Saturday, January 15, 2005

Breyer v. Scalia on Foreign Law and Constitutional Interpretation

As Chris noted, Justice Breyer and Scalia engaged in an unusual public "conversation" about the use of foreign law in constitutional interpretation last Thursday. The transcript has been posted here (via how appealing ). This exchange has already been the subject of numerous posts in the blogosphere here and here. I don't have much more to add except to observe that Justice Breyer's defense is essentially that since foreign law is not binding, it can't really be that bad (and might well be helpful) for constitutional interpretation. This is an attractive position, perhaps, but it is useful to compare Justice Breyer's defense with Justice Scalia's approach, which provides a theory of constitutional interpretation which coherently explains why foreign law is irrelevant. Justice Breyer's approach lacks any coherent theory explaining why foreign law is relevant and, for that reason alone, is less persuasive. I do think there are coherent theories of why foreign law might matter, but Justice Breyer has simply failed to identify or endorse any of them. Any thoughts, Chris or Peggy?


Friday, January 14, 2005

John Yoo Rethinks War Powers

John Yoo, a law professor at the University of California at Berkeley, has become somewhat well known recently for his role in shaping the Bush Administration's legal approach to the war on terrorism, and in particular, the effect of treaties and statutes prohibiting torture on U.S. government policy in Guantanamo Bay and Afghanistan. But prior to his recent fifteen minutes of fame, Yoo was well-known in the legal academy for his view that the original understanding of the Constitution does not require the President to get a declaration of war or even any other form of congressional authorization before engaging in major military hostilities.

This week, he has posted an article that does not back away from his previous positions, but which does suggest a different approach. Given the transformation of warfare and the different nature of the war against terrorism, he argues against constitutionalizing war powers law into a rigid "Congress-must-authorize-first" rule. Rather, he suggests that the political process might work out the best approach. I don't know if I agree with his approach, but I do think he is asking the most important question facing lawyers and scholars who are interested in this subject: is the war on terrorism "different" in some way that calls for a different understanding of the law governing the use of military force? I don't think anyone who has a view on, say the status of enemy combatants, the applicability of the Geneva Conventions to alleged Al Qaeda suspects, and other legal questions can avoid taking a position on this question.

Bias and Decline at the International Court of Justice

One of the things I think we can provide to blog readers is an insight into what international law academics are thinking and writing about. And not just what the three of us are thinking about (as valuable of course as that may be). Peggy has already gotten us started with her post about Peter Spiro's recent work. In the same vein, I thought I would point to two recent articles by Eric Posner about the International Court of Justice. The first, "Is the International Court of Justice Biased?", which does an empirical study finding bias in judges on the ICJ toward the countries that appoint them and toward countries with similar levels of wealth. The second, "The Decline of the International Court of Justice" argues that the ICJ is hearing fewer cases (relative to the number of states that exist) and tries to explain why the court is hearing fewer and fewer cases.

Both articles cast a skeptical eye on the normative claims sometimes used by enthusiasts for institutions like the ICJ. This matters for us as international lawyers because if the institutions that are charged with interpreting and developing international law have flaws, that should effect how we think about the importance of that law in general (as we have been discussing in the last few posts).

Thursday, January 13, 2005

Accountability, Indeed

Chris, Julian --

It looks like we are not immune from the general tendency of commentators to talk past each other on the question of UN reform and the value of international law and institutions to US interests. Let me try to unpack what we mean by accountability by refining what Chris referred to as the "ends/means" debate.

Implicit in my discussion of UN reform was the assumption that there is enduring value to an international institution that is open to universal membership and predicated on the idea that peace is preferable to war, cooperation is preferable to conflict and that all human beings are entitled to the protection of some basic rights. Those of us who believe that such an institution has served and will continue to serve the long-term interests of the United States (as well as the long-term interests of all actors in the international system) must work to ensure that the institution is capable of carrying out that mandate. That means paying attention to "little" things, such as fiscal corruption and incompetence within the bureaucracy, as well as to "large" things, such as institutional norms that undermine the central tenets of the institution. The former requires the relatively simple steps of adopting transparent systems of control with which most advanced democracies have experience. The latter is more difficult and may require, for example, reconsidering the rules governing membership on the Human Rights Commission, the structure of the Security Council, and, perhaps, the Charter provisions concerning how and when the collective security mechanisms are triggered. I will have more to say on this next week, but the difficulty of the Secretary General's High-Level Panel to reach consensus on amendments to the language of the Charter does not leave me optimistic that we will see change anytime soon on these larger issues.

On that hardy perennial of whether the US does or should hold itself to the standards of international law, I find myself somewhere in the middle of both your positions. The notion of American exceptionalism, i.e., that international law is good for everyone else, but not for us, is generally based on three arguments: 1) our domestic legal order is adequate and perhaps superior to international norms in solving our problems; 2) the domestic legal order under our Constitution should be the last word on how "we the people" order our democracy and conduct ourselves internationally; and 3) notwithstanding the merits of #1 or #2, it would be detrimental to our economic and political security to subject ourselves to outside rule making. The reality of globalization has eclipsed the first argument, and is reflected in broad US leadership in the internationalization of all aspects of economic regulation. (Admittedly, it is a form regulation that reflects our particular brand of free market capitalism, but it is nonetheless regulation, and the US is more or less living up to its obligations in that sphere.) The second and third arguments -- which seem to me implicit in Julian's comments -- are more challenging for those of us who support continuing US participation in the UN and other international institutions. Yes, Chris, the US ought to live up to the obligations it has undertaken. But what happens when the US changes its mind? What happens when those obligations no longer reflect the interests of the United States? Or when the international institutions no longer reflect their original purpose? What if populism resurges and Congress decides it does not like the rules of NAFTA of the WTO? What if, instead of Congress, its the President who changes his mind?

America's complicated relationship with international law has been around since the founding of the Republic. Jed Rubenfeld has an interesting commentary in the most recent NYU Law Review that traces some of the history of US unilateralist tendencies and concludes that the US should make a distinction between international cooperation (good because necessary to address global problems and promote US interests) and international governance (bad because anti-democratic and potentially adverse to US interests). The failure to articulate this distinction adequately in public discourse only exacerbates the tensions between us and our European counterparts -- whose acceptance of supranational governance is central to the European project -- on questions of international law. But the EU system is not our system.
This explains, in part, why we and the Europeans have been talking past each other on the issue of prosecutorial independence at the ICC.

The challenge for American internationalists is to devise and support rules of cooperation that actually promote global welfare and human dignity but that also preserve diverse domestic forms of democratic governance and accountability.

Accountability (Slight Return)

Julian's reply is informative but I think he is overstating my point and actually misses the core of my argument. In the end, I think we mean different things when we use the term "accountability."

He writes that I "concede there are all sorts of problems with international institutions, but then suggests that the United States doesn't really have all that much credibility when it criticizes those institutions due to the United States' various sins -- Chris describes it as a 'lack of accountability.'"

Julian is only half-right here; I do agree that there are all sorts of problems with international institutions, as there are all sorts of problems with the US and other national governments. I do not think that the US lacks credibility in criticizing the problems in the UN; the main issue as I see it is that the US is enthusiastic about international regimes of accountability (investor-state dispute resolution; war crimes tribunals) when they have little or no chance of applying to the US itself and we seem to lose our zeal for these institutions when they begin to question US attitudes.

This is the central issue--whether the US acts as international law is something that other countries need to worry about but not the US itself.

But, Julian replies, the US is subject to accountability, primarily to "its own voters, its own media elite, foreign countries, etc." This, I think, highlights what may be the key difference between Julian's argument and mine. If we take international law seriously, then it is something that gives rise, in its various forms, to obligations between the U.S. and foriegn countries, foriegn nationals, international organizations, etc. Simply hoping that domestic voters and domestic "media elite" (whatever that is) will hold the U.S. accountable is not enough. The rights-holders (foreign countries or nationals) should have a means to actually hold us accountable for the legal obligations that we have undertaken. After all, we demand that from other countries who sign various treaties with us such as Bilateral Investment Treaties. Hoping that voters and the media will do the job is not the rule of law; that is simply hoping that political pressure will suffice.

But what about foreign countries, as Julian says, can't they hold us accountable? And I ask, what do you mean by accountable? Simply making a speech before the UN General Assembly? I think accountability under the rule of law goes farther than that. It means if you have undertaken a legal obligation that provides a remedy to the rights-holder, then you respect that regime when you are the defendant as well as when you are the plaintiff.

Perhaps, at the heart of this, Julian and I aren't defining accountability the same way. While I have great faith in the American political process to provide political accountability of US leaders to American voters, I think international law is about providing legal accountability of the US to those foreign states and nationals with whom we have decided to create a legal obligation. Different issues needing different methods of accountability.

And, at the end of the day, the US and its nationals have been zealous in prosecuting their rights via these fora. I simply say we sould not be surprised and offended when we may be called in to defend our own actions. After all, nobody forced us to sign these treaties.

Accountability and First Principles

I am enjoying this discussion, not the least because it reveals some of the fundamentally different views of the law, and perhaps the world between Chris and myself.

Chris makes a move that I've seen many international lawyers make. He concedes there are all sorts of problems with international institutions, but then suggests that the United States doesn't really have all that much credibility when it criticizes those institutions due to the United States' various sins -- Chris describes it as a "lack of accountability."

There's an interesting problem here. Part of what keeps international institutions like the U.N. accountable is the threat, sometimes explicit, bythe United States and other countries that they will do the kinds of things Chris might describe as lacking respect for the international rule of law. Hence, one of the most important checks on the U.N., and one of the reasons the U.N. ever agreed to allow investigation into the Oil-for-Food scandal, was not the clamoring of NGOs, but the crusading of important U.S. Congressmen who were threatening to cut or withhold U.S. contributions to the U.N.'s budget. Imagine if the U.S. simply paid obeisance to the U.N. and the "international rule of law" and made its contributions without asking questions. Indeed, as Peggy points out, the United Nations Compensation Commission continues to stonewall even today claiming, among other things, that the Volcker Commission has no legal authority to investigate.

In a similar way, the U.S. criticism of the International Criminal Court has highlighted a serious flaw in the way that institution is designed. The choice to pursue prosecutions is, at the very least, partially political and granting unelected, unaccountable prosecutors the power to investigate and prosecute is always going to be slightly political. Just ask Bill Clinton or Ken Starr. The U.S. proposed a reasonable compromise that Chris alluded to. The international community (whatever that means) rejected it on the theory that the U.S. commitment to the "rule of law" would eventually bring them around. This hasn't happened and the ICC has not done itself any favors by suggesting U.S. multinational corporations could also fall within its jurisdiction (I pointed out in an earlier post that future Secretary of Homeland Security Chertoff made this point here).

So the paradox is that U.S. grousing about "sovereignty" is one of the only ways to actually keep international institutions like the U.N. accountable, something that Chris concedes is necessary. His other point, of course, is "who is going to keep the U.S. accountable"? I agree this might a problem, but I think the U.S. government is surprisingly accountable to a variety of constituencies: its own voters, its own media elite, foreign countries, etc. Notice that the Abu Ghraib trials continue with major media coverage due to a combination of these forces. It's not perfect, but at least the U.S. government has its own built-in system of accountability. I can't say that about either the U.N. or the ICC.

Wednesday, January 12, 2005

The Accountability Problem

I want to weave together a few separate strands from earlier postings, particularly the question of UN accountability, skepticism towards multilateralism, and the rule of law.

Julian is concerned about a double standard in which some commentators apply more lenient criteria to UN bad acts than to the U.S. I think we’re all in agreement that the UN needs to clean house in terms of financial mismanagement, accountability of peacekeepers, etc., but I also think that the U.S. should hold itself to the same levels of accountability that it is insisting on for the UN (as well as for other governments). And, as this discussion is about international law, I want to particularly focus on whether the U.S. is taking seriously its being accountable for some of its international commitments.

In On the Rule of Law, the book I highlighted in my previous post, Brian Tamanaha wrote:

While it might be correct that most laws are followed most of the time, the most powerful states, and less powerful states when it matters most to them, nonetheless disregard international law by their leave when they consider it necessary for perceived national interest or to preserve the regime in power. Realpolitik remains a predictable mainstay of international law.

I think that while many politically conservative critics of the UN rail against its lack of accountability, they also dislike multilateralism more generally because it increases the accountability of the U.S. concerning its international obligations. In other words, accountability is great from the UN but for the U.S. it is undesirable because it makes realpolitik more difficult. (This, by the way, is also why so many militarily weaker states are enthusiastic about international law on topics such as the use of force.)

Consider international courts and tribunals as an example of the tension between accountability and realpolitik. With the possible exception of the International Court of Justice, international tribunals until recently were largely constructed in a manner in which strong states could more easily call weaker states (or their citizens) to account for their actions than vice versa. The Nuremberg and Tokyo Tribunals were constructed by victorious allies. The Yugoslav and Rwandan Tribunals were managed by the international community (mainly the U.S. and E.U. states) and were focused on bad acts by the citizens from the countries that were tearing themselves apart, as opposed to the international troops dispatched into the warzones. On the economic side, the investor-state dispute provisions in bilateral investment treaties (BITs) were mainly used by companies from rich, developed, countries to protect their investments in poorer, developing nations.

But recently, new courts and tribunals have increasingly brought rich nations to account. NAFTA Chapter 11, for example, includes a dispute resolution procedure similar to most BITs, but now our co-signatories are Canada and Mexico. There is significant investment by Canadian and, to a lesser extent, Mexican companies into the U.S. Now the U.S. has found itself on the defensive on issues ranging from the regulation of gasoline additives to government procurement rules. All of a sudden, investor-state dispute resolution, a regime that the U.S. has pursued for 30 years, doesn’t seem like such a great idea in the eyes of many commentators.

Similarly, the International Criminal Court is built upon the same normative foundations as the Nuremberg, Rwanda, and Yugoslav tribunals. The ICC as an institution does have problems that should cause the U.S. concern, but the criticism I have seen most often is a fear of an independent prosecutor that could be politicized and hamper U.S. troops. The solution many such critics suggest is that the Security Council must ratify any indictment, thus leaving any potential indictment open to the veto of one of the permanent members of the Security Council, effectively immunizing them. More importantly, no solution short of this seems to satisfy such critics. It would be a triumph of realpolitik over accountability.

Here is my concern: some are using accountability as a sword to attack the UN because of its lack of accountability while at the same time shunning international institutions because they could call for U.S. accountability. Nobody says you have to be logically consistent, but the implications of such a stance are not good for the role of law in international affairs, let alone the rule of law.

Brian Tamanaha's On the Rule of Law

My next post will concern some issues of accountability and the rule of law, but I wanted to point out to anyone who may be interested that Cambridge University Press has just published a book entitled On the Rule of Law: History, Politics, Theory by my colleague here at St. John's Law, Brian Tamanaha. Many lawyers, especially legal philosophers and international lawyers, talk and write alot about the rule of law without necessarily considering whether the concept is one that has stayed constant or even whether it currently has different meanings for domestic legal systems and international law. Anyway, Tamanaha discusses these issues, going through a history of the concept of the rule of law from Roman times forward and also considers current debates on the rule of law in international law and as a "universal" value. I'll come back to this topic momentarily...

Tuesday, January 11, 2005

Justices Breyer and Scalia on Foreign Decisions and U.S. Constitutional Law

A quick note for anyone interested: a student has e-mailed me that this Thursday at 4:00 pm Eastern, C-Span will be airing a discussion with Supreme Court Justices Antonin Scalia and Stephen Breyer on “Whether Foreign Court Decisions Should Impact American Constitutional Law.”

Chertoff and the International Criminal Court

On a tangentially related topic, President Bush announced today that he is nominating Judge Michael Chertoff to be the new Homeland Security chief. I don't know all that much about Judge Chertoff, except that he is well-respected in conservative circles. Interestingly, he has penned what I think is a very convincing critique of the International Criminal Court based on the statements made by the ICC officials themselves, who have not exactly made any serious effort to gain acceptance in the U.S. for their controversial institution and who present an easy target for critics of international institutions and the UN system generally.

Double Standards and the UN

Just a quick note, because I think Chris' thoughtful response also illustrates part of the problem I was trying to get at in my first post. That is to say, do defenders of the UN engage in kneejerk defenses of the UN simply because their commitment to the UN's causes (e.g. world peace or, if you like, multilateral politics) is so strong? Put another way, do folks like the NYT editorial board apply something close to a double standard when criticizing the UN because it is a multilateral institution they like? I think there is some evidence of this.

Case in point. In recent months, the UN's Oil for Food Scandal has revealed that, at the very least, the UN has engaged in unbelievably poor management of a very important program which resulted in serious amounts of money, intended for Iraqi civilians, being diverted into the UN's own coffers or that of its employees. Unrelatedly, UN peacekeepers have been implicated in a disgusting and horrifying scandal in Africa involving abuse and rape of young girls by UN peacekeepers.

Many UN defenders are the same folks who still complain about U.S. funding of dictators in Latin America in the 1980s and who are (rightly) going to the mat over revelations of U.S. abuse in Iraq and perhaps elsewhere. But why give the UN a free pass?

I'll concede that there are UN critics who are equally one-sided, refusing to see wrong in the U.S. and refusing to see right in the UN. But their lack of critical sophistication does not excuse the UN's defenders in the mainstream media and the academy, who lose credibility among fair-minded observers when they apply a double-standard of outrage to their criticisms of their favorite multilateral institution.

Monday, January 10, 2005

Saving the UN from Itself (and Others)

Peggy and Julian have started us off with some great opening questions on UN reform. Also in the spirit of tossing our some preliminary comments, I want to begin by asking what it is we are actually debating about.

Criticisms of the UN generally come under two broad categories: means and ends. Critiques of the means of the UN focus on problems such as accountability including, for example, democratic accountability for how soldiers are used in peacekeeping operations and financial accountability in the case of the Oil-for-Food program. These criticisms don't really question the immediate ends of UN programs or the ultimate ends of the UN itself but rather how these policies are implemented. I take Julian's criticisms to be largely along these lines.

The other form of criticism-- the critique of ends-- has had a fairly loud voice (though not necessarily broad following) in recent US politics. These attacks are usually not aimed at the immediate ends of UN policies (say, separating warring factions in Country X) but rather at a sense that the real aim of the UN is to erode away the sovereignty of states in favor of its own prerogatives. Giving someone a veto over our security, so to speak. This argument is really about a distrust of multilateralism out of a fear that multilateralism evenutally becomes "one-worldism."

These two forms of argument are distinct and yet are too often combined when discussing the UN. Yet, you can be highly critical of the current practices of UN financial accountability, for example, and still find great use in multilateralism as a technique of statecraft. You can also find multilateralism can be a good way-- perhaps the only way-- to address many transnational problems (AIDS, serious environmental degradation, nuclear proliferation, genocide, to name a few) without for a moment thinking that we should cede as much power as possible to supranational bureaucrats.

Julian puts forward a stark question at the end of his post: he asks whether "the UN is such a corrupt and/or worthless institution that it should be scrapped." He suggests that although "the UN is doing important work and simply [needs] to be improved..." we may also need to reconsider the assumption "among folks like the NYT editorial board and by international law academics who have otherwise shown a fairly knee-jerk defense of the institution."

I agree that the UN needs fixing. I am sure that this is a topic that we will flesh out in the days and weeks to come. However I also think that multilateralism, though far from perfect, is prudent politics in a whole variety of issues. This is something that I think is lost in the heated rhetoric over Oil-for-Food or whether the UN should have acquiesced to US demands to go to war with Iraq as quickly as possible. Knee-jerk defenses of the UN serve it no good; knee-jerk attacks on multilateralism serve the US no good.

UN - Worth Saving?

Peggy,

Thanks for getting us off to a great start. The United Nations will no doubt be a perennial topic for us here.

The UN is obviously having a rough period, at least in the U.S., where congressional committees are harassing it and certain right-leaning parts of the media are relentlessly attacking it. The right-leaning blogosphere is certainly on the case, as this series of damning posts from (admittedly somewhat disgruntled) foreign service officers about the UN's efforts at tsunami relief illustrate.

In my humble opinion, most of these attacks are justified, and serve the salutory purpose of keeping the UN honest. Certainly, the UN's high purpose (maintaining peace and security) should not exempt it from the hurly-burly of the blogosphere and democratic politics.

The harder question is whether the UN is such a corrupt and/or worthless institution that it should be scrapped. This is hard to say. The mainstream view, as this NYT editorial (reg. req'd) no doubt reflects, is that the UN is doing important work and simply need to be improved. But I wonder if that assumption needs to be reconsidered among folks like the NYT editorial board and by international law academics who have otherwise shown a fairly knee-jerk defense of the institution.

UN Heal Thyself

The Volcker Commission investigating fraud in the UN Iraq oil-for-food program released dozens of internal UN audit documents this weekend along with a statement that UN auditors knew of at least $5 million in losses resulting from mismanagement of the program. The full report on the oil-for-food program is not due until the end of January, but one interesting aspect of the document released this weekend is alleged mismanagement at the UN Compensation Commission, which has maintained that Volcker had no legal basis to investigate ts activities in the first place. As the Washington Post reports today, Volcker uncovered serious problems in the Commission's auditing function, including troubling allegations that the Commission paid out undocumented claims against the Iraq government by third countries:

The auditors cited several cases in which countries made huge, undocumented claims. Iran claimed $2.7 billion in costs for providing humanitarian assistance to waves of refugees crossing its border. It received $7.87 million. Jordan put in a claim for more than $6.5 billion for providing relief to people fleeing Kuwait and Iraq, but received $72 million. Israel, which sought $1.06 billion in damages for Iraq's Scud missile attacks, got $74.6 million.

This should provide some additional fodder for at least one of the five congressional committees investigating UN fraud in the oil-for-food program.

Meanwhile, ripples from the Volcker Commission are felt on the Tsunami aid front, where Jan Egeland
announced that the UN has enlisted PricewaterhouseCoopers and other financial experts to create an external advisory and audit function for the Tsunami relief effort. Among other things, the outside experts (who are donating their services) are setting up a system to track every payment made out of the relief funds to avoid precisely those problems that occurred in the oil-for-food program. Outside auditors may not prevent determined individuals from lining their own pockets (see Enron), but with total pledged Tsunami aid approaching billions of dollars, this is a necessary and welcome effort to try to provide some public transparency and accountability to UN assistance programs. The US administration and UN-detractors on the Hill should support it. Transparency in bookkeeping is new to the United Nations, but it should be the norm.

On the topic of UN reform, ASIL will be hosting a
forum January 12 on the Report of the Secretary General's High-level Panel on Threats, Challenges and Change that was released in December. Steve Stedman and Ruth Wedgwood are the discussants. Well worth checking out if you are in the DC area this week.

International Law Comes Knocking

Speaking of ontological debates, cracks may be showing in the façade (or is it a bulwark?) of American constitutional exceptionalism, i.e., the notion that US constitutional interpretation should remain unaffected by transnational legal trends and developments. This recent essay (subscription req'd) by Peter Spiro addresses the issue by applying international relations theory to explain how the disaggregated strands of transnational legal developments that have already influenced many areas of US law -- intellectual property, antitrust, tax, procedure -- are also at work in the area of constitutional jurisprudence. Spiro melds rationalist accounts with constructivist theory to conclude that integration of international norms by domestic actors will accelerate because it is in the self-interest of domestic groups. Here's a snippet from the introduction:

[D]iscrete elements of the United States, including private actors and disaggregated governmental components beyond the traditional foreign policy apparatus, may be developing an institutional interest in the acceptance of international regimes. This essay thus suggests a future in which international law is absorbed into U.S. law not because it is good, although it may well be that, too, but because rational institutional action will pull in that direction.