Thursday, August 18, 2005

Most important human right in our lifetime, Part 2

In my attempt to understand the mind-set of a Muslim woman, I will put into one combination speech the words of many Muslim women who have talked to me over the years, plusa lot from the scholarly literature of Western observers—primarily women—who have studied the lives of Muslim women:

We know more than you think about American women. We read your magazines and watch your television programs. More than half your marriages eud in divorce or abandonment, with devastating consequences for the children. In the thirty-year period from 1973 to 2003, over 44 million abortions were performed in the United States. Think of all the suffering and trauma hidden behind those statistics. In my country, the divorce rate is less than one per cent and there are hardly any abortions—only those necessary to save the life of the mother.

Instead of getting rid of a wife, don’t the men in your country simply add another one?

Polygamy makes everyone better off. Let’s say a man is not pleased with or satisfied by wife #1. So he goes out and marries wife #2. The deal certainly makes him better off, although he has to pay for it—a point I’ll come to in a minute. It makes wife #1 better off because she doesn’t have to “fake it” any more with her husband, and when he’s upset, he’s got a relief valve over in wife #2’s bedroom. And wife #2 herself is better off: she preferred a polygamous marriage to remaining single. No one forced her to make that choice.

Now let me get back to the man paying for a second wife. You cannot understand the situation of a woman in an Islamic country without knowing some of the basic things about property rights. A single woman usually has some personal property consisting of monetary assets and jewelry, and maybe land, depending on what her parents have given her and their economic status. When she enters into marriage, her personal property remains her own; her husband cannot take any of it. And she is under no obligation to use it for family purposes. For example, if the family is starving, she doesn’t have to spend any of her own money for food, though of course she may want to do so. The husband in a marriage is legally responsible for the welfare of the family. He must go to work if the family needs food or shelter. So you can see that marriage is a very good economic deal for the woman. She gets support and welfare throughout the marriage and does not have to spend any of her own money. That’s why I mentioned that the husband will have to pay for the luxury of having a second wife. Most husbands can’t afford it, and so polygamy isn’t much of a concern in practice.

In a magazine a few months ago I saw a panoramicphoto of the interior of a huge shopping mall in your country. There were shops of very kind selling clothing and goods from all over the world. There were over a thousand people in the picture. As I looked more closely, every one of them was a man.

Men like to shop. Besides, as I said, it’s their money. If a woman wanted to shop she would have to use her own money. Why not let her husband shop for the both of them on his money?

But wouldn’t you like the freedom of choosing your own clothes, shoes, accessories, that sort of thing?

It’s not freedom at all; it’s a nerve-wracking experience. If I were married, I’d have to think, “Will my husband like what I’ve chosen? If he doesn’t, it’s worthless; I’d have to leave it in the closet.” So the efficient solution, as you Americans might say, is to let him pick out my clothes and accessories, because that way he’s sure to like them. Besides, the silly fool gets a kick out of giving gifts.

But suppose you do want to go out and shop, or at least look around. You have to be completely covered in a burkah. Isn’t that oppressive?

No, it’s sexy. Girls can hardly wait till they get their first chador and burkah, because at that moment they become real, desirable women. They spend months picking out the lace for the burkah, because fine imported lace is the most important distinction between burkahs. Men are very good at spotting the women who have the best taste in burkahs.

How can a man find out what a young woman looks like?

Marry her. OK, maybe that was a bit glib. But the more profound truth is this: by being covered in black, Muslim women have achieved perfect sexual equality. Compare this to Western women. I’ve read that above 80% of American women are very unhappy with their own bodies, and more than 50% are actually ashamed of their own bodies. It’s worse for them when they see a television series like Sex and the City where the four friends are ridiculously good looking. But also the models, and magazine covers, and movie stars contribute to the neurosis and depression of the vast majority of young women in America. Young women feel that nature has played a cruel trick on them by giving them unattractive bodies. They should take a clue from us and solve their problem by getting themselves completely covered from head to toe whenever they go out of the house. Here are some statistics for you. The United States has a female suicide rate of 4 per 100,000. The more “liberated” countries are even worse: France has a rate of 9, Finland 10, Cuba 12, the Russian Federation 12, and Japan 13. Let’s compare that with the female suicide rate in Muslim countries: zero.

Well, you’ve made it difficult for me to argue that you are in fact oppressed and that your basic human rights are being unconscionably violated. But that is the argument I intend to make in Part 3, the final installment of this thread. My argument will be helped—or hindered, as the case may be—by readers’ comments on the first two blogs.

Even More Reasons for Canada to Hate Us

U.S.-Canada trade relations appear to have hit a new low as Canada has suspended further settlement talks over U.S. tariffs on Canadian softwood lumber. This may sound fairly trivial compared to some of the rather momentous topics that Prof. D'Amato has treated Opinio Juris readers to over the past week and a half, but I think the problems Canada is having enforcing the NAFTA tribunal's judgment against the U.S. demonstrates that limits of even international trade law in forcing compliance by powerful countries.

In this case, the U.S. is refusing to abide by a NAFTA panel ruling this week finding its tariffs on Canadian lumber a violation of NAFTA requirements. Although the NAFTA system has reached a final judgment, the U.S. has still said it will not comply and that it wants to negotiate a separate settlement. In essence, the U.S. has lost, it has no more appeals left, but it wants to force Canada into a settlement anyway. What card does it have left to play? Open defiance with the NAFTA tribunal judgment.

As Professor D'Amato has pointed out, U.S. defiance here and in other international law regimes is not costless. For one thing, the U.S. will have a harder time getting Canada to comply with adverse NAFTA tribunal judgments, and the U.S. does often win, as it did today in a NAFTA Chapter 11 Tribunal's ruling upholding a California environmental regulation against a Canadian challenge. But it may be that the U.S. is simply willing to pay that price, and though I think this is a bad policy, I'm unaware of any domestic legal mechanism that requires the U.S. to comply with the NAFTA tribunal judgment.

Wednesday, August 17, 2005

Revolting Against the Article 98 ICC Agreements

I'm also back after another short hiatus. I will post at greater length later this week, but for now I just wanted to note some recent pushback on those controversial Article 98 Agreements between the U.S. with a number of its allies preventing U.S. soldiers from being extradited to the International Criminal Court. Nigeria's Senate recently passed a resolution declaring Nigeria's Article 98 Agreement with the U.S. void because it violates Nigeria's constitutional processes. Meanwhile, Jordan's parliament will be convening special sessions to consider a similar agreement.

Whatever the legality of these agreements under international law, they appear to place the U.S. in a tricky policy position, especially in Africa. While the U.S. is trying to get Sudan to cooperate with the ICC, it is at the same time aggressively seeking exemptions for its soldiers. No doubt there is a fine legal point here: the U.S. supports ICC prosecutions that are controlled by the Security Council but not otherwise. This fine point, however, is probably a hard sell these days with the legislators of its partners and allies.

Can't We All Just Get Along? Well, no, but....

I just wanted to check in with everyone from the Opinio Juris Central Command Bunker hidden deep in the hills of… well, it doesn’t really matter where we are. Peggy, Julian and I will start showing up a bit more as we are in the process of finishing up articles and/or traveling.

I wanted to post this general comment, though, on the discussions over the last week. While the discussions overall have been very interesting and informative (at least for me), I want to ask everyone to hold back on the personal attacks and swipes. Please attack the argument, not the person. Folks from all across the political spectrum began to slide down the slope to ad hominems at various points. Please don’t. We want Opinio Juris to be a place for reasoned and informed debate about ideas. (Which, on the whole, we think it is.) So, before you hit the button to post to the blog, just take a moment to ask if you are reacting to the argument or to the person.

Now, back to our regularly scheduled melee...

The most important human right in our lifetime

If we consider the quantity of people affected and the quality of the effect, there is no greater injustice in the world today than the denial of equal rights for women. I’m talking specifically about women in fundamentalist Muslim countries in the Middle East. I am also talking about women in fundamentalist Catholic countries in Latin America, although the situation in the Muslim world is worse.

Add in the negative effect upon men. I for one find it painful to spend any time in a country that regards its women as a sub-species of homo sapiens. I cannot enjoy a few hours in such places, not even in their airports on my way somewhere else. How can any male person be happy when there are women in his vicinity who at that very moment in time are the victims of barbaric discrimination?

But what about the feelings of men from Islamic countries who come to the United States for college or graduate work? Don’t they feel equally unhappy in the presence of American women? No, they don’t. They enjoy it here very much. And they acclimate themselves almost overnight to our egalitarian culture and “groove” with it.

I did some work a few years ago for some women who were in “Divided Families,” as Ted Koppel called it his Nightline show that interviewed me. The scenario is more or less the same irrespective of the Middle Eastern country we’re talking about. An American woman meets an Arab in the United States, they get married, she converts to Islam, and they eventually move to the husband’s home country. Here’s a typical story told to me by one of my clients. The man she met in engineering school was a “real Omar Sharif type”—dashing, sophisticated, charming, and totally attentive to her. He shared fully in their household chores, was a great dad when they had a child, never argued with her, and worked out their minor problems on the basis of mutual respect and understanding. When they arrived back at his familial home in Riyadh, he started beating her. He locked her in her bedroom, placed tin foil over the windows, took away the light bulbs, and left her in the sweltering darkness. No food, a glass of water, two or three days of this.

I repeat, this is a typical story. All my clients, and all their friends who married Islamic men, had almost identical experiences.

The young wife would next seek out the grandmother figure of the family group. The matriarch would give her friendly advice: just please your husband and do everything he says. Everything will turn out just fine. But, the young woman asks, what about the beatings? “He still loves you. He is only disciplining you.”

Another of my clients (I call them clients because I had a confidentiality relationship with them though my work was pro bono) could stand her situation no longer. With meticulous planning, she left her house one morning when her husband went to work, made it to the school where she had excuses prepared to take her children home, got into a car driven by a friend, and made it to the American embassy in Riyadh. The Americans working in the embassy could not have been more sympathetic or helpful, she told me. She did not understand why it was taking them so long just to put her and her children on a plane to the United States; she had the money for the tickets. Cables hummed from the United States to Saudi Arabia and back. Finally, on the fourth day, two Marines assisted her and the children into a Jeep. She asked if they were going to the airport but they said nothing. They pulled up in front of her home, where her husband was standing there, glaring at them. She looked at the soldiers. “We’re sorry, ma’am, we’re only doing our job.” They left her and the children there and drove away.

Clearly there are two totally different Weltanshauungen here: the Western worldview and the Muslim worldview. They seem remote from each other both in space and in time. Is communication between the two even possible?

The lawyerly thing to do is to begin by trying to understand the other side’s point of view. I have a few thoughts about this which I’ll post tomorrow.

Tuesday, August 16, 2005

The Korean Comfort Women Case

[Note: here is Tony D'Amato's latest post. I am posting it for him because we seem to be having a software glitch. I have isolated the problem to the hyperlinks so I have removed the links from this post so that the full text may appear. Once the problem is fixed, we will put the links back in. ~ Chris]

The next time someone says that international law is “easy,” tell them to plunge into the recent Comfort Women Case and see how deeply they have to dig to figure it out.

Fifteen women from China, Taiwan, South Korea, and the Philippines sued Japan in the Washington D.C. district court under the Alien Tort Statute, seeking money damages for having been subjected to sexual slavery and torture before and during World War II, in violation of international law. Japan, assisted by the United States as amicus, moved to dismiss the women’s complaint on the ground (among others not relevant here) that it is barred by the peace treaties with Japan that extinguished all private citizens’ war claims against Japan. Of course, the plaintiffs responded that the peace treaties did not extinguish their claims but rather preserved them.

The Court of Appeals gave up quickly; they threw the case out on the basis of the “political question doctrine” on June 28, 2005. But as Professor Julian Ku pointedly observed in an Opinio Juris blog, “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, the Court deferred to the interpretation of the treaties urged by the amicus United States: that the foreign relations of the United States might be adversely affected if its courts were to delve into the meaning of treaties between other states, i.e., treaties in which the United States is not itself a party.

Sounds logical except when you consider that the plaintiffs’ grievance comes within customary international law. The Alien Tort Statute clearly gives them the right to sue in American courts for tortious violations of international law. They are seeking no rights under the peace treaties. It is the defendant, Japan, that is invoking the peace treaties as a defense to their action. If Japan’s defense involves a political question, that is Japan’s problem, not the plaintiffs’ problem.
Thus, as a matter of ordinary logic, the Court had to interpret the peace treaties in order to throw out the case. It was disingenuous for the Court to say that the political question doctrine barred it from getting involved in the interpretation of the treaties.

If that weren’t silly enough, how can the Court say that interpreting a treaty is a political question? The Court actually has the chutzpah to cite Baker v. Carr in support of its position. The first of the Baker tests for a political question was “a textually demonstrable
constitutional commitment of the issue to a coordinate political department.” How could the interpretation of a treaty—the supreme law of the land under the Constitution—possibly be committed to the political branches? From the earliest days of the Republic till June 28, 2005, interpreting treaties was the sine qua non specialty of the judicial branch.

Well, the Court probably figured that it should interpret at least one treaty in order to make everyone feel good. The treaty it chose to interpret had nothing to do with the case. But with their opinion becoming increasingly woozy as it goes along, they might as well act the part of the proverbial drunk who lost a coin and looked for it two blocks away because the street lamp was brighter there.

So the Court looked at the San Francisco Peace Treaty of 1951. (Most of the plaintiffs were not nationals of countries that signed that Treaty.) The Allied Powers who signed the treaty, including the United States which drafted it, waived all claims of their nationals arising out of any actions taken by Japan in the course of the prosecution of the war (Article 14(b)).

That clinches it, the Court said, basically. Goodbye, plaintiffs, and be comforted.

But where does the United States get the right to waive the private claims of its nationals? Louis Henkin, in his “definitive” study of foreign relations law, stated:

when negotiating peace treaties, governments have dealt with ... private claims as their own, treating them as national assets, and as counters, ‘chips’, in international bargaining. Settlement agreements have lumped, or linked, claims deriving from private debts with others that were intergovernmental in origin, and concessions in regard to one category of claims might be set off against concessions in the other, or against larger political considerations unrelated to debts.

While it is true that “governments” have done this, isn’t the government of the United States forbidden to do it by the Takings Clause of the Fifth Amendment? I doubt whether Professor Henkin worried about the Takings Clause, because as a State Department attorney (before he turned to teaching) he and his colleagues were accustomed to selling off private claims to foreign governments on a daily basis. The State Department regards private claims as their own bargaining chips, whether or not a peace treaty is involved.

Yet a private claim is as much “property” under the Fifth Amendment as real estate. A peace treaty confiscates these private claims for a public purpose, namely, achieving peace. But the Constitution requires fair compensation for the claims that are taken. Why should American soldiers brutalized during the war in Japanese prison camps, for example, have their claims taken away by the United States in order to ease the reparations burden on their former torturers? They have a right to be compensated by the United States for the value of their claims. But they were up against Secretary of State John Foster Dulles, who was Houdini’s heir in the art of sleight-of-hand.

The United States government simply does not have the power to take private property for a public purpose without paying just compensation. Article 14(b) of the San Francisco Peace Treaty is nothing but a case of unconstitutional overreaching by the Secretary of State and his associates.

Next question (this is sounding more and more like a question on a law school final exam): Is Japan charged with knowledge of the Fifth Amendment of the United States Constitution such that it must have known that Article 14(b) was a sham? Or can Japan’s presumed innocence of American constitutional law mean that under treaty law Japan is entitled to rely on the plain meaning of Article 14(b)?

Students get extra credit if they can cite The Tinoco Arbitration in their answer. Under President Taft’s decision in Tinoco, if A signs a concession agreement with nation B, and if the terms of the agreement are unconstitutional under B’s law, A is charged with knowledge of the unconstitutionality. (As I tell my students in class, if this result sounds ridiculous, at least it greatly increases the billing hours of international lawyers who now have to sift through foreign constitutions when they prepare international contracts.)

Back to San Francisco. There was a near crisis; the delegates from The Netherlands almost walked out of the conference. They told Mr. Dulles that they had no power to waive the private claims of Dutch citizens against Japan. (Clear thinkers, these Dutch!) This threw Dulles into a frenzy; he could not afford a break in the Allied ranks. Working overtime, Dulles engineered an exchange of confidential letters between the Japanese and Dutch representatives which only recently have been declassified. By a letter dated September 8, 1951, the Premier of Japan, Shigeru Yoshida, wrote to Dirk V. Stikker, the Dutch Minister of Foreign Affairs: “it is my Government’s view that Article 14(b) as a matter of correct interpretation does not involve the expropriation by each Allied Government of the private claims of its nationals.” In a return letter, the representative of The Netherlands considered this contemporaneous interpretation of the 1951 Treaty by Japan as sufficient to preserve the private claims of Dutch nationals against Japan, and thereupon signed the Treaty. Prime Minister Shigeru Yoshida thereupon signed the 1950 Peace Treaty on behalf of Japan. Five years later, in 1956, Japan paid $10,000,000 to the Netherlands, an amount that was designated to be turned over to the private Dutch claimants.

Clearly, then, the Japanese delegates had reason to know that Article 14(b) was pretty shaky. Yet both Japan and the United States had no interest in letting anyone know. Dulles was worried that American soldiers might find out about it and assert claims against Japan. But the official treaty language in Article 14(b), summarized in all the newspapers at the time, was obviously sufficient to dissuade veterans from thinking about suing Japan.

Thus the United States government kept up its tradition of socking it to our veterans, a tradition that is live and well today in the course of the war in Iraq.

As far as the language of Article 14(b) is concerned, it is still grinding out its unconstitutional work in the Court of Appeals.

~Tony D'Amato

Monday, August 15, 2005

Does international law bind superpowers?

I continue to be amazed when educated people say that international law is not binding on the United States, or that international law cannot be enforced against a superpower, or that the United States can violate international law whenever it wants to, or that international law doesn’t exist.

Let’s take the strongest of these claims: the enforcement claim. Let’s stipulate that if international law cannot be enforced against a superpower, then it doesn’t exist.

Hans Kelsen, whose fundamental position was that law is nothing more nor less than a coercive system, argued in 1948 when he drew his attention to international law that coercion in international law takes the form of forcible reprisals. A state commits a delict (in Kelsen’s useful terminology) when it violates a rule of international law. The state that commits a delict opens itself up to a reprisal by other states. A reprisal is a kind of countermeasure, a tit-for-tat retaliation. The most important characteristic of a reprisal is that it would be a delict if standing alone. What saves it from being delict is that it may permissibly be taken, under customary international law, in retaliation for a delict.

Kelsen came to the conclusion that international law is a coercive order because it is enforced through the reprisal mechanism. I think I will have no difficulty in persuading you, at least, that this is exactly what happens under a treaty.

Suppose nation A decides to violate Article 13 of a treaty it has entered into with states B, C, and D. Under the general customary rule of reciprocity, A’s violation of Article 13 immediately releases B, C, and D from observance of Article 13 in their dealings with A. Of course, A already took this into account when it decided to violate Article 13. A went ahead with the violation because it calculated that its benefit in violating Article 13 exceeded the cost of releasing B, C, and D from their corresponding obligations of Article 13.

But treaties are “package deals.” State B, for example, might have signed on to the treaty because Article 13 was especially beneficial to itself even though Article 8 was costly even though it was especially beneficial to A. All four nations were able to agree on the final treaty language because there were goodies in the treaty package for all of them.

So now A comes along and decides to abrogate Article 13. We have just postulated that B is the leading beneficiary of Article 13 and would not have signed the treaty if Article 13 had been omitted. Therefore, if B’s remedy for A’s breach were confined to the reciprocal remedy—that is, the release of B from Article 13—that would not be good enough. Article 13 was never onerous to B in the first place, it was only onerous to A.

Enter the customary international law of treaties. Thousands of years ago, and well before the Vienna Convention on the Law of Treaties, the customary international rule developed that allowed a treaty party to retaliate for a breach by disavowing a different provision in the same treaty (in the earliest law, a breach permitted the other party or parties to withdraw completely from the treaty).

This is the quintessential case of a Kelsenian retaliation. In an article spelling all this out, I called it a “tit-for-a-different-tat.” Of course, the reprisal has to be proportionate to the initial delict; if the reprisal went too far, it would itself constitute a new delict. I considered the problem of runaway retaliation in the article.

Now there is only one analytical step left: we go from treaty law to customary law as a whole. Consider all of international law as a huge interconnected system, very much like a huge treaty with every nation as party. A delict by one state invites a reprisal from another state (usually the injured state). In this theoretical model, all the rules of international law are enforceable by tit-for-a-different-tat reprisals.

Suddenly we should see how easy it is to enforce international rules against the United States. There are thousands, perhaps millions, of rules of customary international law, and additional thousands or hundreds of thousands of rules in treaties we have ratified. All these rules give legal entitlements to the United States in millions of areas and circumstances, just as they also give rise to obligations of obedience. The result is that most of the time we do not break rules of international law because of fear of retaliation. As Louis Henkin famously said, "Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."

OK, you want me to be specific. Exactly where and how is the United States vulnerable to forcible reprisals? Certainly by nothing so crude or futile as other countries’ dropping bombs upon the territory of the United States, even though this is the first thing that people think of.

The assets and values of the United States are not confined to its territory. The United States is vulnerable because of its investments and nationals located all over the world. The United States has major financial investments in foreign-owned companies in nearly every state. More importantly, at any given time there are hundreds of thousands of American citizens either traveling or residing abroad. The Census Bureau reports that in 1998 there were over 56,000 Americans traveling abroad (compared to 46,000 foreign tourists visiting the United States). Even more striking are the figures of American citizens residing abroad as reported by the Bureau of Consular Affairs in 1999. There were 27,600 citizens residing in Buenos Aires, 55,500 in Sydney, 250,000 in Toronto, 48,220 in Hong Kong, 75,000 in Paris, 138,815 in Frankfurt, 45,000 in Tokyo, and 441,680 in Mexico City. Among the smaller countries which could become “hot spots,” the Bureau reports 646 American citizens living in Albania, 1,320 in Bangladesh, 1,600 in Bosnia, 440 in Congo, 2,000 in Cuba, 10,000 in El Salvador, 546 in Gambia, 11,000 in Haiti, 18,000 in Israel (Tel Aviv), 8,000 in Jordan, and 6,639 in Kuala Lumpur, and I’ve taken those examples from just the first half of the list. To these figures must be added the many thousands of American military personnel and their dependents on foreign bases.

How many American nationals must a country threaten to make the United States take notice? Just 50 were sufficient in 1978 when Iran arrested that number of American diplomatic and consular personnel in Tehran. The hostage-taking led to severe repercussions in the United States including perhaps the defeat of presidential incumbent Jimmy Carter in the election of 1980. Of course, the World Court ruled specifically that the Iranian hostage-taking was not a reprisal for anything the United States had done. The result, as I spelled out in the article previously mentioned, was that the United States went ahead with its own reprisal against Iran, one that was completely successful in getting all the hostages back unharmed.

Superpower vulnerability is enhanced by the bluntness of the military instrument. For example, even though the United States could have annihilated Iran with a volley of nuclear ICBMs, such a wholly disproportionate retaliation would not have saved the hostages. The global scatter of assets and persons from all nations has virtually assured the universal efficacy of the international reprisal system. Indeed, in a shrinking world, the reprisal system is likely to become increasingly efficient. Perhaps there is a correspondence between the efficacy of peaceable reprisals and the recent findings that there has been a steady decline in the global magnitude of armed conflict following its peak in the early 1990s.