Off to Moldova....

I will be in Moldova for the next week and a half, taking part in a project sponsored by the Association of the Bar of the City of New York. In all likelihood I will not post to Opinio Juris while I am away but I hope to share some impressions from Eastern Europe when I return...

Voinovich on Bolton: The United States Can Do Better

The John Bolton nomination drama is entering a new phase, with Republican Senator Voinovich stating that he will not vote for Bolton, nor will he prevent the nomination from being considered by the full Senate. With the Republicans holding 55-45 majority in the Senate, it is not clear Bolton's nomination will lose on a floor vote (though a fillibuster might do it.) The money quote from the Washington Post:

"After hours of deliberation, telephone calls, personal conversations, reading hundreds of pages of transcripts, and asking for guidance from Above, I have come to the determination that the United States can do better than John Bolton," Voinovich said.

Indeed.

International Legal Citation Project

Students at the Washington University Global Studies Law Review are developing a guide to international legal citation, apparently intended as a "gap filler" for areas not covered by the Bluebook. I've not studied it closely, but it looks to be an extremely useful tool for student editors at international law journals. The guide includes a brief summary of the governmental structure and legal system of each country and examples of how to cite from specific sources. (See, e.g., this page on Slovenia.) Because the guide is still in development, they are taking comments. The link is here.

Testing Turkey's Commitment to Europe: the European Court of Human Rights Rules that Turkey's Trial of Kurdish Leader is Unfair

The European Court of Human Rights issued a ruling today finding that Turkey's trial of Abdullah Ocalan, the former leader of the Kurdish independence group the PKK (which many Turks view as terrorist), violated the European Convention on Human Rights' guarantees of a fair trial. The trial of Ocalan is a big deal in Turkey and this ruling is not going to make the EU and joining the EU system any more popular. Still, in a remarkable display of the EU's attraction for Turkey and maybe the ECHR's authority, there seems no doubt, from this report, that Turkey will comply with what will no doubt be a very unpopular ruling.

Rep. Sensenbrenner on Foreign Law and Constitutional Interpretation

Rep. James Sensenbrenner, the chairman of the House Judiciary Committee, gave a speech on Monday at Stanford that has drawn some criticism for its vaguely threatening reference to an Inspector General of the federal courts. What is interesting about the speech hoever, is that one of Sensenbrenner's main beefs with the judiciary is its citation of foreign and international law in constitutional interpretation. This suggests that this issue is not going to go away and is becoming a central part of the "judicial activist" critique that is already being levelled at the federal courts.

Now it is easy to dismiss this as overwrought and overblown, but I think Sensenbrenner's speech actually touches on the most objectionable part of the judicial fad for citing foreign law in constitutional cases.

Federal courts have increasingly utilized foreign sources of law, as well as international opinion to interpret the United States Constitution. If this trend takes root in our legal culture, Americans might be governed by laws of other nations or international bodies that Congress and the President have expressly rejected. Inappropriate judicial adherence to foreign laws and tribunals threatens American sovereignty, unsettles the separation of powers, presidential and Senate treaty-making authority, and undermines the legitimacy of the judicial process.

. . .

To support the Court’s invalidation of the law of 20 states, the Roper majority cited among other things, the U.N. Convention on the Rights of the Child, a treaty in which the United States government expressly reserved “the right . . . to impose capital punishment on any person (other than a pregnant woman) . . .” when signing. Even more troubling is the fact that the United States Senate never ratified this Treaty. As a result, the Court was expressly citing a Treaty to which the United States has never formally assented. Remember the first 3 words of the Constitution’s preamble: “We the People.” Public servants swear an allegiance to uphold the Constitution of the United States, not to look to French popular opinion or the ruling of a court in Zimbabwe.

Now I don't agree with everything Sensenbrenner is saying, but he does have a point about the judicial citation of treaties that the U.S. government has expressly rejected. This doesn't violate "sovereignty" (whatever that means) but it does seem to run into serious separation of powers concerns. Effectively, the Court is bringing the U.S. into compliance with an international treaty that the Senate has refused to endorse. No wonder Congress is mad.

How to Fight Global Warming (Without a Treaty or a Statute)

A coalition of institutional investors and other non-govermental organizations are calling on U.S. corporations to disclose (or be required to disclose) economic risks from climate change and global warming. The highlights:

• A New Climate Risk Disclosure Initiative will be aimed at enhancing corporations’ climate risk disclosure. The effort will focus on disclosure of corporate emissions, climate actions, scenario analysis, strategic analysis, and plans to address climate risks and opportunities.
• UNEP and the UN Global Compact, working with leaders in the institutional investment community, are developing Principles for Responsible Investment.
• A New Forum for International Investor Cooperation in Addressing Climate Risk will promote collaboration and information sharing among investors internationally about actions to address the financial risks and investment opportunities posed by climate change.

This f0llows the announcement last week ( noted by Peggy) that private banks of environmental standards governing their lending. Although I'm not necessarily in love with this attempt to pressure corporations, I think this sort of market-based, non-government attempt to address a potential environmental problem has go to be superior to the command-and-control approach espoused by treaty regimes like Kyoto.

More on the East Timor-Indonesia Truth Commission

The International Herald Tribune has a nice report on the increasing criticism of the East Timor-Indonesia Agreement to set up a Truth and Friendship Commission, which we discussed here. Here again we see a clash between the UN and human rights NGOs (who think the agreement could lead to impunity for human rights offenses) and efforts by two countries to settle lingering disputes from a very brutal civil war.

One interesting legal question: Can the UN force a war crimes tribunal on East Timor? The current agreement arguably violates UN Security Council resolutions requiring both countries to bring war crimes perpetrators to justice. The key player here (as always) will be the U.S., which is already trying to push the Truth Commission to get a little tougher and play ball with the UN.

UN Plans Move to Brooklyn

This is not a joke. According to this report in the NYT, the UN is considering moving temporarily to Brooklyn while its Manhattan headquarters is renovated. While some may see this as a step down for the UN, others (quoted in the article) suggest that the embattled UN will fit right in with Brooklyn's underdog image. Maybe in the old days. But Brooklyn is hardly the hardscrabble borough folks imagine. In fact, some parts of Brooklyn are barely less tony, and maybe more so, than Turtle Bay.

Still, I can't wait for the datelines: "This is the BBC, reporting live from UN Headquarters in...Brooklyn?"

And Now For Something Completely Different: the Arab/ South American Summit

Arab and South American states are finishing a summit meeting to discuss methods of cooperation on a broad range of issue areas. (Reports by the BBC and by Le Monde.) Co-Chaired by the Presidents of Brazil and Algeria, the summit hoped to find a “coalition on cultural, economic, and political” issues between two key blocs of the “South.” My snappish title to this post notwithstanding, there has of course been many other instances of South-South coordination across geographic and cultural divides, perhaps most famously in the attempted New International Economic Order (or “NIEO”) from the 1970’s. Whether such attempts at political coordination actually amounted to significant changes in world politics or international law is another matter.

According to some reports, the U.S. is a quite concerned about this summit. The BBC reports that Washington asked to send an envoy with observer status but was rejected. Note to Arab and South American states: When Washington is actually willing to take part in an international conference, you should not shut the door. This just reinforces the view that this conference is about counterbalancing US power (which of course it is; and that’s a perfectly fine, realist, maneuver) but then you had better make sure that you are successful, otherwise all you’ve done is just ticked off the hegemon. (More on this in a moment.)

However, the U.S. has also had a bone-headed approach to this. Arab diplomats report that the U.S. has been lobbying them not to attend. We’ve gone from encouraging allies to build regional organizations to discouraging them from getting together and talking with each other. Just what do we fear will happen when our allies get together to talk without us? It makes us look paranoid. Such a strategy is a lose-lose for us: if we dissuade a delegation, then that country really resents us and the next time we need their cooperation (think: War on Terrorism) it is likely to cost dear. And if we don’t dissuade a delegation (and it looks like we didn’t dissuade a single one) then we just look weak and they all get together and really laugh at us. And we still look paranoid.

But, like I said, this gaffe may be overtaken by the Summit’s slamming door on the U.S. because, like I said, the U.S. will remember this and, unless the Summit is politically unified, the U.S. can simply split off sub-groups of states and deny the Summit their issues. So what are their issues? Take your pick, here’s a sample from the BBC report and from Le Monde:

"We're seeking fair and just trade free of subsidies imposed by rich countries that ensures that poor countries receive the benefits of globalisation," Brazilian President Luis Inacio Lula da Silva said…

The talks will end on Wednesday with a declaration that is expected to criticise Israel and back Syria.

The summit declaration is also expected to uphold the right of people to resist foreign occupation.

Argentina is seeking support for its claim to sovereignty over the Falkland Islands.

Le Monde reports that the Arab states are looking for South American support for a permanent Egyptian seat on the UN Security Council.

Le Monde also reports Brazil hopes to get one as well and would want Arab support in that quest.

A summit can promise all things to all people because it is more political theater than policymaking. Policies are hashed out in preparatory and follow-up committee meeting, in working groups and coordinating bodies. Whether this summit becomes an example of effective South-South cooperation will depend on follow-through and a willingness to horse-trade and compromise. The president of the Arab League has proposed a series of follow-up meetings and ongoing political coordination. Having started this endeavor with an antagonistic attitude towards the U.S., they will need to be tightly coordinated if they want to turn their wish list into political reality.

So, what are the chances that the conglomeration of South American and Arab states will be tightly coordinated? Let the bookmaking begin…

NAFTA Watch: Testing the Environmental Side Agreements

NAFTA included a set of side agreements intended to alleviate concerns about the environmental effects of the trade regime. One of the results of these side agreements, the Commission for Environmental Cooperation, has agreed to review a proposal for a Liquified Natural Gas project off the coast of Tijuana and San Diego. The complaint is brought by citizens' groups, not the governments of NAFTA. The Commission, like a similar one created by DR-CAFTA, is advisory only so it is unclear how important this will be. But I suppose the Commission is a prototype for integrating environmental issues, and non-state parties, into the trade dispute resolution process.

ICJ Watch: You Only Have to Wait Three Years for a Preliminary Hearing

Not to beat a dead horse, but the ICJ's announcement yesterday that it will hold public hearings in June to examine some preliminary aspects of a case filed in 2002 by the Democratic Republic of Congo against Rwanda further illustrates the slowness of the ICJ dispute resolution process. The original complaint was filed in the summer of 2002. These hearings on procedural issues (meaning that they will have to have another set of hearings if they want to reach the merits) will occur three full years after the original complaint was filed. Maybe it's not the ICJ's fault. But surely the legal and procedural aspects of this case (which do not involve any fact-finding) can be completed in fewer than three years???

UN Strengths and Weaknesses

I promised a couple of weeks ago (before the end-of-semester crunch and some out of town travel) to follow up on a host of UN reform issues. Further posts are coming, but I wanted to bring attention to Suzanne Nossel's "Top Ten Things the UN Does Well" over at Democracy Arsenal. I generally agree with the list -- with the notable exception of "War Crimes Prosecutions." It is perhaps overstating it to claim that there is general agreement that the ICTR, ICTY and Sierra Leone tribunals have been broad successes. Nossel's riposte to herself, "What's Wrong with the UN," over at DanielDrezner (where she is guest-blogging) notes those things the UN has failed at. The list of weaknesses is remarkably short. And it begs the central question, which is whether some of these issues should be on the UN agenda in the first place.

Volcker Commission Wins TRO Quashing U.S. Congressional Subpoenas

The United Nations Independent Inquiry Committee investigating the UN Oil for Food Scandal (better known as the Volcker Commission) won at temporary restraining order today from the U.S. District Court in D.C. quashing congressional subpoenas ordering one of Volcker's former investigators to turn over documents from his investigations. The TRO will apparently last 10 days allowing the Volcker Commission can make its legal case that the congressional subpoenas are not enforceable.

The law here is not nearly as clear as it might seem (although I haven't seen the papers filed). The Volcker Commission's position appears to be that the Convention on the Privileges and Immunities of the United Nations protects its staff, and even its former staff, from "legal process in respect of words spoken or written and all acts performed by them in their official capacity" under Section 18(a)'s grant of immunity for UN officials. Alternatively, the Volcker Commission might be deemed as "Experts" under Section 22's narrower protection for "papers and documents". (see here for the Volcker Commission's letters to Congress and to attorneys for its former staffer who has already turned over docs to Congress.) Having just looked at this briefly today, I think the problem for the Volcker attorneys is whether Volcker staffers are UN officials or experts within the meaning of the Convention. This would depend on whether the UN has designated the Volcker Commission as "officials" and whether that designation is proper. There doesn't seem to be much caselaw in the U.S. on this point.

My guess is that the UN wins here, but as a practical matter, the decisive factor would usually be the State Department's views on the proper interpretation of the treaty. It seems unlikely, however, that they will get involved in a fight between the UN and Congress. So it may be that we may witness a rather unusual spectacle of a legal battle between the UN's lawyers and Congress's lawyers without Executive intervention. This might tip the balance toward Congress. We'll see.

The Legality of the Iraq War: The UK Lawsuits

I wasn't around last week to note these potentially interesting international law-based challenges to the UK's involvement in the Iraq War.

First, a group representing the families of UK soldiers has filed a claim against the UK government (timed no doubt in an attempt to further influence the UK elections on Friday) under Article 2 of the European Convention of Human Rights. This is a very clever way to shoehorn the "illegality" of the Iraq War under international law into European law. Still, based on the plain text of Article 2, this seems like a fanciful claim at best:

Article 2
Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
c in action lawfully taken for the purpose of quelling a riot or
insurrection.

I'm no expert in European law, but it doesn't strike me that ordering UK military troops into combat in violation of international prohibitions on the use of force. But this is certainly a creative way to get the legality of the Iraq War before the UK courts and possibly the European Court of Human Rights.

On another front, UK anti-war groups have also filed a complaint with the International Criminal Court alleging UK military officials have engaged in war crimes in the conduct of the Iraq War (this actually follows up an earlier complaint filed in December). The text of the complaint is not public, and the ICC (interestingly) has not announced this complaint on its website. But according to the UK press, the ICC will seriously consider opening an investigation.

Although the ICC's jurisdiction apparently does not include the crime of "aggression", the UK complaint here appears to charge not only disproportionate use of force in violation of the laws of war, but also the use of force at all given the lack of weapons of mass destruction.

All of this should remind U.S. observers that a collision between U.S. foreign policy (endorsed by both political branches and via proper constitutional processes) and the ICC is not the overblown fears of right-wing crazies. It is a very real possibility, as the ICC proceedings here with the UK demonstrate. Now it may be a good thing to have the ICC supervise the legality of the U.S. conduct of war (and not just the conduct of the war, but the actual decision to go to war). But defenders of the ICC in the U.S. can no longer claim that the ICC poses no serious challenge to the conduct of U.S. foreign policy.