Friday, June 03, 2005

The Pentagon's Report on China: Congressional Oversight of Foreign Policy in Action

The WSJ($) reports today on a draft Pentagon report on China's military power that suggests the Pentagon is re-focusing its energy on China as a possible military rival to the U.S. The report supposedly has been the subject of inter-agency struggles between the Pentagon, which wants to discuss possible global conflict scenarios, and the State Department, which doesn't want to offend or annoy China.

There is a lot going on in this report, which is required annually by Congress, as part of its condition for defense appropriations. As the article notes, the Navy and Air Force have a vested interest in building up China as a threat, given they have very little to do in Iraq these days. The State Department, which is trying to get China to control North Korea, is not happy. I imagine the Treasury Dept, U.S. Trade Rep., and Commerce Dept's, aren't thrilled with China-as-military-enemy scenario either.

But putting aside the substance of this year's report, what is interesting from a broad legal perspective is that the report is required at all, and that it is required to be made public. You can find last year's report here. It should remind us that Congress is not quite the patsy on foreign policy that it is often assumed to be. By requiring this report every year, Congress forces all of the relevant agencies to have a discussion and debate at an inter-agency level, and then gets to review the product of those discussions in public as well. In other words, Congress gets to oversee, and influence at the early stages, the formation of the U.S. government's long-term foreign policy strategy.

The President may be, according to the Supreme Court, the "sole organ" of U.S. foreign policy. But that "organ" gets pushed around -- a lot -- by a Congress when it wields the power of the purse. And this democratic, relatively transparent approach to developing foreign policy, despite its messiness, is almost certainly a good thing.

Thursday, June 02, 2005

Law of the Sea Treaty Ratified! (By the Interior Department)

I noted a while back that the Bush Administration is treating the Law of the Sea as essentially ratified, even asking for money to fund the Law of the Sea Tribunal. Yesterday, more evidence of the Bushies' love of the Law of the Sea Treaty has emerged, strangely enough, in the context of the ongoing Louisiana-Florida battle of underseas oil development in the Gulf of Mexico.

According to the St. Petersburg Times, the Interior Dept. has promised to redraw Louisiana's territorial waters to stretch farther toward Florida. The basis for the new lines is none other than the Law of the Sea Treaty, which, as the paper points out, the U.S. has thus far refused to ratify.

Actually, this is not as crazy as the Times believes. The U.S. has signed the treaty after all, and it has also recognized many of its provisions as customary international law. U.S. courts apply customary international law all the time in resolving territorial disputes between states, so it seems fine if an executive agency (which otherwise has that authority) wants to use the same law for that same purpose.

Indeed, the executive agency has arguably more freedom to do so than a court, because the agency's decision to use the Law of the Sea is essentially a policy decision that can be overturned by Congress or a future executive. But a court would codify the Law of the Sea treaty in domestic law, which is quite a different situation.

John Keegan: Bad (International) Law and Just Wars

Legendary British military historian John Keegan weighs in with an insightful criticism of the effect of modern international law (and especially institutions like the International Criminal Court) on the ability of a military to operate effectively. Reviewing the upcoming prosecutions of UK soldiers in UK courts, and perhaps in the ICC, he writes:

The United States has been much denounced for failing to fall into line with other states, particularly in Europe. Recent events suggest, however, that the Americans may have been wise to withhold their consent. The British are discovering why.
....

The mobilisation of legal procedures within a law-abiding army, such as the British, against its own people, has the most undesirable effects. No one wants law-breakers to go unpunished. The reality is, however, that once military police and military lawyers start investigations, the normal understandings and assurances of mutual confidences on which normal army life subsists go out of the window.

Military lawyers, in the nature of their job, cast their net as wide as possible. Comrade is questioned against comrade. Suspicion is aroused. The law of self-protection sets in. Men who would never in everyday life impugn a brother in arms are driven to hint at wrongdoing. Worse, those in positions of command who would normally object to any accusations being levelled against their subordinates become affected by the desire to distance themselves from
criminal proceedings.


I must admit I'm not sure what I think about this particular criticism of the ICC-led movement to merge international human rights law and the law of war. And Keegan is obviously a pro-military institution kind of guy. But he also may be one of the greatest living military historian (writing in English) and has forgotten more about how military institutions operate than most of us will ever know. See a list of his books here. So his views are worth thinking about.

Wednesday, June 01, 2005

WTO Watch: Epic Battle Looms

This piece does an decent job of trying to unpack the WTO's somewhat obscure dispute resolution system, which is now about to tackle the epic multibillion-dollar struggle between the U.S./Boeing and the EU/Airbus over aircraft subsidies.

The WTO dispute resolution system is a hybrid between binding arbitration and a permanent stand alone court like the ICJ. The panelists are, as the article suggests, picked for particular cases, although there is a permanent membership for the Appellate Body. Still, does anyone know who they are? Here's as partial list. So there is little glamour, although lots of power (at least compared to other international tribunals).

One question to keep in mind as this process moves forward. Who will be the panelists for the initial dispute resolution panel? Given that both the U.S. and E.U. have a decent record of compliance with such decisions, and given the murkiness of trade law on these questions, the identity of the panelists could be crucial, if not decisive. Yet I doubt there will be no press coverage of the panelists, or of their deliberations, largely because the whole process moves into a far less public phase at this point. It is not obvious to me that the identities of the panelists are even known (except by the parties) prior to their decision. If someone can find the most recent list of panelists on the byzantine WTO website, please let me know.

The theory, I believe, is that none of this is relevant to outsiders -- it is simply a matter between governments. But I'm not sure that is true anymore, given the stakes of this and other WTO cases that loom in the near future, for various important groups: e.g. sugar planters, aircraft workers, etc.

While Waiting for the Tally of the Dutch Vote...

... on the EU Constitution, check out the discussion over at Transatlantic Assembly on the French vote and the state of the EU.

UPDATE

Le Monde reports a 63% "No" vote by the Dutch. The number will likely be adjusted slightly in the next hour or two as all the results are counted.

Tuesday, May 31, 2005

My Ongoing Debate on Amnesty International's Report

For those not already sick of the topic, I, along with Greg Fox of Wayne State, Andreas Paulus of the Institute for Public International Law in Munich, and others, have been continuing to discuss the AI report in the comments section here.

More Relentless Self-Promotion: Ku on TV

All right, it's not the Today Show, but for anyone in the New England area who might be interested (or curious what I sound like), I will be discussing Amnesty International's recent human rights report on "Nite Beat with Barry Nolan" around 7:30 p.m. tonight on CN8, which is part of The Comcast Network. Also featured will be the head of Amnesty's New England chapter.

Monday, May 30, 2005

Can You Attach an ICJ Judgment?

This report details a curious effort by a South African businessman to attach an expected forthcoming money judgment from the International Court of Justice in favor of the Democratic Republic of the Congo. DR Congo has filed a claim against Uganda in the International Court of Justice seeking reparations for Ugandan violations of Congo sovereignty. In theory, DR Congo might win billions of dollars. Apparently, this SA businessman has gotten an attachment in Uganda on any such payment so he can get his cut before DR Congo gets its money.

A couple rather obvious problems. Is an ICJ money judgment directly enforceable in Uganda? In other words, could Congo go to Ugandan courts to enforce the ICJ order? I don't know. Nothing in the ICJ Statute requires such domestic enforcement, but I suppose Uganda might allow such enforcement. The only law I can find in Uganda allows judgments of Commonwealth countries to be enforced, but not ICJ judgments. Still, I'm quite confident that no country that is party to the ICJ permits such domestic judicial enforcement.

Why? To put it bluntly, countries always retain the option to ignore enforcement of ICJ judgments. They may get sanctioned, say by the UN or by other countries, but they might also keep non-compliance as a further bargaining chip with the country they are bargaining with. This may not be very nice, but it is hardly surprising. So look for Uganda to refuse to pay any ICJ judgment unless it is offered some further carrot by the international community or perhaps some nasty stick to force payment.

Sunday, May 29, 2005

The EU, The French, and the New Europe

What will the French “Non” to the EU Constitution mean for EU-hopefuls?

I have just returned from a week and a half in Moldova and Romania. Romania is supposed to accede to the EU in 2007 or soon thereafter. What strikes me, though, is how many Romanians seems skeptical of European integration. There was, of course, the famous quip by Chirac that Romania and other members of the “New Europe” seeking EU accession missed an opportunity to shut up and keep quiet rather than support the U.S. on Iraq. That didn’t go over well.

But, impolitic French sniping aside, there is a deeper structural reason for the skepticism of Romanians. Romania has been embroiled in a dispute with the European Commission over the procedures for foreign adoptions for Romanian children. (See this BBC report and this Southeast European Times report.) Baroness Emma Nicholson, the EU’s Rapporteur for Romania, wrote a scathing report on the process of foreign adoptions in Romania that caused the European Commission to demand a ban of such adoptions until reforms were made, if Romania hoped to gain eventual entrance to the EU.

But for the completion of the process of certain adoptions that were already “in the pipeline” to Italian families, this moratorium essentially halted foreign adoptions in whatever stage they were in. The U.S. Congress, in particular, was incensed that various people who were waiting for their adoptive children were no put into limbo. The EU-required moratorium lasted four years.

While Baroness Nicholson’s report had focused on corruption in the adoption system, Romanians saw a different problem. They don’t deny that there were problems in the adoptions system; what they didn’t like was that the EU could force them to ban all foreign adoptions on the basis of one report. Moreover, they didn’t think foreign adoptions was something that the EU Commission should have much say over. Reform the adoption system, yes; but Romania should be able to decide how.

Romanians I met seemed wary of the EU’s supranational aspirations. One person I spoke to talked about how Romania may have cultural ties to France, but in politics young Romanians are much more oriented towards Washington and London. They are Atlanticists who, by accident of geography, happen to be on the shore of the Black Sea.

Some Romanians count joining NATO as the second most significant event in their country’s history, after the 1918 unification of Romania and Transylvania (an event that my wife’s relatives, who are Transylvanian Hungarians, see in a less enthusiastic light). They love President Clinton for getting the ball rolling and President Bush for his welcoming Romania into NATO and the Administration’s view of the “New Europe.”

How Romanians and other nations queing up for accession react to the EU Constitution suddenly losing the wind from its sails will be interesting and complex. Note that the most vocal reason for the French “No” vote was that the EU Constitution was too neo-liberal, that is, too much like the economic models of Anglo-Saxon countries. On the other hand, Romanians I spoke to about this expected a “No” vote because the Constitution was too supranational. Go figure.

As with many electoral wins, the vote was probably comprised of different people being against the Constitution for different (and sometimes contradictory) reasons. If this leads to a less supranational EU, it may actually result in and EU that is more inviting to Romania and other members of the New Europe. If it makes the French and the Germans less enthusiastic about expansion until they can deepen EU, then accession becomes more difficult for Romania and Bulgaria (not to mention Turkey).

In any case, I think things are about to get very interesting in the Old World.

Goodbye EU?

French voters decisively rejected the proposed EU Constitution today by a 57-43 margin. This doesn't mean the EU is dead, but it does probably mean that the EU Constitution, which was a treaty intended to push Europe into an "ever closer Union" is probably dead, at least in its current incarnation.

We haven't blogged much about the EU here, but I would only say that this result, while it may be a bad thing for President Chirac and maybe the EU's short-term prospects, might end up being a healthy thing for the EU project. Up to now, the EU has been a strange amalgamation of an international organization and a budding superstate, with very little direct democratic input. This vote was one of the first attempts to put the EU on a more solid democratic footing. The EU Constitution was mailed to every French voter. Even Paris Metro riders were spotted reading their copies on the way to work. This result is probably a useful wake-up call that will help ensure that any future strengthening of the EU will stand on solid democratic footing.