Friday, May 20, 2005

The End of War? Who Should Get the Credit?

Gregg Easterbrook has another great and contrarian piece in the TNR this week explaining that "war" has actually been in sharp decline over the past 15 years. He relies on an academic study by two political scientists, Monty G. Marshall and Ted Robert Gurr, who have done a series of empirical studies demonstrating that violent conflict has been steadily decreasing since the end of the Cold War.

Not convinced? Well, you will have to look at the Easterbrook piece, or the original study, which measures "war" in a variety of ways: number of violent conflicts, numbers of war-related deaths, risk of death from war as compared to other causes, global military spending. The upshot? All of these measurements have shown a steady decline in the last 15 years.

Assuming this study is accurate, the important question becomes: what is the cause? Easterbrook throws some love to the UN, writing that, in addition to peacekeeping,

Peacekeeping is just one way in which the United Nations has made a significant contribution to the decline of war. American commentators love to disparage the organization in that big cereal-box building on the East River, and, of course, the United Nations has manifold faults. Yet we should not lose track of the fact that the global security system envisioned by the U.N. charter appears to be taking effect. Great-power military tensions are at the lowest level in centuries; wealthy nations are increasingly pressured by international diplomacy not to encourage war by client states; and much of the world respects U.N. guidance. Related to this, the rise in "international engagement," or the involvement of the world community in local disputes, increasingly mitigates against war.

This is certainly possible. But Easterbrook's review of possible causes curiously overlooks one important alternative. The U.S. has been calling itself the world's only superpower for about, oh, 15 years. Some have already proclaims this period a potential Pax Americana or American Imperium. The reduction in great power military tensions might reflect better diplomacy or it could simply reflect the overwhelming supremacy of U.S. military forces.

It is likely that all of these factors, and more not discussed here, have led to the comparative reduction in wars over the past 15 years (assuming that is really happening). The important question going forward then, is to figure out how best to keep the trendline heading downward.

Thursday, May 19, 2005

International Committee of the Red Cross and the Problem of Emblems

"Red crystal" may not roll of the tongue as easily as "red cross" or "red crescent," but there is a movement afoot to replace the current emblems of ICRC and the International Federation of Red Cross/Red Crescent Societies with a non-religious and less politically charged symbol. (See this picture here for the red diamond/crystal design.) ICRC Legal Director Francois Bugnion wrote this account of the history and the problem a couple of years ago.

What's all the fuss about? For its entire history, the International Federation of the Red Cross and Red Crescent Societies have restricted the symbols of its movement and national societies to be either a red cross or red crescent. Most accounts of the background on the emblems indicate that the origination of the use of the red cross star or red crescent against a white field was not explicitly religious or political. But nonetheless, they have come to be viewed as such. The Jewish star is used as the emblem of Magen David Adom, the emergency assistance organization in Israel that corresponds in almost all respects with other national Red Cross/Red Crescent societies except one: It is not a member of the International Federation. This is because the Federation may not, under the Geneva Conventions, recognize a society that does not adopt either the cross or crescent. Adopting a new, non-religious, symbol would permit those countries -- like Israel -- who do not wish to use the cross or crescent symbols to enter the Federation under the no-religious red crystal. This should be easy. All it requires is amending the Geneva Conventions to replace the cross or crescent with the red crystal, or, alternatively, to approve the red crystal as an available third option.

The American Red Cross has stepped up the pressure on the International Federation to make the change. (It has apparently been withholding part of its dues owed the Federation in protest for the past 5 years.) I agree with the sentiments of a recent editorial in the IHT noting that the ICRC and the Federation would be on stronger ground urging compliance with international humanitarian law by all states, if they were open to membership by all states on equal footing.

How to Sue Burma in the ICJ for Genocide

This IHT report documents horrific human rights abuses in Myanmar/Burma gathered by an Englishman who has been sneaking in Burma over the past five years. Of course, the real story here is that these abuses, if true, are going on. But the practical question: Is there any remedy for foreign governments, consistent with existing international law, to stop the abuses. (Note: The U.S. still has as many sanctions on Burma as I believe is possible. But I don't think China is nearly as scrupulous).

Well, I suppose Kosovo and maybe Iraq provide some precedent for armed intervention (don't hold your breath). And the ICC could in theory get involved, via a Security Council referral (but China stands in the way, as well as the U.S. maybe). The article also suggests at least one remedy: a "civil" suit in the International Court of Justice under the dispute resolution provisions of the Genocide Convention. Article 9 allows for:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Burma is a signatory to the Genocide Convention so it appears the ICJ would have jurisdiction in such an application, as long as that application was brought by another government. The pending case between Bosnia and Serbia is just such a case. What would be the point of such a lawsuit? Well, it might well force Burma to try to defend itself and put the facts of the Genocide Convention violations in the public record. On the other hand, the factual record is likely to be tricky since even Darfur may or may not violate the Genocide Convention. Still, a judgment by the ICJ that Burma is violating the Genocide Convention, in theory, obligates the Security Council to act (there is that whole China-veto problem again though).

In the end, an ICJ lawsuit is not much of a weapon against Burma. Ask Bosnia-Herzegovina, which will finally get their day in court in February 2006, a mere 13 years after it filed its initial application against Serbia. But since the U.S. and other countries have already tried economic sanctions, and I presume no support for military intervention from either the right or the left, an ICJ lawsuit may be the least worst option and slightly better than doing nothing at all.

The ICJ v. WTO: The EU's Compliance with One Treaty May Violate Another

Here is a neat international law puzzle. Caricom, a trade association including most Caribbean nations, is threatening to bring an action against the EU in the International Court of Justice for violating its agreements to support the Caribbean sugar industries by purchasing their sugar at preferential prices. The catch? The reason the EU is changing its policy is mostly as a result of a recent WTO decision finding its sugar preference system in violation of the WTO rules. The EU can't win here, it seems. So what should the legal effect of this provision of the updated EU-African Caribbean Producers agreement be?

Conflict between this Agreement and other treaties

No treaty, convention, agreement or arrangement of any kind between one or more Member States of the Community and one or more ACP States may impede the implementation of this Agreement.

There is traditionally a last in time rule for treaties, with the later in time treaty prevailing over the earlier in time one. This would seem to favor the EU-ACP Treaty since it entered into force in 2000, 6 years after the WTO Agreement. Strangely enough, then, it appears the Caribbean countries have a case.

Which doesn't mean they will win anything. The ICJ is unlikely to have jurisdiction here, and even if they did, I wonder if the EU countries will choose to comply with the sanction-less ICJ over the sanction-empowered WTO. Still, it is an interesting example of what may be a more and more common phenomenon in coming years: conflicts between countries' international treaties and conflicts between the dispute resolution systems that resolve them.

Wednesday, May 18, 2005

General Andrew J. Goodpaster (1915-2005)

General Andrew J. Goodpaster died this week at the age of 90. In the months following my graduation from college, but prior to my joining the Foreign Service, I had the great privilege to work briefly under his leadership at the Atlantic Council of the United States -- a non-partisan think tank dedicated to support of the Transatlantic relationship. He was already well into the second decade of his (second) retirement from his long and illustrious career in the US Army. His obituary reads like a history of the great events in US foreign and military policy in the latter half of 20th Century. But he was no Zelig. He was a soldier (West Point '39; WWII; Deputy Commander Vietnam; SACEUR), diplomat (on the negotiating team at the Paris Talks), a scholar (Phd Princeton, taught at the Citadel) and a public servant (coming out of retirement to save the reputation of West Point in the aftermath of a notorious cheating scandal). He was also a gentleman of the old school. All of us junior staffers at the Council adored and respected him.

Among his many posts, Goodpaster served as military aid to President Eisenhower, and was present for many of the early negotiations with the Soviets on reduction of testing and other controls on nuclear weapons. Goodpaster liked to tell this story about Ike's negotiation style:

A group of arms control experts from the State Department came in to brief Eisenhower on a series of items on the table and give him their advice on which were most likely to be agreed to by the Soviets. They counseled caution, advising Eisenhower not to push on those issues most likely to encounter resistance. As Goodpaster told the story, Eisenhower listened politely, and then replied to the group, "Well, boys, how about we go in and negotiate OUR agenda?"

It's still the best negotiating advice I've ever heard.

Counting the Dead in Darfur

The NY Times ran this piece this morning on the challenge of coming up with estimates of the total dead as a result of the conflict in the Darfur region of Sudan. The problem is common in the face of mass humanitarian disasters: how to estimate death tolls in a place with no birth or death certificates or accurate census data, where complete villages have been destroyed, and where the size and conditions on the battlefield are such that actual counting of bodies is next to impossible. Moreover, survivors are often so traumatized that they cannot be relied on to recount precisely what happened to their family or neighbors. In Darfur, many of the deaths are caused by malnutrition and/or disease arising as a consequence of conflict and displacement. So we have a range of death estimates: the US says 60,000-160,000; one NGO observer, the Coalition for International Justice, puts it at 400,000. Even at the low end, the numbers are horrifying. Ironically, the UN Commission investigating whether genocide had been committed in Darfur was confident in its conclusions that the acts committed did not meet the legal definition of genocide, but refused to estimate an overall count of the dead. The magnitude of the death toll -- by violent or non-violent means -- should be enough to overcome whatever technical legal arguments can be made to oppose more robust outside intervention. (Compare reactions to Darfur with responses to the Tsunami.) Sadly, the discussion of numbers -- large or even larger -- doesn't appear to making too much difference:

[W]hen Darfur's violence mercifully ends, a number will be agreed upon. That number, like the figure of 800,000 for the Rwanda massacre, will be forever appended to the awful events. The rest of the world, slow to react to Darfur, will then have plenty of opportunity to think about it, and wonder why it was able to grow as large as it did.

Tuesday, May 17, 2005

The Real Star Wars: If Only They Had Lawyers

Just in time for the arrival in theaters of the Revenge of the Sith, The NYT reports that the Air Force is seeking a presidential directive endorsing an aggressive policy to develop weapons that can be used in outer space. Like the Law of the Sea, outer space is a logical place for international law to play a role. Indeed, there is a United Nations Office for Outer Space Affairs that administers the five main treaties governing the conduct of nations in outer space (is that a cool-sounding job or what? Note also the cool acronym "OOSA").

As the article notes, the U.S. has agreed to refrain from putting any weapons of mass destruction in outer space or on the moon per the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the "Outer Space Treaty.") Everything else though appears to be fair game, which is what the Air Force apparently wants.

Expect some international lawyers, however, to pop up and claim that there is a some sort of customary international law principle prohibiting any kind of space-based weapons. After all, no state has done so yet, so maybe this has hardened into international law. And the General Assembly has passed a bunch of declarations. But only five states (if you count Brazil) have even space launch capability, so does the fact that the other 175 refrain from weaponizing space really matter for international law purposes?

Space will be developed and used, whether or not there is an worldwide treaty regulating such use. I think the law can be useful here, but let's not get carried away. The key to how outer space will be developed will lie in decisions by folks like President Bush and President Putin, and not in the world of international lawyers.

Free and Fair: How to Monitor an Election

What is it election monitors do, anyway? Slate has this useful primer. But it doesn't explain how last Sunday's elections in Ethiopia could, as the US has concluded, be "marked with irregularities" but at the same time not amount to election "fraud."

Women Win the Vote in Kuwait

In a vote that appears to have surprised even themselves, the Kuwaiti Parliament yesterday approved a bill to grant women the vote and the right to stand for office. Women will be eligible to be candidates in the 2007 parliamentary elections. Admittedly, the range of issues subject to democratic review in Kuwait remains narrow and tightly controlled by the royal family, but this is nonetheless a sea change -- and one that won't go unnoticed next door in Saudi Arabia, one of the few countries left that denies women the vote. (See this list compiled by a New Zealand news organization.) Congratulations to all the women's rights activists in Kuwait for this hard won and important victory. Of course, the Islamist leaders who opposed women's suffrage are already claiming that the Kuwaiti government gave in to pressure from outside countries.

My Mizzou faculty colleague (and former AALS President) Dale Whitman recently returned from his second visit to Kuwait this year as part of an ABA site team at the University of Kuwait Law School. (Yes, it turns out the stamp of approval from the ABA has currency overseas.) He shared with me his view that Kuwait has all the right ingredients in place -- most notably lots of money -- for strenghtening of the rule of law and democratic governance. And it seems to be taking steps in the right direction. More broadly, training lawyers -- male and female -- will continue to be an important element in successful democratization in the Middle East, and Kuwait is taking that charge seriously. Here is a link to the law school.

Thornburgh Supports Immunity for UN Investigators

Former US Attorney General Richard Thornburgh wrote this op-ed in today's Washington Post supporting confidentiality and immunity for the documents, witnesses and investigators appointed by Secretary General Annan to the Commission investigating the oil-for-food scandal. I posted earlier on the basis of immunity for UN officials implicated in the probe -- immunity which is set forth in the UN Convention on Privileges and Immunities and codified under US law in the International Organizations Act. Thornburgh argues that the Convention also applies to witnesses and staff of the Commission, that such immunity is analogous to broad executive immunities in the US system, and the TRO issued by a federal court last week (which Julian discussed here) prohibiting a former Commission investigator from disclosing Commission documents was therefore correct and completely in line with US practice.

It's easy, and perhaps fashionable, to dismiss this legal maneuver by the investigating committee as an example of stonewalling meant to protect embattled U.N. Secretary General Kofi Annan. But in fact, in its most recent report, the investigation -- led by former Federal Reserve chairman Paul A. Volcker -- found Annan to have been deficient in investigating potential conflicts of interest between his son and a company that was bidding for a major contract with the Iraqi humanitarian program. Furthermore, the committee has uncovered information that Benon Sevan, the U.N. bureaucrat responsible for the oil-for-food program, may have made money on the deal; that the United Nations' selection of the program's prime contractors did not conform to its own rules; and that Annan's former chief of staff shredded potentially relevant documents even as Volcker's investigation was getting underway.

The real basis for the Volcker committee's action, and for the temporary restraining order granted by a federal court, is something more important than protecting U.N. officials. It is the need to defend a principle held sacred and regularly exercised by all investigators -- including congressional probers -- namely, confidentiality for witnesses and investigators.
To put it simply, the Volcker committee, like all official investigations, would be crippled if it couldn't guarantee its witnesses that their confidential testimony and even their names won't end up on the nightly news. The materials obtained by the committee include highly sensitive interviews with many people who live in dangerous parts of the world, such as Iraq, and who spoke only on the condition that their interviews would remain private and that their identities would be protected.

If accountability at the UN is going to work, then it seems pretty clear that this kind of protection of witnesses and sources should be the rule.

Monday, May 16, 2005

Justice Kennedy: "The (Legal) World is Flat"

Justice Kennedy is just looking for a fight with conservatives in Congress annoyed by his increasingly frequent citation to international and foreign law in the interpretation of the Constitution. In a speech to the 11th Circuit Judicial Conference, he remarked:

"It's really quite wrong to say that the Supreme Court ignores international law and doesn't understand it," he said.

Referring to the title of a book by New York Times columnist Thomas Friedman about increasing globalization, Kennedy said "the world is now flat, and the U.S. is beginning to be involved in international law."

(Thanks to Orin Kerr for pointing out this speech).

I am not a huge fan of Friedman's metaphor, mostly because I have no idea what it means. So I have even less idea of what Kennedy means here by invoking it to refer to U.S. involvement with international law.

Assuming this quote is accurate, I am struck by the silliness of Kennedy's suggestion that the "U.S. is beginning to be involved in international law." This will be news to the folks at the State Department, who are cranking out hundreds of executive agreements and treaties a year, and who advise the different parts of the U.S. government on how to interpret and apply U.S. international law obligations. Or the U.S. Congress, which approves and implements these treaties and agreements by advise and consent or through implementing legislation. And what about the zillions of international organizations that the U.S belongs to (and funds).

What is "beginning" is aggressive judicial invocation of international law (even international law that the other branches have rejected) to interpret the U.S. Constitution. This is new stuff, and I don't think (based on his own use of it in Lawrence and Roper) that Justice Kennedy himself has come up with an explanation of why it is so important to cite international treaties when interpreting the Constitution. No justice has offered a particularly impressive defense of this practice (see discussion of Ginsburg here and Breyer here). It's too bad that the Justice can't do better than simply telling us that the "world is flat".

Settling Territorial Disputes Without Going to Court

As I've frequently noted, Asia is a hotbed of territorial disputes, mostly involving Law of the Sea issues, and with very large economic stakes. In the past two days, two of the trickier disputes, which might have been litigated in an international tribunal, have "settled".

First, Australia and East Timor are expected to announce an agreement on a boundary settlement that will give Australia rights to develop undersea mineral deposits in exchange for a payment of royalties to East Timor. As I discussed previously, Australia pushed East Timor into this settlement by withdrawing from the ICJ's Law of the Sea compulsory jurisdiction just two months before East Timor gained independence.

Second, Malaysia and Singapore have settled their dispute over Singapore's land reclamation project. Although this dispute did go to the International Tribunal for the Law of the Sea (ITLOS), the key to the settlement was improved bilateral relations that resulted in a settlement agreement.

None of this means that actual or threatened international court litigation doesn't matter in these sorts of territorial disputes. But the rather self-interested actions of these Asian countries in resolving their disputes should remind us that the key to resolution is as much a political and diplomatic question as it is a legal one.

WTO Watch: A Frenchman Will Head the WTO

It looks like former EU Trade Commissioner Pascal Lamy of France will be the next head of the WTO. Oddly enough, this is probably a good thing for the U.S. because, as I suggested, Lamy's predilections will almost certainly coincide with the U.S. on most issues.

Sunday, May 15, 2005

Can U.S. Mayors Implement Kyoto? (and Can Pres. Bush Stop Them)?

This NYT article details efforts by local and state governments to comply with the Kyoto Protocol despite that treaty's rejection by the President and Senate. Along with various corporate efforts to battle global warming, these efforts further confirm that not everything in foreign affairs starts with the federal government.

On the other hand, these efforts do raise an interesting domestic U.S. law questions. Under recent Supreme Court precedent, the President can preempt state and local laws that he deems inconsistent with a clearly established national policy? President Bush relied on this authority, in part, when he invalidated (or tried to invalidate) Texas laws denying certain rights to foreign defendants on death row? Could he do the same here? Declare these various local laws in violation of the express U.S. policy not to comply with the Kyoto Protocol?

This sounds absurd, and as a political matter it may be so, but as a legal matter, this is not so crazy. I think the Supreme Court's precedent in this area allows for this possibility. We'll see.

Amending the U.N. Charter: Why Does the "Unilateralist" U.S. Care?

This NYT article suggests the U.S. will oppose granting any new permanent members of the Security Council a veto power that is currently shared by the Big Five. I have to admit that I am a big surprised at this opposition. If the U.S. really doesn't think the UN Security Council matters very much, then why should the U.S. care if there are more vetoes? On the other hand, any one who wants a more effective Security Council, namely, the U.N. bureaucrats, should oppose handing out more vetoes. Yet they appear to be supporting the new members? Strange.

From a strictly legal point of view, I am stunned that anyone thinks UN Charter reform is going to happen very quickly or at all, because 2/3 of all UN members, including all of the members of the Security Council, must ratify any amendments through their domestic constitutional processes (See Article 108, U.N. Charter). Yikes. That means 67 U.S. senators must approve any new U.N. arrangement with new Security Council members. Good luck!