Friday, July 08, 2005

UN Reform Conference Call

The ASIL international organizations interest group has forwarded the following information about a conference call tomorrow, July 9, at 1:00 pm EDT, with Ed Mortimer of the UN and Don Kraus from Citizens for Global Solutions. For those of you interested in the reform agenda and the upcoming September summit, this sounds like a good opportunity to get up to speed on some of the central issues with two people closely involved in the process.

This Saturday, July 9, 2005 1:00 PM Eastern time
Dial Toll Free: 800-391-2548

Verbal password: V A 3 1 7 8 5 5

Thursday, July 07, 2005

War or Crime? Some Thoughts on the 7/7 Attacks in London

I didn't want to seem wholly unaffected by the horrible terror attacks in London, but I didn't feel like I had anything useful to add from an international legal point of view. But where a cautious lawprof blogger fears to tread, lawyer Andrew McCarthy does not, in this blistering National Review Online piece.

McCarthy's basic point is that the UK, unlike the U.S., has generally embraced the "law enforcement" approach to the war on terrorism. As McCarthy notes, the UK has:
  • adhered to Protocol 1 to the Geneva Conventions, which make it more difficult to classify someone as a unlawful combatant.
  • tossed out tough new anti-terrorism laws as a violation of EU human rights standards
  • released British nationals detained in Guantanamo Bay not because they did not believe those detainees were dangerous, but because they had no legal basis to prosecute them.

The larger sort of legalistic point is that the UK and many countries continue to see terrorism as a criminal law enforcement problem than a military problem. According to McCarthy, this hampers the UK's ability to fight terrorism.

I'm sure McCarthy is exaggerating the extent to which these legal distinctions could have made a difference in the 7/7 attacks. But he does put his finger on the key political-legal battle over the war on terrorism.

Is it legitimate for countries fighting terrorism to adopt aggressive military tactics generally reserved for wartime: e.g. kidnappings and renditions, preemptive bombings/assassinations, preventive detentions, harsh interrogations? Or should countries stick to the basic law enforcement model that is more likely to protect citizens' civil and political liberties? Or is there some third way that could balance these concerns?

My own take (for what it is worth) is that we need some sort of third way, but if I had to pick between the "war" approach vs. the "law enforcement" approach, I would have to go with the "war" approach as the lesser of two evils. It seems to me, though, that it is the responsibility of lawyers and policy makers to come up with some third way rather than simply take potshots at each other from their ideological bunkers.

Trends in Foreign Law Citation in U.S. Courts

Rising Washington & Lee lawprof David Zaring has a nice (and somewhat brave) post up at Prawfsblawg previewing some descriptive research he has done on the citation in foreign law by U.S. courts over a long stretch of time. Here is his main conclusion so far:

  • citation to foreign authority is hardly unprecedented, even in the modern era;
  • but such citation, when it does happen, is limited, supportable under a number of theories of judging, and rarely applied to constitutional interpretation.

A couple of clarifying questions:

What is "foreign law"? Does that include foreign interpretations of international law? Does it include British common law?

When was the first recorded instance in David's research (1945-2005) of a court using foreign or international law to interpret the U.S. Constitution?

This sounds like a neat project, but I'm not exactly sure in the end what David is driving at. I'm not sure that critics of the current Supreme Court's project of incorporating foreign and international law into constitutional interpretation argue that U.S. courts should never cite foreign law. If that is his goal, I think he will end up missing his target.

I do think that this kind of study might be useful in clarifying the different ways foreign law is used, but ultimately, I think I would want to see claims of causation or trendlines. For instance, the trendline toward more usage, or different kinds of usage (e.g. constitutional interpretation), might be important. Or there is some causation somewhere -- resulting from the adoption of various private international law treaties or the increase in foreign trade, etc.

Anyway, I welcome David to the blogosphere and commend him for being willing to put his research ideas in progress on a blog for sniping by people like me. I think this is a great trend, although one I'm not yet ready to embrace.

WTO Watch: Bush Will Comply, but will Congress?

In yet another case of U.S. compliance with an international tribunal ruling, the Bush Administration has proposed legislative changes that would reduce U.S. cotton subsidies (by about $350 million) and bring the U.S. into compliance with a WTO decision won by Brazil. This action follows its announcement last week that the Administration would make certain administrative adjustments to comply as well.

Brazil has filed a request for WTO permission to retaliate, but appears ready to suspend this retaliation unless Congress refuses to enact the changes. And Congress, at least according to this report, is not exactly rushing to comply. Note how this is moving out of the President's hands and into the tricky waters of congressional politics.

Wednesday, July 06, 2005

Keeping Score in the Great Game

There are increasing reports about rising anti-Americanism in the Central Asian Republics and pressure by these republics for the U.S. to have an exit timetable for the troops stationed there. Contrast this with the argument of some strategists that the U.S. needs to establish a long term presence in these republics to (a) prevent terrorist training camps from taking root once again and (b) deter China from using long-range missile sites in Western China against Asian shipping or other potential targets. This latter point was made most effectively by Robert Kaplan in his Atlantic Monthly cover story, in which he argued the U.S. will need to be in the Central Asian Republics for the long haul. (But see also this critique of Kaplan’s argument by Praktike.) With the echoes of the 19th century intrigue in the region between the United Kingdom and Russia, this has inevitaby been termed the “New Great Game.”

It seems like the game just got a little tighter. The new Shanghai Cooperation Organization, anchored by Russia and China, brings together Kazakhstan, Uzbekistan, Tajikistan and Kyrgyzstan, in a loose regional grouping that is partially motivated by off-setting U.S. influence in the region. Russia, which had been the regional bad-guy, is now regaining favor in part because the leaders of the Central Asian Republics are upset over what was viewed as U.S. support for the popular uprising that overthrew the leader of Kyrgyzstan. And now the U.S. is critical of Uzbekistan’s government in the wake of the massacre there. And so the “wave of democracy” that people were recently cheering on may have a nasty geostrategic riptide.

Such an alliance is textbook balance-of-power behavior. The Central Asian Republics embraced the U.S.—and offered basing rights for the war in Afghanistan and for other operations—when they thought the U.S. could break Moscow’s bear hug on the region. But while U.S. money (and protection) is good, this democracy stuff may be more than they bargained for. So perhaps Russia and rising regional hegemon China should be invited back into the game to even up the odds.

Thus Russia and China have just firmed up each of their hands because the other players have tipped their cards.

The Central Asian Republics, for their part, are likely to keep using the major powers to balance each other.

But what will the U.S. do? Will the U.S. continue using the “spread of liberty” rhetoric or will it hush its criticisms in the face of retaining basing rights? Will there be other concessions in order to stay in the game? The U.S. also knows that while the Central Asian Republics don’t want the democracy rhetoric, nor do they want the U.S. completely out of the game. So George Bush gets to play the wild card, the Joker.

Tuesday, July 05, 2005

Justice O'Connor and the Complexities of International Law

Justice O’Connor’s views on international law and foreign law are moderate, well-reasoned, and consistent. Julian points out two quotes and implies that, somehow, they don’t fit together in a "[]satisfying" world view. I disagree. On topics of international law, Justice O’Connor has consistently held that U.S. judges should, in certain instances, give persuasive authority to international tribunals. It is also her view that they do not have to do so as no international or foreign tribunal has been given judicial authority by the Constitution. It is not necessarily a view that some people (on the right or the left) like, but it is logically consistent and it hangs together.

Justice O’Connor chairs the Judicial Advisory Board of the American Society of International Law. While I was the Director of Research and Outreach of the ASIL I had the pleasure of working with her over the course of three years in developing programs on international and foreign law for U.S. judges. She has a deeper and more realistic understanding of the complexities of these issues than most international lawyers -- and critics of international law -- that I know.

Judges are not hermits. They talk to their colleagues on the same court and from different courts. The law is not hermetically sealed. International law, foreign law, and U.S. law interact in the work of judges. Some academics and pundits spin theories of what judges should do without really understanding what the work of judges actually entails. Others build grand theories of international law that have little bearing on what is actually applied by judges. Justice O’Connor’s views of international law are informed by having taken part in the formal process as well as the informal interactions that are part of being a judge for more than a quarter-century. Her views are also anchored in a deep understanding of the rules that are actually applied by U.S. courts. Here is what she said in part of her Keynote Address to the Annual Meeting of the American Society of International Law in 2002:

…international law is no longer confined in relevance to a few treaties and business
agreements. Rather, it has taken on the character of transnational law--what Philip Jessup has defined as law that regulates actions or events that transcend national frontiers. Both public and private international laws are included, as are other rules that do not wholly fit in to such standard categories.

Although international law and the law of other nations are rarely binding upon our
decisions in U.S. courts, conclusions reached by other countries and by the international
community should at times constitute persuasive authority in American courts. This is
sometimes called "transjudicialism."

American courts have not, however, developed as robust a transnational jurisprudence as they might. Many scholars have documented how the decisions of the court on which I sit have had an influence on the opinions of foreign tribunals. One scholar has even said
that, when life or liberty is at stake, the landmark judgments of the Supreme Court of the
United States, giving fresh meaning to the principles of the Bill of Rights, are studied with as much attention in New Delhi or Strasbourg as they are in Washington, DC or the
state of Washington or Springfield, Illinois.

This reliance, unfortunately, has not been reciprocal. There has been a reluctance on our
current Supreme Court to look to international or foreign law in interpreting our own
Constitution and related statutes. While ultimately we must bear responsibility for
interpreting our own laws, there is much to learn from other distinguished jurists who
have given thought to the same difficult issues that we face here.

The court on which I sit has held, for more than two hundred years, that acts of Congress
should be construed to be consistent with international law, absent clear expression to the contrary. Somewhat surprisingly, however, this doctrine is rarely utilized in our court's contemporary jurisprudence. I can think of only two cases during my more than twenty years on the Supreme Court that have relied upon this interpretive principle.

We have refused to consider international law and the law of other nations when
interpreting our own Constitution…

Although our reliance on international and foreign law is rare, it is not nonexistent. For
instance, we have looked to international law notions of sovereignty when shaping our
federalism jurisprudence and to international law norms in boundary disputes between
American states. In areas such as these, it would be a mistake to ignore the rich resources developed in the law of nations. I suspect that, with time, we will rely increasingly on international and foreign law in resolving what now appear to be purely domestic issues.

I have not even scratched the surface of the issues and areas of application of foreign and
international law in U.S. courts. The fact is that international and foreign law are being
raised in our courts more often and in more areas than our courts have the knowledge and experience to deal with. There is a great need for expanded knowledge in the field, and the need is now.

Justice O’Connor’s view of international law is particularly realistic because it recognizes that international law is not just like domestic law and thus its uses and applications may be different. I think that her understanding of international is not only informed by her tenure as a judge, but also by her experiences as a legislator, having to build consensus among different political actors. Consider the following quote, from the same speech:

Just as we have said since the Paquete Habana case, "International law is part of our
law." International law, which is the expression of agreement on some basic principles of relations between nations, will be a factor or a force in gaining a greater consensus among all nations concerning basic principles of relations with nations that, as of now, are withholding their agreement on some aspects. It can be, and is, a help in our search for a more peaceful world.

A broad consensus on how nations should treat prisoners of war has recently to a degree influenced our own government in its handling of prisoners taken in Afghanistan; they were perhaps not technically covered by the Geneva Convention but they will
nevertheless be treated largely as if they were.

Acting in accord with international norms may increase the chances for development of broader alliances, or at least silent support from other nations.

Perhaps Justice O’Connor does not go as far in applying international law as some would want. Perhaps she does not reject international and foreign law as others would demand. Perhaps a lifetime of experience in the legislative and judicial branches makes such ideologically pure results practically unsatisfying.

Unlike some scholars, who focus on international law in the domestic courts, or others, who are primarily concerned with international law and international relations, when Justice O’Connor spoke about international law, she showed an appreciation for both sets of concerns. This Janus-faced outlook, seeing both international and domestic implications, has allowed her a greater understanding than most of the strengths and weaknesses of international law, making her views moderate, realistic, and, yes, analytically satisfying.

The ICJ Rolls On (Like Molasses)

The ICJ is hearing oral arguments this week in a long-running case between Rwanda and the Democratic Republic of Congo. Congo is alleging that Rwanda is responsible for the deaths of some 3.5 million Congolese who have died during Congo's civil wars because of Rwanda's intervention in that civil war. Congo is asking for an order from the ICJ requiring Rwanda to desist from its intervention and to pay compensation.

The law and facts here are pretty messy, although Congo's attempt to fix all of the responsibility for its problems on Rwanda seems dubious. Still, it is remarkable that a case of this sort has been brought to the ICJ. And it is even more remarkable that the ICJ has made no special effort to resolve the case expeditiously. Yes, I'm beating a dead horse here, but the ICJ simply cannot be an effective tribunal if it cannot speed up its consideration of cases. This week, the ICJ is considering only the jurisdiction and admissibility of the case (along with a new request for provisional measures by Congo). The written briefs on this portion of the case were filed in January 2003. No explanation is provided by the ICJ for why it waited two and a half years (July 2005) to hold hearings on those written pleadings. As far as I can tell, neither Congo nor Rwanda asked to suspend the case during that time.

The best case scenario for Congo: In about six months, Congo will win a decision from the ICJ granting them a provisional measures order and a decision to retain jurisdiction over the case. Congo can then go ahead and file their case on the merits, for which it can expect to wait another three years or so (or longer, because the factual issues will take more time to consider next time). So, maybe by July 2008, just in time for the Beijing Olympics?

One hopes the ICJ is simply inefficient and that its justices are lazy. Or it may be that the ICJ simply doesn't care a whole lot about the Africa cases, which is why it was willing to move faster in cases against the U.S. and Israel. Either way, its (slow) downward spiral into irrelevance continues.

Monday, July 04, 2005

The Founding Fathers as Internationalists

Just in time for Independence Day, Northwestern Law Prof John McGinnis has posted this neat little article arguing that the Founders were free traders much in the same vein that the U.S. government is today. In particular, he notes that the Continental Congress approved a "Model Treaty" that would have provided "national treatment" to treaty partners, e.g. that nationals of foreign countries would receive the same treatment in the U.S. for taxes and duties as U.S. nationals received in their countries. In other words, according to Prof. McGinnis, the Founders were free trading internationalists.

This is an interesting point, and provides yet another angle to a question that has recently percolated in the courts and the academy: Were the Founders liberal internationalists? Did they (in addition to free trade) also believe in respect for and compliance with international law as the primary mechanism of conducting foreign relations? Would they have believed that judges should, whenever possible, cite to international law and opinion in the development of constitutional law?

For many modern internationalist scholars, the answer to this question is a "yes." Now, few internationalists are also originalists, but it is a trope of internationalist foreign relations scholarship to cite to the Founders anyway, if only to embarrass their originalist/formalist critics.

My own view is that the Founders were probably liberal internationalists in many ways, but their commitment to such internationalism is only mildly reflected in the actual text of the Constitution. Here, it might be useful to draw on Justice Scalia's distinction between "original intent" and "original meaning." We might speculate about what the Founders would want to do with today's issues, but the proper legal analysis should focus on what the Founders meant in the use of particular words in drafting the Constitution.

Which brings me back, in a very roundabout way, to the Declaration's famous internationalist language recommending "decent respect for the opinions of mankind." (discussed previously here). I think this is more than admirable as a matter of political principle, but I don't think this language should matter a whole lot for constitutional interpretation unless someone can show me evidence that this phrase is somewhere in the Constitution in the guise of some other text.

Anyway, just some fodder for conversation today as you munch on your burgers and hot dogs at the pool or beach (and as long as you don't mind coming off a bit geeky). Happy July Fourth!