Friday, February 18, 2005

Iraq Joins ICC: World Yawns

Am I the only person startled by Iraq's apparent decision to adhere to the International Criminal Court? Apparently, I am because none of the U.S. papers or even the BBC are reporting this story. The only reports I have been able to find confirming this announcement by the outgoing provisional government in Iraq have been in French newspapers. My French is not great, but this excerpt from Le Monde appears to confirm my earlier post:

La République d'Irak a adhéré au statut de Rome créant la Cour pénale internationale signé le 17 juillet 1998", indique le texte du décret-loi, soulignant que les dispositions de ce statut "représentent des valeurs communes à l'ensemble de l'humanité.

Maybe this was always going to happen. And maybe Iraq has already concluded an "Article 98" agreement that exempts U.S. or coalition forces from the jurisdiction of the ICC. But if not, this could be very important because U.S. soldiers who participated in the Abu Ghraib abuses or who are accused in the future of committing war crimes will be subject to the jurisdiction of the ICC. Even if U.S. soldiers do have an exemption, Iraq's decision to adhere to the ICC is a blow to U.S. given the strength of U.S. opposition to the ICC.

Does the Bush Administration Read Anne Marie Slaughter?

As I explained here, Dean Anne Marie Slaughter of Princeton is widely known for her study of transnational networks of governmental agencies and institutions that complement and may even substitute for traditional, formal forms of international cooperation in the form of treaties and international organizations. Whether they know it or not, the Bush Administration often follows this approach in a variety of areas, in addition to the Methane to Markets plan I discussed earlier this week. A brief survey of U.S. government press releases from yesterday reveals:
  • The FAA Director speaking at an international conference about improving the existing system of international airline safety regulation, all conducted on an agency-to-agency level with few formal international agreements.
  • The U.S. State Department inviting nations and NGOs to study ways to eliminate landmines.
  • The U.S. Commerce Secretary pledging U.S. cooperation in an international conference designed to set up a global observation system (to improve, among other things, observation of hurricanes, earthquakes, and of course, tsunamis).
  • The U.S. Energy Secretary's Global Threat Reduction Initiative , that works with various countries to secure nuclear waste.
  • The Proliferation Security Initiative, a partnership with 60 plus countries that allows U.S. navy ships to interdict shipments of nuclear materials on the high seas.
All of these initiatives may be window dressing, and all of these "partnerships" might be more effective as multilateral treaties involving the creation of an international institution or working with existing institutions. Or maybe not. These initiatives should also remind international lawyers that effective international cooperation can take many forms and that the "legal" one is not always the best.

Japan vs. China: Japan Agrees to Joint Taiwan Security Policy

According to reports, Japan has agreed to modify its U.S. security alliance to include Taiwan as a "common strategic objective." This may sound innocuous enough, but it means that for the first time, Japan will publicly commit itself to support the U.S. in the event of a Chinese military invasion of Taiwan. What kind of support it will provide is admittedly murky, but as one influential Japanese leader puts it: "It would be wrong for us to send a signal to China that the United States and Japan will watch and tolerate China's military invasion of Taiwan."

The Taiwanese are thrilled to get even this tepid endorsement of support. The Chinese, already fuming over Japanese assertion of territorial claims over the Senkaku Islands, are going to go ballistic (maybe literally). For an example of a somewhat tempered reaction to earlier Japanese actions, see here.

Those not familiar with recent East Asian history might find this whole thing unsurprising and perhaps uninteresting. But consider. What is the only thing worse for global peace and security than rogue nations acquiring weapons of mass destruction?

Answer: A full-scale military battle between China and the United States over Taiwan

This scary possibility might make me pine for an Asian multilateral organization to mediate this coming conflict, as Fukuyama has suggested. But Asia is not Europe and Japan and China are nothing like Germany and France. So the world will have to rely less on international lawyers and institutions (whose value can be debated anyway) and hope that their diplomats will be able save the day.

Americans' Support for UN is Falling

A new poll shows that the number of Americans who view the U.N. favorably has fallen from 44% to 37% since November, suggesting that the UN Oil-for-Food Scandal is having a negative effect (via Instapundit). Of course, only 54% of those polled were actually following the story but of those, 62% believe Kofi Annan should resign. These poll results are not exactly surprising, but they do reflect a much lower level of support for the U.N. than was suggested by this Chicago Council on Foreign Relations survey released last year. This survey suggested fairly strong support for the U.N. and international institutions generally coming up with a composite "temperature" support for the U.N. at 63%.

It is hard to gauge the American public's opinion for anything, much less international institutions which seem rather obscure to many people. One possibility to explain these disparate poll results is that Americans support the idea of the U.N., but are increasingly unhappy with the actual U.N. and its current leadership.

Or it may just be another reflection of the ambivilance Americans have always had of their proper relationship with international institutions. I've been reading Margaret MacMillan's Paris 1919: Six Months that Changed the World, an account of the 1919 Paris Peace Conference, and it is striking to read about Woodrow Wilson's insistence on establishing a League of Nations, even before coming to terms with Germany, as well as his micro-management of the details of the League's establishment. Having then pushed everyone else into accepting the League, he went home and found the Senate and the nation unwilling and uninterested.

Thursday, February 17, 2005

Clear Skies and Kyoto: A Response

Not surprisingly, some environmentalists are unhappy with Gregg Easterbrook's op-ed piece in yesterday's NY Times about the Bush administration's so-called "Clear Skies" initiative. (Julian posted earlier on Easterbrook's discussion of Methane-to-Markets in the TNR here, which Easterbrook views as complementary to Kyoto in terms of reducing greenhouse gases.) While we try to remain focused on international law here at Opinio Juris, the Clear Skies Initiative v. Clean Air Act debate has obvious implications on the value of the sort of "cap and trade" international environmental regulation which Kyoto represents, and on the value of voluntary v. mandatory rules more generally. The environmental community appears divided on whether a market-sensitive "cap and trade" system (Kyoto, Clear Skies) is preferable to the top-down approach of the 1970s era US regulations. With Kyoto, the central objection of the US government is not the "trades," but the "caps," which appear to impose a greater burden on the US as a developed nation, than on up-and-comers like India and China. With Clear Skies, the environmentalists are concerned with the caps, which they see as less stringent than the Clean Air Act, but also with the trades, which they see as compounding the problem of disparate impact of pollution on certain communities (a point about which environmentalists and states-rights advocates might find a point of agreement).

This comment submitted by Jessica Lawrence, a well-informed law student at the Univ. of Georgia (yes, we welcome submissions from students!), responds directly to the Easterbrook op-ed and summarizes the concerns of many environmentalists:

First, while the Clear Skies Act would establish cap-and-trade systems to limit the levels of Nitrous Oxides, Sulfur Dioxide, and Mercury, the Clear Skies Act's average 70% reduction in emissions over the next 14 years is less than the amount already required under the Clean Air Act. (ed.: Compare the data on Clean Air Act here with the data on Clear Skies here.)

Second, Clear Skies is not an alternative to the Kyoto Protocol. Clear Skies contains no provisions for the regulation of CO2, the chief pollutant responsible for global climate change. This is despite Bush's 2000 campaign promise that he would offer legislation to address those emissions. The only programs in place so far with respect to Carbon emissions are voluntary programs and research grants for the study of hydrogen and renewable power. While some of these programs are quite good as far as they go (the Energy Star program, for example, has received widespread approval from environmental agencies), they are by no means adequate. Consequently, contrary to what Easterbrook is trying to suggest, Clear Skies is not an effective alternative to Kyoto or to any other program that attempts to address carbon emissions (such as the Lieberman-McCain bill currently on the floor in congress).

Third, eliminating New Source Review (NSR) in favor of Clear Skies will likely
allow higher emission levels at individual utility plants, according to the National Research Council (whom Easterbrook incorrectly cites in his favor, given that the NRC's interim report was critical of the Clear Skies proposal). NSR provisions date from the 1977 amendments to the Clean Air Act. At that time, emissions limits overall were upgraded but old factories were exempt from compliance with the new rules. As a safeguard, the law included the NSR provision to require companies to employ the best available technology to update their older plants when they made changes that might increase emissions. This is important because it means that the standard updates are technology updates. Industry hates this rule. Bush has been consistently undermining these rules since he was first elected (he has, in fact, made overhauling it one of his top environmental priorities, and Clear Skies will completely hamstring the NSR --gutting the program as it relates to old coal-burning power plants. The administration bases its opposition to NSR primarily on the fact that the program has negatively affected energy projects, but Christine Todd Whitman (whom, Easterbrook also incorrectly cites in his favor) revealed in her new book It's My Party, Too that "at one meeting, after hearing one person after another lay blame for our energy crisis squarely at EPA's door, I asked them to prepare a list of energy projects that were being delayed because of environmental laws and regulations. Nobody ever did."

Fourth, cap-and-trade systems are good in theory because they achieve the same pollution-reduction result as more command-and-control style legislation while allowing industry some flexibility in determining how to make the cuts. Many environmentalists are in favor of them, at least in the abstract. Some, however, remain concerned there are equity concerns, for example, regarding the disparities in emissions reductions that these systems create. All communities are not benefited equally when companies can choose where they want to reduce and where they don't, and these systems may result in environmental injustice for those in areas with older plants that are more expensive to clean up. Also, because states are no longer able to form their own implementation plans, they cannot target specific areas are more in need of protection.

Fifth, Easterbrook's argument that these Clear Skies cap-and-trade proposals are the first step on the way to imposing a cap-and-trade system for CO2 emissions is somewhat perplexing. He claims that the successful implementation of the Clear Skies program will somehow “prove that the power industry as a whole can be subjected to a sweeping cap-and-trade rule without suffering economic harm or high costs --even though, as he himself points out, cap-and-trade has already worked in the same industry when the EPA imposed such a system on coal-fired power plants. Does he really think that changing the implementation strategy of the NOx and SO2 rules -- which are not additional to anything the power companies would not already have been subject to – will somehow convince industry and government to impose additional restrictions on a substance that is not yet regulated and whose impact (climate change) is questioned by the administration?

Sixth, Easterbrook's use of 1970 statistics as comparative models is also quite misleading. 1970 was the year the Clean Air Act was passed , so when he says that SO2 and NOx will be nearly eliminated as compared with 1970 levels, he is really comparing the proposals for future achievements with a time before a national comprehensive reductions program existed. The vast majority of these reductions (which he seems to imply will be brought about solely through the Clear Skies program) were actually achieved during the past three decades of Clean Air Act compliance. The reductions from current levels are much lower – and, as previously mentioned, the future reductions from the Clean Air Act would be greater than those proposed by Clear Skies.

Finally, Easterbrook also claims that a benefit of Clear Skies is that it would eliminate the "complex set of rules" and "case-by-case drawing up of plans" mandated by the Clean Air Act. This is a reference to the fact that under the 1990 revisions to the Clean Air Act, the states were given broad enforcement and regulatory powers. This was done so implementation programs could be designed that would accommodate the different problems of each individual state. States were required to develop SIPs explaining how they would meet the minimum national Clean Air standards. States had to involve the public in creating these SIPs and had the power to set regulations that can be stricter than the national
standards. So while it is true that the regulations are very complex, they were made that way in order to create the maximum amount of flexibility for local governments in determining how to implement these rules. Clear Skies will not allow state governments this control – under the cap-and-trade system, pollutant levels are looked at as national aggregates, and businesses will decide where the reductions will take place based on reduction costs for individual plants. In other words, it takes the control out of the hands of local governments and hands it over to industry.

Hotel Rwanda: The Opinio Juris Review

I saw Hotel Rwanda the other day with students from my Human Rights class. (Yes, it finally has been released in the Midwest.) If you haven't yet seen it, go. And take your students. Talk about it in class. It is rare when a Hollywood film addresses issues central to international law and human rights; rarer still when it goes to wide release and gets nominated for Academy Awards. My students have only vague memories of the events of the early 1990s, and the film medium is perfectly suited to bringing the tragedy of the Rwandan genocide to life. I will leave the acting and directing reviews to the professionals, but it is worth saying that you barely notice the acting (itself a good sign) in a film which immediately draws you in by the horrors about to unfold.

One thing left me intitially puzzled: the confusing and rather skimpy background on the Arusha peace process, the origins of the RPF and the assassination of President Habyarimana. I left the theater wondering if that would leave most viewers without the appropriate political context. It wasn't until the next day -- this is the kind of film that stays with you for a while -- that I realized the historical fuzziness was likely intentional. Whatever the facts are about who fought whom or who had the most to gain politically or economically from the Arusha Accords, nothing can "explain" genocide. No background is really needed.

What is well developed -- and helped with a haunting score that sounds the drumbeats of death -- is the role of Radio Mille Collines, which used the airwaves as an efficient medium to communicate the commands to kill. The extent to which the radio enabled the Interhamwe to carry out the genocide in a country that did not have the kind of machinery of death of the Nazis was not widely recognized until well after the genocide. The role of the broadcasters as the "command and control" of the genocidaires was revealed in the trials and convictions of three RMC "journalists" before the International Criminal Tribunal for Rwanda.

I have not read Paul Rusesabagina's autobiographical book on which the film is based, but understand from other sources that certain characters are composites (Nick Nolte as a Canadian Colonel in charge of the understaffed and doomed UN mission is based, loosely, on UNAMIR commander Romeo Dallaire). The extent to which the hotel, owned by the Belgian company Sabena, is spared from the killing because of its connection to powerful elites in the West is a bittersweet commentary on the utter failure of the West to intervene in any meaningful way to prevent or stop the slaughter outside the hotel gates. Rusesabagina is the main character, a decent, hardworking hotel manager who has bought into the product the Europeans and Americans have sold him: seamless customer service, a fine scotch, and a good Cuban cigar are the trappings civilization. He seems to suppress the misdeeds of the Belgian and German colonials (whose creation and exploitation of ethnic differences had left a scarred legacy on the region) And he doesn't realize, until it is too late, that geopolitics matter, and that western indifference to Africa would leave him and his countrymen to fend for themselves. In a poignant scene, Joachin Phoenix's character, a western tv cameraman who gets rare footage of some of the killing, cynically and, it turned out, accurately, predicts to Rusesabagina that outside help would not be coming: "If people see this footage, they'll say, 'Oh my God, that's terrible,' and they'll go on eating their dinners.''

ICC Watch: Iraq Accepts Jurisdiction

According to this report from Agence France Press, Iraq's interim government has accepted the jurisdiction of the International Criminal Court. There is no confirmation of this news from the ICC itself. This could be big news because depending on the nature of Iraq's acceptance, U.S. soldiers operating in Iraq could become subject to the ICC's jurisdiction (assuming that Iraq and the U.S. have not signed an agreement preventing such jurisdiction). Something to keep an eye on...

How to Sue the French Army

A group of Rwandans has filed a suit in France accusing French soldiers of complicity with the 1994 genocide of Tutsis. The French government probably bears the greatest responsibility (other than the Hutus themselves, obviously) for what happened in Rwanda given France's longtime support for the Hutu government there and its relatively large military presence in the region. If any single foreign country could have intervened in time to make a difference in 1994, it was France. (The current Rwanda government would go farther, essentially accusing the French of enabling the genocide to occur and of allowing war criminals to escape.)

According to this report, the lawsuit was filed in a special court with jurisdiction over French soldiers. There are some ugly allegations of French soldiers tossing Tutsis out of French helicopters.

If the Rwandans don't make any progress in this court, they probably should petition the International Criminal Tribunal for Rwanda. Additionally, they should have no serious problem coming to the U.S. to file a civil lawsuit under the Alien Tort Statute, which allows lawsuits by aliens against other aliens for violations of international law. I don't think France has ever been sued in an Alien Tort case, but I doubt the Rwandan plaintiffs will have a difficult time finding a sympathetic jury.

Darfur Deadlock: The Climbdown Begins

The EU's foreign policy chief Javier Solana may be conceding defeat on Europe's effort to win a Security Council referral for Darfur. Apparently, winning U.S. support for a referral is a lost cause, although there is still some hope that the U.S. will abstain from vetoing the referral. Still, the UK government has suggested its position on an ICC referral is negotiable, a possible signal that it is ready to back off and this has already drawn criticism from human rights groups. Indeed, UN Human Rights Commissioner Louise Arbour spent yesterday testifying to the Security Council about the need for quick action and an ICC referral.

I agree it would be extraordinary for the U.S. to veto action over this question, just as it would be extraordinary for the ICC supporters to veto a resolution sending peacekeepers just because there is no ICC referral. I just don't think the ICC is as important here as its supporters and critics make it out to be. It would be a ridiculous tragedy if the ICC debate undercut concrete action to stop the killing in Darfur.

Wednesday, February 16, 2005

The Ethics of International Lawyering and Judging

Peggy’s post on ethical lawyering and the torture memos brings up some excellent points concerning the ethical responsibilities of all lawyers and government lawyers in particular. As she and David Luban point out, lawyers do not act in an ethical vacuum, but have certain responsibilities (most clearly exemplified in the ABA’s Model Rules) concerning how they act and the advice that they give. These rules are the province of domestic bar associations and domestic laws and, although we are applying them here in a case with international implications, they are rules concerning how the U.S. believes U.S. lawyers should act when doing their jobs. (For more on the ethical implications of the “torture memos”, I suggest a work-in-progress by my colleague Rob Vischer, a legal ethicist.)

A broader question though, is what, if any ethical guidelines should frame the work of lawyers who practice before international tribunals and the judges serving on these tribunals? Should each lawyer be governed by their home state’s ethical rules or should there be a common set of rules that would apply to lawyers litigating before such tribunals? Perhaps more importantly, what should be the ethical rules for international judges, especially those on the ICJ, the ICC, and other permanent international courts.

These questions have been garnering increasing attention by lawyers in recent years. In 1996 Professor Detlev Vagts of Harvard wrote “The International Legal Profession: A Need for More Governance?” (The American Journal of International Law, Vol. 90, No. 2. (Apr., 1996), pp. 250-261 available on JSTOR, registration required), probably the best starting point for wanyone interested in considering these issues. He notes that, whereas the ABA’s Model Rules were designed to end conflicts between the codes of conduct of the different different states of the U.S., the ABA stated that “[t]he choice of law provision is not intended to apply to transnational practice. Choice of law in this context should be the subject of agreements between jurisdictions or of appropriate international law.” The catch is determining if there even is any appropriate internaternational law. Vagts finds a variety of clauses or rules in domestic laws, rules of arbitral for a (such as the International Chamber of Commerce, the Statute of the International Criminal Court, and other sources. The result, though, is full of “problems and uncertainties”: a lack of uniformity, a lack of clarity, a lack of comprehensiveness, and lack of consistency makes this welter of rules amount to less than the sum of its parts.

Many of these rules are a combination of particular rules provided by an organization and informal professional norms. In international arbitral practice, for example, formal requirements based on the specific arbitral rules being used are supplemented by a relatively rich set of informal codes of conduct. Yves Dezalay and Bryant Garth have written a fascinating study of the how international arbitral practice fashions its“rules of the road” called Dealing in Virtue.

But this is not the same as the formal rules that we can turn to in domestic fora. Moreover, this begs the question with reagrds to the permanent international courts and to international judging.

While the ICJ has certain standards written out in its Statute, there is a need for serious consideration of a more comprehensive set of norms that would apply to international judges more generally. The Project on International Courts and Tribunals has a program devoted to assessing the questions of ethics, accountability, and independence of international judges (see also the Report of the First Meeting of the International Law Association’s Study Group on International Courts and Tribunals).

As would be no surprise to readers of this blog, I think that international tribunals can play a useful role in international relations. For a tribunal to be effective, though, it needs (among other things) to be perceived as fair. Comprehensive rules of judicial ethics that are enforced by member states would be a step in the right direction.

Krasner Appointed Director of Policy Planning for the State Department

Professor Stephen Krasner, of Stanford's Poli-Sci Dept, has been appointed the new Director of Policy Planning for the State Department. Prof. Krasner is a well-respected scholar of international relations (his most recent book is Sovereignty: Organized Hypocrisy and an excerpt is published here) who will bring even more academic credibility to the post than usual, which has traditionally been held by the egghead-types like George Kennan and Paul Wolfowitz. The purpose of the job appears to be to develop "big-think" approaches to foreign policy like "containment" and "regime change." Of course, whether anyone listens to the Director of Policy Planning is an open question and depends on the particular administration.

Krasner is not associated with any particular ideological group. He is certainly not, in any sense, a card-carrying neocon (whatever that might mean). His primary qualification for the job, in addition to his obvious and impeccable academic ones, appears to be that he is a former colleague and friend of Secretary of State Rice. Within the world of IR, he is best classified as a "realist" but one who has engaged the other IR schools in a way that has earned their respect. What might a realist perspective say about international institutions and international law? In an interview, Krasner reveals his thoughts about the ICC and international justice (emphasis added):

One problem with the ICC is that you have no democratic accountability. But the deepest problem with the ICC and with other efforts, like universal jurisdiction, is that international politics is not something that you can deal with adequately using judicial reasoning. Judicial reasoning has to be based essentially on absolute rules, or at least more or less on absolute rules. It has to be deontological or Kantian. You have to have a set of rules and you have to honor the rules. You don't want the judge or a jury saying, "If I convict this guy, his family members or his gang members are going to be mad, so they're going to go out and shoot ten other people." No system of justice domestically that works well can work in that way. But in the international level, that kind of thinking is utterly irresponsible, because the critical issue at the international level is how you can maintain order, ideally have justice, and save lives. That requires utilitarian thinking. It requires thinking about the greatest good for the greatest number. I do not think there is any escape from this.

The Kyoto Experiment Begins

Today marks the entry into force of the Kyoto Protocol to the United Nations Framework Convention on Climate Change, one of the most ambitious international environmental treaties in world history. Whatever I might think of the merits of this project, the creation of a worldwide system of greenhouse gas emission regulation certainly is worthy of my interest as a scholar of international law.

For a list of events worldwide commemorating the day, see here. Japan kicked things off at 5:30 a.m. EDT in, of course, Kyoto. The conventional wisdom appears to be that U.S. companies will reduce greenhouse gas emissions anyway. Interestingly, as this neat graph shows, many countries that have signed Kyoto (like Spain and Portugal) have actually been heading in the wrong direction, increasing their GHG emissions since 1990 more than even the non-Kyoto U.S. has been doing.

Tuesday, February 15, 2005

Luban on the Ethical Implications of the Torture Memos

In a brief essay on Slate, David Luban argues that the OLC lawyers who drafted the infamous "torture memos" (discussed in earlier posts, here, here and here) have something in common with Lynne Stewart, who was convicted last week of material support for her client, Sheik Omar Abdel Rahman, the Egyptian cleric serving a life sentence for his role in the 1993 World Trade Center attack. Luban argues they all crossed an important ethical line. In Stewart's case, the jury concluded that her advocacy for her clients ran afoul of ABA Model Rule 1.2(d) -- assisting a client in conduct the lawyer knows is "criminal or fraudulent" -- as well as federal law prohibiting support for terrorism. In the case of the OLC lawyers, Luban argues that they ran afoul of the professional rules governing the role of legal advisers.

I have wondered about the scope of ethical obligations of legal advisers in government service since I first read the starkly conflicting memos to Alberto Gonzales written by the OLC lawyers and those written separately by William Taft and Colin Powell at State on the applicability of the Geneva Conventions to the Taliban and al Qaida detainees. The absence of alternative historical views and lack of policy context in the OLC memo struck me as rather glaring. (The strong disagreement on the law, history and policy interpretation between Taft and the State Dept lawyers on the one hand, and Yoo and the OLC on the other, is evident in this exchange of memos from early 2002.)

Luban, a leading scholar in professional responsibility provides an answer: ABA Model Rule 2.1, which provides that legal advisers "shall exercise independent professional judgment and render candid advice." Luban continues:
Legal advisers must play it straight, even where the "[l]egal advice [may] involve[] unpleasant facts and alternatives that a client may be disinclined to confront." Independence means saying what the law is -- as mainstream lawyers and judges understand it --regardless of what the client wishes it to be. Candor requires lawyers with eccentric theories to warn their clients whenever their legal advice veers away from the mainstream. The torture lawyers betrayed both these principles with the advice they gave the White House.

In the "
Bybee Memo," for example, candid advice demands that when you discuss the "necessity defense" to the crime of torture, you mention that the defense has always been a loser in federal court. In the case of a later OLC memo by now-Harvard law professor Jack Goldsmith on the Geneva Conventions, candor means forthrightly reminding your client that Geneva forbids coercive interrogations, not burying this unwelcome point in a vaguely worded footnote.

Luban goes on to note, however, that no one has ever been disciplined for this kind ethical line-crossing when it comes to "candid advice-giving." And, at least as regards the Geneva Conventions question, the client (President Bush, through his counsel, Alberto Gonzales) had access to the alternative view put forth by State. It nonetheless is an important discussion of slippery slope of ends-based advocacy, one which bears discussion with our students.

No doubt, there are strong views on where the ethical line is appropriately drawn. To promote open discussion of this issue, ASIL has placed it on the agenda for the Annual Meeting in Washington DC, with a panel entitled "Legal Ethics and the War on Terror: the Role of the Government Lawyer" scheduled for 2:15 pm on April 1. (The full Annual Meeting agenda is here.)

ICJ Watch: New Member of the Court Named

The General Assembly and Security Council approved the selection of Ronny Abraham to become a member of the International Court of Justice today. M. Abraham replaces Justice and former President of the Court Gilbert Guillaume, who resigned last Friday, and will serve out the rest of Guilliame's term, which expires in 2009. M. Abraham, a widely-respected French international lawyer, takes over the "French" seat on the ICJ which doesn't reserve seats for particular countries but, due to the requirement of Security Council approval, always seems to have judge from the permanent member countries of the Security Council.

Blogger Problems

As you can see, we have been having some technical difficulties. We hope to be back in business as soon as possible. Thanks for your patience.

Bob Jacobson on "Rule Sets" and Law

Bob Jacobson, a partner in New Rule Sets Project, LLC (the consulting firm started by Tom Barnett) and the Managing Editor of "Rule Set Reset," a journal that expands on the ideas of The Pentagon's New Map, has written reacting to my post comparing and contrasting the idea of "rule sets" to the lawyer's conception of international law. Bob writes that the post

...reminded me of an assertion by a former grad school chum, an aspiring writer, now a managing partner at one of the nation's largest law firms: "Lawyers see all phenomena through the lens of the law, so they can only detect and deal with issues visible in the legal spectrum." I'm not asserting that, but he did. In other words, to paraphrase my friend, we need to see law in the context of everything else...

In the competition between rule sets and laws, I believe that laws reign supreme because they got there first, not necessarily because they’re the best human method for dealing with natural and human phenomena. One of my discoveries as a policy analyst in the California legislature was how many important issues the law could not or chose not to deal with, or dealt with only partially (and usually inappropriately) -- this, despite the publication of some 7,000 new bills each two-year session. Effective politics and the law are only loosely joined.

It's no surprise to me that the broad sweep of Tom's universe of rule sets is not always congruent with the law. It's bigger than the law. The problem is that we haven't invented alternative social tools equal to the task of dealing with phenomena in their totality, either individually or relationally. Instead, we're left with the old standards-war, diplomacy, a volatile market/globalization, and the law-to solve closing the Gap...

The law is a collection of rule sets-but the law per se, as a category, is also a rule set. It works best under certain circumstances, less well under others. We may be reaching the limits of law as we know it.

I agree with Bob that the international law consists of a sub-set within the broadest conception of all possible rule sets. What I think is especially interesting though, is how non-lawyers approach the ideas of rules in general and how this may affect perceptions of international law. My main point is that international law is a bit different than other "non-law" rules sets because it includes the idea of individual right or entitlement and thus is not as easy to consider in a primarily instrumentalist manner.

Bush Plan Could Reduce Global Warming As Much as Kyoto

Gregg Easterbrook, no patsy for the Bush Administration, has a terrific column in this week's New Republic Online ($) pointing out that amid all the hoopla tomorrow over the entry into force of the Kyoto Protocol, the Bush EPA has quietly stitched together an international plan to reduce potential global warming gases in roughly the same amounts as Kyoto.

According to Easterbrook, the Bush "Methane to Markets" plan aims to reduce global methane emissions by 50 million metric tons of "carbon equivalent", which he says would result in about a 1% reduction in greenhouse gases (about the same as Kyoto). Even better, 16 leading industrialized countries, including China, have joined the initiative as well. Methane emissions are much more cheaply reduced and yet contribute much more to global warming (if it is happening) then regular CO2 emissions.

Easterbrook may be overstating the benefits of reducing methane, and he himself points out that if global warming is really happening, eventually CO2 gases like those targeted by Kyoto will have to be reduced. But reducing methane is still worth doing and could buy the world several decades while it figures out a cheaper and more effective way to solve the global warming problem. (He defends Kyoto on the same grounds).

From an international lawyer's perspective, the Bush methane plan is also interesting because it takes the form of an informal, voluntary international agreement between EPA Chief Michael Leavitt and the environmental ministers of the other countries. As such, the agreement probably doesn't have the status of a treaty under international law or even binding force under domestic law. But, as Dean Anne Marie Slaughter of Princeton has pointed out (in zillions of publications, here is just one example), such informal government networks constitute an important, and in some cases, primary form of international cooperation.

As Easterbrook notes, the utter and complete lack of coverage of this plan by the major media since it was announced last year is shocking, but not exactly surprising because it undercuts the easy story the media wants to tell: Bush Administration - Bad, European Union - Good. (To bloggers like Daniel Drezner, however, this is all very old news.)

I would simply add that the international lawyers often uncritically accept the same narrative about international relations. They then reflexively support of grand, fancy, global treaties like the Kyoto Protocol while overlooking the policy goals that are the whole point of the treaty in the first place (a point I was trying to make last week). If an informal voluntary agreement between administrative agencies can achieve just as much reduction in greenhouse gases as Kyoto at much lower cost, then it deserves our attention and (perhaps) our support as well.

Monday, February 14, 2005

U.S. Proposes UN Peacekeeping Force for Sudan

While the NYT and Samantha Power have been fretting about the U.S. opposition to an ICC referral for Sudan, the U.S. (apparently listening to the wise counsel of Peggy and/or Hillary Clinton) has moved ahead with a draft Security Council Resolution calling for a 10,000-man peacekeeping force for Sudan as well as various other measures. This will not solve everything and splits remain on whether to impose sanctions and how to punish various war crimes. But the U.S. decision to propose this resolution wisely avoids letting those issues prevent the UN from taking the crucial first step in doing something about the ongoing violence in Sudan.

Senate May Investigate CIA Detention, Interrogation and Rendition Practices

Is the Senate finally entering the fray on the torture debate? It is being reported that the Senate intelligence committee may be moving toward opening an investigation of CIA detention and interrogation techniques, as well as the CIA practice of rendition, whereby detainees are sent to third countries. If a formal investigation happens (which will only come about if there is strong Republican support for it), it may provide additional facts and a boost for plaintiffs lawyers representing detainees in pending habeas and civil actions. But even an informal review from the committee will be a welcome change from the silence we have heard to date.

Hillary Clinton calls for a NATO force in Darfur: But is it Legal?

With the NATO summit only 8 days away, in a speech in Germany yesterday, Senator Hillary Clinton called for a direct role for NATO to stop the killing in Darfur. (For the foreign policy wonks out there, it is interesting to note that she made public the fact that she got help on the speech from Richard Holbrooke, Sandy Berger and Jeffrey Smith, who each held senior foreign policy jobs under her husband's administration, and Brent Scowcroft, who was national security advisor to Bush 41.) I am, of course, relieved that a prominent US politician has finally said what needs to be said about Darfur, particularly as she seems to agree with positions I have laid out previously here and here.

But that leaves us with Julian's question to me last week: Is it lawful for a regional organization like NATO to use force without Security Council authority? The answer, I believe, is yes -- with certain qualifications. The UN Charter specifically contemplated the existence and necessity of regional organizations and defense alliances in carrying out collective security. This was due, in part, to the initial unavailability of the military committee that envisioned member states contributing troops to a permanent US force. Article 53 of the Charter, therefore, states that regional organizations can undertake any enforcement actions of the UN and also engage in collective self-defense of that organizations members. This has traditionally been interpreted as requiring prior Security Council authorization for any mission that is not self defense. The question raised by Darfur is one of a purely humanitarian mission, outside NATO (or the EU), and which is not yet authorized by the Security Council. In short, it is the NATO intervention in Kosovo all over again.

In Kosovo there was no Security Council resolution prior to the intervention, but after the intervention the SC passed Resolution 1244 that arguably legitimized/legalized the operation. Indeed, the commission that was tasked with investigating the Kosovo operations concluded:

[T]he NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule.

Some international law scholars have subsequently argued that, in light of the Kosovo Commission's conclusion, it is consistent with international law (through the emergence of a new"custom") to intervene on behalf of protecting human rights, so long as certain other elements are present (exhaustion of other avenues, legitimation through broader "internationalization" of the intervention after it occurs, etc.). For a helpful discussion, see Christine Gray's treatise, International Law and the Use of Force, and Antonio Cassese's 1999 comment in the EJIL.

Julian's other question was whether the conclusion by the UN that "crimes against humanity," but not genocide, have been committed in Darfur should have any effect on the decision to intervene on humanitarian grounds. Applying the humanitarian intervention principles derived from the Kosovo example, the answer is no. Genocide is a unique and important construct in international law, but it cannot be said to offer the sole justification for humanitarian intervention.

Humanitarian intervention is a rich subject that, in addition to having profound impact on international law, touches on theories of moral philosophy and international relations, and I feel somewhat constrained by the format here. (For those interested in delving further, I recommend Nick Wheeler's book, Saving Strangers.) We will no doubt be returning to the subject often in the months ahead.

Japan, China, and the Law of the Sea

Japan announced today that it would allow fishing expeditions to Okinotorishima, an obscure island 1000 miles southeast of Japan. For Law of the Sea aficionados, this sets up a pending battle over the size of Japan's "exclusive economic zone" because if Okinotorishima is merely some "rocks" (as China says), Japan's EEZ is substantially smaller than it currently claims. Countries have certain exclusive rights to exploitation of, among other things, undersea minerals in their EEZ's, so this is no small dispute.

Additionally, Japan's action comes on the heels of its decision to take over a lighthouse on the Senkaku, or Diaoyu islands, a separate Japan-controlled island that is also claimed by China and Taiwan. China's angry response is described here and protests against Japan have already occurred in Hong Kong. Although it all sounds rather petty, this is very highly explosive stuff in China these days. For China's view on these disputes, see here. For a more nuanced and balanced view, see here.

Both countries are parties to the Law of the Sea Convention and although neither has accepted compulsory jurisdiction, either could at any time request a special arbitral panel be formed under Article 287. But don't hold your breath.

UN Peacekeepers and the ICC

As further reports of UN peacekeeper atrocities continue to flow out of the D.R. Congo, an interesting legal puzzle arises: Can those peacekeepers be prosecuted for war crimes by the ICC? The answer is probably yes, no thanks to the U.S., which has been introducing annual resolutions in the Security Council granting immunity to UN peacekeepers since 2002, but which withdrew its proposal last summer in face of opposition. Given that the UN itself has no power to discipline peacekeepers and they often have immunity from prosecution in the countries that where they are deployed, it would be odd for the ICC to have no role here. Yet putting them before the ICC is likely to discourage much needed contributions by countries like the U.S. Maybe a case-by-case exemption is needed here?

Sunday, February 13, 2005

The ICC's First Test: Uganda

As the ICC gears up to issue its first arrest warrants against rebel leaders in Uganda, church leaders there are warning that the warrants could upset already fraying peace negotiations. I don't know anything about the Ugandan situation except that the Ugandan government was the one that referred the case to the ICC, has been trying to withdraw the referral and may be using the ICC as tool to pressure rebel leaders (as the article suggests). It sounds like the Ugandan rebels deserve whatever punishment the ICC can give out, and more, but this whole situation could easily backfire...

NAFTA Watch: Chp. 19 Panel Remands U.S. Antidumping Decision

The NAFTA Secretariat posted this decision on Friday remanding to the U.S. Department of Commerce a decision by Commerce to impose anti-dumping penalties on Oil Country Tubular Goods from Mexico. This decision is authorized by Chapter 19 of NAFTA, which authorizes the formation of Binational Arbitration Panels to review antidumping determinations made by domestic authorities (in this case, the U.S. Dept of Commerce).

Article 1904.1 of NAFTA requires each member state "to replace judicial review of final antidumping and countervailing duty determinations with binational panel review." So, in a way, the Panel replaces judicial review of the U.S. government's administrative decisions with an international tribunal. Similar NAFTA Panels under Chp. 11 have drawn criticism from the sovereigntist left (see also William Greider's "expose" here) but not from the sovereigntist right.

(Having tweaked the ICJ's slowness here, I should in all fairness point out that this Binational Panel was hardly a model of arbitral efficiency. The original claim was filed on April 6, 2001!)