Saturday, July 02, 2005

Justice O'Connor: A Moderate on Internationalism as Well

I have very little to add to the zillions of articles and blog posts about the retirement of Justice Sandra Day O'Connor and her likely successor. I did want to point out, though, that Justice O'Connor was (not surprisingly) a moderate in the Court's recent embrace of foreign and international law. Justice O'Connor appears to see some useful analogies to the relationship between state and federal courts. As she writes in an article entitled "Federalism of Free Nations,"

As our country moves toward a more international regime of dispute resolution, this federalist ideal of healthy dialogue and mutual trust may be possibly be adapted to describe the proper relationship between domestic courts and transnational tribunals. It is a relationship which might be described as a "federalism of free nations," to use a phrase of the philosopher Immanuel Kant. Just as our domestic laws develop through a free exchange of ideas among state and federal courts, so too should international law evolve through a dialogue between national courts and transnational tribunals and through the interdependent effect of the their judgments.

On the other hand...

Article III of our Constitution reserves to federal courts the power to decide cases and controversies, and the U.S. Congress may not delegate to another tribunal 'the essential attributes of judicial power.'"

So she thought foreign and international law was important and useful, but she recognized that there are serious constitutional problems and limitations on this practice. Sensible, moderate, but also analytically dissatisfying. I guess this could describe almost all of Justice O'Connor's jurisprudential views.

WTO Watch: U.S. Complies (Sort of) with WTO Cotton Subsidy Decision

As I suggested earlier this week, the U.S. government had to announce what it was going to do about the WTO's cotton subsidy decision by Friday, July 1. Well, the U.S. announcement is here and it is pretty mind-numbingly technical. It basically adjusts some export credit programs. The announcement was made by the U.S. Dept of Agriculture rather than the U.S. Trade Representative. Moreover, the budget cuts to the subsidies can't be done by the U.S. Executive alone and await future congressional action. Will this satisfy Brazil? I doubt it, but we'll see.

Thursday, June 30, 2005

Suing Iran's President: Never Say Never?

In my original post I stated that, legally speaking, the embassy hostages issue was pretty much a closed case, and that a suit is unlikely to be successful against the President-elect of Iran. Julian put some meat on the bones of this statement in his post concerning the Algiers Accords and statutes of limitation. Upon more reflection, I think we might have missed the key issue. Although I still think that think that a suit against the Iranian president-elect in his personal capacity would probably not survive, I want to revisit why that is the case and also set out how I think there may be at least a possibility of a suit going forward.

As I understand it, the Algiers Accords would bar suits by the hostages against Iran but not against Ahmadinejad for his actions as an individual. (The most recent example of former hostages unsuccessfully trying to sue Iran itself is the Roeder case.) The only way the Accords would sweep in Ahmadinejad and bar actions against him would be is if we view the hostage-takers as having been an "instrumentalities" of Iran as opposed to merely "nationals" of Iran. The Algiers Accords bars suits against Iran and, for the purposes of the Accord, instrumentalities of Iran are part of the definition of “Iran.” That is not the case regarding "nationals." So, while instrumentalities cannot be sued by U.S. nationals or by the U.S. government outside the Iran-U.S. Claims Tribunal (for actions related to the hostage crisis), I do not think there is any such bar against suing nationals.

So, were the hostage-takers instrumentalities and thus immune to suit? Viewing the individuals as instrumentlaities of Iran would go beyond the ICJ’s findings in the Diplomatic and Consular Staff Case, which found that the hostage-takers were not agents of the Iranian state. (However, responsibility for the hostage crisis could still be imputed to Iran based on Iran’s obligations of diplomatic protection. See especially paragraphs 56-61 of the Judgment.) One could argue that if the hostage-takers are not instruments of Iran, then claims against them on a personal basis are possibly not precluded by the Algiers Accords.

But, what about the statute of limitations?

As Julian correctly observed, a suit against Ahmadinejad would still have to overcome the statute of limitations of the statute under which the suit arose. However, I do not think the relevant statute would be the Alien Tort Statute, as that would apply only to a suit by an alien. Rather, we would look to U.S. antiterrorism laws and, there is now a move to remove statutes of limitations from the most serious offenses in these statutes. (I am not sure whether these amendments have been enacted.) Where time limitations still exist, they are in the five to ten year range. So, if the acts of Ahmadinejad were those that fall into the “most serious offenses” category of certain terrorism laws, and if the statute of limitations had been removed, then the suit may not be time-barred. Otherwise, it is barred as Julian argued. But the relevant statute of limitations would likely be based on an anti-terrorism statute, not the Alien Tort Statute.

Let’s say that there is no applicable statute of limitations. Does the suit survive? Probably not at this time. The litigants would face the possibility of Head of State immunity. The President-elect would likely be found to have such immunity for his term in office. This leaves a possibility of a suit after he leaves office for any alleged crimes he committed before he was in office but, while he is in power, he would probably have immunity from judicial proceedings.

So I think that, at the end of the day, it is unlikely that a suit will be maintained. But I don’t think the reason is based on the Algiers Accords or the Alien Tort Statute but rather the statute of limitations of an anti-terrorism statute and Head-of-State immunity. And, depending on whether or not a relevant statute of limitations actually exists, I think there may be a slim chance that a suit can be maintained, though not until after Ahmadenijad leaves office.

Can Former Hostages Sue Iran's New Leader?

Just to follow up on Chris' post on Iran's new leader. Ordinarily, the former hostages might have been able to sue the new Iranian prez in U.S. courts under the Alien Tort Statute. But they would face innumerable obstacles including a 10-year statute of limitations. But most importantly, it appears that the 1981 Algiers Accords, which resulted in the release of the hostages in the first place, bars any such claim. Here is the key language:

11. ... the United States will promptly withdraw all claims now pending against Iran before the International Court of Justice and will thereafter bar and preclude the prosecution against Iran of any pending or future claim of the United States or a United States national arising out of events occurring before the date of this declaration related to (A) the seizure of the 52 United States nationals on November 4, 1979, (B) their subsequent detention, (C) injury to United States property or property of the United States nationals within the United States Embassy compound in Tehran after November 3, 1979, and (D) injury to the United States nationals or their property as a result of popular movements in the course of the Islamic Revolution in Iran which were not an act of the Government of Iran. ...

Moreover, former hostages can't even go to the Iran-U.S. Claims Tribunal because that tribunal's jurisdiction is limited to claims that : "arise out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriations or other measures affecting property rights, excluding claims described in Paragraph 11 (see above)."

This language looks pretty airtight to me. Moreover, even though the Algiers Accords are merely an executive agreement, and not a treaty, the Supreme Court has ruled that they do have domestic legal effect.

So, sadly, the former hostages are out of luck here.

Was the Iranian President-Elect One of the Tehran Embassy Captors?

CNN reports that several former hostages of the 444-day US embassy hostage crisis in Iran believe that Iranian president-elect Mahmoud Ahmadinejad as one of their captors. Other reports stated that he was believed to have acted in a capacity akin to chief of security for the hostage-takers. The aides of the president-elect have denied the allegations and former members of the hostage-takers have also denied his involvement.

Although, as a legal matter, the US and Iran had viewed the Iran hostage crisis as a closed matter (but for the claims being resolved before the Iran-US Claims Tribunal), as a political matter this may further sour diplomatic relations and make some sort of detente more difficult.

Stay tuned...

First Step Toward a North American Union?

Some folks get excited about "global governance" and "world government". But while there are some trends toward global integration in the form of free trade and greater international cooperation, I sometimes think the more likely trend will be toward regional integration. The recent setbacks for the EU notwithstanding, regionalism is more likely to occur because of competition from other regions. Hence, the growth of the EU might force the U.S. to get more serious about integrating with Canada and Mexico. Such integration might push the Latin American countries to bind themselves together more. And then the Africans respond by tightening the African Union, etc. etc.

At least in the short term, there seems little prospect of greater North American integration as U.S.-Canadian relations remain at an all time low and anger of illegal Mexican immigration grows in the U.S. There has been a lot of chatter in the thinktank world about a "North American Community" modeled on the E.U. (say bring in the Central American and Caribbean countries, create a North American Trade Court and integrate labor and environmental laws), but I think this remains a bit of a pipe dream for now, especially as the threat of deeper E.U. integration recedes.

The three countries have currently eschewed steps toward a more formal union and have instead settled on a "Security and Prosperity Partnership " that simply pushes inter-agency cooperation along a number of lines: public health, intellectual property, regulatory streamlining. While this and future initiatives might be the first step toward a "North American Union", the fuzzy non-binding aspect of the SPP might also signal that integration has reached its limits.

Wednesday, June 29, 2005

Borgen on Treaty Conflicts

Just in time for beach reading season, I have just posted to SSRN my newest article, Resolving Treaty Conflicts, which is coming out in the George Washington International Law Review.

I grapple with the question of what States should do when they are signatories to multiple treaties (such as, say, a trade agreement and an environmental agreement) that frustrate each other’s goals. While there are rules that States have written to resolve these conflicts, I argue that the rules are not really followed much. In a world where treaties are rapidly proliferating, is there any principled way that these conflicts can be solved? And, if there is not, can one say that international law is a coherent legal system?

The abstract and download are available here.

Treaty Interpretation Equals a Political Question? DC Circuit Dismisses "Comfort Women" Suit Against Japan

In an important decision on treaty interpretation and the political question doctrine, the D.C. Circuit yesterday affirmed the dismissal of a lawsuit brought by a number of Korean, Taiwanese, and Filipino women who alleged rape, torture, and other abuse at the hands of Japanese soldiers during World War II. The lawsuit was brought under the Alien Tort Statute and had been originally dismissed by the district court on sovereign immunity grounds. The Supreme Court remanded, however, for reconsideration and the D.C. Circuit has a new reason for dismissal: "the case presents a nonjusticiable political question: namely, whether the
governments of the appellants’ countries foreclosed the appellants’ claims in the peace treaties they signed with Japan."

As I've noted earlier, Japan is still facing serious fallout in Asia from its WWII behavior, especially in S. Korea and China. And my own belief is that Japan is still responsible in some way for the serious crimes their army committed in the WWII. But, as a legal matter, both Korea and China (and Taiwan and the Philippines) may have waived any claims by their nationals via peace treaties with Japan.

What is interesting here is that the D.C. Circuit refused to resolve whether or not the claims have in fact been waived by the treaties. Instead, it has invoked the always murky "political question" doctrine to dismiss the case on the theory that interpretation of the treaties here would interfere with the executive's conduct of foreign affairs. Usually, the question of treaty interpretation is a matter of deference to the executive branch's interpretation, at most, but here the D.C. Circuit went farther. It noted that if it adopted an interpretation of a treaty between two other countries like a treaty between Japan and Korea, it might unduly upset foreign relations with one or both of those countries. Here is the key graf from the decision by Chief Judge Ginsburg:

Is it the province of a court in the United States to decide whether Korea’s or Japan’s reading of the treaty between them is correct, when the Executive has determined that choosing between the interests of two foreign states in order to adjudicate a private claim against one of them would adversely affect the foreign relations of the United States? Decidedly not.

I'm sympathetic to this approach, although I wonder how far the court or future courts will push this application of the political question doctrine. Why shouldn't any treaty interpretation by courts which the "Executive has determined ... would adversely affect the foreign relations of the United States" become a political question? The answer, I think, is that treaties the U.S. has signed are "Laws of the United States" under the Constitution and therefore different. I suppose this is the distinction, but it is not an entirely satisfying. If I were the U.S. government, I would definitely invoke the political question to try to limit the use of the Geneva Conventions in the Guantanamo cases currently being appealed to this same court.

Timor-Indonesia Standoff: U.N. Panel Calls for New International Tribunal

A U.N. Commission of Experts has recommended that the Security Council push Indonesia to re-open trials of individuals suspected of committing war crimes in the Timor-Leste (East Timor). Indonesia has conducted prosecutions via an ad hoc tribunal, but according to the commission, these prosecutions were little more than sham trials.

I haven't seen the report which is not available online, but I'm not exactly sure what more the U.N. can really do here. (The article in the Guardian oddly suggests a referral to the International Criminal Court, which wouldn't have jurisdiction however since most of the alleged crimes took place in 1999). As I noted earlier, Indonesia and Timor-Leste have agreed to create a Truth and Friendship Commission. The UN Commission appears to find that commission problematic. But will the U.N. really intervene to upset the attempt by the two parties to settle their war-related claims? Should it?

Tuesday, June 28, 2005

WTO Watch: U.S. Cotton Farmers Brace for WTO-Mandated Subsidy Cuts

This very interesting piece from the St. Louis Post Dispatch notes that the U.S. is obligated to announce its measures for implementation of a March WTO decision requiring cotton subsidy cuts by Friday (July 1) and that many cotton farmers are understandably nervous about the expected cuts.

This may make the WTO seem fairly powerful, but in reality, the U.S. could ignore this WTO ruling. It won't because, among other things, Brazil's Congress is poised to pass retaliatory legislation if the U.S. doesn't comply to the extent Brazil believes is required. And because it is a policy commitment of the U.S. that international trade, even as interpreted by the WTO, is better than the alternative. After all, the U.S. wins as much as it loses, as it did yesterday in its apple claim against Japan and in its defense of chip duties against S. Korea.

To be sure, this policy commitment is beginning to falter, and surely there will be payback against the White House and the Congress if they do cut the farmers' subsidies. And maybe a future U.S. government will give it up and say the WTO isn't worth it anymore. But because that is always an option, it is important to remember that in the end cuts will ultimately be the responsibility of the WH and Congress, not the WTO.

Monday, June 27, 2005

New Blog on UN Documents and Information

The reference library at the UN has sent out an announcement stating:

Dag Hammarskjöld Library at the UN Headquarters in New York is announcing the creation of a new blog called “UN Pulse: Connecting to UN Information.”

The blog focuses on just-released UN system-wide online information, major reports, publications and documents and we have included a category called “International Law.” Created and maintained by a team of reference librarians at the United Nations headquarters in New York, UN Pulse is updated as new information is published and received.

Considering how difficult it was to get UN documents just a few years ago, this blog (and its links to documents) could greatly simplify UN research and keeping up-to-date on UN-related issues.

The John Bolton Question

David Bosco, the Senior Editor of Foreign Policy Magazine and an international lawyer, has a thoughtful piece on John Bolton in the Bulletin of Atomic Scientists. I think it is worth reading by Bolton apologists and critics alike because it gets away from the heated rhetoric from both sides and uses the Bolton nomination to ask some tough questions about what we as American citizens want our foreign policy to look like.

Bosco argues that while Bolton may have a distasteful personality, he brings up many arguments that resonate with many Americans, such as a concern that international law is idealistic and does not address the realities of power and that various international institutions are undemocratic and threaten U.S. civil liberties. In part, Bosco tries to rescue Bolton’s argument from Bolton’s personality.

However, Bosco does overreach at times, such as his echoing concerns over whether the US would be bound by a hypothetical customary international rule banning the death penalty. This argument is a chimera often brought up by conservatives critical of international law’s effect on domestic civil and political rights. Inasmuch as the US has consistently objected to such a rule, it would not be bound. Conservatives, however, have been relatively mute in opposing (or have actually been enthusiastic in supporting) the enforceability of customary rules that protect property rights, such as norms against expropriation.

Bosco also considers the hyperbole and the streak of “nationalist paranoia” entwined in Bolton’s views on the ICC and the weird mix of cold nationalism and hot moralism that you can get from Bolton on a variety of issues.

But, while Bosco turns the Bolton nomination into a prism that splits the spectrum of American foreign policy thinking, this does not mean, in my opinion, that Bolton would be a good representative for the US at the UN. Bosco gets around this by asking too easy a question: how many Americans can remember their recent UN representatives? Well, we can also ask how many American can name all nine Justices of the Supreme Court; the fact that polls show most Americans cannot does not mean that each Justice isn’t very important. The Secretary of State is not the day-to-day dealmaker at the UN, the US Ambassador is.

The real question is what does the Administration want to get done through the UN and what kind of diplomat can achieve those goals? The US needs to rally the allies to help in our efforts in Afghanistan, in Iraq, in the War on Terror. We need someone who could muster support for possible future UN resolutions concerning North Korea or Iran or Syria or some other yet-to-be-determined hotspot. And we need someone who can manage a large staff and focus their strengths on issues such as Security Council reform. Can John Bolton do this? Does he even believe working through the UN is a worthy exercise? Are we nominating him to make the UN effective or because we don’t like the UN?

I appreciate Bolton as a prism. I am very concerned about Bolton as a diplomat.