Friday, March 18, 2005

George Kennan, 1904-2005

George Kennan, one of the architects of “containment” policy during the Cold War, passed away yesterday in Princeton at the age of 101. See the Washinton Post story and the NY Times story. Kennan’s writing was erudite, stylish, prolific, and influential; his “Long Telegram” written as a foreign service officer shaped the views of government policymakers on the Soviet Union and his “X Article” in Foreign Affairs in 1947 did the same for public opinion more generally.

Kennan was one of the parents of modern realism. His critique of “legalistic/moralistic” foreign policy-making is famous. Anyone interested in his views of foreign policy more generally should read American Diplomacy, one of the great short works of realist thinking (and another of the International Law “Must Reads” ).

Influential or not, Kennan’s views were not always easy to swallow. As the Washington Post reports:

Believing as he did in a limitless human capacity for error, Mr. Kennan was an unabashed elitist who distrusted democratic processes. Walter Isaacson and Evan Thomas reported in their book "The Wise Men" that he suggested in an unpublished work that women, blacks and immigrants be disenfranchised. He deplored the automobile, computers, commercialism, environmental degradation and other manifestations of modern life. He loathed popular American culture. In his memoirs, he described himself as a "guest of one's time and not a member of its household."

Beyond his criticism of international law, one wonders what Kennan would have made of current American foreign policy. The Washington Post continues:

A touchstone of his worldview was the conviction that the United States cannot reshape other countries in its own image and that, with a few exceptions, its efforts to police the world are neither in its interests nor within the scope of its resources.

"This whole tendency to see ourselves as the center of political enlightenment and as teachers to a great part of the rest of the world strikes me as unthought-through, vainglorious and undesirable," he said in an interview with the New York Review of Books in 1999.

"I would like to see our government gradually withdraw from its public advocacy of democracy and human rights. I submit that governments should deal with other governments as such, and should avoid unnecessary involvement, particularly personal involvement, with their leaders."

You could fill a couple of book cases with books by or about George Kennan. For biography, I suggest Walter Isaacson’s and Evan Thomas’ The Wise Men, a joint biography of Kennan, Dean Acheson, John McCloy, Averell Harriman, Robert Bohlen, and Robert Lovett. It is an outstanding history of the Cold War as well as an insightful biography of these men.

More generally, on American strategic thought during that era and on how Kennan’s views diverged from containment policy in practice, see John Lewis Gaddis’ Strategies of Containment. See also Gaddis’ essay, “Reconsidering Containment."

A brilliant and complex man whose skepticism led to both useful and useless (or worse) theories and prescriptions, Kennan was marked by, and left his mark on, the twentieth century.

Thursday, March 17, 2005

China, Taiwan, and Law as Pre-Commitments

Various blogpundits are warning that China’s new anti secession law is just a prelude to a pending invasion of Taiwan. As a descendant of a Taiwanese mother and Chinese father, with friends and relatives on both sides of the Taiwan Straits, I’ve been worried about such a conflict breaking out for years. On the other hand, since people have been telling me about this impending invasion since I was 3 years old, I am not exactly panicking.

Putting aside my personal interest, the China-Taiwan crisis is also an interesting study in the use of law as a pre-commitment device in the conduct of international relations. For instance, why does China even bother with passing a law that requires the government to use “non-peaceful means and other necessary measures to protect China's sovereignty and territorial integrity” if Taiwan declares independence? (it’s even scarier in the original Chinese: 非和平方式及其他必要措施,捍卫国家主权和领土完整)

That already has been the policy of China for decades and I don’t think anyone will try to sue to enforce this law against the government. The anti-secession law is a pre-commitment device: it signals to the Taiwanese that even if our leadership goes wobbly, this law will require them to act against you.

China is not the only country using law as a pre-commitment. The U.S. also has a weird law called the Taiwan Relations Act that requires, in the event of a threat to Taiwan, that the “President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.” This law requires the U.S. government to do what it already does anyway and, in fact, requires almost nothing, but it signals to the Chinese that the U.S. will take an attack on Taiwan a lot more seriously.

Even Australia and New Zealand may have unwittingly signed a pre-commitment to Taiwan in their ANZUS mutual defense treaty with the U.S. Article IV requires the countries to deem an “ armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes. “ But Article V defines “armed attack” as including attack on a treaty party’s “armed forces, public vessels or aircraft in the Pacific.” Well, suppose the U.S. Navy is attacked by Chinese forces invading Taiwan. Seems like an “armed attack” to me.

None of the laws or treaties mentioned here are justiciable in any court I can think of. Nor should they be. In fact, these examples should remind us that not all law is about enforcement and courts or even the "rule of law". Sometime law is expressive and symbolic. But this does not mean these laws and treaties are utterly meaningless. In fact, they illustrate the importance of using law and treaties as a signaling device or a pre-commitment device. In the case of the China-Taiwan Question, such laws and treaties usefully signal how far each side will go and, perhaps, help to maintain the precarious balance of power in the region.

On to Vienna

I will be accompanying Hofstra's team to Vienna over the next week to compete in the Willem de Vis International Moot Arbitration Competition. This competition is actually a remarkable competition that draws 140 plus teams from around the world. My blogging will therefore be light or perhaps non-existent during that time, but I may break in periodically with dispatches from the competition.

International Law "Must Reads"

We here at Opinio Juris are planning to compile a list of what we consider to be “must reads” for anyone interested in international law. Until we build that part of the site, and because we have received some recent questions from readers as to what we would put in that category, I wanted to post an incomplete and somewhat idiosyncratic list of some books and articles I think anyone specializing in international law should be familiar with. (For the sake of space and time, I do not include primary sources here.)

This version of the list will focus on public international law. At some later date we will include more works related to international trade and economic law, private international law, and other topics of interest.

I encourage interested readers to use the comment function below to post suggestions as to other books or articles (or films?) that we should include. Julian and Peggy may also post some further suggestions before we actually build this section for the website.

So, until then, here are some of my suggestions…

General Overview Texts

Restatement of the Law (3rd) of the Foreign Relations Law of the United States. Not agreed upon by all U.S. lawyers, but about as close to a definitive statement on the status on international law in the U.S. (as of the late 1980’s, at least) as you are going to get.

Louis Henkin, How Nations Behave (2d ed. 1979). Dated now, but a seminal work on modern international law.

Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994). Lucid discussion of the international legal system; influenced by the Laswell/McDougal/Reisman Yale Policy School. Rosalyn Higgins is currently a judge on the ICJ.

Three Classics

Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1624). The so-called “father of international law” was also the general counsel (for lack of better term) of the Dutch East India Company. Almost everyone cites to it, not many people have recently read it.

Emmerich de Vattel, The Law of Nations (1758).

Jeremy Bentham, Principles of International Law (1789). He coined the term “international law.”

Influential Treatises

Oppenheim’s International Law (9th ed., 1992, Robert Jennings and Arthur Watts, eds.). Magisterial. A great place to start on just about any question of public international law. Many scholars also like to refer to the Seventh or Eighth Editions, published in 1948 and 1955, respectively, and edited by Sir Hersch Lauterpacht, then-professor at Cambridge University and soon to go on to be a judge at the ICJ.

Ian Brownlie, Principles of Public International Law, (6th ed., 2003).

James Brierly, The Law of Nations: An Introduction to the International Law of Peace (1963).

History of International Law

S.A. Korff, An Introduction to the History of International Law, 18 Am. J. Int’l L. 246 (1924).

Martii Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law: 1870-1960 (2002). A fascinating account of the evolution not so much of international law but of the international legal profession during this period.

Modern Theoretical/Jurisprudential Works of Note

Thomas M. Franck, The Power of Legitimacy Among Nations (1990)

Thomas M. Franck, Fairness in International Law and Institutions (1995)

I think Franck is currently the deepest thinker on jurisprudential problems of the international legal system. These two books get to core issues as to why international law is (or is not) followed and issues of fairness in the international legal system. I especially like The Power of Legitimacy for the way it explains how rules become perceived as legitimate and that this legitimacy motivates state compliance. It is an alternative to the standard (and in my view not always accurate) explanation that rules are followed only because of the credible threat of coercion.

Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995). This is one of the major works of “transnational legal process,” along with Harold Koh’s articles listed below. While Koh focuses on litigation issues, the Chayeses look at the role of international regulatory regimes in shaping a modern understanding on international law. By the way, Abe Chayes was State Department Legal Adviser under President Kennedy and Toni Chayes was Undersecretary for the Air Force in the Carter Administration.

Anne-Marie Slaughter, A New World Order (2004). This brings together her analyses on international regulatory coordination, transnational judicial dialogues, and other cross-border relations in a portrait of “disaggregated world order.” She paints a compelling picture on how law is used in a variety of settings that may not normally be considered as part of classic international law and yet defines this “new world order.”

Harold Hongju Koh, Bringing International Law Home, 35 Hous. L. Rev. 623 (1998). A crucial article in laying out his theory of “transnational legal process” and how international and domestic legal regimes interact. His discussion of how international rules become internalized in domestic law and politics is excellent. This is one of those all-too-rare articles that, as I finished reading it, just seemed to have the ring of truth.

Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996). A precursor article related to “Bringing International Law Home.”

Eric Posner & Jack L. Goldsmith, The Limits of International Law (2005). Posner and Goldsmith are prominent critics of mainstream international legal scholarship. Their book addresses what they see as false assumptions and conceptual biases in much current international legal scholarship. I don’t necessarily agree with their argument but it is thought-provoking and anyone interested in international law should assess their argument for themselves.

I couldn’t mention the Posner and Goldsmith book without also noting the debate that raged over the role of customary international law in the U.S., sparked by a series of articles that Goldsmith had written with Curtis Bradley. Their argument was notably set out in
Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).

In response to this line of criticism, see, among other responses,
Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev 1824 (1998).

Martii Koskenniemi, From Apology to Utopia (1989). This book is the antecedent to The Gentle Civilizer of Nations, which I mentioned above. It is a more theoretical discussion of the need of international lawyers to not be overly-technical but rather to use social theory to assess the “deep structure” of international legal discourse. As with his later book, this work is more concerned with how international lawyers do what they do than with the substantive content of international law.

Wednesday, March 16, 2005

Giving the Finger to Japan

Two South Korean protesters, one an elderly woman, cut off their fingers in front of the Japanese Embassy in Seoul to protest Japan's claim to an obscure rocky uninhabited island off the Korean and Japanese coasts.

In fact, there is a bit more at stake in the territorial dispute than it seems because, apparently, control of the uninhabited rocks will also control the rights (per that useful Law of the Sea Treaty) to 16,600 square nautical miles of sea and seabed and significant mineral and oil deposits.

Still, this rather dramatic protest should remind dreamy (often European) internationalists waiting for the inevitable decline of the nation-state that fervent nationalism is alive and well, even in wealthy, developed, democratic countries.

Darfur Deadlock Update: Nigeria Proposes African Alternative to ICC

Reuters reports that Nigeria is proposing an African court to try war crimes arising out of the Darfur crisis in Sudan. This may break the continuing deadlock (which I first discussed here)between the EU and the U.S. over whether the Security Council should refer Darfur to the ICC. Nigeria's proposal is exactly what the U.S. has been looking for. Whether this will convince the Europeans (or the Chinese, who oppose action on Darfur for other reasons) is unclear, but it appears to be a (small) diplomatic victory for the new Secretary of State.

ICC Watch: Court Holds First Hearing

The ICC held its first hearing yesterday, a status conference, on the investigation by its prosecutors of crimes committed in Democratic Republic of Congo. "It is the first time the International Criminal Court, which began work almost three years ago, is formally studying a specific war crimes investigation." Interestingly, the ICC's current docket consists exclusively of African investigations: Ivory Coast, Uganda, and the Congo. This may reflect the reality of the problems facing some parts of Africa, but it may also reflect the influence of international politics on the ICC. Until it builds up some credibility, it should probably avoid more controversial cases (although, as I've pointed out, not all the African cases are uncontroversial either).

Guantanamo Primer

Lyle Denniston at SCOTUSBlog has written a useful primer on the Guantanamo cases moving through the courts.

The Washington Post Endorses Withdrawal from the Optional Protocol

The Washington Post weighs in today with a surprisingly sensible editorial applauding President Bush's decision to withdraw from the Optional Protocol to the Vienna Convention on Consular Relations (which I discussed here).

Were the Optional Protocol a useful instrument in protecting Americans abroad, it might make sense to tolerate the international court's presumptuousness. But the protocol doesn't help much. Most countries never signed it, and the chief protection against treaty violations has always been diplomatic pressure, not the possibility of international litigation. Withdrawing from the protocol does not change U.S. obligations under the Vienna Convention or the reciprocal obligations of states toward American nationals. The Optional Protocol was never meant to regulate the domestic judicial systems of its signatory states. The administration is right not to stand for the international court's attempt to do so now.

This editorial avoids the knee-jerk internationalism that one might expect from publications like the NYT and takes the right approach: if the Optional Protocol doesn't really serve U.S. interests, and it is costly in terms of continuing litigation, then it is entirely reasonable to pull out.

Here Comes DR-CAFTA

Reports indicate the President is planning to submit DR-CAFTA to Congress in the next few weeks. This will trigger the 90 day clock for approval. This report suggests the President is still 20 votes short in the House. Get ready for a trade fight!

Texas Rolls the Dice

Lyle Denniston at SCOTUSBlog usefully analyzes Texas's latest salvo in the ongoing battle over what to do with the Medellin case in the Supreme Court now that the President has sided with Medellin. Somewhat to my surprise, Texas is opposing Medellin's motion for a stay pending its state court litigation (which was prompted by the President's executive determination discussed here). But on second thought, this strategy probably makes sense.

Although I suggested that Medellin would probably win his motion for a stay, I wondered at the time whether the Supreme Court would simply dismiss the case completely finding that cert was improvidently granted. After all, if Medellin loses again in the state courts, he can come back to the Supreme Court if and when that happens. In the meantime, there seems little reason for the Court to "stay" the case because the issue at that point would be very different. Rather than resolving whether the Court has jurisdiction and the power to enforce the ICJ judgment, the issue in the future would almost certainly be the effect of the president's determination that Texas courts should enforce the ICJ judgment.

What does surprise me is that Texas did not respond by asking the Court to dismiss the case on the theory that I just outlined. Instead, it asks for the Court to continue to hear the case. This suggest Texas is quite confident it will win (or at least not lose) in the Court. Texas is right to be confident that it will win a narrow ruling from the Court holding that there is no federal appellate jurisdiction for treaty-based claims. As I suggested earlier, the Court is not likely to stretch the law to allow federal courts to hear a case that the President says he is taking care of.

But there is always the risk that the Court will go crazy and decide (1) that it has jurisdiction; and (2) that it should find itself bound by the ICJ judgment. If that happens, it is game set match, for Medellin. At least Texas can try to challenge the Executive order on federalism grounds. But if it loses here, such a challenge won't matter much because the Courts will order them to give hearings anyway, whether or not the executive order is effective.

Tuesday, March 15, 2005

Kosovo PM Not Guilty Plea and Other News from the ICTY

As I had already posted, the Prime Minister of Kosovo, Ramush Haradinaj, was indicted by the International Criminal Tribunal for the former Yugoslavia for his actions as a commander of the Kosovo Liberation Army. CNN is now running an informative update on Haradinaj’s not-guilty plea on 37 counts and on the case in general.

In other ICTY news, Gojko Jankovic, a Bosnian Serb who was a paramilitary leader south of Sarajevo during the war surrendered to Bosnian Serb authorities and has been transferred to the Hague. The BBC report is here; the ICTY Press release here. The BBC reports:

Both Serbia and Croatia have been under renewed pressure since Kosovo's former Prime Minister, Ramush Haradinaj, won international praise for his immediate surrender when he was indicted last Tuesday.

Our correspondent says Serbia's record is poor. More than a dozen indictees are still thought to be on Serbian soil.

Does President Bush Hate to Sign Treaties?

Just in case the Bush Administration’s recent diplomatic initiatives were in danger of changing the President’s image, the LA Times reports on a new study finding that President Bush has signed fewer treaties at this point in his term than his predecessor Bill Clinton and even than his father.

Now President Bush may indeed be unilateralist, and even anti-internationalist (and that is not necessarily a bad thing) but this deeply flawed study does little to support this view. Why?

(1) The study is based on 550 treaties, the vast majority of which are deposited with the U.N. But by focusing on these treaties, the authors are already privileging multilateral treaties over bilateral treaties including extradition, trade, and investment treaties. Why don’t the U.S. and President Bush get “credit” for signing and ratifying bilateral treaties such as the U.S.-Australia Free Trade Agreement or the U.S.-Russia Strategic Offensive Reduction Treaty?

(2) The study focuses on treaties rather than on the main form of international agreements made by the U.S: executive agreements. In fact, executive agreements might be a better measurement because the real obstacle to treaty ratification is the Constitution’s two-thirds of the Senate requirement, which does not apply to executive agreements. In any event, to the extent the study has a point, it is that the Senate (under both Democratic and Republican leaderships), rather than the President, that is the main stumbling block for treaty ratification. And this is pretty much by design: the Constitution added a supermajority requirement precisely to make ratification of treaties difficult and the system appears to be working quite well. (note that according to the study, that crazy isolationalist Franklin Roosevelt ratified 0 treaties during his four terms).

(3) The study criticizes the U.S. government’s selectivity: it eschews labor treaties for instance, while pursuing anti-terrorism treaties. But I would actually suggest such selectivity is generally a good thing. First, it almost certainly conforms to the priorities of the voters, were they asked. Second, it suggests that the U.S. government is assessing treaties based on the individual merits of each treaty system, rather than blindly joining all treaties simply because they exist.

(4) Finally, the study assumes that signing and ratifying treaties correlates to good international behavior and not signing or ratifying treaties correlates to bad behavior. But this is a highly questionable assumption. Many not so friendly countries sign lots of treaties. North Korea and Libya, for instance, are always ready to sign, perhaps knowing that signing the treaties is essentially meaningless in such domestic systems. Oddly, then, it is the U.S. government’s respect for treaties that leads it to refuse to join such treaties unless it believes it can actually live up to those legal obligations. After all, if the U.S. were the realist blowhard many internationalist critics suggest it is, it would sign all treaties and then simply ignore all of them.

Monday, March 14, 2005

Eleventh Circuit Upholds $4 Million Alien Tort Statute Judgment

Although I noted that the U.S. Court of Appeals for the Eleventh Circuit rejected this ATS suit arising out of alleged killings in El Salvador just last week, today the same court (with different judges) upheld a $4 million judgment against ex-Chilean military officers who executed a Chilean doctor (Winston Cabello) in the 1970s (thanks to my colleague Eric Freedman for the heads up). The case may be important for future ATS litigation in two ways.

(1) In contrast to Arce, the Salvadoran case, the Eleventh Circuit here equitably tolled the 10-year statute of limitations here on the grounds that the defendants had been responsible for hiding the body of Cabello until 1990. The grounds for equitably tolling certainly appear strong here largely because they point to specific actions that prevented these particular plaintiffs from filing. In Arce, the plaintiffs alleged generally that the ongoing civil war prevented their bringing claims. As I noted then, the statute of limitations is a key defense for defendants to the ATS litigation and overly aggressive use of the equitable tolling defense (such as was tried for and rejected in Arce) could probably undercut the utility of the whole defense.

(2) The Eleventh Circuit here also endorsed the "indirect" liability theory in order to find the defendants here liable. This is a slightly different version of the "aiding and abetting" theory that has been wielded so effectively against corporate defendants in other ATS lawsuits, most notably in the Ninth Circuit. Now the analysis here is very thin and almost perfunctory, but corporations sued in the Eleventh Circuit for ATS violations should still watch out.

Impressions of Guantanamo and the Attorney-Client Relationship

Scott Sullivan from Transatlantic Assembly has a very interesting post on first-person impressions of Guantanamo based on his recent trip there for a client representation. He also notes recent reports concerning possible attempts by the U.S. to interfere in the attorney-client relationship of the Guantanamo detainees.

Can International Law Fight Terrorism?

Critics of the U.S. government’s post-September 11 “war on terror” have a variety of complaints. One of the most salient is the “unilateral” and perhaps even “illegal” use of military force by the U.S. in its attempt to either attack terrorist groups or prevent such groups from acquiring weapons of mass destruction.

There is some force to this critique, but ultimately such critics will get nowhere unless they can offer a internationalist alternative to dealing what most reasonable people agree is a real and serious threat. But the international legal infrastructure is far more focused on restraining the use of military force against terrorism by governments.

For instance, the much vaunted internationalist hobby horse, the International Criminal Court, is much more likely to prosecute a U.S. soldier for engaging in war crimes in the prosecution of the war on terror than it would prosecute a terrorist for engaging in terrorist acts. Why? Because terrorism itself is not a crime within the ICC’s jurisdiction. Rather, terrorist acts would have to be shoehorned into one of the ICC’s other categories as a “war crime” or maybe (but not necessarily) a crime against humanity.

Indeed, as Kofi Annan pointed out last week in Madrid, there is no internationally agreed upon definition of what constitutes a terrorist act. While there is no shortage of international treaties prohibiting acts that are associated with terrorism, the “[l]ack of agreement on a clear and well-known definition undermines the normative and moral stance against terrorism and has stained the United Nations image. Achieving a comprehensive convention on terrorism, including a clear definition, is a political imperative.” So concluded a high-level panel of security experts appointed by Annan last fall.

This political imperative is likely to go nowhere because almost every Arab state opposes the definition of terrorism that prohibits the deliberate targeting of civilians, if such activities take place in an occupied territory (e.g. one that would define Palestine attacks on Israeli civilians as terrorism). These objections are reflected in these states’ (Syria, Iran, Saudi Arabia, etc) refusal to sign most of the 12 anti-terrorism treaties.

Such obstreperous rejection of basic international norms has drawn pretty much zero criticism from international lawyers, who prefer to devote their efforts to denouncing U.S. delay in ratification of the tobacco control treaty. This is not to say that international lawyers are always wrong when they argue against the use of military force against terrorism by states like the U.S. But it would be nice if just a few of those lawyers (perhaps as Chris notes here) would devote some of the same energy to fashioning an international legal infrastructure that can prevent and punish international terrorists like Al Qaeda.