the Supreme Court invalidated wartime seizures of property by the executive in United States v. Schooner Peggy, 5 U.S. 103 (1801) and Little v. Barreme, 6 U.S. 170 (1804). In the War of 1812, the Court invalidated wartime seizures of property in Brown v. United States, 12 U.S. 110 (1814) and The Nereide, 13 U.S. 388 (1815). After the Civil War, the Court invalidated a wartime seizure of property in United States v. Padelford, 76 U.S. 531 (1870). During and after the Spanish-American War, the Court invalidated wartime seizures of property in The Buena Ventura, 175 U.S. 384 (1899), The Paquete Habana, 175 U.S. 677 (1900), and MacLeod v. United States, 229 U.S. 416 (1913). (This list is not comprehensive.)

In all these cases, the executive relied at least partly on the law of war to justify a seizure of property. And in all these cases, the Court ruled against the executive and held that the challenged seizure was improper. Hence, all these cases provide at least some support for the claim that the Supreme Court, before World War I, played an active role in policing executive compliance with the laws of war.

On the other hand, there are specific features of each of these cases that complicate the story.
In many of the cases cited above, the Court relied on something other than the law of war to constrain the President. In Schooner Peggy the key constraint was a treaty; in Little v. Barreme it was a statute; in Brown it was the Constitution. Thus, all three cases involved constraints on the executive’s wartime power, but the law of war did not provide the key constraint.

In other cases, such as U.S. v. Padelford and The Buena Ventura, the Court applied the law of war to constrain the executive, but it did so indirectly. In Padelford the Court invoked the law of war to help interpret a statute. In The Buena Ventura the Court invoked the law of war to help construe a Presidential proclamation. In neither case did the Court apply the law of war directly as a constraint on executive power.

In The Nereide and MacLeod v. United States, the law of war arguably did provide the key constraint on executive power. However, The Nereide involved a seizure by a privateer, not a military officer. And MacLeod involved collection of import duties in a zone of military occupation, not a seizure of goods from the enemy. Thus, The Paquete Habana may be the only case where the Supreme Court applied the law of war directly to invalidate a wartime seizure of enemy property by a U.S. military officer.

In my view, though, the key point is that in all these cases the Court employed its judicial power as a constraint on wartime actions of the executive in situations where the President or his representative invoked the law of war to help justify those actions. In this sense, the above-cited cases support the Court’s conclusion in Hamdi that war is not “a blank check” for the President. Moreover, they support the conclusion that the judiciary has some responsibility to ensure that the President exercises his wartime authority in a manner that is consistent with a web of constraints created by the Constitution, statutes, treaties and the customary laws of war.

Of course, the politico-military context of the war on terror is quite different from any prior wars. Thus, even if we can agree on the history, there is much room for intelligent and spirited debate about the contemporary lessons to be drawn from that history. Our main goal in the book was to help promote a more well-informed debate. I am pleased that most commentators seem to agree that we succeeded in that modest goal.

The joy of this project was making the kind of discovery Roger Alford recounts in his post. Alford’s chapter on international law as interpretive tool from 1901 to 1945 discusses, among other things, the Supreme Court’s various approaches to the extraterritorial reach of statutes during that period. Among these approaches was the government purpose test of Unites States v. Bowman (1922).

It is interesting to compare Bowman to the Supreme Court’s 2010 decision in Morrison v. National Australia Bank. In Morrison, the Court applied the presumption against extraterritoriality to the antifraud provisions of the Securities Exchange Act. But the Court reoriented the presumption away from a mechanical determination of where the prohibited conduct occurred (Florida in this case), instructing lower courts to examine the “focus” of the statute. Morrison’s “focus” in some ways echoes Bowman’s “purpose.”

I have argued on this blog that the “focus” (or if you prefer, “purpose”) of congressional legislation is generally to prevent harms in the United States and that Morrison adopts an effects test, albeit a narrower one than the Second Circuit had applied in securities litigation. I won’t repeat those arguments, but for those who are interested there is more here and here.

To my mind, another interesting thing about Alford’s chapter is the way the presumption against extraterritoriality started to become detached from international law during his period. That process continued in Foley Bros. v. Filardo (1949), decided just after Alford’s period, in which the Court first articulated the modern justification for the presumption—“that Congress is primarily concerned with domestic conditions”—the justification the Court repeated in Morrison.

One of the most intriguing and admirable aspects of this book is that the editors have included within it a scathing critique of the project as a whole.  In Chapter 5, “A Social History of International Law:  A Historical Commentary, 1861-1900,” John Fabian Witt comments on three preceding chapters on the Supreme Court’s jurisprudence during that period.  In a critique that could easily (and seems intended to) be extended to the whole book, Witt takes the authors and editors to task for assembling an “insider doctrinal history” that fails to take up “the most important and interesting questions about the history of international law (in or out of the U.S. Supreme Court).” (p. 166)  Ouch!  Reading the book, I kept coming back to this critique.  Is Witt’s assessment fair?  And if not, what is he missing?  Answering this question forces us to think more carefully not only about the purposes of this book, but about the exact relationship between law and history as well.

(more…)

It is a pleasure to hold International Law in the U.S. Supreme Court in my hands and flip through its pages. It is a volume that I have long wished for – a comprehensive reference book, in the pages of which one can be confident of finding an intelligent summary all the major Supreme Court cases from any given era. I imagine that any lawyer litigating a case involving international law in the Supreme Court will want it handy in the early stages of briefing. Law student writing research papers will be directed to it as a first stop in getting their bearings. Judges may consult it. It is a very useful book. At a time when the Chief Justice of the United States complains that most legal scholarship is entirely irrelevant to practicing lawyers (echoing complaints by others), it is pleasing to have a genuinely useful book at which to point. Hurrah for useful and comprehensive academic books!

At the same time, I must admit to feeling some frustration as I delved deeper into the book, a frustration that the commentary chapter by John Witt gives voice to in some ways: at every turn, I want to know more, often a whole lot more. What was really going on in that case? What was the social and political context? Were these cases important, or not important, in society at the time? What else was going on? Was there a war about to begin, a contentious election, or a diplomatic crisis? Who brought the case, and why did they decide to argue about international law? Who were their lawyers? Who had more money? Which of these people owned slaves? Where were they from?

This is perhaps unfair. The book is already 618 pages, and as the introductory post to this forum suggests, it is meant to be a starting point; as Michael Ramsey writes, “we hope our account of how the Court has used international law in its decisions will form the basis for broader inquiries concerning why the Court did what it did, and to what effect.” And yet, I worry at the consequences of attempting a grand narrative of international law in the Supreme Court without really, actually, trying to figure out why the Supreme Court did what it did, and to what effect.

To illustrate my point, let’s take the case of The Antelope — a popular case, as it turns out; according to the index, it is discussed in eleven different parts of the book, in many different chapters. The Antelope was the 1825 case in which the Supreme Court, in an opinion by Chief Justice Marshall, found that the American capture of a Spanish slave ship was not authorized by the law of nations. A few years earlier in 1822, Justice Story on circuit in La Jeune Eugenie had held that the owners of a French slave ship captured by the American navy were not entitled to its return. As Witt points out in his critical chapter, according to the standard doctrinal account “the pair of cases serves as a case study in the ostensible transition from natural law to positivism.” That is indeed how these cases are presented in several chapters of this book, with Story’s “fuzzy-headed natural law theories” (chapter 3) eventually losing out to the supposedly more modern legal positivism of Marshall’s opinion. But is that really what this pair of cases is about?

The Antelope is one of the few nineteenth century international law cases in the Supreme Court that I actually know enough about to feel that I really understand what was going on, thanks in part to John Noonan’s excellent book on the case and in part to my own obsession with the relationship between the slave trade and international law. As Witt points out, framing these cases as about positivism versus natural law leads one to miss large parts of why the cases were actually decided the way they were (and along the way, probably also to misunderstand what was going on with naturalism and positivism in this time period.) Just to begin with, as we all probably know, Justice Story was not fuzzy-headed; when one reads the opinions closely, La Jeune Eugenie is not all about some fuzzy notion of natural law, though there is some natural law is in there, and is in fact a fairly careful application of conflict of law principles (on which Story, of course, wrote the book). More importantly, the cases were inextricably intertwined with a series of diplomatic negotiations with foreign countries concerning the slave trade and other issues of international relations, and also occurred in the context of national political divisions related both to the issue of slavery and to raw electoral politics (including, as Witt points out, Secretary of State John Quincy Adams’ presidential ambitions). Both cases were the subject of diplomatic pressure. High elected officials — the President, the Secretary of State, and the Attorney General — were aware of and involved in the cases. Justice Story was fully aware of the diplomatic and political context – not only had the French consul interceded in the case, his opinion mentions the recent international treaty negotiations on the slave trade among European powers at Aix-la-Chappele. Chief Justice Marshall was also no doubt aware of the context. The Antelope was actually docketed at the Supreme Court in early 1822, but was not argued or decided for three full years – an astonishing delay that was not an accident. During those three years, the U.S. government was engaged in intense negotiations with the British over a slave trade treaty, which ultimately was signed by President Monroe but which failed because of amendments attached by the Senate on ratification. Many other things happened between La Jeune Eugenie in 1822 and The Antelope in 1825 (including the speech announcing the Monroe doctrine as the cornerstone of American foreign policy, a presidential election, etc.). It was these developments, not different views between Marshall and Story on legal positivism, that explain the difference in outcome between the cases. The context is everything.

Even if one is mainly interested in the rise of legal positivism in international law as a matter of doctrine, one wants to know more about what was happening in this period. Of course, even going back to Grotius and earlier, writers on the law of nations recognized positive law as a source of legal obligation well as natural law theories. But I think the authors of various chapters in the book are absolutely correct in saying that, as a descriptive matter, positivism did become a more dominant strand over the course of the nineteenth century. But I still don’t know after reading this book much more about why more positivist ways thinking and talking about the law became more popular over the nineteenth century. What else was going on in law and society that explained their greater rhetorical pull? What was really going on?

The stakes are raised by the fact that our dominant constitutional interpretive methodologies and our common law tradition leads our contemporary legal system to be interested in the past: as I said, lawyers and judges actually care what the U.S. Supreme Court did with international law in the nineteenth century. The fate of prisoners and torture victims today may depend on it. That in itself is a bit of a strange thing, when you think hard about the implications, but it also leads to methodological differences that divide lawyers who are interested in history from historians who are interested in law, and creates sometimes intractable problems for the poor scholar who tries to be both. When a lawyer writes about an issue, the conventions of the profession require that abstract and eternal principles be extracted from unrelated cases over time; there is a tendency to create continuity or at least a coherent narrative of change. From what I can observe, every instinct of the professional historian calls for things to be situated in their very own social context, and if there are grand narratives for the historian, they are often quite different from the jurisprudential ones that matter to the lawyers. I don’t mean this as a repeat of the conventional critique of “law office history”; in fact, I don’t think historians fully appreciate that lawyers are sometimes trying to do something else entirely with the past, that they are playing a game with rules of relevance that are entirely different from professional history (and, oddly enough, that this particular use of the past is something with very deep roots in the Anglo-American legal tradition, as John Phillip Reid’s discussion of the forensic history of much earlier lawyers reveals). But from the perspective of lawyers or historians or hybrids of the two, more knowledge is certainly better than less.

And so, from each of the chapters in this book, I imagine a future radiating series of articles or books answering some of the questions that remain unanswered in this one. Perhaps it is impossible to ever fully understand the law or the past, but I for one want to know more. As with every summer blockbuster, I enjoyed this one – but I am also looking forward to the sequels.

I’m grateful to the regulars at Opinio Juris for inviting me to comment on INTERNATIONAL LAW IN THE U.S. SUPREME COURT, because it’s an especially valuable work.

I admire the industry displayed by the contributors to this volume. They have gone through a vast number of cases, highlighting the casebook classics, but giving them the sort of detailed context not often provided in legal advocacy (let alone in casebooks). I admire the scholarly integrity of these contributors. There are well-argued “opinion” pieces in the later parts of the book, but the early chapters, tracing the Court’s case law in the 18th, 19th and early 20th centuries, seem to be straight assessments from months of “field research” in the U.S. Reports.

The most important “take-away” seems to be this: in earlier times, the Supreme Court was actually more engaged with international law and more independent in its engagement than it has been since the mid-20th Century. No one can read the early chapters without being convinced of this conclusion.

But what to make of it? This volume, for all its great merits, is less helpful than one might expect when it comes to drawing larger conclusions. And I think that reflects the way it frames its subject: it is so focused on the Supreme Court that “international law” itself recedes into almost undifferentiated backdrop. When the authors talk about “continuity and change” – the subtitle and organizing theme of this collection – they are rarely grappling with change (or continuity) in the wider patterns of international ordering. Most of the essays focus on American legal doctrines that variously embrace or limit or channel “external” obligations, without much inquiry into what actually were the predominant sorts of “international” claims in different eras.

Human rights law is the most obvious example. From the outset, American statesmen took it as “self-evident” that “all men” are “endowed by their Creator with certain unalienable rights” — but “to secure these rights governments are instituted … deriving their just powers from the consent of the governed.” It is not a small, incremental amendment to rephrase that as — “to secure these rights, international treaty structures are instituted … deriving their just powers from the consensus of legal experts in various countries.”

The essays by Paul Stephan (“Treaties in the Supreme Court, 1946-2000”) and Martin Flaherty (“Global Power in an Age of Rights”) mention, somewhat in passing, the dispute about the proposed Bricker Amendment in the 1950s. Neither essay pauses to consider how far the transformation of international law might have gone, if the U.S. had embraced human rights treaties and American courts deferred to international interpretations of these treaties. Perhaps it was not so surprising that the Court became more cautious about “international law” when the scope and authority of that “law” seemed to be reaching so far beyond the traditional “law of nations.”

Earlier generations saw “international law” as primarily a set of rules for interactions between sovereign states – and then, for the most part, conceived these rules as applicable only between “civilized” or “Christian” states in the western “community of nations.” In a nice example of where detailed inquiry pays off in this book, Duncan Hollis (in “Treaties in the Supreme Court, 1861-1900”) notes that that the Court (in his period) was far more likely to invoke constraints on treaties when the other party was a non-western entity, whose protests were easier to ignore. William Dodge’s essay on the late 20th Century (“Customary International Law in the Supreme Court, 1946-2000”) offers several instructive pages on the Sabbatino litigation (concerning confiscation of foreign property by the Castro regime in Cuba) without ever quite grappling with what “international custom” would mean in a world where communist and Third World states had reached majority status in the UN.

Toward the end of this volume, David Golove offers an intriguing essay (“The Supreme Court, the War on Terror and the American Just War Tradition”) which argues, among other things, that the Court’s recent rulings on detainee rights in Guantanamo should be seen as, in some way, extensions of early American experience where “many of the most delicate and controversial questions under the laws of war were subject to judicial resolution in prize proceedings.” But in those “prize proceedings” the overriding concern was to reassure the world’s great commercial and naval powers that American naval actions would not threaten the general flow of commerce on the high seas. There may be some analogies with today’s Guantanamo cases – even if they don’t directly affect the main lines of international commerce, don’t risk direct retaliation from larger powers, don’t turn on well developed case law among other major states. But if one looks at the larger picture of today’s “international humanitarian law” – in comparison with the law of war in the 18th or 19th Centuries – one would be more struck by “change” than “continuity.”

It would take more than one volume to give a full account of how international law has changed since the Eighteenth Century. It was reasonable for the editors of INTERNATIONAL LAW AND THE SUPREME COURT to impose a more limited focus for this volume. But even some of the particular history recounted in this impressive volume might be seen differently, with better (or merely, changing) perspectives on the larger story of what “international law” has meant in different eras.

– Jeremy Rabkin

Harlan Cohen raises an important caution against being swept up in the attraction, indeed intellectual comfort, of an intellectual grand narrative that can give apparent coherence to a topic as broad-ranging and heterogeneous as international law in the Supreme Court.  The point is very well taken, particularly as it runs to the framing of historical periods; the device of historical periods is useful – essential even – to a point, but only if it is taken as the starting point for sorting things out and not the final arbiter of interpretation, especially on any particular matter.

That said, there is more than simply an organizational imperative in asking some framing questions.  I’d like to raise a couple of them here, as a preface for the kinds of issues that most intrigue me in looking at this marvelous study.  They are not in any logical order, and one might easily argue that I’ve followed a kind of narrative imperative in the ones I’ve chosen, but they still seem to me important in practically any kind of historical study of this area.

Continue Reading…

When Bill Dodge, Michael Ramsey and David Sloss approached me to write a chapter for their forthcoming book, I told them that I would be interested in doing so as long as I did not have to rehash the tired contemporary debate about constitutional comparativism. They quickly agreed and I had the good fortune to write a chapter on international law as an interpretative tool in the Supreme Court from 1901 to 1945. I had long been interested in the subject of the presumption against extraterritoriality and had great fun revisiting the landmark cases of American Banana, Sisal Sales, and Alcoa.

As with most writing projects, once one is steeped in research some surprising revelations occur. For me that revelation came when I discovered a strong parallel line of authority that presumed federal law should apply extraterritoriality to effectuate the purpose of federal law. In other words, since at least United States v. Bowman the Supreme Court has held that some statutes must be interpreted to apply abroad because any other interpretation would undermine the essential purpose of the statute. As the Court put it in Bowman, “Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.”

Here’s a brief excerpt of my Chapter 8 addressing the “government purpose” test that presumes the extraterritorial application of U.S. law:

The Bowman Court concluded that “the same rule of interpretation [against extraterritoriality] should not be applied to criminal statutes which are … not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated.”….

Criminal statutes that logically presume extraterritorial application include states punishing (1) a consul for certifying a false invoice; (2) the forging of ship’s papers; (3) the bribing of a U.S. naval officer; (4) the disposal of property captured as prize with the intent to defraud the United States; (5) and the stealing of arms, money, or other property furnished by the United States for military or naval service….

These cases represent early and important limits on the scope of the traditional presumption against extraterritoriality. They suggest that, contrary to the reasoning of American Banana, defining an act as lawful or unlawful need not depend solely on a universal rule of deference to the law of the country where the act was done. Rather one must look to the express or implied will of Congress in light of (1) the government interests at stake; (2) the locus of evils to be avoided through regulation; (3) and the appropriateness of asserting jurisdiction in light of considerations of international comity.

Many of the categories that form the basis for this presumption of extraterritoriality have found support in international law under the protective principle of prescriptive jurisdiction. Section 403(3) of the Restatement on Foreign Relations, that “a state has jurisdiction to prescribe law with respect to … certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests.” But international law is silent as to when the presumption against extraterritoriality should apply, and it is useful to consider whether the government purpose test of Bowman should have wider application. The Supreme Court has only cited Bowman one time since 1958, and even that one citation in Hartford Fire was for the general proposition that the “Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United States interests are affected.”

This one avenue of discovery illustrates the value of this project. By systematically analyzing the role of international law in Supreme Court jurisprudence across the centuries, the Sloss, Ramsey, and Dodge book has uncovered dozens of avenues for further inquiry. One could take any chapter from the book and find buried treasure from old Supreme Court cases.

As with most law books by legacy publishers, it is way overpriced at $117, beyond the reach of almost everyone except law firms and law school libraries. Even the Kindle edition is over $100, which can only be justified by fears that Kindle sales will cannibalize hard copy sales.

Nonetheless, the book is a remarkable accomplishment that is a credit to the authors and the editors. I am confident it will become a standard text for analyzing the history of international law in Supreme Court jurisprudence.

Harlan Cohen and Ingrid Wuerth have provided characteristically insightful comments about the overall strengths and weaknesses of the book. Cohen cautions that its “grand narrative” may make the outcomes of particular cases seem “overdetermined” and suggest that the Supreme Court is more “purposive” about its use of international law than is actually the case. Wuerth tactfully notes that the editors’ and authors’ “contemporary doctrinal claims” may have influenced the historical accounts.
The editors of this volume did indeed attempt to construct a “grand narrative” because it was through that narrative that we hoped to discover what had stayed the same and what had changed in the Supreme Court’s international law doctrine. But we did not know the whole story when we started and we learned much along the way, particularly about the periods between 1860 and 1945, which have received less scholarly attention. To cite just two examples, we were surprised by the strength of the Court’s treaty jurisprudence well into the twentieth century, a period Michael Van Alstine’s chapter calls “the golden age of treaties.” We were also surprised by the eclipse of customary international law in the early twentieth century as the nineteenth century staples of international law—“pirates, prizes, and privateers” in Mike Ramsey’s phrase—largely disappeared from the Court’s docket. Piecing together the grand narrative was made much easier by the incredibly talented group of authors we were privileged to work with. We think (and Cohen does not disagree) that there is value in knowing what changed and when, but we also agree with him that there is value in examining the trees that make up this forest. We hope the book may serve as a starting point for scholarship that expands upon, explains, and even challenges points in the narrative.
Wuerth’s concern that the doctrinal controversies of the present (and the contributors’ views on them) may cast a shadow on the book’s treatment of the past is certainly a fair one and one that we worked hard to minimize. It helped that the book’s three editors do not agree about all the doctrinal controversies of the present, and we deliberately chose authors who represent a spectrum of views. We also wrestled (almost) all references to future events into the footnotes. But it is nearly impossible to avoid the shadow of the present completely. To take my own chapter on customary international law from 1946-2000 as evidence, I focused on the interplay between Sabbatino and the alien tort cases, particularly on the question of federal common law, because that is what so much of the scholarship of the past 15 years has been about. Had the controversies of the present been different (the methods for determining customary international law, say), this chapter would undoubtedly have had a somewhat different focus. (On the other hand, the federal common law theme also ties together the interstate boundary cases of the second half of the twentieth century, about which I learned more than I ever thought I would.)
We look forward to continuing the discussion and will take the opportunity to respond when it seems appropriate.

Thank you to Opinio Juris for having me back. It’s always a great pleasure and honor to guest blog at such a terrific forum.

The volume of essays under review is an impressive and extraordinarily useful collection. I learned something—and often many things—from every essay I read. I was consistently impressed with how the authors discussed controversial and complicated subjects with great balance and sensitivity to opposing points of view.

Parroting the format of Part V of the book, I’ve decided to post something in the nature of an additional “response essay” to David Golove’s fascinating essay on “The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition.”

Like Mike Ramsey (Response Essay in Part V.E.) I find much to admire but also some things to question and debate in Professor Golove’s thought-provoking contribution to this volume. Professor Golove argues that the war-on-terror decisions in Hamdi, Rasul, Hamdan and Boumediene were striking departures from more recent precedent and principles, but were fundamentally consistent with three deeper themes from earlier periods of American constitutional history, what Professor Golove calls the three “basic features of the traditional American Just War Constitution”: (A) the President was constitutionally required to observe the laws of war; (B) and so too Congress; and (C) the judiciary had an active role in policing Executive branch compliance with the laws of war (at pp. 564-65).

In this essay, Professor Golove does not extensively discuss the evidence supporting these three claims. He refers the reader instead to two unpublished manuscripts (at p. 564 n.19). I eagerly await the publication of these pieces. I am sure that, like all of Professor Golove’s work, they will be immensely erudite, well-researched and creative. I have to say, though, that I think it might be difficult to fully defend all three propositions. (B) is the most problematic, in my opinion, followed by (C). Proposition (A) is, in my view, partially but not wholly correct, varying over time and context and by historical actor.

Like Professor Golove, but even more so, I am space constrained and so cannot set out much of the relevant historical evidence. I will just note a few cases relevant to claim (B). Historically, the high point of the power and influence of customary international law in the U.S. legal system was in the Founding and early antebellum periods. Yet even at that time, numerous Court decisions, often authored by Chief Justice Marshall, made clear that Congress had the authority to depart from, or to modify for domestic purposes, rules of the unwritten law of nations, including the laws of war. See, e.g., Thirty Hogsheads of Sugar v. Boyle (1815); The Nereide (1815); The Schooner Adeline (1815); The Schooner Exchange v. McFaddon (1812). To my knowledge, the Supreme Court (in a majority opinion) has never once held or suggested otherwise.

There is much to say about Professor Golove’s claim (C), and Professor Ramsey’s excellent response essay makes a good start. I am content to await the publication of Professor Golove’s two articles before fully joining issue on the historical questions, but for now will just make one comment: Professor Golove’s analogy between judicial supervision of the Executive in prize cases in earlier periods and today’s judicial supervision of the Executive’s war-on-terror detention operations (at pp. 569-71 ) is not entirely persuasive to me because I think other factors must be accounted for. Professor Golove reads the history of U.S. courts supervising Executive prize captures as a story about the judiciary independently and assertively securing the rule of law in an area where Executive mistakes or over-reaching could be expected to frequently infringe private rights. So too is aggressive judicial review needed in the war-on-terror detention context, he contends, because the complexities of the conflict make it quite difficult to accurately identify enemies. I think a different or at least supplemental story can be told about why U.S. courts were so actively involved in prize litigation. Briefly, the reasons are (i) the Constitution commanded or at least contemplated it, in Article III’s admiralty clause; (ii) Congress and the Executive commanded or at least contemplated it, in numerous statutes and proclamations which stated or assumed that federal courts should hear prize cases and determine them according to international law; and (iii) in order to get the economic benefit of seizing enemy prizes, the captor needed title to the vessel or cargo that would be respected worldwide; judicial review and sign-off on the seizure provided this good title. Understood as flowing from these premises—either instead or in addition to Professor Golove’s premises—judicial involvement in prize disputes does not provide any large amount of support for the strikingly aggressive judicial review (called “judicial imperialism” by Prof. Ramsey’s response essay) seen in Boumediene, Hamdan etc., especially when, as in Boumediene, the Court overrides policies set by the President and Congress jointly.

As I said at the outset, the entire collection—and most certainly Professor Golove’s provocative contribution—is of the highest quality and well worth a read. Many thanks to the editors and authors for producing such a terrific piece of work.

I don’t mean to interrupt this great discussion of the “International Law in the Supreme Court” Book Discussion (to which I also made a very small contribution).  But I can’t resist a brief note on a case this term that promises to bring international law back to the Supreme Court, if only indirectly.  Here is the NYT write-up:

Menachem Zivotofsky was born in Jerusalem. But was he born in Israel?

Congress says yes. In 2002, it directed the State Department to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents ask.

President George W. Bush signed that bill about three weeks before Menachem was born. But Mr. Bush also said he would not obey it.

(Remember the controversy over Mr. Bush’s flurry of signing statements, in which he expressed reservations and disagreements with acts of Congress even as he signed them into law? This was an example of one.)

The 2002 law, Mr. Bush said, “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”

This case nicely brings into focus the idea of an “exclusive presidential power” under the Constitution (which I’ve argued for here) and the power of Congress.  If there is any presidential power that has received broad support from across the political spectrum (and Supreme Court precedent), it has got to be the president’s power to recognize foreign governments.  But is it enough to override an explicit congressional directive? The administration is arguing for an exclusive presidential power,  essentially endorsing President Bush’s then-controversial signing statement announcing his refusal to follow this part of the statute.  This case could go in many different directions, so it will be worth following.

Thank you for the opportunity to comment on International Law in the U.S. Supreme Court, edited by Bill Dodge, Mike Ramsey and David Sloss. Mike has already described the book’s purpose and organizational structure in a post from this morning. My post focuses on some of the book’s overall strengths and perhaps weaknesses.

Edited volumes are hard to do well, and are often little more than a hit or miss set of loosely connected essays. This book, by contrast, is extremely well-edited and the individual contributions are very carefully linked to the book’s overall goals, as well as to other chapters. The editors are everywhere present: collectively they drafted a substantive first and last chapter, and all three also make major contributions through other chapters in the text. The editors’ obvious efforts to keep the other authors “on task” pay off for the reader with a well-organized, thorough doctrinal treatment of international law in the U.S. Supreme Court. It will make an excellent reference volume, especially as each chapter includes cases infrequently discussed in the secondary literature. I also applaud the decisions to focus on cases from the Civil War on, and to include three concluding essays by historians for each of the three historical periods examined in the book.

Some aspects may at least represent missed opportunities. Let me note that what follows takes the book’s central mission on its own terms; that is, I do not question the decision to focus on doctrinal developments in the Supreme Court (as others already have, see Chapter 5 by John Fabian Witt). This extremely distinguished group of authors has, to varying degrees, staked out contemporary doctrinal claims about U.S. courts and various aspects of international law. Not surprisingly, these claims re-emerge in one form or another in some of the historical accounts the authors provide. To focus on the editors (having just heaped praise upon them), for example, an introductory chapter co-authored by David Sloss discusses whether treaties afforded remedies to individuals, a chapter by Mike Ramsey on the period 1901-1945 focuses skillfully on Erie and three ways of understanding customary international law in its wake, and a chapter by Bill Dodge views the Sabbatino case in terms of customary international law as federal common law. Some of this felt a-historical — the ghosts of the Medellin and Sosa future looming over the narrative – and it also left me wanting a broader perspective (even just doctrinally). We might think of Sabbatino as a Cold War case, for example (to pick up on Mary Dudziak’s broader point about this volume made at an ASIL Annual Meeting Panel), or about the rise of the administrative state, increases in executive power, doctrinal developments in international law, the impact of foreign policy on specific cases or doctrinal developments generally. To be sure, these issues and others like them are mentioned at places throughout the book – Roger Alford, Ralf Michael, and Paul Stephan’s contributions come to mind in particular.

One might also quibble with the last section of the book, not with the excellent contributions themselves, but with whether this organization is the best way to handle the most recent cases and to pose questions moving ahead. But there is no doubt that the editors and authors have created an important book that provides an outstanding basis for other scholarship on both the history and future of international law in the U.S. Supreme Court.

First, let me start by thanking Duncan and the entire OJ crew, as well as David Sloss, Mike Ramsey, and Bill Dodge, for the opportunity to engage this amazing project. The book is an extraordinary accomplishment, magisterial in scope yet elegant in execution. Pulling together the material here – over 200 years of jurisprudence, countless decisions, and essays and critiques from the leading, but often conflicting, voices in the field (each of whom deserves credit in his or her own right) – to create what will likely become the standard starting point for discussion of international law and the Supreme Court is worthy of great praise and admiration. Authors of the response essays included within the book noted the difficulties responding to three carefully constructed chapters. Responding to the entire book is an even more daunting and humbling task.

One of the challenges in responding to a project like this is not to rewrite (or re-edit) the book as you would have. Any project like this requires difficult choices about tone and scope, what to include and what not to. In this case, the editors have chosen comprehensiveness and inclusivity over detail, the broad sweep of the epic over intricacy of the character study. This is a laudable choice. As they suggest, the literature is littered with careful portraits casting specific cases in starring roles; what’s needed is something that ties them together and puts them in context, that scans the cast of extras to see which might deserve a speaking role.

The editors’ choice, though, carries risks, particularly for the reader. Looking across over 200 years of history, the book constructs a grand narrative of “continuity and change.” It’s easy for the reader to get swept away, and the danger of such a grand narrative, even such a modest one, is that it can obscure as much it reveals. The instinct when looking at so many cases over such a long period is to try to draw a narrative line through them, to tell a story that brings them together and makes sense of them. In this case, skimming along the surface of these decisions, the instinct is to give great weight to their references to international law and to link them together in a chain. Moreover, the seemingly modest story here, “continuity and change,” actually amplifies this instinct. Finding “continuity and change” is the common-law lawyer’s method. Related and unrelated precedents are strung together to argue that particular results are consistent with doctrine; precedents are distinguished to argue that they are not. In other words, it is already the lawyer’s instinct to find the broader narrative described here. (The book’s battles in later chapters to brand the “War on Terror” cases or Medellin/Sanchez-Llamas instances of either continuity or change reflect the structural similarity of the historical and legal arguments.)

The danger for the reader in succumbing to the grand narrative is that the outcomes of these cases start to look over-determined. What gets lost is that each case was a battle either side could have won, that a decision’s references to international law might have as much to do with specific procedural history, the other cases decided that day, or the particular justice assigned as with the underlying substance of the case or doctrine. The personality and experience of individual justices, hinted at in portraits of Justice Sutherland or references to international roles played by Jay, Marshall, Taft, Hughes, and Jackson, recede into the background. Similarly lost is the more recent politics of counting to four (for certiorari) or five (to reach a decision) and the complex relationship between the Supreme Court and lower courts that results – an issue hinted at in discussions of the ATS, Act of State and self-execution doctrines, the presumption against extraterritoriality, and clearly present in the post-Boumediene role of the DC Circuit.

Such a grand narrative also risks suggesting a purposive Court that is as thoughtful about international law’s use over time as the scholars studying it. (There are exceptions, like Erie’s effect on customary international law, where such suggestions become harder to maintain.) It may locate a pattern in random coincidence or where the use of international law language is merely epiphenomenal. It may also flatten the distinction between references to international law, obscuring the stories of how they got into the opinion or whether they accurately reflect international law of the time at all (an issue hinted at in discussions of Hans v. Louisiana’s view of sovereign immunity). What gets lost, in turn, is whether international law is truly a driver of the decision, an instrumental tool to achieve a desired end, a smokescreen for some other argument, or a make-weight.

Here, in this book, the risks of the grand narrative are reinforced by the book’s periodization. The editors have chosen a series of periods, 1776-1860, 1860-1900, 1901-1945, 1946-2000, and after-2000. One could quibble with the exact periods, but the choices are certainly reasonable. What needs to be recognized is that these choices matter, that periodization can itself drive particular narratives. (Think of Eric Hobsbawm’s “Long Nineteenth Century” as a narrative-framing device.) Grouping cases from 1946-2000 can create a Cold War narrative of American power projection as much is it might reveal one. One could certainly imagine different narratives emerging if cases were grouped as “wartime” or “peacetime” or by groups of justices (e.g., FDR’s wartime court). In this book’s case, the choice of long periods marked by great changes in domestic politics and court composition buttresses the “continuity and change” narrative of the overall book, encouraging author and reader to draw connections between events rather than to distinguish them.

To their credit, many of the authors seem sensitive to the narrative’s thrall and provide hints at how the story might be complicated. The editors have also wisely included commentary chapters that can challenge the narrative. But the narrative pull of the overall book is hard to fight.

To be clear, this is meant as a note of caution in using the book, not a criticism of it. The editors and authors have provided an extraordinary resource. The culmination of the contributors’ years of research and reflection, the book catalogues and clarifies much of what we know about the Supreme Court’s engagement with international law. In so doing though, it also illuminates new avenues to explore. For the reader, this book must be seen as the beginning rather the end of that inquiry.

On behalf of myself and my co-editors David Sloss and William Dodge, thanks to Opinio Juris for hosting this book discussion.  As readers of this blog know, the twenty-first century’s first decade was an extraordinarily active one for international law in the Supreme Court.  In the debates about leading cases such as Medellin v. Texas and Sosa v. Alvarez-Machain, we noticed that each side invoked the Court’s historical practices regarding international law in support and accused the other side of radical departures.  Indeed, the rhetoric of the criticisms can hardly be overstated: to some, the Court was abandoning longstanding commitments to international law; to others, the Court was allowing international law to invade domestic law at the expense of traditional notions of national sovereignty.

We also noticed that these competing claims were sometimes difficult to assess because there was no comprehensive account of the Supreme Court’s use of international law throughout its history.  This book, International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011) seeks to fill that gap.  To carry out the project, we were fortunate to assemble a distinguished group of contributors with expertise in international law, foreign affairs law and legal history, each of whom contributed one or more original essays to the book.

The book’s organization is broadly chronological, beginning in Part I with an assessment of the Court’s use of international law from the Court’s inception to 1860.  Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861-1900); the first half of the twentieth century through World War II (1901-1945); and the post-war years to the century’s end (1946-2000).  Part V examines the leading post-2000 cases in light of historical practice.  Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II, which seems somewhat under-examined by prior scholarship as compared to the Founding era and the modern period. 

Within the chronological periods, the book further subdivides the Court’s treatment of international law into substantive categories: treaties, direct application of customary international law, and the use of international law in constitutional and statutory interpretation.  For each of the periods before 2000, it also includes a chapter of historical commentary addressed to wider political, legal and social developments.  For the post-2000 period, recognizing that it is more difficult to achieve historical perspective on recent decisions, it features more opinionated and provocative essays designed to present a range of reactions to the leading cases.

A central theme of the book is “continuity and change.”  From its earliest decisions in the 1790s, the Court has used international law to help resolve some of the major controversies on its docket.  But the Court’s approach to international law has changed markedly over time.  In general, our study finds that there was substantial (though not complete) continuity through the nineteenth century, and that from the beginning of the twentieth century forward substantial changes occurred, such that few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

While the book provides an account of what changed and when, it does not attempt a systematic account of why those changes occurred.  We hope our account of how the Court has used international law in its decisions will form the basis for broader inquiries concerning why the Court did what it did, and to what effect.

We look forward to the discussion.

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

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

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

From its earliest decisions in the 1790s, the U.S. Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court’s use of international law from the Court’s inception to the present day. Addressing treaties, the direct application of customary international law and the use of international law as an interpretive tool, the book examines all the cases or lines of cases in which international law has played a material role, showing how the Court’s treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court’s international law doctrine through the end of the nineteenth century, the past century was a  time of tremendous doctrinal change. Few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

Bloomberg BusinessWeek offers what is slowly becoming conventional wisdom on the ICTY, at least, if not international criminal justice in general.

Credit [] is due to the court, which focused on individual responsibility rather than collective guilt. This helped foster reconciliation among Serbs, Croats and Muslims in the former Yugoslavia.

But beyond the Balkans, it would be a mistake to exaggerate the court’s relevance as a deterrent to other would-be war criminals. The court was successful because its jurisdiction was limited and a broad consensus existed that these were the most heinous human rights violations in Europe since World War II.

The genocide in Darfur, Charles Taylor’s crimes in western Africa, the slaughter of civilians in Sri Lanka, and Muammar Qaddafi’s willingness to wage war against his own people in Libya all demonstrate a larger truth. International law, for all its good intentions, is no substitute for international action.

 

As I discussed in a recent post, “the new age of self-publishing is fast approaching the world of legal scholarship. It will just take a few legacy scholars to create a norm cascade that will rock the world of legacy publishing.” Self-publishing is the new, new thing. We’ve already embraced it with blogging and SSRN, and now some prominent scholars are experimenting with self-publishing books.

Stephen Bainbridge’s latest book, Directors as Auctioneers: A Concise Guide to Revlon-Land has just been released as an Amazon Kindle Edition. Here’s how Bainbridge describes his experiment with self-publishing:

A while back, the Chancery Court issued the series of Revlon decisions mentioned above. As I thought about those decisions, it occurred to me that this was an ideal project to try self-publishing. I could update, expand, and augment older work on Revlon and offer up a new and improved analysis in a different package. I could reach a different audience than law review readers and make a few bucks at the same time. Hence, this experiment. I’ll be interested to get reactions to this new possibility for getting one’s ideas out into the market.

I’ll be curious how the experiment goes. My one suggestion for Bainbridge is that he price it at $4.99 or less, which seems to be the norm for e-published books, instead of $9.99. If the goal is more eyeballs, a better experiment would be to take full advantage of the pricing flexibility offered by self-publishing. (Notice that the author, not the publisher, gets to decide the appropriate price point for the book).

For those interesting in self-publishing ebooks, CNET editor David Carnoy has a nice summary here. You can also self-publish paperback books with print-on-demand (POD) services. Carnoy’s summary of that process is here.

BTW, what are the top-selling international relations books on Amazon right now? Two self-published ebooks by journalists, The Hunt for Bin Laden and The Instigators, both short Kindle Single edition books priced at $1.99.

With Julian’s many interesting posts on UNCLOS, I thought I would flag for our readers Andrew Guzman’s interesting essay published on SSRN entitled the “Consent Problem in International Law.” Here’s the abstract:

The legal obligations of a state are overwhelmingly based on its consent to be bound. This commitment to consent preserves the power of states, but also creates a serious problem for the international system. Because any state can object to any proposed rule of international law, only changes that benefit every single affected state can be adopted–creating a cumbersome status quo bias. This Article argues that our existing commitment to consent is excessive and that better outcomes would result from greater use of non-consensual forms of international law. International law has developed a variety of ways to live with the consent problem, including the use of transfer payments, customary international law, and the United Nations Security Council. None of these, however, provide a sufficient counterweight to the consent problem. There are also strategies employed to work around the consent problem, mostly through the use of international organizations and tribunals capable of generating soft law. These soft law strategies are helpful, but insufficiently so. We could achieve better results within the system if these forms of soft law were used more extensively and accepted more broadly.

As Guzman argues, international law does a better job with Pareto Improvements–somebody is better off and no one is worse off–than Kalder-Hicks Improvements in which the gains to the winners exceed the losses to the losers. Put simply, “requiring consent frustrates many potential arrangements that would improve the lot of states as a whole.” He provides numerous examples of this–climate change, nuclear proliferation, terrorism, fisheries, economic crises–and proposes a few incremental, non-utopian solutions. Interestingly, Guzman argues that customary international law is not truly consensual, because the consistent objector rule is so hard to satisfy. He also describes Security Council action as non-consensual, although one could just as easily describe the Security Council as acting with state consent given at the time of accession.

But CIL and the Security Council will only modestly address the problem of consent. The real solution to the problem of consent, Guzman argues, are international organizations and international tribunals. “These represent the two most promising tools with which to combat the consent problem. Tribunals … can be effective in diffusing disputes and making the rules more effective. They can also adjust the meaning of international commitments at the edges without requiring a full-scale consent-based renegotiation of the underlying agreement.” As for IOs, they are “the most promising way to address the consent problem.” IOs are particularly useful at reducing transaction costs that make it easier to achieve consensus, and in influencing soft law rules that affect state behavior. While “a few states will find it more difficult to resist value-increasing policies that happen to impose small costs on their own population” a shift toward stronger IOs “will expand the set of attainable solutions for the world’s problems.”

Well worth a read.

U.S. opponents of UNCLOS, whom I think have a number of quite sensible points, do need to explain how the U.S. is going to operate effectively in a world where all other major seafaring nations belong to the UNCLOS system.  And they have offered decent arguments.  Customary international law already guarantees navigational rights. Bilateral treaties, or even unilateral declarations, can establish U.S. sovereignty over its extended continental shelf.  But what about deep seabed mining that occurs outside the sovereignty of any nation? Under UNCLOS, a nation must make an application to the Authority for rights to develop such deep seabeds.  It appears that China, for instance, has done just that in its aggressive move to develop seabed mining for certain metals and minerals on the Pacific seabed.

China plans an ultradeep dive by a manned submersible beneath the Pacific that would propel it past the U.S. in a race to explore potentially vast mineral resources in the deepest parts of the world’s oceans.

…

The Pacific test site was selected because the state-run China Ocean Mineral Resources Research and Development Association, also known as Comra, signed a contract in 2001 with the International Seabed Authority, a United Nations body that oversees mining in international waters.

The 15-year contract initially allowed Comra to explore 150,000 square kilometers of seabed for polymetallic nodules—small rocks containing metal ore—although the area was reduced to 75,000 square kilometers after eight years.

ISA, which is based in Jamaica, is meeting to discuss, among other things, unprecedented applications from China and Russia to explore a more recently discovered mineral source, called polymetallic sulphides.

Would a U.S.-based company feel comfortable investing in a project for which it could not establish safe legal title? I think, essentially, opponents of UNCLOS will have to concede that U.S. companies in this situation would have to rely on foreign partners located in UNCLOS member-states, to establish title for such projects.  This may not be a big deal, but it is one clear advantage of UNCLOS, it seems to me, that may or may not outweigh all the other disadvantages.

Nicaragua may vote on a referendum on whether to seek damages from the U.S. arising out of the 1980s civil war.  I have grave doubts about Nicaragua’s ability to win such a claim (as well as its method of calculating  damages), but it might be an interesting case.

Nicaragua’s President Daniel Ortega has proposed a referendum on whether to demand $17bn (£10bn) from the US for its role in his country’s civil war.

Mr Ortega was addressing supporters on the 32nd anniversary of the Sandinista revolution.

In 1986, the world court ruled the US violated international law by backing the Contras against Mr Ortega’s Sandinista government.

Apparently, a previous Nicaraguan government waived this claim. So in addition to the difficulty of establishing liability and calculating damages, Nicaragua will have an estoppel problem. And then there is the problem of finding a place to enforce their claim.  But worth at least thinking about. It is possible, just not highly likely.

Steven Groves of the Heritage Foundation passes along this useful review of the effect of UNCLOS ratification on U.S. development of its extended continental shelf.  It argues that if the U.S. joins UNCLOS, it could be obligated to turn over as much as 7 percent of royalty revenue derived from development of its extended continental shelf to the International Seabed Authority created by UNCLOS.

I think this is a good point and offers a real and practical critique of the consequences of joining UNCLOS.  On the other hand, I think his argument also misses an important issue. What happens when the U.S. has a dispute with another country over a continental shelf or extended continental shelf?  How will the U.S. be able to guarantee “title” to potential developers without UNCLOS?

I am not saying the U.S. should join UNCLOS, but I am not sure forking over 7 percent is not worth it in order to gain globally recognized title.

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

Though I am generally upbeat about the use of drones in military applications, one must recognize design flaws:

The Navy’s latest multi-million pound drone has the unfortunate feature of starting to self-destruct if the pilot accidentally presses the space bar on his keyboard …. The Navy are planning to buy hundreds of drones of the MQ-8B Fire Scout, one of which helicopter almost exploded after the drone’s operator accidentally pressed the space bar with a wire from his headset – which launches the self destruct mechanism on the vehicle.

A quick note to suggest that those interested in intelligence and surveillance topics check out the latest issue of the Journal of National Security Law & Policy, which features a host of interesting articles on U.S. and international law and intelligence collection by folks like Geoff Stone, Craig Forcese, and Steve Vladeck. I’d especially recommend the piece by David S. Kris, recently former Assistant Attorney General for National Security at the U.S. Department of Justice, who writes on “Law Enforcement as a Counterterrorism Tool.” As a response to chronic efforts in Congress to prohibit the President from ever using criminal prosecution as a way of handling terrorist suspects (and mandating military detention instead), Kris offers a powerful case on the other side.

Having just returned from Asia, which is awash in disputes over territorial sea rights and exclusive economic zones,  the U.S. domestic debate over ratification of the Law of the Sea Convention seems almost quaint.  Unlike pretty much every country in East Asia, the U.S. does not have any serious boundary or other kind of dispute that is likely to be swept up into the Law of the Sea Convention (OK, there is that whole Northwest Passage thing with Canada, but it’s Canada!). So the domestic battle does seem a bit strange, given that the U.S. has relatively less at stake than many other countries that have submitted themselves to UNCLOS.

There is also a depressingly predictable debate about UNCLOS every time ratification is considered by the Senate.  International law experts insist that it is absolutely crucial and necessary that the U.S. join, if for no other reason than that every other major nation in the world has joined.  And critics insist that it is a horrible treaty that will subordinate the U.S. to  corrupt and/or unaccountable international organizations.

I am a bit in the middle on this because I happen to think both sides are actually speaking some truth on UNCLOS.  It really is amazing that the U.S., with one of the world’s longest continental shelf and the world’s largest sea power is not a member of UNCLOS, which counts 161 states as members including our past and future seapower rivals Russia and China.  And because everyone else that matters has joined, it is harder for the U.S. to advance its interests through bilateral deals (see the excellent comments to this post from last year for further explanation of this point).

On the other hand, UNCLOS creates an unwieldy governing authority and structure that will, over time, become unaccountable and no doubt inimical to key U.S. interests (see here for the Goldsmith/Rabkin critique of the treaty’s effect on U.S. counterterrorism policy).  Effectively paying a “tax” to the UNCLOS authority for certain drilling is of questionable value.  And at least one part of UNCLOS is, in my humble opinion, unconstitutional because it essentially gives supreme and self-executing effect to judgments of the International Tribunal for the Law of the Sea’s Seabed Disputes Chamber (See Annex VI, Art. 39).

So a tough call with good arguments on both sides.  But in the U.S. system, a “tie” goes to the treaty opponents, since the two-thirds of the Senate must give its approval.  Let me go way out on a limb here and say that in this political environment, there is zero chance that UNCLOS will come anywhere near the 67 votes it will need to pass.  President Obama is going to have to wait for his second term (now there’s an unpleasant thought) before UNCLOS gets close to passage.

The International Court of Justice issued a “provisional measures” order today in a dispute between Thailand and Cambodia over a World Heritage temple located near or on the boundary between the two nations.  The request for provisional measures was brought by Cambodia, which sought the withdrawal of Thai troops from around the temple.  The ICJ granted this request, but went much farther.  In a somewhat remarkable order, the ICJ drew a “demilitarized zone” around the temple which excludes both Thai and Cambodian military forces.

61. Whereas the area of the Temple of Preah Vihear has been the scene of armed clashes between the Parties and whereas the Court has already found that such clashes may reoccur; whereas it is for the Court to ensure, in the context of these proceedings, that no irreparable damage is caused to persons or property in that area pending the delivery of its Judgment on the request for interpretation; whereas, moreover, in order to prevent irreparable damage from occurring, all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia; and whereas, therefore, the Court considers it necessary, in order to protect the rights which are at issue in these proceedings, to define a zone which shall be kept provisionally free of all military personnel, without prejudice to normal administration, including the presence of non-military personnel necessary to ensure the security of persons and property;

…

63. Whereas both Parties, in order to comply with this Order, shall withdraw all military personnel currently present in the zone as thus defined; whereas both Parties shall refrain not only from any military presence within that provisional demilitarized zone, but also from any armed activity directed at the said zone;

As a practical matter, a provisional DMZ seems a sensible way to proceed.  But as a legal matter, there are grave doubts about the ICJ’s authority to make such an order.  The ICJ was quite seriously divided, with the ICJ’s President and its two newest members providing perhaps the most serious criticisms of the scope of the ICJ’s authority under its “provisional measures” power.  Judge Xue of China and Judge Donoghue of the United States, along with President Owada of Japan, all criticized the “DMZ” power (see here for links to all of the opinions).  What troubles all of these dissenters is the fact that the provisional DMZ actually goes beyond the disputed territories and, in essence, orders each nation to withdraw military forces from their own undisputed sovereign territory (check out the cool “sketch map” on p. 17).

I won’t go into any further depth at this point. It all turns on analysis of the ICJ’s authority to issue provisional measures that I have little expertise on. I will only note that since the ICJ only decided in 1999 that provisional measures were binding, it is somewhat remarkable that this same doubtfully binding provision also gives the ICJ the power to order states to withdraw military forces from their own territories.

The U.S. government has recently announced it will recognize the Benghazi authority as the “legitimate” government of Libya.  But is it departing from international practice or the international law relating to statehood and recognition in order to do so?

I have to admit I haven’t followed the recognition of state vs. the recognition of government issue very closely (OK, not at all!).  But John Bellinger, former U.S. State Department Legal Advisor and friend of this blog, has an interesting post about this issue at the Council of Foreign Relations blog.

Toby Landau, one of the leading arbitrators in the world, gave the keynote address at the recent ITA Workshop in Dallas and, as always, he was entertaining and provocative. One of the central themes of his discussion was how arbitration counsel fail to present a case in a manner sensitive to the needs of the arbitration panel. “Inequality of Arms” is the term he used for the asymmetrical relationship between counsel’s ability to produce information and arbitrator’s ability to digest it. Arbitration counsel has an army of lawyers capable of producing massive document dumps. Arbitrators have limited administrative or legal staff to help them make sense of a case.

The take away seemed to be that counsel should be more judicious in what they choose to present to the arbitrators for review. Mountains of documents do not help their cause. Briefs should be snappy, concise, and sensitive to the arbitrators’ limits. Less is more.

One should never be quick to dismiss Landau’s suggestions, but I’m frankly conflicted by his advice. I have no doubt that briefs should be presented in a manner that maximizes the potential for arbitrators to understand and digest the arguments. We are all familiar with situations in which the brief was not written to assist the arbitrators in resolving the case, but rather was written to score points with the client or against the opposing side. It’s good advice to maintain unrelenting focus on the intended audience: the arbitrators.

Does that mean that mountains of documents are inappropriate or counterproductive? It depends. There are pleadings we intend for the arbitrators to read, and there are pleadings we provide for ready reference. There are key documents and there are peripheral documents. I do not expect an arbitrator to be interested in the minutiae, but that does not mean minutiae should be omitted from the record. Why bother with boxes of invoices or gigabytes of email correspondence? Because we know that something could peak their interest, but we don’t know in advance what that something will be. An arbitrator might spot check invoices to verify the veracity of the claims, or search keywords in a particular email correspondence, or be unusually interested in a particular event that gave rise to the dispute. It’s reference material that is there if they need it.

If one thinks of pleadings in terms of concentric circles, there are (1) materials we know arbitrators will read; (2) materials we expect them to read; (3) materials we hope they will read; (4) materials we doubt they will read but are available in the record; and (5) materials we know they will not read and are not produced.

Landau seems to argue that counsel should focus on the inner concentric circles and not bother with peripheral pleadings, which do more harm than good. I’m willing to accept the legitimacy of lawyers producing massive document dumps with no expectation that it will be read, but that is available for ready reference.

As part of his ongoing war against the New York Times, Ben Wittes has a post today entitled “Seven Errors in Today’s New York Times Editorial.”  I occasionally agree with Wittes’ criticism of the NYT; the paper sometimes misstates the law when it criticizes the Obama administration.  But there is nothing erroneous about today’s editorial, and Wittes can only claim error because he fails to mention, much less discuss, the editorial’s most important paragraph (emphasis added):

The Obama administration justifies its handling of the Warsame case under the laws of war. But Mr. Warsame was not picked up on any recognized battlefield. The administration claims continuing authority for military detention, interrogation and trial. This applies not just to battlefield detentions, where it is often appropriate, but to detentions anywhere, and not just to personal involvement in violent attacks, but to a broad range of offenses directly or indirectly related to terrorism. That is far too broad a claim.

This paragraph is absolutely correct.  The US and al-Qaeda are not engaged in a non-international armed conflict (NIAC) in Somalia, nor is there is a different NIAC in that country.  There is also no NIAC between the US and al-Qaeda in Yemen — and even if there was, there is no evidence that Warsame was a member of AQAP or otherwise directly participated in hostilities there.  (Do we even need to discuss the administration’s ridiculous argument that the laws of war apply to Warsame because “[c]ertain elements of Al Shabab, including its senior leaders, adhere to Al Qaeda’s ideology and could conduct attacks outside of Somalia in East Africa, as it did in Uganda in 2010, or even outside the region to further Al Qaeda’s agenda”?)  The claim that the laws of war apply to Warsame’s detention, therefore, rests on the fiction of a global NIAC between the US and al-Qaeda — an idea that only the U.S. accepts, as Claus Kress (who is generally far more sympathetic to US actions than I) discusses in this excellent article.

Once we realize that the NYT’s editorial is based on the US’s indefensible invocation of the laws of war, we can see why the editorial is not, in fact, incorrect.

1) “Ahmed Abdulkadir Warsame, who was seized by American forces in international waters, was secretly held in extralegal detention on a United States naval vessel.”

Wittes claims that “[d]espite repeated statements suggesting that such detention is illegal, the Times never puts forward any legal authority for this proposition. Nor can it. None exists.”  The NYT is absolutely correct, even if its choice of the word “extralegal” is unfortunate.  Because the laws of war do not apply to Warsame’s detention, the legality of that detention is determined by reference to international human-rights law (IHRL).  IHRL does not by any means categorically prohibit detention, but it imposes much stricter limitations on it than IHL.  And there is no question that IHRL does not permit the incommunicado detention of an individual — even one otherwise detainable — for two months, especially when that detention is preliminary to a criminal prosecution.  Warsame’s detention was thus illegal under IHRL.  (For an excellent discussion of the restrictions IHRL places on security detention, see Doug Cassel’s forthcoming article here.)

2) “After weeks of military investigation, a separate team of law enforcement officials concluded that [Warsame] was not a legitimate candidate for military detention and trial.”

Wittes claims that, in fact, “[t]he administration… concluded, rather, that among the various legally-available options for the disposition of his case, it preferred for a variety of reasons to avail itself of an Article III criminal trial.” Here Wittes is simply choosing the least charitable reading of the editorial possible because of his distaste for the NYT.  A person can be eligible for something without being a legitimate candidate for it; “candidacy” is not simply a legal term.  I’m eligible to be President of the United States, but I doubt the Democratic Party would think I’m a legitimate candidate for the job.

3 and 4) “President Obama has created yet another parallel system of unlimited detention and interrogation without rights outside the constitutional norms that served us well for more than two centuries before the Bush administration carelessly and needlessly tossed them aside for terrorism cases after Sept. 11, 2001.”

Wittes claims that, in fact, President Obama “briefly and judiciously used the same parallel system of detention that has existed under two successive administrations since September 11, 2001: military detention of the enemy in an armed conflict authorized by Congress in the AUMF.”  Again, as the NYT rightly points out in the editorial, “military detention” did not describe Warsame’s detention, because his detention was not governed by the laws of war.  AUMF detention is not military detention, at least insofar as it permits the detention of individuals who, from an international law perspective, can be detained only pursuant to IHRL.

5, 6, and 7) “Now [Obama] is drifting toward establishing his own system of extralegal detention and tainted questioning. It is time to stop that drift and return to a constitutional system of law enforcement.”

Wittes responds that “[m]ilitary detention simply is not constitutionally defective, extralegal, unlawful, legally suspect, or any other variation of the vocabulary the Times may think up. It is a lawful means of processing certain terrorist suspects under a large and growing body of law the Times chooses not to acknowledge but which happens to be the law of the land in which the New York Times is published.”   Wittes is obviously referring to the AUMF, but invoking the AUMF does not mean that the editorial is wrong.  The NYT was quite specifically discussing the law of war, not the AUMF — and as we have seen, its claims about Warsame’s detention relative to the laws of war are absolutely correct. The editorial’s harsh rhetoric is also more than justified, given that Warsame’s incommunicado detention was clearly illegal under IHRL.  (As an aside, it also would have been nice to see Wittes acknowledge that the legality of Warsame’s detention is unclear even under the AUMF, as his co-blogger Bobby Chesney did recently.)

The bottom line is that, viewed on its own terms, there is nothing erroneous about the NYT editorial.  That said, the Obama administration ultimately deserves the blame for disputes like this one, because it continually hedges concerning the source of its detention authority.  It would prefer to justify detaining Warsame and other alleged terrorists under the laws of war, because the international community clearly accepts the legitimacy of such detention.  It thus normally begins its defense of a detention decision by invoking the laws of war, as it did in Warsame’s case.  Nevertheless, when its law of war argument breaks down, the administration is more than happy to falls back on the seemingly endless detention authority granted by the AUMF.  As always, it’s heads the US wins, tails the detainee loses.

It is indeed time to stop that drift.

UPDATE: Ben kindly responds to my post here, pointing out that although “it is fashionable in international law circles to discuss the question of whether there is a NIAC in this or that specific location in thinking about the scope of detention authority… that it not the question that the U.S. courts ask when they review a detention case.”  Ben is quite right — when it comes to actual detention decisions, U.S. courts rely solely on the AUMF.  But he once again fails to acknowledge that the NYT editorial wasn’t talking about the AUMF.  As I noted, the editorial specifically addressed the Obama administration’s claim that the law of war justifies Warsame’s detention.  Indeed, “AUMF” appears nowhere in the editorial.  Ben is certainly entitled to think that the NYT’s editorial is pointless or irrelevant or uninteresting.  In fact, I’d be inclined to agree, given that the U.S. has long since abandoned any real interest in taking the law of war seriously when it comes to detention authority under the AUMF.  But he is not entitled to claim that the editorial is wrong — because it’s not.  The law of war does not apply to Warsame’s detention, much less justify it.

I’ve blogged about cyberthreats a lot this week.  But, before we head into the weekend, I wanted to flag a Federalist Society Cyber Security Symposium, which an interested reader called to my attention.  Now, the Symposium itself was held last month at Steptoe & Johnson in D.C., but the Federalist Society has since posted the proceedings in video form on-line.  Readers interested in national secuirty in cyberspace should find the morning line-up of interest, but check out Stewart Baker’s lunchtime talk or the afternoon on economic security as well.

[Philip Alston responds to Frédéric Mégret’s comments on Alston’s recently published article, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

I am grateful to Frédéric Mégret for his very thoughtful comments on my article. Fred’s own excellent work on the accountability of “International Prosecutors: Accountability and Ethics” (available at ) is one of the few sustained and probing analyses of the difficult topic of the accountability of those playing a crucial role in what might be termed the international justice sector.

At the end of the day, there is not a lot on which we disagree. The great majority of Special Rapporteurs strongly resisted the notion of a formal accountability mechanism beyond the internal and self-administered arrangements that they set up for themselves under the threat of more demanding measures being suggested by governments. It is therefore noteworthy that Fred takes the idea that there should be some mechanism more or less for granted. I think this is correct, but again as he notes, the challenge is to get the correct institutional mix, or to put it another way to include enough checks and balances so as to ensure that neither side can easily manipulate or abuse any procedure that is established. Continue Reading…

[Frédéric Mégret, Assistant Professor of Law at McGill University Faculty of Law and Canada Research Chair in the Law of Human Rights and Legal Pluralism, responds to Philip Alston, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

Philip Alston’s article on special rapporteurs suggests that there may be some merit on hobbling them a little, just not necessarily in the way that a majority of states at the Human Rights Council seem to want. The great merit of the article is a strong effort to highlight both sides of the debate, including the one most unsympathetic to untrammelled SR independence, by someone who is himself a special rapporteur. Indeed, it is particularly notable that Alston, who was the main target of a (failed) attempt by some states to oust him for claimed violations of the code, still finds more merit in the basic idea of rapporteur accountability than many international human rights activists.

The basic premise of Alston’s article is one that is tempting for anyone who is keen on the international human rights regime, namely that rapporteurs are not as powerless as they are sometimes made to be. This is partly because of the SRs’ considérable autonomy in organizing their work, and partly because of the impact that their activity can have in a widely connected world in which a well-timed press statement can have as much if not more impact than many formal resolutions. To be consistent as a human rights lawyer (of all things), one must then acknowledge that the exercise of power entails certain responsibilities and inevitably a degree of accountability. SRs’ power is one that involves in the best of cases reporting human rights violations in ways that may lead to meaningful remedies and prevention of further violations. But it is also a power that may, for example, disrupt domestic political processes, leave some victims unattended, or entail interpretations of human rights that are contentious.

In this context, the idea of SR accountability is welcome, but the devil is in the details. Alston’s arguments, essentially, is that States have tended to offer the wrong response to a good question. Partly this is because the whole Code of conduct initiative may be little more than a trojan horse to rein in SRs based on a fear that they unduly interfere with sovereignty. However note that this is not such an extravagant idea: one may think that on the whole SRs have behaved in ways that were not incompatible with the understanding of sovereignty as essentially limited by human rights, but clearly the fact that one is dealing in international rights is not a licence to meddle in any domestic matter. SRs could also be victims of a certain human rights hubris and start pronouncing on matters that were clearly beyond their remit. Special rapporteurs are not judges, for example, and it is difficult for them to pass definitive judgment on complex factual matters involving individuals. Perhaps because their normative activity is so bereft of the normal checks that accompany human rights adjudication, their pronouncements may also occasionally take liberties with such notions as the « margin of appreciation » (i.e. : the idea that some of the means to implement rights obligations ar left to states’ discretion, based on cultural and national specificity). Continue Reading…

[Philip Alston, John Norton Pomeroy Professor of Law at New York University School of Law, describes his recently published article, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

The critical issue I examine in this Article is whether a group of independent experts, or monitors, explicitly created to hold governments to account in terms of their human rights obligations, can be subjected to a strong accountability regime controlled by those same governments, without destroying the independence that is considered to be the system’s hallmark.

In 2007, a group of powerful governments pushed through a Code of Conduct to regulate the activities of Special Rapporteurs (“SRs”), Independent Experts and others who make up the so-called Special Procedures system created by the Commission on Human Rights and inherited and expanded by the Human Rights Council. It is widely acknowledged that this group of experts, that now includes some 33 thematic mandates (focusing on, for example, disappearances, extrajudicial executions, torture, violence against women, and the rights to education, food, health, etc.), represents the Council’s most effective system for independent human rights monitoring.

In 2010, in the context of major discussions about the future of the Council, the same group of governments proposed the establishment of a Legal Committee to enforce compliance with the Code through sanctions. Other governments, the SRs themselves, and civil society groups have been highly critical of the way the Code has been used so far to stifle the work of the monitors and are strongly opposed to the creation of any compliance mechanism. In many, perhaps too many, respects, the Article draws on my personal experience not just as a SR for a period of six years but as the only SR who has so far been the subject of concerted campaigns by different governments to secure a SR’s dismissal before his term of office had expired.

I begin by noting the powerful pressures which have succeeded over the past decade or so in insisting that almost all international actors should be accountable, and take note of the veritable explosion of accountability mechanisms applicable almost across the board these days in relation to international organizations. I then explore in some detail the potential utility of principal-agent theory as a means by which to understand and characterize the relationship between the SRs and various potential principals, ranging from governments, the Council itself, to those individuals whose rights are being violated. Continue Reading…

So I leave the country and the blogosphere for a few months, and what happens?  (Well, beside that “war” in Libya), circuit courts have gone all negative on my argument against corporate liability under the Alien Tort Statute.  In addition to the D.C. Circuit’s recent decision, the Seventh Circuit (speaking through Judge Posner) went out of its way to reject the argument while ultimately affirming the district court’s dismissal of the ATS lawsuit.

Posner is Posner, and it should not really be surprising that he would find a formal argument in favor of constraining judicial lawmaking powers unattractive.  To be sure, he genuflects to a new argument proffered by plaintiffs, claiming that because the post-WWII tribunals acted to dissolve some Nazi-supporting companies, the Nuremberg and associated tribunals provides authority for holding corporations liable under customary international law.  But that is not all that important to Posner’s argument, and he only devotes a single paragraph to that precedent.

Why does Posner ultimately reject the Kiobel no-corporate liability argument?  Although he is a bit unclear, I think his argument ultimately boils down to two conclusions.  One: there is no practical argument against holding corporations civilly or criminally liable under customary international law, and the lack of international authority on this question hardly undermines this practical point; Two: the question of corporate liability is ultimately one of procedure and enforcement and left to the discretion of domestic law.

I think Judge Posner is ultimately wrong here, but as usual, I find his analysis insightful and persuasive.  His analysis is not really that different, but a lot easier to follow than Judge Rogers’ lengthy decision in the D.C. Circuit.

I have more thoughts on this, but having really been back in the U.S. for less than 24 hours, it will have to await some more sleep.  In any event, these two decisions make it seem more and more likely that cert will be granted for Kiobel. And now that I’m back, surely it’s time for the no-corporate liability argument will make a comeback.

[Katharina Pistor, Michael I. Sovern Professor of Law at Columbia Law School, responds to Olivier De Schutter, The Green Rush: The Global Race for Farmland and the Rights of Land Users. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

I would like to thank Opinio Juris for the opportunity to participate in this debate about one of the most pressing issues of our time: the battle for control over increasingly scarce resources, including land, water, and natural resources. The Olivier de Schutter’s “Green Rush” addresses the heightened contest for arable land globally to ensure food safety or biofuel for different peoples. Most of these transactions are transnational in scope; and they tend to pair relatively poor countries on the sell side with affluent investors or countries on the buy side.

The major challenge these transactions pose is the impact they have on the people in the seller countries. There is little doubt that at least in the short term the people in countries on the buy side benefit from these transactions. It is their food security and gasoline supplements that these transactions shall secure. The impact on people in the selling countries is less certain. Some will benefit directly from these transactions as participants, intermediaries, or receivers of kickbacks, and others might find new employment opportunities; yet significant parts of the population will face dislocation, the loss of land as a source of sustenance and cultural identity. In part, these losses might be offset by cheaper food prices and a transition towards modernization. However, the scale of these benefits is highly uncertain. Global food prices have already proven much more volatile than anticipated, and earlier versions of modernization theories were not all that successful. Closer inspection reveals that the benefits for the people on the buy-side may also not be as clear. History offers important lessons for the social and political upheavals that may result from creating landless masses. The combined effect of enclosure and repeal of the poor laws forced landless people into the big cities in early modern England. While widely hailed with hindsight as a critical ingredient for England’s head start in industrialization as landless people provided cheap labor in factories, the actual outcome of social upheavals on such a scale is ultimately a gamble. England may have escaped a revolution, but Russia did not. In its own colonial hinterlands, the British Empire faced a mutiny after introducing land-titling programs in India that resulted in massive evictions of peasants from their lands. More generally, Karl Polanyi attributed the political upheavals of the first part of the 20th century – communism Russia and Fascism in Germany and Italy — to the long-term effects of a process of social transformation that included large-scale dislocations. This conclusion remains disputed, but the proposition that dislocating large numbers of people can be politically explosive is not. Continue Reading…

[ Olivier De Schutter, U.N. Special Rapporteur on the right to food and Samuel Rubin Visiting Professor of Law at Columbia Law School, Fall 2011-Spring 2012, describes his recently published article, The Green Rush: The Global Race for Farmland and the Rights of Land Users. This article is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

We have been witnessing since 2008 a global enclosure movement in which large areas of arable land change hands through deals often negotiated between host governments and foreign investors with little or no participation from the local communities who depend on access to those lands for their livelihoods. This development results from the increased volatility of prices of agricultural commodities on international markets and the merger between the energy and food commodities markets, which in turn explains the sudden surge of interest in the acquisition or lease of farmland in developing countries. Non-governmental organisations have denounced this phenomenon as “land-grabbing”, because of the risks involved for the communities who currently depend on land for their livelihoods, and who are not adequately protected from evictions and may be priced out of this new market for land rights.

Most commentators recognize that these transactions should be more closely scrutinized, particularly since these land deals primarily take place in relatively weakly governed countries, where corruption is frequent. However, some also see opportunities in this development. They see the arrival of investors leasing or buying land as resulting in more investment in agriculture and thus productivity gains ; or they consider that the development of a market for land rights that could benefit current land users, provided their property rights are recognized through titling schemes. This Article questions these views. Based on an analysis of the relationship to property rights of different categories of land users in the rural areas in developing countries, it argues that the poorest farmers will be priced out from these emerging markets for land rights, and that the interests of those depending on the commons will be ignored. The Article suggests that there are other ways to protect security of tenure: anti-eviction laws, tenancy statutes, and policies aimed at ensuring more equitable access to land. Although measures such as these require a disaggregation of property rights and an abandonment of the Western understanding of property as necessarily implying transferability, they may offer more promising solutions to the rural poor. It is by exploring these alternative arrangements by which land users can be protected that we can avoid situations in which, in the absence of adequate support, small-scale farmers will lose their land after having mortgaged it or as a result of distress sales. And it is through such arrangements that the rights of land users that depend on communal lands for their livelihoods—including herders, fishers, and forest-dwellers—can be better taken into account. Continue Reading…

[This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

First, I want thank both Eric Jensen and Jonathan Zittrain for taking the time to respond to my article.  Both have thought long and hard (not to mention well!) about regulating cyberspace. Eric’s early work assessing computer network attacks under the legal rules on use of force was one of the foundational pieces on which I based my own scholarship.  More recently, I’ve been inspired by Jonathan’s efforts to grapple both theoretically and technically with the challenges of cyberspace.

So, I was very pleased to see in both of their comments that we all three share certain assumptions. Three in particular stood out: 1) cyberthreats are a real problem; 2) we need better responses to this problem, and 3) attribution makes the traditional governmental “proscriptive” response (namely, identifying and punishing wrongdoers) very very difficult.

That said, particularly, with Jonathan, I think we do have some differences in our starting positions.  Jonathan suggests that my worries may be a bit more at the “hawkish end of the spectrum” than his own, which explains his preference for community based mutual aid arrangements (such as his “mirror as you link” concept) in lieu of my international legal duty to assist (DTA).  I take Jonathan’s point on both my hawkishness and my turn towards law over community norms.  My paper readily acknowledges that there is still some dispute over the existence and extent of the cyberthreat, with charges of scaremongering facing off against those, like President Obama, who characterize cyberthreats as “among the most serious economic and national security risks we face as a nation.”  I expect those within the scaremongering camp are likely to perceive my e-SOS idea as a solution in need of a problem (on the other hand, as far as solutions go, I would hope critics would at least acknowledge that mine is more libertarian and less heavy-handed than those who would rewire the Internet to remove anonymity or allow government monitoring of private networks, etc.).

Similarly, my paper does assume that law can and should be part of the response to the cyberproblem.  I am less sanguine than Jonathan who thinks that we can regulate cyberthreats solely through community norms.  To be clear, I think Jonathan’s “mirror as you link” idea is a great one; both normatively desirable and practically possible (in many ways, I think his idea is a fellow traveller with my e-SOS proposition) Still, his proposal seems designed with only one type of cyberthreat–denial of service–in mind, and I’m not sure how it would deal with other types of attacks. I also am not sure how feasible community norms are in an environment that seems to have an increasingly diverse and adversarial set of actors (whether Russian hacktivists, military forces from China and the United States, Israeli teenagers, etc.).  Rather than limiting solutions to informal networks of like-minded groups, I believe law offers a vehicle for obtaining pre-commitments from state actors who might otherwise not be inclined to cooperate (indeed, international law is nothing, if not a vehicle for solving these sorts of cooperation problems).  Finally, I looked to law because my sense is that states themselves have begun to do so.  Although initially resistant to negotiating rules of the road, reports suggest that the United States has now come around to the idea of international negotiations on this topic (joining Russia which has touted the idea for more than a decade), although the substance of those negotiations remains very much up for grabs.  Hence, my paper is not focused so much on the question of whether international law should regulate cyberthreats, but how it should do so.

And my own response to this latter question ends up being, “if not a duty to assist, then what”? Notwithstanding Eric’s point about the need to flesh out the exact parameters of any international legal duty to assist, I’m still persuaded that it remains the best available legal option for dealing with the most severe cyberthreats.  My paper looks at the three other ways law might regulate this threat — (1) regulating the bad actors, (2) regulating the technology, or (3) regulating the victims — and explains how the attribution problem takes the first option off the table while political and economic barriers have so far stymied pursuit of the second and third possibilities.  We are in a situation where one cannot identify, let alone prosecute, the bad actors and where you can’t perfect the technology to block them.  As a result, we are in a situation where the best the law can do is try to provide assistance to mitigate the harm these threats cause, and if it does so successfully, maybe deter future such threats.

Thus, I take Eric’s point that the analogy between threats in cyberspace vs. those at sea is nowhere near perfect.  But I do think the conditions that led to an SOS in the latter context make it a worthy idea for cyberspace.  Like the high seas, we have an environment where no single nation can regulate the problem (the high seas are the quintessential commons), where bad actors cannot be proscribed (how do you prohibit hurricanes?), and where the technology can never be fully secured (as the Titanic so dramatically revealed, no boat is unsinkable).  In any case, the idea of a duty to assist is not limited to the oceans.  As my paper details, there are myriad other contexts in which DTAs exist, proving its utility as a broader legal device. Of course, I don’t believe Eric is per se opposed to these sorts of analogies; he just (rightly I think) seeks to explore how well they might work by flagging problems of proximity, frequency and technology protection.

In terms of proximity, Eric joins Orin Kerr and Dave Hoffman in noting that the physical proximity that motivates the SOS system is absent in cyberspace.  I think my response to them serves just as well here:

Orin (and Dave) separately take issue with my suggestion that the obligation to assist be defined by physical proximity. At sea, anyone who hears the SOS call has a duty to assist, not just those closest to the vessel in distress. But, I take Orin’s point that those who can actually help will usually be those closest to the threat physically (although Coast Guard helicopters, etc. mean that this will not always be true). I also agree with Orin and Dave that regulating who can assist in cyberspace is a harder proposition, since the physical limitations on who can assist are absent. In cyberspace, an e-SOS could theoretically reach anyone, and if the DTA is not limited to specific duty-bearers, everyone would be obligated to respond. Thus, my paper proposes several ways to limit assistance to avoid the costs of imposing the duty too widely. I do suggest that physical proximity may work, by which I mean proximity to the victim’s systems and networks that have encountered losses in confidentiality, availability, integrity or authenticity. I rely on Jack Goldsmith and Tim Wu’s ideas here that the Internet has allowed enough regulability by nation states so that a nation state where victims have suffered (or are suffering) losses could assist them even if it had nothing to do with the threat itself. Thus, a victim could send out an e-SOS that requires the nation state where the losses lie to respond and perhaps others in that jurisdiction as well (e.g., ISPs using networks in that state, major Internet companies who also have terminals or networks resident in that state, etc.).

I don’t think it’s fair, however, to read my paper as wedded to the idea of physical proximity; indeed, I make clear that “geographic or jurisdictional links between the victim and the duty-holder are not the only–nor necessarily the best–ways to identify duty-bearers online.” Instead, I propose using what I call technical proximity to the victim as a way to identify a duty-holder. For example, if a DDoS transits Comcast’s network, Comcast could be required on receipt of an e-SOS to assist in ceasing that traffic. Or, where the victim traces an attack to a nation state, that state would be obligated to assist (even if they were only the last in several stepping stones from the attack’s true source). This would mean, for example, that Russia would have had to block traffic routed through its networks attacking Estonia in 2007, whether or not Russia was responsible for that traffic. I also suggest tiering the DTA, so that there could be a series of first responders, who could call for additional help if the threat proved so drastic as to require spreading the pool of duty-bearers.

Next, Eric suggests that the SOS only works because of how infrequently it is invoked, worrying that its use could not be properly limited in the e-SOS context where there are so many cyberattacks (a worry Jonathan shares with his concern that states will view too many cyberattacks as severe based on the target rather than the effects). I’m not sure that the frequency dilemma is as great as Eric suggests.  Threats at sea are actually quite common, even if most do not require a distress call.  And even distress calls are far from rare. Consider the United States as an example; according to this paper, in 2003, the U.S. Coast Guard received 31,562 distress calls, saving an estimated 5104 lives with 655 lives lost and 481 unaccounted for.

And, to be clear, my proposal is not to deal with every cyberattack or exploit, which I agree number in the millions or maybe even billions, but only those that states would agree are “severe.”  My paper explores the severity of an attack along three dimensions — timing, scale and indirect effects — and contemplates different ways that states might delineate which attacks are severe.  Unlike Jonathan, I’d be inclined to let states themselves define severity, and would have no problem if they did so based on the effects (loss of life, disruption of critical infrastructure) or the targets (hospitals). Similarly, I think there are various ways states can deal with limiting the burdens of assistance from falling on any specific sub-group of actors (like the National Security Agency), whether through the ideas of technical proximity or tiering mentioned above.  Thus, I would argue that there are various ways states can work around proximity and frequency issues, with any such work-arounds ultimately turning on the states’ collective assessment of how severe the threats are and who should bear the costs of assisting.

Finally, Eric worries that technology transfer issues will disincentive assistance from more sophisticated helpers who fear that in helping they’ll be revealing too many of their technical “sources and methods.”  I agree that technology transfer is an issue, although I think it may actually cut both ways; currently, most victims don’t ask for help because they’re worried about having to expose their own operations to the world, and particularly to anyone who assists.  The essence of the e-SOS idea, however, is that it does not require victims to ask for help; they only do so if they feel the costs/benefits warrant making the call.  Just like an Ambassador can allow the embassy to burn to the ground, we should expect some victims will decide there’s too much additional risk in asking for help and continue to suffer in silence.  On the other hand, Google’s call for help in the Aurora incident shows how even the most sophisticated Internet actor may at some point cry “Uncle,” and negotiate terms for aid (which it did in a deal with the National Security Agency).  Similarly, duty-bearers might be allowed to say up front what kind of assistance they can provide and under what conditions they will do so.  Indeed, there are other DTAs in existence (notably in the nuclear context) where states work out in advance what assistance would be available and how it would be provided in the event of a crisis. Something similar could be replicated for the most severe cyberthreats, including conditions to limit any exploitation of the helper’s systems and networks by the victim or vice versa.

In closing, let me reiterate my thanks to Eric and Jonathan for taking the time to think about my idea.  Frankly, I hope they’re not the only ones who do so.  I sincerely believe that if law is going to be devised to regulate future cyberconflicts, a duty to assist, or an e-SOS could (and should) be a significant first principle for mitigating and hopefully deterring the most severe cyberthreats.

[Jonathan Zittrain, Professor of Law at Harvard Law School and Co-Director of the Berkman Center for Internet & Society, responds to Duncan Hollis, An e-SOS for Cyber-Space. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

Duncan Hollis’s e-SOS article reinforces several important insights. The first emphasizes that the current state of computer and network security is bad and getting worse, and that traditional responses are insufficient. These responses include the self-help of installing layers of firewalls and anti-virus mechanisms, as well as government intervention through traditional rule and sanction against bad acts. My own thinking around alternative responses and their respective inadequacies is structured around four quadrants.¹ Two depend on singular and universal application to work; while two draw their power from competition.

Government action is in the former category. Wrongs are defined, and in the most simple model, the state then acts against wrongdoers. Corporate and individual responses are in the latter category because they are less encompassing and more varied. The hope is that from that mix, new solutions can emerge, as, for example, each anti-virus vendor strives to offer the most complete and rapidly-updated definitions. Continue Reading…

[Eric Jensen, Visiting Assistant Professor of Law at Fordham University Law School, responds to Duncan Hollis, An e-SOS for Cyber-Space. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

Drawing on the familiar and effective maritime principle of an SOS distress call, Professor Hollis argues in his paper that an analogous system should be established to respond to cyber distresses. The paper is extremely well researched and written and presents a very innovative idea certainly worth considering, and if not accepting, at least building upon to address the significant need for better responses to cyber threats. To his credit, unlike many commentators in the area, Hollis doesn’t just identify the problems, but proposes a solution that certainly has merit and is based in current international law.

In addition to Hollis’s proposal which I will address below, two of the best aspects of the paper are the factual data compiled as the introduction and the analysis of the attribution problem. Though both sections are designed to be background for Hollis’s main point, they are among the most articulate and complete in the current literature. Continue Reading…

[This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

In 2007, I authored two papers — one for a military audience and another for a legal one — arguing that debates over the law’s response to the growing range of cyberthreats would likely track ongoing debates over law’s response to terrorism. In that context, we’ve seen 4 options emerge:

• First, those who say terrorism is a crime, and only a crime, with any legal response limited to law enforcement mechanisms.
• Second, those who insist terrorism is war, with the applicable law, if any, derived solely from international humanitarian law.
• Third, those who try to bridge the two camps by insisting terrorism can be both a crime and an act of war, applying the benefits (and burdens) of both legal regimes.
• Fourth, and finally, those who argue that terrorism is neither a classic crime nor a classic act of war, and thus requires a new legal response to regulate its threat.

My sense is that the same jockeying among camps — crime, war, both, neither — is beginning to play out in the context of cyberthreats as well.  The initial international legal response, most notably the Council of Europe’s 2001 Cybercrime Convention, rests entirely on a criminal law paradigm. In contrast, the recent emergence of U.S. Cybercommand (USCYBERCOM) and the guidelines reported to apply to it envisions significant cyberthreats in national security terms, more appropriately dealt with through a war model, rather than a criminal one.  Not surprisingly, some states and scholars tacked to Option 3, suggesting that we can employ both crime and war paradigms to deal with these issues.  Indeed, that’s how the Estonian government viewed the 2007 cyberattacks against it, calling them an act of war, but also launching criminal investigations and seeking extradition of those responsible. This third approach appears to be where the United States is heading as well.

I’ve spent the last 4-5 years advocating for Option 4 — the none of the above idea.  To be clear, I’ve never suggested that law doesn’t currently govern cyberthreats, but rather that it does so poorly. Thus, I’ve complained about the difficulties of translating existing rules into cyberspace, the complexity of those rules, and their inadequate scope when it comes to threats that can have either state or non-state origins.  As a result, I’ve advocated for nation states to work out new rules to regulate and mitigate the harm posed by the most severe cyberthreats.

Not surprisingly, the most frequent response to my call for new rules was a question:  what do I think those rules should be?  This paper – An e-SOS for Cyberspace — is my attempt at a response. In it, I offer a first principle — a Duty to Assist — that I believe states could adopt as an appropriate international regulatory response.  As the paper elaborates, a duty to assist is not some magic salve for all cyberthreats, but it could be a way for states to respond to the most severe ones that directly or indirectly take life or disrupt critical infrastructure.  I argue, moreover, that given the way anonymity is built into the very architecture of the Internet, a Duty to Assist may be all that we can expect law to do at this point to deal with these threats.  All of which is a long way of getting to my abstract:

Individuals, shadowy criminal organizations, and nation states all now have the capacity to harm 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 complement, rather than compete with, self-reliant measures and existing legal proscriptions against cyberthreats.

I look forward to the comments of Professor Eric Jensen and Professor Jonathan Zittrain and the conversation (I hope) it generates.

[Jacob Katz Cogan, author of The Regulatory Turn in International Law, responds to comments by John H. Knox. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

I would like to thank John Knox for his very thoughtful and quite generous response to my article The Regulatory Turn in International Law. In a number of ways, the article builds on John’s own scholarship – particularly his excellent Horizontal Human Rights Law, 102 American Journal of International Law 1 (2008). So it is particularly appropriate for us to continue the discussion here today.

John’s response focuses on private duties in the context of human rights, and he argues that “[h]uman rights law has always been concerned about threats to human rights from non-state actors.” Recent developments, then, are “an intensification of a long-standing characteristic.” I don’t disagree. As John notes, and as discussed the article, “treaties requiring states [for example] to regulate individuals and corporations to suppress slavery, labor abuses, and racial and gender discrimination” predated the late 1980s, which is the date I point to as the beginning of the regulatory turn. And he is correct to conclude that “the challenge of distinguishing between duties that undermine human rights and those that promote them is not new.”

Continue Reading…

[John H. Knox, Professor of Law, Wake Forest University, responds to Jacob Katz Cogan, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

In The Regulatory Turn in International Law, Jacob Katz Cogan takes on a big topic:  the increasing regulation of non-state actors by international law.  Because this development is occurring in so many areas of international law, its full extent can be difficult to grasp.  As the article explains, it is not simply an aggregation of many changes in different fields, but a sea-change in the orientation of the entire international legal system.

Even an article that merely identified this “regulatory turn” would be of great importance.  But this article does much more than that.  It provides a historical narrative, it pulls together examples from many different regimes and explains how they constitute common types of regulation, and it analyzes the effects of this development on the international system as a whole.  The result is a seminal work that will influence later scholarship for years to come.

Continue Reading…

[Jacob Katz Cogan, an Associate Professor of Law, University of Cincinnati College of Law and a Visiting Associate Professor of Law, Vanderbilt University Law School, Spring 2011, describes his recently published Article, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this “humanization of international law” that by the 1990s human rights had become “part of . . . international political and legal culture.” This Article argues that there has been an unnoticed contemporary countertrend—the “regulatory turn in international law.” Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal,that impose and enforce direct and indirect international duties upon individuals or that buttress and facilitate a state’s authorities respecting those under and even beyond its territorial jurisdiction. Whereas the human rights turn protected the individual against excessive governmental control, these parallel processes do just the opposite—they facilitate and enhance the regulatory authorities of government (both national and international) in relation to the individual. Continue Reading…

Yes, it’s true.  There must be dozens, perhaps even hundreds of newborns who are extended US citizenship every year even though they are “not subject to the jurisdiction thereof.”  Find the evidence in a report from the restrictionist Center for Immigration Studies here.

Perhaps I shouldn’t be so snarky: the report is a pretty interesting one.  It certainly plows new ground.  It considers the single operative exception to the otherwise universal rule of birthright citizenship under the Fourteenth Amendment.  (There is one major exception — those born into Native American tribal jurisdiction — but that hole was plugged by statute in 1924.)  It’s generally understood to be a minor qualification to the otherwise absolute rule, but leave it to the folks at CIS (who run some very useful programs, including a daily wrap of media items relating to immigration) to check out its (non)effect on the ground.

Turns out that nobody is policing the exception.  Children of diplomats born in the US get ordinary birth certificates, which is all you need to demonstrate citizenship.  CIS urges Congress to get on the case and address this pressing problem (one recommendation — requiring that a parent have a valid social security number — looks like a backdoor attack on birthright citizenship for the children of undocumented aliens).  Imagine all those foreign diplomatic brats with US passports who may come back to . . . well, what, exactly?

I have just posted a new essay on SSRN, entitled “The Uncertain Legal Status of the Aggression Understandings.”  The essay will be published by the Journal of International Criminal Justice as part of a symposium on the ICC’s new crime of aggression.  Here is the abstract:

Annex III of Resolution RC/Res.6, adopted by consensus at Kampala on 12 June 2010, contains seven “Understandings” concerning the amendments that add the crime of aggression to the Rome Statute.  The legal status of the Understandings, however, was never discussed during the Review Conference, leading scholars to acknowledge that it is difficult to determine how they will influence the Court once the aggression amendments enter into force.  Indeed, no scholar to date has attempted to systematically analyze the Understandings.

This essay attempts to fill that lacuna in the burgeoning literature on the aggression amendments. It considers four possible interpretations of the Understandings: (1) that they are amendments to the Rome Statute; (2) that they are a primary means of interpreting the aggression amendments under Article 31 of the Vienna Convention on the Law of Treaties (VCLT); (3) that they are an agreement to modify by one or more parties to the Rome Statute under Article 41 of the VCLT; and (4) that they are supplementary means of interpreting the aggression amendments under Article 32 of the VCLT.  It concludes that, unless they are adopted by all of the States Parties to the Rome Statute at the 2017 Review Conference, the Understandings are nothing more than supplementary means of interpretation that the Court would have the right to ignore once the aggression amendments enter into force.

The essay is relatively short, about 8,500 words.  Astute readers will recognize the essay as a much more comprehensive version of a blog post I wrote not long after Kampala.  As per usual, comments and criticisms — especially from readers who know far more about treaty interpretation than I — are welcome!

P.S. I posted a revised version of the essay after about 18 people had downloaded it.  If you are one of the early downloaders and have not read it yet, you might read the version that is posted now.

It’s likely old news to most OJ readers, but we should still note in passing that the DC Circuit, in a divided panel, handed down an important ATS case, John Doe VIII v Exxon Mobil Corp.  It is noteworthy, among other things, for straight-out rejecting the Second Circuit’s Kiobel ruling, which held that there is no such thing as corporate liability in the ATS.  The DC Circuit panel held otherwise.  The circuit split is thus sharpened on an issue that was only glancingly mentioned, and not answered, in the Supreme Court’s Sosa holding:

We further conclude under our precedent that this court should address Exxon’s contention on appeal of corporate immunity and, contrary to its view and that of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations.

I have occasionally described the controversy over corporate liability as the “hinge” in the ATS.  Meaning that the ATS creates an “international law” part, and a domestic law part, and the circuit split reflects disagreement as to where the corporate liability part has to be found, if at all: must it be found as an element of international law (and might not be held to exist there), or does it suffice if it is found as part of domestic law of tort.  The ATS roots the violation in international law, and the remedy in domestic tort law, and it will matter crucially where one holds that corporate liability would have to exist, if it exists at all.  That’s the sense of a hinge; something has to “swing” from international law into domestic tort law.  My own view is that corporate liability has to be part of the international law predicate, but that it does not exist there, and so you can’t get an action going.  This is roughly the Second Circuit view, which the DC Circuit opinion rejects.

Shifting to a much broader take on the ATS, I’ve also talked sometimes about the ATS as an example not of international law, but rather the “law of the hegemon.”  It refers to international law, but then frames itself within US domestic law and practice writ for the whole world.  We in the US have a law of tort; we have a law that envisions corporate liability: ergo, international law should and does as well because, as Judge Weinstein put it in a case I was involved in, an American judge could scarcely imagine it otherwise.  This leaves me in something of a conflicted position.  On the one hand, I think the ATS needs to be sharply reined in – I agree more or less with Judge Kavanaugh’s dissent in the DC Circuit panel, that the ATS properly applied is limited to conduct within the territorial United States.  In that sense, I welcome judicial moves to cut back the ATS.

On the other hand, in those moves to curtail the scope and sweep of the ATS, I think I discern an element of the decline of the hegemon – do US courts really want to be hauling Chinese corporations over the coals of US tort liability for what they do in Africa? Will US administrations, including the Obama administration, be happy to see that happen?  I regard US hegemony as being a broadly beneficial thing, providing lots of public goods to the world; decline is dangerous and destabilizing, particularly in Asia.  And much of what the international law community regards as universal human rights, I regard as universalism sheltering under American hegemony, and if hegemony declines, the universalist human rights movement declines with it, even if the movement is the last to understand that.  Insofar as the decline of the ATS – its long, slow death, as Roger referred to it a while back – is evidence of a broader hegemonic decline, I regard it with dismay.  Your results may differ, it hardly needs saying.

I’m not a sufficiently expert SCOTUS-watcher to know whether this realistically pushes the Court to take up the ATS where Sosa left off.  Reading the Kiobel majority, which I liked, and the Exxon Mobil majority, which I didn’t, however, I am struck in each case by how much outcomes seem to me driven by ideology, in the sense of a fundamentally political take on the world.  It is not as if there is some new body of legal materials that is going to provide new light on the question; at bottom, higher authority has to decide what it will be.  Sosa partakes of this outcome, of course, by using vague phrases that would permit any outcome by appeal to exactly the same locutions.  But the corporate liability issue is so fundamental to contemporary ATS litigation – preceding, in a logical sense, the standards found in Sosa – and the split among circuits now so stark, that I hope I’m not being naive by thinking that the Court cannot simply avoid resolving it.

Update: John Bellinger comments on this new ruling over at Lawfare, noting in passing that with the 2nd Circuit on one side and the 11th and now DC Circuits on the other, the 9th and 7th Circuits have cases under consideration on this issue of corporate liability as well.  And Georgetown’s David Stewart has kindly sent me a comment by email, running to my larger (and certainly more controversial) political point about hegemony:

I would personally quibble only over the notion that a decline of “US legal hegemony” necessarily means/implies/leads to a commensurate decline in the “universalist human rights movement” – human rights has now grown deep roots in many domestic legal systems, and one only has to look at the European human rights system, and the recent decisions of the European court in al-Jedda and al-Skeini to know that there are many flag bearers.  It’s long been an unfortunate pretension of US human rights promoters that we alone, or we mainly, or we indispensably, must be the world’s human rights police, and that without judgments of US courts, foreigners and foreign governments won’t pay attention to human rights.  In some circumstances that has done far more harm than good.  Anyway, even if SCOTUS decides in favor of the 2nd Cir. (and I agree they have the better view), litigants will probably just sue individual officers and directors, vice the corporation itself, and the result will be higher insurance fees.

The following is a guest-post by Mark Kersten.  Mark is a PhD candidate in International Relations at the London School of Economics and author of the (excellent) blog Justice in Conflict. His research examines the nexus of conflict resolution and the pursuit of international criminal justice.

Trying to Get to the Bottom of the “Peace versus Justice” Debate in Libya

There are valid concerns and tensions which arise from pursuing justice in the midst of ongoing and unresolved conflict. The development of international criminal law has seen the transformation of tribunals from being ex post courts which adjudicate crimes after the resolution of conflict to ex ante courts. Ex ante courts, as Mahnoush Arsanjani and Michael Weisman have explained, “are established before an international security problem has been resolved or even manifested itself…[which] may create conflicting pressures on both the tribunals and the agencies and actors responsible for resolving the security problem.”

Virtually every argument in the peace-justice debate is logical, intuitive and, on some level, persuasive. The problem, however, is that not only are the arguments in the peace-justice debate contradictory; rather than reflecting realities on the ground or tangible evidence, they often reflect and privilege the convictions of individuals with particular political, moral and legal persuasions. Individuals on either side rarely examine evidence of particular cases, preferring instead to say that justice is absolutely necessary or absolutely problematic across contexts. Trying to find someone who believes pursuing international criminal justice helps in some cases and hinders in others would take a very long time.

In Libya, there has been no shortage of “peace versus justice” talk, most of it centring around whether the ICC’s investigations into and arrest warrants of Gaddafi, his son Saif and the Libyan head of intelligence, Abdullah al-Sanussi,  eliminates the possibility that Gaddafi steps down from power. The majority of those who have contributed to the debate suggest that the goal of justice is undermining or complicating efforts to negotiate a peace settlement to the conflict.

As I have elaborated elsewhere, there are at least six possible courses of action in Libya…

A few months back, Opinio Juris was pleased to host an inaugural joint symposium with the Harvard International Law Journal.  Next week, we’re very pleased to be able to regularize this partnership with a second symposium (I’m particularly pleased with this development for reasons that should become apparent below).  The symposium will run from Tuesday, July 12, to Friday, July 15, and features the following line-up:

On Tuesday, John H. Knox will respond to Jacob Katz Cogan‘s article, The Regulatory Turn in International Law.

On Wednesday,  Eric Jensen and Jonathan Zittrain will respond to Duncan Hollis‘ article, An e-SOS for Cyber-Space.

On Thursday, Katharina Pistor will respond to Olivier De Schutter‘s article, The Green Rush: The Global Race for Farmland and the Rights of Land Users.

On Friday, Frédéric Mégret will respond to Philip Alston‘s article, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?

Most of the authors (myself included) will offer introductory comments on their work or direct responses to the questions and comments of the contributors.  I, for one, am looking forward to the conversations that result.

Thanks to Roger Alford and Opinio Juris for hosting this discussion.  And renewed thanks to the distinguished respondents for their insightful commentary.

Foreign official immunity issues arise in a variety of cases, especially in response to plaintiffs making commercial or human rights claims.  As Larry Helfer and David Stewart emphasize (and as I discuss in the article), in the human rights context customary international law on official immunity is arguably unsettled, and the potential for tension with other nations is real.  The U.S. government strongly opposed torture cases against Donald Rumsfeld in various European countries and a French criminal case against him was dismissed on immunity grounds, so it is difficult to think that denying immunities in U.S. courts will always be a welcomed development.  Similarly, the International Court of Justice case by Germany against Italy, which Professor Helfer mentions, resulted from a civil judgment of the Italian national courts.  The cases brought in the U.S. are thus part of a broad set of national court decisions around the world that arise in a variety of doctrinal contexts.   How U.S. courts resolve them may have a significant impact on the development of international law and on U.S. foreign relations.

In my view, there is an important role for the executive branch in some immunity cases. Deference is appropriate regarding the prerequisites for status-based immunity, the development of customary international law, some questions of fact and law on which the government has particular expertise, and perhaps even the outcome of individual cases under exceptional circumstances. Professor Stewart says that I afford “at best a very limited” role for the executive, but I disagree: my approach contemplates potentially significant deference, especially if the government chooses to articulate general principles of immunity.  On the other side, Curt Bradley questions whether this affords so much deference to the executive branch that it hardly matters whether it has to power to make binding immunity determinations in every case.  Again, I disagree.  Denying the government this binding, case-by-case power helps obviate some of the most important problems with the pre-FSIA system of executive control, and it also makes clear the constitutional and statutory limitations on executive power, which have potential significance in other contexts.

Professors Bradley and Stewart question the functional advantages of the courts over the executive branch in making immunity determinations – but many potential benefits of executive participation can be realized within a common law system developed by the courts.  To my knowledge, no other country in the world vests the executive branch with the power to make immunity determinations binding on its courts.

Turning now to constitutional and statutory bases for the power asserted by the executive branch, Professor Stewart writes that it is hard “to make a case that the Constitution requires [immunity determinations] to be made by the judicial branch.” Fortunately, I don’t try to make that case. Congress could enact a statute governing foreign official immunity; the question is what to do absent such a statute. Judicial development of federal common law in immunity cases is very closely related to the federal common sanctioned by the Court in Sabbatino, First National City Bank, and Boyle. By contrast, the executive law-making power in the claim settlement cases has a stronger historical basis than do executive immunity determinations, and the Court has recently refused in Medellin to expand the claim settlement cases to include other exercises of executive power.

Professor Bradley argues that the statutory basis for executive control based on the acquiescence of Congress is stronger than I suggest. Interestingly, the government has not advanced statute-based arguments, relying instead on constitutional analysis. In my view, the statutory arguments are stronger than the constitutional ones, although in the end also unconvincing.  First, there were very few official immunity cases before FSIA was enacted. As the Court said in Samantar: “although questions of official immunity did arise in the pre-FSIA period, they were few and far between. The immunity of officials simply was not the particular problem to which Congress was responding when it enacted the FSIA.”

Second, cases like Dames & Moore rely on statutes designed to enhance executive power, but the FSIA was explicitly designed as a limitation. Thus, the reasoning in Dames & Moore that “the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility,’” (quoting Jackson’s opinion in Youngstown) simply does not apply to a statutes like the FSIA designed to eliminate executive control over immunity.

Third, official immunity determinations, even if not included within FSIA, take place in very different context after the enactment of the statute.  There is the potential for substantial overlap between questions of state and individual immunity, and resolution of the latter should not undermine the statutory scheme put in place to govern the former.  Thus it is incorrect to think of FSIA as preserving or acquiescing in some pre-existing practice – the practice going forward should be informed in many ways by the statute itself.

Let me end with the important question posed by Professor Helfer: whether “U.S. judges should take the lead in shaping CIL to expand the civil liability of foreign officials who commit human rights violations.”  Where they risk violating international law, I argue in the article that they should not, which may seem like a blow to human rights.  Indeed, immunity and human rights are sometimes depicted as almost opposites in a zero-sum game.  But – and now I move beyond the arguments advanced in my article – immunity may benefit human rights if it fosters strong, stable relations among states and reduces the regional frictions that can arise when immunity is denied.  These benefits are difficult to quantify, but so are some of purported benefits of denying immunity, such as the potential deterrent effect such cases might have going forward.

Professor Ingrid Wuerth’s article on foreign official immunity is thorough, thoughtful and provocative, and it’s a privilege to make my first OJ appearance commenting on it.  There is much to agree with in her analysis, and at the same time some questions to raise.

Just over a year has now passed since the Supreme Court decided, in Samantar v. Yousuf, that the Foreign Sovereign Immunities Act (FSIA) does not apply to claims by individual foreign government officials to immunity from the jurisdiction of U.S. courts.  By closing one door, however, the Court opened another, since it remanded the case for a determination whether the defendant “may be entitled to immunity under the common law” (id. at 2292-93).  Precisely how such a claim should be decided, and on what basis, the Court did not specify, noting only that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity” as it existed prior to the FSIA’s enactment in 1976.  Id. at 2291.

As the article points out, the decision left open a number of difficult and controversial issues about both law and process.  Should the decision on Samantar’s immunity fall, at least in the first instance, to the executive branch in accordance with pre-FSIA practice?  If so, would it be made on the basis of principles derived from international law, as the government had long contended?  Would a federal court consider itself bound by that decision as a matter of common law?

In the event, the executive branch filed a “statement of interest” in the District Court for the Eastern District of Virginia this past February concluding that Samantar “enjoys no claim of official immunity from this civil suit.”  The government’s submission emphasized two factors: (1) Samantar’s status as a former official of a state with no currently recognized government to request immunity on his behalf, and (2) the proposition that U.S. residents like Samantar “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.”  (Samantar had served as defense minister and prime minister in the Siad Barre regime in Somalia, is now living in the United States, and has been sued under the Alien Tort Statute and the Torture Victims Protection Act for various atrocities committed by government agents in Somalia.)  The following day, District Judge Leonie Brinkema issued an order noting that “[t]he government has determined that the defendant does not have foreign official immunity,” and “[a]ccordingly, defendant’s common law sovereign immunity defense is no longer before the Court.”  That decision has since been appealed to the Fourth Circuit.

Professor Wuerth challenges the constitutionality as well as the functionality of this procedure, in which the Department of State makes the decision and the court accepts it as binding.  Locating the issue within the general framework of foreign relations law, she criticizes the linked assertions that the President has “lawmaking power” and that the Department of State can “control” determinations of foreign official immunity, arguing that the constitutional basis for such assertions is at best tenuous.  Instead, she argues for the judicialization of immunity decisions, resting on federal common law, with at best a very limited role for the executive branch.

The constitutional arguments against the Executive Branch’s role are not insubstantial but in the end do not provide a clear, definitive answer.  Indeed, citing to the Supreme Court’s decision in American Insurance Association v. Garamendi, Professor Wuerth acknowledges that the Constitution leaves the question textually ambiguous, while giving the President (by virtue of historical gloss) the “vast share of responsibility for the conduct of our foreign relations.”  It is very difficult to argue that immunity determinations are not intimately related to the President’s constitutional authority to appoint and receive ambassadors and to conduct the country’s foreign relations, and it’s harder still to make a case that the Constitution requires them to be made by the judicial branch.

Would the federal courts be inherently better at deciding these issues?  Professor Wuerth’s proposal is to vest determinations of foreign official immunity in the federal courts “as a form of federal common lawmaking,” perhaps allowing for some limited deference for executive branch views (p. 954).  There’s little doubt that Congress could provide a new statutory framework committing the determinations to the courts with little or no input from the executive branch, under a kind of parallel FSIA for individuals.  But is there any empirical basis for thinking that judges would necessary make better informed decisions about a foreign official’s entitlement to immunity?  Immunity determinations are not simply exercises in applying settled law to established facts, and a long line of judicial precedent acknowledges that they involve sensitive judgments best left to the political branches.

That said, Professor Wuerth is entirely correct to raise concerns about the resurrected role of the State Department in making these determinations. As she notes (pp. 945-49), sovereign immunity decisions in the pre-FSIA era were sometimes inconsistent and not infrequently thought to have been influenced by political considerations.  Some characterized the internal process by which decisions were reached as lacking in procedural fairness.  The increasing number of requests for immunity posed a severe burden on the resources of the Office of the Legal Adviser.  It was for these and other reasons that the Department actively supported enactment of the FSIA and the transfer of sovereign immunity decision-making to the courts.  In returning post-Samantar to pre-FSIA procedures, the Department needs to ensure that those problems do not recur.  In particular, immunity determinations must be firmly grounded in international law and can neither be arbitrary nor based solely on political considerations.

In this regard, one has to raise at least one eyebrow at the executive branch’s emphasis, in Samantar on remand, on the fact that “no currently recognized government” had intervened on his behalf to request immunity.  If foreign official immunity derives from concepts of state sovereignty and rests on accepted principles of international law, then the lack of recognition of the current transitional government of Somalia should not have been determinative.  Conditioning immunity on recognition, friendly relations or the existence of a functional government could be read as acknowledgment that in the “circumstances” of the particular case, a refusal to grant immunity would not create any significant foreign policy problems.  It is not difficult to imagine how such an approach, if reciprocated, could create trouble for visiting U.S. officials in the courts of unfriendly foreign countries.  Here, it’s worth noting Iran’s announcement earlier this week that it plans to prosecute in absentia 26 current and former U.S. officials for human rights violations.

Under the new procedure, many if not most individual immunity cases in U.S. courts are likely to involve allegations under the ATS and the TVPA that foreign officials have violated the human rights of their own citizens in their own countries, just as in Samantar.   Unless the individual defendant is entitled to a broader form of immunity (i.e., as a current head of state or government or a duly accredited diplomat), the question is likely to turn on whether the acts in question were taken within the scope of that person’s official duties or functions.  And ultimately, the argument is (as it was in Samantar) that gross violations of internationally recognized human rights (or of jus cogens) can never legitimately be considered within anyone’s official duties or governmental functions.  In other words, U.S. courts will be effectively unconstrained by principles of sovereign immunity in cases challenging the legitimacy of actions of foreign governments through their officers and employees in respect of their own citizens within their own territories.

Depending on one’s perspective, this may be entirely appropriate and a very potent mechanism for promoting respect for human rights around the world.  It may even have been the unstated rationale for the executive branch’s decision to deny Samantar immunity.  And in a limited range of cases involving international law, courts already play a central role in determining whether particular acts fall within the scope of official duties (for example, in the case of consular officers or officials of international organizations within the United States).

But a Samantar-like situation is markedly different.  Under the “conduct-based” approach, determining a defendant’s entitlement to immunity will require the court to undertake an inquiry into the laws, policies and procedures of foreign governments.  While few governments will be inclined to cooperate in such an exercise, most cases are likely to raise more significant foreign relations concerns.  Is that really a proper task for federal courts to undertake on the basis of common law with little or no guidance from the executive branch?

Prof. Wuerth’s article gives us much to ponder and a strong, insightful basis on which to do so.

Thanks to Opinio Juris for inviting me to comment on Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, Professor Ingrid Wuerth’s timely and insightful article. The springboard for the article is Samantar v. Yousuf, the 2010 U.S. Supreme Court decision which held that the Foreign Sovereign Immunities Act (FSIA) does not apply to individual government officials. Samantar addressed only a discrete issue of statutory interpretation. The Court avoided any discussion of international law even though the parties and amici extensively briefed whether customary international law (CIL) confers immunity on foreign officials from lawsuits alleging human rights violations. Instead, the Justices instructed U.S. courts to determine the immunity of foreign officials under the “common law”—the legal regime that prevailed prior to the FSIA’s adoption.

Notwithstanding the Supreme Court’s inattention to the international law backdrop to the Samantar case, I fully agree with Professor Wuerth that CIL is relevant to how U.S. courts should develop the common law of foreign official immunity. I also agree that a return to the pre-FSIA immunity regime should not be understood as delegating to the State Department the conclusive authority to determine whether a defendant is immune in a particular case, or to dictate the legal principles that courts must apply when making that determination.

In this brief comment, I first highlight the major contributions of Professor Wuerth’s article and then focus on the intersection of foreign official immunity and international human rights litigation under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA)—a topic that Professor Curt Bradley and I analyze in greater detail in a recently-published article.

The Case Against the State Department has many virtues. I will mention only three. First, Professor Wuerth situates Samantar in the context of other areas of U.S. foreign relations law. She shows that what at first glance appears to be a narrow and technical decision in fact has implications for important unresolved doctrinal issues such as the status of customary international law in the U.S. legal system, the propriety of federal common lawmaking in the area of foreign affairs, and the executive branch’s authority to promulgate rules that bind domestic courts. Foreign relations scholars who have given only passing attention to Samantar would do well to reconsider the case in light of the article’s cogent analysis.

Second, Professor Wuerth challenges head on the State Department’s assertion that it and it alone has “the power to resolve each and every immunity case as it sees fit, and to set out immunity law binding on the courts even in cases where it does [not] make a specific recommendation” (pp. 938-939). She systematically considers and rejects the plausible justifications for this claim: the Constitution’s text and history, functional considerations, and the implied authorization of Congress. This is an audacious position, one that is squarely at odds with two World War II-era Supreme Court cases and a handful of more recent lower court decisions that appear to give the executive branch precisely what it seeks—carte blanche over foreign official immunity determinations. The article pulls no punches in critiquing the anemic reasoning of these cases and the executive branch arguments that invoke them, demonstrating their inapplicability to a post-Samantar world in which the FSIA, other federal statutes, and CIL all suggest a more robust role for U.S. courts to develop common law immunity principles.

Third, The Case Against the State Department offers a nuanced, if abbreviated, roadmap for judges to make foreign official immunity determinations. Professor Wuerth identifies three “constraints,” in descending order of importance, that “limit and shape” (p. 968) federal common lawmaking: striving for consistency with the FSIA, avoiding violations of international law, and deferring to the executive branch on certain discrete issues. Of these constraints, the first—the continuing relevance of the statutory immunity regime—is the most surprising. Samantar decisively rejected the FSIA’s applicability to foreign officials. It thus seems counterintuitive to argue that the statute has any bearing on the immunity of those officials. Yet the article demonstrates that the FSIA indeed remains relevant to a number of key issues, such as whether immunity has been waived, whether an entity (and thus its employees) is properly characterized a foreign state or its agency or instrumentality, and whether a suit nominally against an individual government official should in fact be treated as one against the foreign state itself.

These constraints apply without regard to the subject matter of the underlying litigation. However, judicial development of common law immunity principles is likely to engender the most controversy in suits against foreign officials alleging violations of international human rights law. As Professor Bradley and I recount in International Law and the U.S. Common Law of Foreign Official Immunity, in the three decades following the Second Circuit’s groundbreaking 1980 decision in Filartiga v Peña-Irala, human rights litigation under the ATS and TVPA flourished largely unencumbered by immunity concerns. (Suits against sitting heads of state were a notable exception.) A majority of courts held (erroneously, Samantar has now clarified) that the FSIA did apply to individuals—but only for conduct undertaken in their official rather than their personal capacity. And most courts also concluded that those individuals were not acting in an official capacity when they committed human rights abuses. In making these determinations, however, these decisions did not consider the CIL of foreign official immunity.

U.S. courts may revisit these issues following Samantar. Consider each of the three constraints discussed in The Case Against the State Department. If courts interpret common law immunity in parallel with the FSIA, the prospects for ATS and TVPA litigation would dim considerably. Most human rights abuses are committed under color of law, although often in violation of it. Yet as the Supreme Court explained in Saudi Arabia v. Nelson, “however monstrous such abuse[s] undoubtedly may be,” they are “peculiarly sovereign” acts and thus shielded by immunity.

To be sure, nothing in Samantar or in Professor Wuerth’s analysis requires courts to develop the common law in lock step with the FSIA’s limited exceptions to immunity. It is uncertain, however, whether human rights litigation fares much better under the other two alternatives. If courts follow the executive branch’s lead (whether absolutely or by affording it a substantial degree of deference), immunity determinations are likely to vary according to a lawsuit’s foreign relations considerations, such as the country involved, the official’s position in its government, and the particular human rights allegedly violated. Indeed, the government’s amicus brief in Samantar lists a hodgepodge of no less than thirteen factors relevant to its immunity determinations, with no indication of their relative weight or how they should be balanced in any particular case.

This leaves international law. Traditionally, CIL extended immunity to officials from proceedings in other countries’ courts for actions taken on their state’s behalf. In the criminal context, this immunity has quickly eroded over the past decade, with courts invoking human rights treaties and principles to exercise criminal jurisdiction over former officials, including heads of state, charged with violating jus cogens. However, no comparable erosion has yet occurred in the civil context. Although few decisions (mostly by the Italian Court of Cassation) have embraced a broad human rights exception to immunity, courts in several other countries (including Australia, New Zealand, and the United Kingdom), have expressly declined to do so. In addition, challenges to decisions in both camps are pending before the ECtHR and the ICJ. As a result, the balance between immunity and accountability in international law remains very much in flux.

A key question, therefore, is whether U.S. judges should take the lead in shaping CIL to expand the civil liability of foreign officials who commit human rights violations. The precedents built up over thirty years of ATS and TVPA litigation since Filartiga provide support for this approach. But the uncertain legal landscape may also suggest that “courts should refrain from creating conflicts with other nations and from resolving contested questions of international law in ways that might create foreign policy problems.” (p.969) Which of these approaches U.S. courts follow will go a long way toward shaping the post-Samantar common law of foreign official immunity.

I am very pleased to be able to comment on Ingrid Wuerth’s recent article, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department.  As readers of this blog are aware, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) generally does not apply to suits against individual foreign officials, and that the immunity of such officials is to be determined instead as a matter of common law.

The Executive Branch is now claiming (as it claimed before Samantar) that, when it chooses to do so, it should be able to determine for the courts whether to grant or deny individual immunity in a particular case.  This is true, the Executive argues, for both status-based immunity, which protects certain government officials (such as heads of state) from essentially any claims in foreign courts while the officials are in office, as well as for conduct immunity, which protects current and former government officials from claims in foreign courts relating to their official acts while in office.

Ingrid presents a strong critique of the Executive Branch’s position, based on constitutional text and structure, history, and functional considerations.  I agree with much of what she has to say, and the federal common law framework for individual immunity issues that she suggests (which would take account of statutory policies, international law, and appropriate deference to the Executive Branch, see pp. 967-75) overlaps with the considerations that Larry Helfer and I recently outlined in International Law and the U.S. Common Law of Foreign Official Immunity.  I will nevertheless highlight several ways in which I think the Executive Branch might be able to push back against Ingrid’s analysis.

First, Ingrid spends a lot of time contesting the claim that Congress has affirmatively “authorized” Executive Branch determinations of individual immunity (pp. 939-51), but I do not think the Executive needs to make that claim.  Instead, decisions like Dames & Moore v. Regan and Ex parte Quirin suggest that it is probably sufficient for the Executive to argue that Congress was aware of its judicially-recognized authority to determine individual immunity when it enacted the FSIA and did nothing to displace that authority.  Unfortunately for Ingrid’s position, the Supreme Court in Samantar provided some support for this sort of congressional acquiescence argument.  In explaining its conclusion that the FSIA did not apply to suits against individual officials, the Court referred to the Executive Branch’s pre-1976 control over individual immunity determinations and suggested that this control survived the enactment of the FSIA:  “We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”  (To her credit, Ingrid acknowledges this statement, but she focuses on whether it supports a claim of congressional authorization and does not specifically consider its significance for a softer claim of congressional acquiescence.)

Second, Ingrid’s functional critique of Executive control over immunity determinations may be somewhat less persuasive than her formal critique.  She notes that the pre-FSIA regime, in which the State Department’s views about foreign governmental immunity were treated by courts as controlling, “proved problematic and was abandoned” (p. 924).  While that is true, the lesson from that experience was that the area should be regulated by Congress, not that courts should develop the law on their own.  The question that Ingrid’s article addresses, however, is what to do in the absence of congressional regulation.  The pre-FSIA history does not necessarily show that the answer is to have judicial rather than Executive Branch lawmaking.  Although the Executive Branch may not compare favorably to Congress as a lawmaker on issues of individual immunity, it has certain advantages over the courts, including both better access to information (including information about reciprocity by other countries) and democratic accountability.  Perhaps because of those considerations, the courts became less comfortable with independent judicial lawmaking on issues of immunity after Erie v. Tompkins, which made the source-of-authority question more salient, and it is not self-apparent why the courts should be more comfortable with such a lawmaking role today.

Finally, Ingrid acknowledges that, even if the Executive does not have the authority to control immunity determinations, it may be entitled to some deference in these cases (pp. 970-73).  Among other things, foreign official immunity implicates difficult and developing issues of customary international law (as Helfer and I discuss in our article), and the Executive’s views about what position the United States should take on these issues are likely to be given significant weight by the courts.  There are also a variety of other issues potentially relevant to the common law of immunity, such as the weight that should be given to interventions by the foreign government, and the Executive’s lead role in conducting U.S. foreign policy may suggest the desirability of giving it deference on these issues as well.  If so, it is not clear how much of a difference there will be between a regime of Executive Branch control, which Ingrid contests, and a regime of Executive Branch deference, which she does not necessarily contest.

The remand proceedings in Samantar provide an illustration.  The district court there initially appeared to give absolute deference to the Executive Branch’s position that immunity should not be conferred on the former Somali official, as Ingrid notes (p.918).  In a subsequent hearing on a motion for reconsideration, however, the judge made clear that she was not in fact treating the Executive Branch’s position as dispositive but rather was simply giving it deference.  The result was nevertheless the same.

Despite these points, I want to emphasize that Ingrid has written an excellent and timely article that will serve as an important counterpoint to the Executive Branch’s position.

We now know that there is broad agreement that if Texas Governor Perry goes forward with today’s scheduled execution of Humberto Leal, he will be doing so in violation of law.  Who has said so?  Well, the U.S. government, the U.S. Supreme Court, at least three concurring judges on the Texas Court of Criminal Appeals, a significant number of members of the House and Senate, along with the United Nations, Mexico (and many other states) and, of course, the International Court of Justice.  The problem for Leal and others whose death penalty convictions were obtained following a clear and acknowledged violation of U.S. obligations under the Consular Convention is not a lack of clarity about consular law.  The problem is the domestic remedy.  There are only two institutions remaining that can provide one to Mr. Leal today:  The U.S. Supreme Court, if it accepts the very strong argument of Leal’s attorneys and the Solicitor General that the Court should invoke its power under the All Writs Act to stay the execution until the proposed jurisdictional and remedial statute (the Consular Notification Compliance Act) is adopted by Congress, or Governor Perry.  Given Perry’s failure to stay the execution of Ernesto Medellin in 2008 — nothwithstanding the official position of the Bush administration to comply with the 2004 Avena decision of the ICJ  — there is little about the Leal case to suggest that Perry will change his international law-breaking ways.

Perry’s most likely political calculation on the question is summed up nicely/depressingly by this post by Thomas Lane over at Talking Points Memo, in which he says of efforts by the UN High Commissioner of Human Rights to sway Governor Perry:

International Law professors and Current TV producers probably aren’t going to be voting in the GOP primaries. Looking online at the types of people who may be, the blog “One Old Vet” puts the prevailing sentiment most succinctly: “This is America and Mexican law, as well as other international law, can go straight to hell!” Similarly, a Fox News write-up about the U.N. intervention grins, “Perry apparently doesn’t plan to take his cues from the U.N.”

So, things look fairly bleak for Mr. Leal. Indeed, one might say that if Perry does delay the execution, thus bowing to international pressure, it could be the clearest sign yet that he’s not running for president.

But some things are different today than they were for Medellin in 2008.  First, there is the quite stunning concurrence by three judges of the Texas State Court of Criminal Appeals, which explicitly  adopts the concurring opinion of Justice Sevens in the Medellin v. Texas decision.  Stevens concurred with the majority’s decision in Medellin that the ICJ judgment did not create binding domestic law, i.e., it did not create a remedy.  Stevens noted, however, that it rested with Texas (a view Julian Ku enthusiastically endorsed here) to carry out the U.S. international legal obligation to provide the additional hearing ordered by the ICJ in Avena.  After concluding that that Texas law constrained them from entertaining his request for the stay, the concurring justices wrote:

This does not mean [Leal] lacks any state remedy at all. The Executive Department has the power, unfettered as ours is, to grant the applicant a reprieve. And it is precisely when the Judicial Department proves institutionally unequal to the task that the exercise of executive clemency is most appropriate. With the recommendation of the Board of Pardons and Paroles, the Governor may effectively stay the applicant’s execution until such time as legislation passes that finally implements our indisputable treaty obligations and provides a remedy for the applicant’s right under international law. By himself, the Governor can grant one thirty-day reprieve, affording the trial court an opportunity to delay re-imposition of sentence until such time as implementing legislation may pass.  In this way, Texas can still honor its duty under the Supremacy Clause to honor the treaty obligations of the United States, just as Justice Stevens has implored us to do.

The Board of Pardons and Paroles has not recommended a stay in this case.  But with pending federal legislation, there is a stronger argument than in 2008 for the GOP Texas congressional delegation to support Perry in a move to grant a reprieve.  It does not appear politically likely, but at least there is a relevant and compelling change in domestic legal circumstances here.

If neither the Supreme Court nor Perry grants a stay, the U.S. will once again be responsible for executing a foreign national in violation of international law.  And we can expect even tougher times ahead for American consular and human rights officials trying to convince other states around the world to obey well-established and broadly recognized international law.

The article, Foreign Officials Immunity Determinations in U.S. Courts:  The
Case Against the State Department, considers the executive branch’s power to make foreign official immunity determinations that are binding in U.S. courts. As many readers know, the Foreign Sovereign Immunities Act governs the immunity of foreign states in U.S. courts. This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court held in Yousuf v. Samantar (2010).

Instead, the Court reasoned in Samantar, the immunity of foreign government officials is controlled by common law. But there is no extant body of federal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims the constitutional power to make individual immunity determinations on a case-by-case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination. This argument was made to Supreme Court in Samantar (pages 8-13 and 27-28), and also in the 2007 briefing in the Dichter case before the Second Circuit, (pages 2-4).  The issue is a significant one in pending cases: in February, the government submitted a Statement of Interest in the Samantar case on remand (opposing immunity), the district court denied immunity shortly thereafter, and the defendant’s motion for reconsideration was denied.   In March, the government suggested immunity for former Colombian President Alvaro Uribe in the Giraldo v. Drummond case.

The article considers potential constitutional, statutory, and functional bases for the power claimed by the executive branch, and finds them unconvincing.  With respect to the Constitution, there are two older admiralty cases that reason in cursory terms that the executive branch controls foreign state immunity determinations. These cases do not discuss the text of the Constitution, which is generally understood as vesting “law-making” power in Congress, not the executive branch, as emphasized in Youngstown and more recently in Medellin.  Although the Court has held that President has the power to preempt state law by settling claims with foreign governments, immunity determinations share neither the long-standing history nor the (implicit) approval of Congress, both of which the Court has relied upon in the claim-settlement context.

Whether you agree with this argument or not, one purpose of the article is to show the link between the power asserted in the Samantar line of cases and the President’s power in foreign affairs cases more generally, which neither the government’s briefing nor the Court’s opinion addresses.

Turning to statutory arguments, one might argue that the FSIA itself implicitly authorizes the President to make binding immunity determinations for government officials because the statute is explicitly designed to limit executive power – but it applies only to cases against states, not those brought against officials.  Indeed, there is language in Samantar that suggests this, although there is also language that points that other way.  Other statutes from which the Court has inferred congressional approval or acquiescence are significantly different from the FSIA:  they are designed to empower (not limit) the President.

Binding immunity determinations by the executive branch are also problematic from a functional perspective.  Courts will make determinations about the immunity of states by applying the statute, yet in many cases there will be overlap between issues that arise in determining individual and state immunity.  Examples include determination of agency or instrumentality status (relevant to whether or not the individual is a government official at all), and waiver.  There are thus risks of inconsistent adjudications if the courts control the immunity of states, and the executive controls the immunity of individual defendants, especially as both kinds of defendant might be sued in the same case.  The statute was designed in part to prevent inconsistent adjudications, however.

Other functional considerations also suggest that executive branch immunity determinations will not work well. Executive branch determinations of state immunity were treated as binding on the courts from the early 1940’s through the late 1970s (when the FSIA was enacted), and the results were unsatisfactory – as the State Department itself argued to Congress in support of the FSIA. Although the State Department will surely make reasoned and careful immunity determinations, these functional problems will over time arise in cases against individuals just as they did in cases against states.  Finally, there is strong support in the case law for the courts’ power to develop federal common law of foreign official immunity:  this is the approach the Court has taken in the Act of State context which is quite similar to immunity, and it is especially appropriate to ensure that Congress’s goals in FSIA are realized, as the Court reasoned with respect to the Federal Tort Claims Act in the Boyle case.

There are many issues I have not addressed in this post, including international law and comparative analysis, and comments on all aspects of foreign official/state immunity are welcome.  Thanks in advance to the three people who have agreed to formally comment on this post and the article.

Over the course of the next few days we are pleased to have Ingrid Wuerth discuss her article on Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department. Her article was recently published in the Virginia Journal of International Law. She argues that the text and structure of the Constitution, functional and historical arguments, the Court’s case law, and implied congressional authorization are all examined and rejected as possible grounds for the power asserted by the executive branch to make determinations as to foreign officials immunity. Instead, the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds.

Curtis Bradley, Larry Helfer and David Stewart will respond to Ingrid’s article. Welcome!

Cross posted at Balkinization

Big news in the past day is the Obama administration’s announcement that a Somali national captured by the U.S. military somewhere in the Gulf has been transferred to New York for federal prosecution on terrorism-related charges.  According to the Justice Department (DOJ), the man, Warsame, was “questioned for intelligence purposes for more than two months” after his capture on April 19, 2011. The Times is here. Bobby Chesney has a link to the indictment and some analysis here.

Between ongoing debates on the Hill about the need to clarify the domestic authority for the President’s use of force against Al Qaeda et al., largely unrelated but similarly vigorous debates about the legality of operations in Libya, and this, an already busy summer on matters U.S. law and security-related just got a lot busier.  Still trying to digest what is known/not known about the latest case, but for now it might be helpful just to highlight some of the questions relevant to assessing the legality of the U.S. actions.

(1) Initial capture. A first question under international law: did the United States violate the territorial integrity of another state to affect the capture? DOJ seems to say only that the man was captured in the Gulf region, but the Times reports that the capture was made in international waters.  If true, the U.S. may avoid this issue, but hard to assess the finality of the Times’ report (it seems sourced only to one U.S. official).

(2) Detention. Here there are questions of both domestic and international law.  (A) Did the U.S. military have domestic authority to detain this guy?  Presumably it was acting under the statutory AUMF we’ve been discussing so much of late (e.g. here), on the theory that the statute authorizing the President to use force against those persons and organizations he deems responsible for the attacks of 9/11.  That such persons or organizations may be captured outside the confines of the Afghan/Pakistan battlefield has long been a (more or less explicit) part of both Bush and Obama administrations’ readings of that statute, a reading informed (in this administration) by the understanding that the international law of armed conflict (the law of war, IHL) does not prohibit otherwise authorized security-related detention.  The courts have not foreclosed this reading,
but neither, I believe, has it been conclusively upheld outside the Afghan/Pakistan setting.  (Someone will correct me if I’ve missed a case here…?) Probably a greater issue in this case: to what extent are the terrorist groups Warsame is alleged to be supporting – Al Qaeda in the Arabian Peninsula (AQAP) and al Shabab – within the scope of the AUMF?  Al Shabab is most obviously a domestic Somali insurgent group, and its links to Al Qaeda are, at least from what one can glean in the open literature, uncertain at best.  AQAP’s connection with the Al Qaeda of the attacks of 9/11 is plausible, but still pretty murky. As I’ve noted here before, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.

(B) As for international law, the law that applies depends in the first instance on whether one buys the idea that this detention came as part of an armed conflict. If AQAP and al Shabab are in an IHL sense associated with Al Qaeda (not an insubstantial if), then the theory that the lHL applies is nothing new from the U.S. government.  And there is nothing in IHL that prohibits the detention of individuals other than those entitled to, for example, formal POW status.  The critical thing IHL requires in circumstances of non-international armed conflict (a conflict between a state party and another identifiable party, not a state) is that the United States abide by the protections of Common Article 3 of the Geneva Conventions.  Central there, CA3’s prohibition against torture and any “outrages upon personal dignity, in particular humiliating and degrading treatment.”  The most reassuring signal on this would be whether the International Red Cross (ICRC) had access to Warsame during any of the two months he was held in ship’s custody. If, however, one is not convinced of the relationship of these groups to those who perpetrated the attacks of 9/11, and/or one has never bought into the idea that the United States is in a non-international armed conflict with those groups in the first place, then it is international human rights law and not IHL that applies. There, the most important treaty is the ICCPR, especially Article 9, which prohibits arbitrary arrests and requires a certain amount of process promptly upon capture.  (ICCPR also of course prohibits torture, etc.) No indication what if anything Warsame was told during these two months about why he was being held. 

(3) Prosecution. Now that Warsame has been brought to the United States for criminal prosecution, a separate set of questions arise under U.S. constitutional law.  There are potentially many, so I’ll just flag a few here.  One must assume that some pretty smart and experienced federal prosecutors already walked through these in far greater detail and concluded they’re surmountable obstacles before moving ahead with this particular case.  Take the 6th amendment speedy trial right.  There’s now precedent from the successful Ghailani prosecution in federal court holding that the period during which the defendant was held for intelligence-gathering purposes should be excluded from the speedy trial analysis.  This ruling was not without caveats, and I think it reasonable to expect that this conclusion turns at least in part on an assessment that the intelligence-related detention was lawful in the first instance (see questions about the legality of this detention above).  So defense counsel will have some argument here.  But I wouldn’t put money on defense prevailing on this one.  Then there’s the two month delay in the reading of Miranda rights (you have the right to an attorney, etc.).  Miranda becomes relevant only if the government seeks to introduce un-Mirandized evidence in at trial.  Mr. Warsame presumably has a strong argument that any statements he made pre-Miranda should not be considered admissible in trial.  But I’ll be surprised if the government seeks to introduce any of those statements into evidence. Odds seem high that the government thinks it can make its criminal case without any of the pre-Miranda statements. Among other things, evidently Mr. Warsame waived his rights continued to talk even after Miranda was read.

I’m under the pump because of a deadline, but I wanted to call readers’ attention to a short editorial at OpenDemocracy.net written by Victor Kattan about the PLO/PA’s intention to ask the UN General Assembly to recognize Palestinian statehood in September.  Victor discusses a variety of interesting diplomatic and legal aspects of that intention, including the possibility that the PLO/PA will seek “observer state” status instead of full statehood.  Anyone interested in the topic should check the editorial out.

I also wanted to offer a (much belated) recommendation for Victor’s latest book, entitled “From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949.”  Here is the cover:

And here is the description:

From Coexistence to Conquest seeks to explain how the Arab-Israeli conflict developed by looking beyond strict legalism to the men behind the policies adopted by the Great Powers at the dawn of the twentieth century.  It controversially argues that Zionism was adopted by the British Government in its 1917 Balfour Declaration primarily as an immigration device and that it can be traced back to the 1903 Royal Commission on Alien Immigration and the Alien’s Act 1905.

The book contains the most detailed legal analysis of the 1915-6 Hussein-McMahon correspondence, as well as the Balfour Declaration, and takes a closer look at the travaux préparatoires that formed the British Mandate of Palestine.  It places the violent reaction of the Palestine Arabs to mass Jewish immigration in the context of Zionism, highlighting the findings of several British commissions of inquiry which recommended that Britain abandon its policy.  The book also revisits the controversies over the question of self-determination, and the partition of Palestine.

The Chapter on the 1948 conflict seeks to update international lawyers on the scholarship of Israel’s ‘new’ historians and reproduces some of the horrific accounts of the atrocities that took place from newspaper reports, UN documents, and personal accounts, which saw the expulsion and exodus of almost an entire people from their homeland. The penultimate chapter argues that Israel was created through an act of conquest or subjugation. The book concludes with a sobering analysis of the conflict arguing that neither Jews nor Arabs were to blame for starting it.

It’s a remarkable work, bound to stir strong reactions.  You can find reviews and additional information at Victor’s website here, and you can buy the book here.

Last week Julian Ku and I had the pleasure of working with Business Roundtable and a wonderful group of international law scholars–Rudolf Dolzer, Burkhard Hess, Herbert Kronke, Davis Robinson, Christoph Schreuer, and Janet Walker–on a Second Circuit amicus brief addressing the propriety of antisuit injunctions under international law. The amicus brief addresses an appeal of Judge Kaplan of the Southern District of New York’s preliminary injunction enjoining Ecuadorians and their lawyers from enforcing the $18 billion Ecuadorian judgment, concluding that their was a substantial likelihood that Chevron would prevail in its argument that the judgment was procured by fraud. Here’s our summary argument:

Antisuit injunctions are well-established judicial devices recognized by countries around the world. Contrary to the position of Defendants’ amici International Law Professors (“Anton Professors”), use of such injunctions does not violate public international law principles of non-intervention in the affairs of other states. Nor does the District Court’s injunction implicate the “exhaustion of remedies” requirement or exceed international law limits on adjudicatory jurisdiction.

While antisuit injunctions do require sensitivity to concerns for international comity, recourse to an antisuit injunction in order to prevent fraud and injustice does not offend principles of international comity. International comity as applied in this Court is designed to protect amicable working relationships with other countries. The fact that New York is the natural forum and the court first seized with an enforcement action, and that there are no concurrent proceedings or objections from countries where other enforcement actions might be brought, supports a finding that the antisuit injunction does not offend international comity. Nor is international comity offended if the District Court refuses to recognize and enforce an Ecuadorian judgment that was procured by fraud or that otherwise does not satisfy the traditional grounds for recognition and enforcement of foreign judgments.

The propriety of antisuit injunctions under international law and comity, especially to prevent fraud and injustice, is confirmed by the acceptance of such injunctions in jurisdictions around the world. Every major common law country in the world allows antisuit injunctions. These countries all recognize the legitimacy of issuing antisuit injunctions to prevent injustice, including measures to prevent the enforcement of foreign judgments procured by fraud.

Today civil law countries are inclined to recognize the use of antisuit injunctions by courts in common law countries to restrain proceedings in civil law countries. Civil law countries also have developed their own tools to achieve the equivalent of an antisuit injunction. To the extent courts in civil law countries are called upon to address an antisuit injunction such as that issued by the District Court in this case, they are well within their authority to recognize such an injunction under the balancing test that their doctrine of comity employs. EU law preventing antisuit injunctions as between Member States does not preclude recognition of antisuit injunctions issued by a court in a non-EU Member State.

This brief was written largely in response to another amicus brief written by a group of international law professors supporting the Ecuadorian defendants-appellants, led by Donald Anton of the Australian National University College of Law. Here’s their summary of argument:

This case involves important international legal issues associated with the exercise of adjudicatory jurisdiction by the District Court in this case. The District Court’s failure to consider and apply international legal obligations binding on the United States has resulted in reversible error. The preliminary injunction should be dissolved and the case dismissed.

First, the preliminary injunction granted in this case is framed in such a way so as to violate the ancient customary international law principle of nonintervention. It does this by illegally intruding into Ecuador’s external domestic affairs by, in essence, prohibiting any other state from independently ruling on the issue of recognition and enforcement of the Ecuadorian judgment against Chevron.

Second, the assertion of jurisdiction by the District Court is prohibited by the customary international law limitation of reasonableness because the defendants in this case lack any internationally legally significant contact with the United States.

Third, the District Court’s preliminary injunction cannot stop Ecuadorian defendants from seeking to enforce the judgment outside the United States. It cannot compel any other state from assuming jurisdiction and deciding for itself the issues of recognition and enforcement. It is accordingly a futile order and should be dissolved as improvidently granted.

Fourth, the District Court’s injunctive relief offends basic standards of international comity because the preliminary injunction high handedly purports to stake out exclusive world-wide jurisdiction.

Fifth, the exhaustion of local remedies by Chevron in Ecuador is required by international law. Because the judgment in Ecuador is not final, the District Court should not have accepted jurisdiction.

Of course, the central focus of the Second Circuit’s decision will not be international law, but rather the proper application of Second Circuit precedent on antisuit injunctions. Peter “Bo” Rutledge of Georgia Law School has a great amicus brief on behalf of the U.S. Chamber of Commerce addressing that issue. The brief of the Ecuadorian defendants-appellants is here and Chevron’s brief is here.

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

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

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

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

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

Ben Wittes, long an advocate for clearer domestic legislation authorizing U.S. detention operations, writes to ask whether my recent post favoring the Senate’s over the House’s version of pending legislation signals a shift in my position opposing new such legislation. The short answer is no. Here’s why.

I’d praised the Senate’s draft of force authorization language as follows: “Where the House bill seemed intent on expanding the scope of that authorization (indeed, on expanding our understanding of the nature of the armed conflict in which the United States is engaged), the Senate bill appears to contain no such language. On the contrary, it ties detention authority squarely to the 2001 AUMF, and describes the scope of that detention authority precisely as the courts (and Obama Administration) have done in the Guantanamo habeas cases in the federal courts. It also, for the first time, makes express Congress’ intention that detention under this authority be carried out pursuant to the law of war.” In response, Ben asks: “Is there a softening here of opposition to detention legislation? Or is the apparent complacency about the Senate language merely complacency relative to the House language?”

It’s the latter. I’d intended to express a preference for the Senate version over the House version among bills currently on the table; not to express a preference for any legislation here over none. For reasons I’ve often expressed, I don’t think new legislation at this point purporting to clarify the domestic authority the detention operations we’ve been engaged in for a decade serves a productive purpose, either as a matter of policy or law. With respect to those currently detained, the courts have now reached a relative consensus on who may be lawfully held, reflecting a standard largely embraced by the executive as well. (It is a not a consensus with which I agree in all respects, but there can be little question that its contours have been subject to vigorous, adversarial debate: Congress passed a general law in the AUMF, the current executive proposed an interpretation of it (in light of intervening Supreme Court decisions), and the courts subsequently embraced that interpretation (more or less).) On the particular question of whether the existing detention authority should be interpreted in light of applicable international law, the President and the Supreme Court both, rightly, think it should. Only a few judges on the D.C. Circuit seem to think otherwise. I think the Senate version on this issue sensibly comes down on the side of the President.) It took a decade to arrive at this point of relative clarity. New legislation would not usefully put a period at the end of that discussion. It would serve only to open a new series of debates.

But I don’t actually think the proponents of new legislation are mostly concerned with adding clarity, or due process legitimacy, to what has been done. As the House version of the pending legislation suggests, the purpose I think motivating most who are interested in new legislation is to make clear that what detention authority already exists should continue to exist, and in broader form, going forward. That is, that the United States should continue to have the authority to detain not only those held in the conflict in Afghanistan, for example, but also anyone we might pick up and suspect of terrorist activity anywhere else, whether or not tied to the attacks of September 11. It is hardly congressional engagement I object to in general. It is the content of this particular legislative action – the notion that broadening existing military detention authority (and, one might add, hamstringing the executive’s ability to prosecute detainees criminally) to combat the threat of international terrorism is a good idea. So given a choice between a bill that pursues this more-detention goal (the House version) and one that, as best I can tell, does not (the Senate), I’d certainly prefer the latter. That said, if I’m misreading the Senate bill – if it does in some way expand the scope of who may be detained beyond what the courts have said the existing AUMF already does – I’d be most interested to understand how.

Humberto Leal is scheduled for execution in Texas on July 7th. A Mexican national, Leal was not notified of his right to consular assistance under the Vienna Convention of Consular Relations. In light of the International Court of Justice’s decision in the Avena case (Mexico v. U.S.), Congress is currently working on legislation to bring the U.S. into compliance with its international legal obligations.  But it won’t be able to do so before Leal’s execution date.  And so the Solicitor General has filed a brief before the U.S. Supreme Court supporting Leal’s request for a stay of execution.  The brief is available here in .pdf. Aside from the SG and members of his office, State Department Legal Adviser Harold Koh and the State Department’s Counselor of International Law Sarah Cleveland are also on the brief.

This is a very important case in regards not only to the VCCR, but also the ability of the Executive to manage foreign affairs. We at Opinio Juris will have more on this later, but for now here is the opening of the brief which frames the issues (citations have been omitted and emphasis added):

The Solicitor General, on behalf of the United States, respectfully files this brief as amicus curiae in support of the applications for a stay of execution. The imminent execution of petitioner would place the United States in irreparable breach of its international-law obligation to afford petitioner review and reconsideration of his claim that his conviction and sentence were prejudiced by Texas authorities’ failure to provide consular notification and assistance under the Vienna Convention on Consular Relations. This Court has made clear that Congress has the constitutional authority to provide a federal remedy that would bring the United States into compliance with its international legal obligation. Legislation has been introduced in the United States Senate, with the full support of the Executive Branch, to achieve this objective. The Attorney General and the Secretary of State have submitted a joint letter to the Chairman of the Senate Judiciary Committee attesting to the government’s strong support for the legislation.

Ensuring that the United States complies with its international obligations regarding consular notification and access serves vital national interests. These interests include protecting Americans abroad, fostering cooperation with foreign nations, and demonstrating respect for the international rule of law. The recently introduced Senate bill that would bring the United States into compliance, however, cannot be enacted before petitioner’s scheduled July 7, 2011, execution date. To permit Congress a reasonable period in which to act on the bill, a stay of execution until the adjournment of the current session of Congress (which must occur by January 3, 2012) is therefore warranted. This Court has authority to grant a stay under the All Writs Act, 28 U.S.C. 1651, and doing so would accord with the Court’s traditional standards and serve compelling national interests.