Saturday, July 30, 2005

Canada's Nationalistic Internationalism

Despite my lame attempt to make my blogging hiatus mysterious, I’ve decided to admit that I’ve spent the last two weeks in the least foreign foreign country that exists in the world for most Americans: Canada. Indeed, for many foreigners, Canadians and Americans have indistinguishable accents and might as well be compatriots (an idea that I’ve broached previously here ).

To be sure, Canadians are different from Americans in subtle ways, as I’ve discovered over the past two weeks. It turns out that the average Canadian really does like donuts, hockey, and the phrase “eh?” more than even Americans from New England. Canadians also have seamlessly adopted the metric system and the Celsius temperature scale. Young Canadians appear to speak French in alarming numbers. Oh right, they are in love with their government-guaranteed health care system and cheerfully fork over sales, income and property taxes at levels that would cause populist revolts in most American states.

Most importantly, from an international relations perspective, Canadians do not exactly follow an aggressive or muscular foreign policy (their recent ridiculous kerfuffle with Denmark notwithstanding). Canada has a long and glorious military tradition joining up with Britain in the First and Second World Wars and following the U.S. lead into Korea and NATO. Modern Canada, however, is very suspicious of foreign adventures, especially adventures led by Americans. Indeed, the biggest foreign policy difference with its neighbor to the south is almost certainly Canada’s instinctive faith in liberal internationalism and international institutions.

Unlike the U.S., Canada is a founding member of the International Criminal Court, a party to the Kyoto Protocol, and a vigorous supporter of the U.N.’s peacekeeping missions. Canada balked from joining the Coalition of the Willing in Iraq (and its usual partners the U.K., the U.S., and Australia) largely due to the lack of U.N. authorization (in contrast, Canada has sent troops to Afghanistan pursuant to both U.N. and NATO resolutions).

In other words, Canada is the liberal internationalist country much of the rest of the world (or at least much of the international law world) wishes the U.S. would become.

What is interesting about Canada’s internationalism, however, is that it co-exists with a surprisingly fierce nationalism as well. Canadians are very proud of being Canadian, even if they are not sure what that means, as long as it means they are not Americans. There is no quicker way for an American to annoy a Canadian than to lazily suggest that Canada is just like America. Although the American is thinking that he has just paid the Canadian a compliment, he is more likely to have offended him.

In other words, Canadians don’t seem to mind giving up some measure of sovereignty, as long as that sovereignty is not being transferred to their irritating Yankee neighbors. In fact, the best way to understand Canada’s love affair with liberal internationalism is as the result of Canada’s never-ending quest to remain something other than America. Ironically, then, it is Canadian anti-American nationalism that is the ultimate source of its relentless internationalism today. And I don’t think this dynamic of nationalistic internationalism is limited to Canada. Other countries like France or China play this game as well, with far more dangerous consequences.

Friday, July 29, 2005

The Insidious Wiles, Redux

Yesterday's dispatch from Elizabeth reads, in part, like a section of an amicus brief for future constitutional challenges against state laws in the US banning gay marriage -- a section that might be called "European and North American Practices in Protecting the Rights of Same-Sex Couples." It certainly goes a long way to demonstrating that the nations that share our Christian-Judeo heritage (the heritage that opponents of gay marriage lean on heavily in their arguments for why the definition of marriage should not change) are moving toward broad civil rights -- including the rights afforded heterosexual married couples -- for same sex couples.

Should what Switzerland, Canada or Spain do on this question matter? We have had ongoing discussions on this blog of the topic of foreign sources in domestic jurisprudence (see this discussion from June -- read the whole string). In what way did the practices of Europe and decisions of the ECHR matter in the Lawrence (striking down homosexual sodomy laws) and Simmons (striking down the juvenile death penalty) cases? In his majority opinions in both cases, Justice Kennedy's references to foreign practices and international court opinions took the position that we should care about what certain countries do, particularly those countries with whom we have, more or less, a shared religious and cultural history. On the other hand, Elizabeth's "Venus-Mars" characterization of differing trends in the US and Europe would, in many ways, support Scalia's position (and echoes his dissents in Lawrence and Simmons): we wouldn't dream of following European political practices when it comes to abortion rights, why would we do so for gay rights? On the other hand, if the main justification for denying marriage rights to gays is rooted in religious and cultural understandings of marriage, the developments in Canada and Europe (not to mention Massachusetts) demonstrate just how contingent those religious and cultural understandings may be.

ACS Conference note: The use of foreign and international sources in domestic law is one of the many interesting panels at this weekend's ACS convention in Washington, DC. I am sorry to be missing it, but for anyone in the DC area over the next few days, the conference has much to recommend it, including a panel on interrogation, torture and the war on terrorism.

Thursday, July 28, 2005

Geneva Dispatch #2: Switzerland Approves Same-Sex Partnerships

In addition to the vote on Schengen/Dublin discussed previously, the Swiss also voted on June 5 to allow registered partnerships, providing same-sex couples with some of the rights of marriage. Fifty-eight percent of voters and nineteen of twenty-six cantons voted yes. I admit I was somewhat surprised by the support for this measure, given Switzerland’s longstanding social conservatism. (It was, after all, the last European country to give women the right to vote in nationwide elections, in 1971. The last Swiss canton to allow women to vote in cantonal elections did not do so until 1990.) Since registered partnership laws already exist in several cantons, however, perhaps extending federal legal recognition was not viewed as particularly controversial. In addition, the new law maintains a distinction between registered partnerships and marriage, perhaps making it more acceptable. The decision grants gay couples who register their partnership the same financial rights and obligations as married couples. A registered partnership does not, however, provide the right to carry the same family name, adopt children, or undergo fertility treatments. In addition, a foreign member of a registered partnership will not have the right to a Swiss passport or to expedited naturalization. The new law will come into effect on January 1, 2007.

In this, Switzerland joins a growing number of European countries, including Norway, Sweden, Finland, Denmark, France, and Germany, which provide some form of registered partnership for same-sex couples. The UK also recently enacted a registered partnership act that will come into force in December. In addition, three European countries -- the Netherlands, Belgium, and most recently Spain, which did so in early July -- have legalized same-sex marriage with the same rights and obligations as heterosexual marriage. (Canada also enacted a federal same-sex marriage law in July, although it was already allowed as a matter of provincial law in most of Canada’s provinces.)

Compared to the high emotions in the debate on same-sex partnership and marriage in the US, the Swiss treatment of this issue, both in the run-up to the election and the vote itself, seemed remarkably tame. The Swiss government and most political parties supported the measure, except for two small religious parties and the right-wing SVP (although the SVP’s leader, Justice Minister Christoph Blocher, toed the government line and called on voters to back the law). The Roman Catholic Church opposed the proposal, but the Federation of Protestant Churches supported it. The campaign was not particularly heated. An analysis of the June 5 vote recently released by Bern-based GfS Polling Institute shows that voters considered the vote on Schengen/Dublin more important than the one on same-sex partnerships. That conservative Switzerland would feel and vote this way, and that Catholic Spain would enact same-sex marriage, underline for me just how far apart European and American views are on this question. One only needs to compare these events in Europe with the 2004 US election: then, all eleven states where the issue was on the ballot – both red and blue – enacted by large majorities constitutional amendments banning same-sex marriage, eight of which also banned same-sex civil unions. (Similar measures previously existed in six states, plus the Defense of Marriage Act at the federal level.) This seems to me to be yet another instance where Americans are from Mars and Europeans are from Venus.

--Elizabeth Kandravy Cassidy

Wednesday, July 27, 2005

JAG Memos on DoD Interrogation Tactics Released

Marty Lederman has this excellent analysis and the full text of the finally released JAG memos at Balkinization. What do the memos represent? The military lawyers on the United States vigourously objected to analysis by the Dept of Justice that the President is not bound by the Geneva Conventions -- or domestic criminal statutes -- when it comes to interrogation techniques against enemy combattants being held outside the United States:

The JAGs warned that if DoD embraced this clever strategy, in which there's a technical legal justification for ignoring every presumed legal restriction, "the American people will find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values," which would "affect our ability to prosecute the Global War on Terrorism."

Compensating Iraqi Victims of the US Military

One of the items on the agenda for US Secretary of Defense Rumsfeld's meetings today with the new Iraqi leadership was the future legal status of US forces, either under an extension of the current UN Security Council resolution authorizing the US presence or a new Status of Forces Agreement (SOFA) between the US and Iraq. Both would create immunity from prosecution for US troops; the troops would only be liable under US law, the Uniform Code of Military Justice. The Iraqi government is rightfully concerned about negligent (and in some instances intentional) killings of Iraqis -- both in and out of US custody. The US military has for some time been making quiet compensation in some of these cases. Casey seemed to confirm that this will continue to be standard procedure in Iraq. This from today's WaPo:

The immunity of U.S. forces from Iraqi courts could be sensitive because of Iraqi concerns about innocent civilians being accidentally killed. On Wednesday, Jafari told reporters he had asked Casey to investigate cases of "wrongful killing" by American troops and to offer compensation and an apology. Casey confirmed that he had written the prime minister a letter stating that the military would investigate any such incidents that occurred within the past 60 days. He also said he would consider refreshing training for troops and considering more routine compensation not only for accidental killings but also for property damage.

Ongoing trials of American and British soldiers who have engaged in unlawful killings send an important signal that, despite the immunity from Iraqi law, we take seriously our obligation to investigate and prosecute criminal activity during war. (In the case of the UK trial, they are doing so in accordance with the complementarity provisions of the ICC statute.) By additionally compensating victims for criminal killings and for those in which no criminal charges are brought, we convey a sense of responsibility and remorse in terms that are culturally understood. But better to "refresh" training so that fewer mistakes are made in the first place.

In the case of detainees, as I argued earlier this week, having clearly defined parameters of treatment -- set down by congressional statute, as opposed to vague and shifting notions of necessity emanating from the executive -- would go a long way to ensuring that we have political accountability.

Terrorists as Pirates?

Douglas Burgess has this take in Legal Affairs. He argues the Declaration of Paris offers a good model for a potential international treaty defining the crime of terrorism:

TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili's De jure belli: "Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law." Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.

Tuesday, July 26, 2005

Geneva Dispatch #1 Switzerland and the EU: Another “Ever Closer Union”?

To relatively little notice, the proposed European Constitution has garnered several more approvals this summer, following the well-publicized French and Dutch rejections in late May/early June. Latvia, Cyprus and Malta ratified it by parliamentary vote on June 2, June 30, and July 6, respectively. And, in the first popular referendum since the French and Dutch elections, on July 10 voters in Luxembourg approved the draft, with 56.52 percent voting yes. These decisions bring the number of approvals to thirteen.

In addition, here in Switzerland, voters in June approved closer ties in several respects with the EU, including joining the Schengen passport-free travel zone. This does not necessarily mean that Switzerland is abandoning its traditional Euroskepticism, however. Another EU-related referendum, more controversial than the June vote, will take place this fall. On September 25, Swiss voters will decide whether to extend the free movement already allowed to workers from the fifteen original EU member states to workers from the ten states that joined last year.

Membership in international institutions has been controversial in Switzerland. Despite hosting many of its offices and agencies in Geneva, Switzerland did not join the United Nations until 2002. Similarly, despite being surrounded by EU countries and the fact that, aside from the US, its major trading partners are all EU members, Switzerland has not joined the EU. In fact, Swiss voters rejected moves toward EU membership in both 1992 and 2001. The Swiss government supports eventual membership, but the decision requires voter approval and public sentiment remains opposed. The main concerns are that EU membership would be inconsistent with Swiss neutrality, would undermine the cherished system of direct democracy, and would cost the country, whose economy is in better shape than those of its EU neighbors, more than it stands to gain.

The Swiss government has, however, negotiated a series of bilateral agreements with the EU and Swiss voters have so far approved these agreements (including the one whose extension is at issue in September). Most recently, on June 5, 54.6 percent of Swiss voters said yes to joining the Schengen and Dublin accords, which provide for passport-free travel and increased cooperation on security, immigration and asylum. As a result, as of 2008, there will no longer be systematic identity checks at borders between Switzerland and the EU, although checks at airports will remain. (Customs controls at Swiss-EU borders will also continue, as Switzerland is not part of the European Customs Union.) Swiss police will gain access to EU criminal and immigration databases, and Switzerland will become part of a European-wide system coordinating asylum proceedings.

Swiss and EU officials, worried about a possible domino effect from the French and Dutch no votes, breathed a sigh of relief over the Swiss yes. They may have done so too soon, however. While some last-minute polls showed support for Schengen/Dublin slipping, many Swiss voters had cast their ballots by post before the French and Dutch elections. Thus, the impact of the French and Dutch no votes on Swiss voters may not be seen until September. Moreover, the issue of extending freedom of movement to workers from Eastern Europe is more controversial than the issues around Schengen/Dublin. Given that the June margin of victory was rather narrow, the parties favoring extension in September are facing a tough fight. A recent poll by the Demoscope Institute for the Swiss magazine “Facts” showed 30 percent favoring the extension, 26 percent opposed, and 44 percent undecided.

The right-wing Swiss People’s Party (SVP) opposed joining Schengen/Dublin, arguing that it would cede decisionmaking power to EU bureaucrats and cause a flood of undesirables (criminals, illegal immigrants, cheap labor) to pour into the country. The SVP not surprisingly also opposes the proposed September extension. The campaign is likely to be, depending on one’s point of view, either colorful or demagogic. The SVP’s tactics before the June election included taking a Trojan horse around Switzerland and handing out handcuffs to passers-by on the streets. In the run-up to the June vote the SVP also played on fears of Swiss job losses, citing the specter of “Polish butchers,” who they argued would flood in through the open borders. This argument, the counterpart to the oft-cited “Polish plumbers” of the French no compaign, is sure to figure prominently in the fall. It will be interesting to see if their arguments resonate more, or less, this time around.

Typically, German-speaking Switzerland, particularly the rural east, has opposed increased integration with the EU and French-speaking Switzerland has supported it. This held true in June, when the German cantons, except for the urban centers of Zurich, Bern, Basel and Zug, voted strongly against Schengen/Dublin and the French cantons voted strongly in favor. However, this time around, the SVP’s argument that jobs will be lost to cheap Eastern European labor may find sympathetic ears in the French-speaking canton of Geneva, which has by far the highest unemployment rate in the country – 7.6 percent in June, compared to 3.6 percent nationwide. Also, French-speaking Switzerland may be less inclined in favor of Europe after the French no.

A Swiss no vote in September could have implications beyond the free movement of labor, both for Swiss-EU relations and for the EU more broadly. The EU still must ratify Swiss participation in Schengen/Dublin, and the EU foreign affairs commissioner cautioned after the June vote that this depended on the results in September. And with Euro-nerves on edge after the French and Dutch votes, politicians around the continent may look to the Swiss vote as a sign of whether the momentum toward an “ever closer” Europe can be reestablished.

--Elizabeth Kandravy Cassidy

Dispatches from Geneva: Elizabeth Kandravy Cassidy

I want to welcome Elizabeth Kandravy Cassidy to Opinio Juris. Elizabeth is an American attorney currently living in Geneva who will offer a comparativist perspective to our musings. She has taught comparative and constitutional law overseas (Univ. of Namibia) and employment, gender and family law in the US (Princeton and Seton Hall). Over the next two weeks she will be providing a number of dispatches on developments afoot in Geneva and Switzerland -- reporting, if you will, from the mothership of international law. Welcome, Elizabeth!

Monday, July 25, 2005

Will the Bush Administration Oppose Humane Treatment of Detainees?

For months, the Bush administration has relied on its own legal analysis (bolstered now by the DC Circuit's opinion in Hamdan) that the Geneva Conventions do not apply to detainees in Guantanamo. Nonetheless, President Bush claimed in 2002 that, despite this legal conclusion, all detainees in custody at Guantanamo and elsewhere would be treated "humanely" and consistent with the principles of the GC. Well then, if the law is changed to require define who is and who is not entitled to humane treatment, what the bounds of that treatment are, and how commissions should constitutedted to review those issues, that should not be a problem, right? It would conform exactly with what the President said was his policy. Not so. VP Cheney's statements last week that the White House will block the attempts by the Senators McCain, Warner and Graham to amend the current defense appropriations bill with language that would require the armed forces (notably, the intelligence services are not included) to treat detainees humanely. Andrew Sullivan and Marty Lederman, are, as usual, on the case. with these terrific posts.

Let's set aside the White House's objection to Senator Levin's separate proposal of an independent commission to investigate detainee treatment (it took two years for the opposition to make such a basic request for accountability?) and focus on the McCain amendment. At bottom, there can be only two rationales for the objection: (1) that this White House will oppose any checks on executive powers -- even those carried out by Congress acting within its constitutionally committed power; or (2) the administration thinks treating prisoners inhumanely is good policy.

We are now out of the realm of international law skeptics advising the president that he is not, in carrying out the war on terrorism, bound by treaties to which the US is a party. We are squarely in the arena of domestic power sharing. It is one thing to say that the courts, absent contrary express congressional authority, should not weigh in on how the country wages the war against terror. It is quite another to say that the executive should not be restrained by the wishes of the majoritarian political branch. Here, we are not even talking about party politics. It is Republicans (one a notable former POW) who are pushing for the United States to spell out in the law what should be obvious to all: That the United States as a matter of policy does not abuse detainees.