Saturday, September 03, 2005

Judge Roberts and the Genocide Convention

The Washington Post has a curious article today detailing Judge Roberts' doubts (but ultimate support) for U.S. ratification of the Convention Against Genocide during the Reagan Administration. The description of the memo is more evidence that, at least with respect to Judge Roberts' views on international law, Judge Roberts' opponents have very little to criticize. The memo simply noted that opponents worried that:

the treaty "internationalizes" criminal law, that it could force Americans to stand before an international tribunal, that violent nations would ignore the treaty while hostile ones could use it for "propaganda" purposes, forcing the United States to go before the tribunal because of its actions in Vietnam or other countries.

"These objections are not unfounded," Roberts wrote. But he added that "a consensus has evolved that they are outweighed by the propaganda windfall our failure to ratify the convention has already afforded our international opponents."

Based on this (and lots of other advice), the Reagan Administration eventually supported ratification of the Genocide Convention. And the advice, which is sensible and pragmatic, takes seriously potential objections to an international treaty while at the same time recognizing the foreign relations importance of participating in such international relations regimes. Sounds pretty sensible to me, and even more evidence that Roberts opponents have almost nothing solid to support their opposition to his confirmation.

Thursday, September 01, 2005

Should America Accept Foreign Aid?

The Katrina disaster is far worse than most Americans could have expected. I've spent a fair amount of time in New Orleans and I remember people telling me that New Orleans in particular is vulnerable to hurricanes, but I never took it seriously. The pictures and stories coming out of the Gulf Coast are horrifying, and to many Americans, look more like stories pouring in from foreign countries struck by natural disasters than from the U.S.

Interestingly, a number of foreign governments (including Canada, France, Honduras, Japan, Russia and the United Kingdom) and the United Nations have offered to assist in Katrina disaster relief. Thus far, the U.S. has been polite, but has not formally accepted any of those offers.

Obviously, few countries in the world are better positioned to aid themselves than the United States (the Senate has just approved $10.5 billion for hurricane relief), so the need for foreign aid is not exactly urgent. Moreover, the real problem in places like New Orleans seems to be the lack of order and security rather than rescue workers.

But there is something to be said for accepting foreign assistance, however, minor (and as long as it doesn't disrupt the main aid effort). Accepting help from your friends and neighbors, even if you don't need it that much, can only help remind the rest of the world that America is a gracious country. And a gracious America is a less threatening America.

David Glazier on Military Commissions

David Glazier at Intel Dump has provided this analysis of the new military commission rules here. Most of his criticisms seem fairly plausible, although I wonder about one particular claim he makes:

There is an extensive body of WWII era precedent that establishes that the failure to provide a trial measuring up to customary international due process standards is in itself a war crime, even where the accused are acknowledged to have been illegal combatants not qualifying for protection under any international treaty.

Here, David is arguing that military commission trials that do not meet customary international law standards are themselves war crimes. He further argues that these customary standards essentially require the same procedural fairness as court-martials for members of the U.S. military.

I admit that I am unaware of this body of precedent, and even if it existed, I doubt it could be enforced in any civilian court proceeding. While measuring military commission trials by U.S. treaty obligations seems reasonable, I am leery of relying too heavily on customary international law, which is notoriously fuzzy, and upon which none of the civilian courts analyzing the military commission trials have relied.

Wednesday, August 31, 2005

Pentagon Announces New Rules for Military Commissions

The Pentagon released new rules today governing procedures in military commission trials (the USA Today account is here and the WSJ account is here). Note that these rules will not directly affect the consideration of Hamdan v. Rumsfeld (the case I discussed here involving Osama Bin Laden's driver) because the petitioner there is challenging the legality of the military commissions themselves under constitutional and international law, and not the individual procedures in those commissions.

I don't have time to analyze the rules in full, but I doubt it will have any effect on the litigation challenging the process since attorneys for the petitioners will no doubt challenge any rules that are promulagated. If the Supreme Court eventually reaches the question of whether the procedures are fair, thought, I suppose these changes might help the commission survive that eventual review.

Should Americans Take Canada Seriously?

By many measures, the U.S. relationship with Canada is its most important. After all, Canada is its most important trading partner and shares the longest border with the U.S. Yet how to explain the continuing recent war of words between the U.S. and Canada. After new U.S. ambassador to Canada David Wilkins chided the Canadian government for "emotional outburts" about the ongoing softwood lumber dispute, Canadian Industry Minister David Emerson provided this outburst:

Are we going to stand together? Are we going to unite? Are we going to be stronger than the sum of our parts, or are we going to endlessly be bickering amongst ourselves and allow the bully to basically mop the floor with us?

Not only are Canadian leaders furious, but they must even more furious that their fury is essentially being ignored by the U.S. media and public (as the NYT notes here).

Sometimes, the Canadian image of themselves being ignored and bullied by the U.S. is accurate. I don't think, though, that this is one of those cases. The U.S. actually has a somewhat defensible legal position, certainly more defensible than I first thought from reading Canadian media descriptions of the U.S. "ignoring" the NAFTA ruling. The U.S. does not believe that it has an obligation to comply with the most recent NAFTA decision on softwood lumber because the U.S. International Trade Commission made a new 2004 determination of (presumably new) injury caused by Canadian subsidies. This new determination was not examined in the NAFTA proceeding (which ruled on a 2002 ITC determination that was implemented. see here for the full NAFTA decision.). Moreover, that new 2004 determination was made in response to a WTO panel decision on this same dispute. Indeed, the WTO issued another ruling yesterday that backed up the U.S. position. Here is the U.S.T.R. spokesman's explanation of this interpretation here and a further statement here.

Bottom line: The Canadian government is definitely overreacting here by claiming that this lumber dispute is about respect or compliance with the NAFTA process. After all, the U.S. is acting here in compliance with the WTO process. So what we have here is a messy dispute flying back and forth between two different international dispute resolution systems which may or may not be in conflict with each other. In such a mess of a dispute, a negotiated settlement may be the more efficient solution.

Canadian leaders, however, prefer to whine about U.S. bullying and petulantly refuse to negotiate. All this pouting, however, is going to only reinforce Canada's image among Americans as a country we don't have to take seriously.

Tuesday, August 30, 2005

The Death of An International Law Firm

The NYTimes carries this article today on the dissolution of the venerable Coudert Brothers, arguably the first truly international law firm. While Coudert managed to maintain some of its prestige, it has been falling farther and farther behind on profits during the last decade or so. Its dissolution comes as no surprise.

Monday, August 29, 2005

Grabbing the Low-Hanging Fruit - China Ratifies Anti-Tobacco Treaty

The BBC is reporting that China has ratified the World Health Organization's Framework Convention onTobacco Control. This make China the 78th party to the FCTC according to the WHO website (contrary to the BBC's report).

This treaty is an easy treaty to ratify for most countries, because it doesn't really require them to do anything that they don't want. In this case, all it requires China to do is crack down on tobacco advertising, something it was doing anyway. Expect speedy ratification by all signatories, even the famously recalcitrant U.S. Memo to the U.S. Senate: Ratify this treaty with as much fanfare as possible. It is a quick and cheap way to score some international good will without having to actually change domestic laws or national behavior.

Iraq's Much Less Internationalist Constitution

The final draft of the permanent Iraqi Constitution can be found here. The lack of support from Sunni representatives and the Constitution's subordination of any law to "the undisputed rules of Islam" is certainly the big news.

It is also interesting to note, however, that the new Constitution cuts back substantially from the internationalist commitments of the interim Constitution. As I discussed here, the interim Constitution creates a set of rights, and also notes that Iraqis enjoy all "rights stipulated in international treaties and agreements ... and in the law of nations." This could be read to incorporate all customary international human rights law into the Iraqi system and it did not qualify this incorporation by subordinating international law to domestic Iraqi law.

But the new Constitution has much less to say about international law, subordinates internatonal treaties to the Constitution, and tosses out customary international law entirely. Article 44 states:

All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution.

Now, this is hardly the most important part of the Iraqi constitution. I imagine no Iraqis will vote down or vote for this constitution because of these provisions. But it is worth noting that Iraq has stepped back from the aggressive internationalism of its interim constitution and re-asserted the supremacy of Iraqi constitutional law (which by the way cannot contradict the "undisputed rules of Islam") over international human rights law.