Friday, September 16, 2005

Academic Symposia - Is Blogging the Future?

Today I will be participating in an "online symposium" hosted here by the New York University Journal of Law and Liberty (my opening statement is here). Four leading scholars (or three depending on whether I can call myself "leading"), will blog about Hamdan v. Rumsfeld, a case involving a challenge to the legality of President Bush's military commissions (which I discussed here). The case is important in its own right, but the format of our discussion is important as well. Why bother going to symposiums when you can just blog? We'll see how things go, but I think it is an interesting idea.

As for more traditional symposia, I've recently posted two symposium essays to SSRN. The first, entitled The Third Wave: The Alien Tort Statute and the War on Terrorism, is coming out in the Emory International Law Review. The second, Structural Conflicts in the Interpretation of Customary International Law, is forthcoming in the Santa Clara Law Review. Both of these essays are quite short by law review standards so I hope some of our non-academic readers will take a look. If that is still too long, then it sounds like the online symposia format is for you!

Thursday, September 15, 2005

America's Friends and Enemies - The Latest Poll Results

As I noted previously, a recent poll showed that many Europeans had a more favorable view of China than the United States, a somewhat surprising (and disturbing) result. A recent poll of the U.S. public shows no such friendliness toward China - quite the opposite. As the WSJ reports:

Nearly three-quarters of Americans now view Britain as an ally -- far more than for any other country -- down from the 80% who considered Britain a close ally in 2001, after the Sept. 11 attacks, but higher than Britain's ranking throughout the 1990s.

At 48%, Canada is seen as the next closest ally, though perceptions of Canada as an ally have been slipping in recent years from a high of 73% in 2001.

France, which for many years was among the U.S.'s closest allies, has been sharply lower in the ally rankings since 2001, when 41% saw the nation as an ally; this year it ranks 16th on the list, with only 17% seeing it as an ally. And while Germany, another long-time ally ranks 10th this year, nearly a quarter of Americans still think of Germany as less than friendly.

The article doesn't note some weird results at the other end of the spectrum. China is the country least likely to be seen as a close ally, but it is Pakistan that tops the list with 18% viewing that country as "unfriendly or an enemy". China comes in second with 15% viewing China as an "enemy" but this is indistinguishable from South Korea's 14%. Thus, the two out of the top three "unfriendly/enemy" countries in this list are, formally, close allies. Indeed, the U.S. even has a mutual defense treaty with South Korea and 50,000 troops stationed there. Very odd, indeed.

Wednesday, September 14, 2005

Judge Roberts and the Treaty Power

Listening to the Roberts hearing is amusing for a few minutes, but only the true Supreme Court geeks can stand it for more than an hour. Luckily, in the age of the internet, we can skip the hearings and simply go straight to the transcript portions that interest us. So here goes: Senator Feinstein of California asked Judge Roberts a potentially important question about whether he accepted the status of treaties as supreme law of the land. Here is the exchange:

FEINSTEIN: Let me turn to something else that Senator Leahy asked a number of questions on, and that's the Constitution and executive power. I'm looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?

ROBERTS: : Right.

FEINSTEIN: Which gives it the total weight of law. Can a president, then, decide not to follow a treaty?

ROBERTS: : As a general matter, the answer is no. The treaty power, as long as it's ratified according to the requirements in the Constitution, by two-thirds of the Senate, you're perfectly correct, it is under the supremacy clause the supreme law of the land. Now, I don't know if there are particular arguments about executive authority in that area with which I'm not familiar, and I don't mean to state categorically, but my general understanding is that treaties that are ratified -- and of course we have treaties that aren't ratified and executive agreements that aren't submitted for ratification and so on -- but the treaty that's ratified by the Senate under the supremacy clause is part of the supreme law of the land.

FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?

ROBERTS: : Yes. Now, there are questions, of course, that arise under those -- and have arisen under those -- about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated.

But that's an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.

This seems fairly bland stuff. After all, it is undisputed that treaties are the law of the land (And therefore U.S. law) under the Constitution. But as Roberts surely knows, many treaties are "non-self-executing" under U.S. law meaning that, in most cases, private parties can't sue in court to enforce those treaties against the government. In fact, he joined the opinion in Hamdan v. Rumsfeld holding that the Geneva Conventions are non-self-executing. And he probably knows that the Convention against Torture was ratified on the condition that it also be treated as non-self executing. So while those treaties are "binding" as a general matter, Roberts probably also believes that they cannot be judicially enforced.

Unfortunately, nothing in his answer to Senator Feinstein makes this complexity about the status of treaties in U.S. law clear. So if he is confirmed, she is probably in for a big surprise somewhere down the road...

The U.S., the U.N., and Foreign Aid

In an earlier post I had on UN reform, I noted that the US is losing public relations points for not agreeing to target 0.7% of GDP (as opposed to the current 0.16%) towards overseas development assistance. George Morris commented:

This argument is a total red-herring. While these "poorer" countries may, in theory, give more as a percentage of overall GDP, when non-U.S. governmental charitable aid is totaled up the U.S., per capita, winds up giving substantially more than virtually every country year-in and year-out. That we don't want to sign on to the EU's fuzzy-headed method to send vast set amounts of our GDP down the governmental and UN sluiceway is both understandable and hardly a mark of a flinty, cold-hearted cheapskate.

While the development assistance issue is not central to the UN reform topic, it is central to the Millennium Development Goals and to how the US is perceived more generally. (For a good collection of overseas development assistance stats gathered from the OECD and other sources, see this.)

First of all, this argument is not at all a red herring. I point out that the issue here is percentage of GDP and, of course, a country with a larger GDP can give a larger absolute amount even though that is a smaller percentage of their GDP.

But that is not the issue. There are two factors that prevent the “red herring” argument from persuading me.

First, given the incredible levels of poverty around the world is it actually a bad idea for the US to commit to giving the equivalent of 0.7% of its GDP to poverty alleviation by the year 2015? Note that this goal is not some new idea only forwarded by the EU; rather it is a central part of the Millennium Development Goals that the US has supported. There is now a question as to whether the US had ever objected to this number prior to the last week or two.

Regardless as to whether it did, the problem, in the eyes of countries not as well off as us (read: just about every other country), is that they are willing to devote more of their resources to address global poverty than we are. Of course, global poverty will be solved by neither 0.1% nor by 0.7% as a benchmark. What is needed is a concerted effort to attack the problem with the seriousness that it requires. Consequently, simply saying "our total is more than theirs" is not an adequate response if we could give a significantly larger amount without harm to ourselves. If all the countries of the EU, for example, can commit to giving 0.7%, why can’t we?

A second problem with the “red herring” argument is that it misses the issue of who the current aid goes to. Much of U.S. nonmilitary foreign assistance is actually related to national security concerns or military partnerships. Consider, for example, the top ten recipients of US nonmilitary aid in 2002-2003:

Democratic Republic of the Congo

As I said in my post, as a security matter I understand prioritizing these countries, but as a matter of poverty alleviation it doesn't really address the key problems. If we want to keep countries like this as our main aid recipients, fine, but let’s at least have a real discussion about increasing the size of the pie so truly poor states can get a slightly larger slice than they do now. In other words, keep these funding priorities but increase our total commitment to 0.7%. Anyway, poverty alleviation makes sense for national security reasons. So yes, while we do give a larger absolute amount in foreign aid, it is not being targeted as it should if we are actually concerned about addressing poverty.

A couple of closing thoughts: I haven't heard anyone else calling 0.7% “a vast amount” of GDP. Foreign aid is (and, even at the o.7% GDP benchmark, would still be) a small part of the US budget. Moreover, that money doesn't have to go to the UN or disappear due to recipient mismanagement. Rather, the 0.7% is simply a target for development aid in general. We can give it to whom we want and under whatever conditions we think best, assuming they forward the goal of poverty alleviation.

That is not fuzzy-headed. That is smart.

So… why not commit to devoting 0.7% of GDP to overseas development aid by the year 2015?

Tuesday, September 13, 2005

Judge Roberts Hearing: Use of Foreign Law in Constitutional Cases

I am back on the blog and wanted to post this exchange between Roberts and Senator Kyl (R. Ariz.) at today's hearing of Judge Roberts. (For background on the contours of the debate, see Jeff Toobin's New Yorker piece (via Scotusblog) on Justice Kennedy's "cosmopolitanism" and the use of foreign law).

KYL: It's an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law. I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn't like. For example, many nations have a weak protection for freedom to participate in or practice one's religion. Iran and some other Middle Eastern nations come immediately to mind. But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts. Should we look to France to tell us what the free exercise clause means, for example? Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom. Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There's a lot more to say on the subject. But I wanted to hear from you. So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we're not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.
And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law. The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate. The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.

ROBERTS: If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.

U.N. Reform: From Recrimination to Common Interests

I think Julian might be reading more into my post than what was written. I never said (nor even meant to imply that) the US position is unreasonable. To the contrary, I think its attempted reform of the Human Rights Commission is a good idea. I noted that that reform effort was being blocked by China, Russia, and a host of others.

I also noted that reforms concerning the Secretariat are politically difficult at the moment, given the Volcker Report. Nonetheless, at some point, states are going to have to seriously consider giving the Secretariat more leeway to act without being politically tied to the General Assembly. As far as I know, the US is not against this idea in principle but has focused on some specific issues that have arisen. That is why I concluded that, given the current mood of the member states in the wake of the oil-for-food debacle, the probable best-case scenario at this juncture is the adoption of better financial oversight standards and the construction of better oversight mechanisms. This, in turn, may lead the way to deeper reform in the future.

And, as for increasing foreign aid, I said that that was largely a question of politics. I think, as a general matter, it would be good development economics to embrace a policy that would increase assistance to lesser developed countries (at the moment there is a net capital outflow from LDC's due to debt repayment, though that is being amelioriated with debt forgiveness) but, at the end of the day, some compromise position between the US view and the EU view is likely. The EU and others want to see more money going to LDCs. The US wants to include a good governance requirement. These views are not mutually exclusive; rather, they can be mutually reinforcing. But we still need to see what the US will be willing to commit to as a minimum of assistance.

(On this account, note that even given the increase in US aid that was mentioned in the WSJ piece, we are still among the lowest donors as a percentage of our GDP. And the majority of non-military assistance still goes to relatively few countries and primarily those where we have a military stake as opposed to those that might have the most bone-crushing poverty. I understand that as a matter of security policy but let us not kid ourselves that that is the most effective route to decreasing poverty.)

In my summary I explained that the UN bureaucrats have to be realistic about the managerial crisis that they have brought upon themselves. At the same time the states that are interested in the UN succeeding in its tasks need to be realistic about the tools and authorities that it will need to be able to do that. The problem is not that the US is against reform; as I've said the US is in favor of many of the best reforms on the table. The problem is that the UN member states as a whole are not showing the political will and coordination to make real reform--of any kind--happen. That is the great loss.

This is not about US partisan arguments. This is not (only) about the different interests between the East and the West or the North and the South on specific issues. This is about coalition building to get key proposals passed, even if some countries don't like them (like the Human Rights Council). This is about getting past the anger that is still felt by many states (including the US) about the lead-up to the war in Iraq (and the UN's role) or about oil-for-food and focus on today's problems at the UN. It's time to get past recrimination and move on to coordination towards getting the reform done. We knew this was going to be hard. But it is still worth doing.

If the promise of reform evaporates, it is not because of the UN. It is because the member states could not muster the political will or the political leadership to get it done.

More on U.N. Reform: A Critical Perspective

Following up on Chris' post on the opening of the UN General Assembly this week and the U.N. reform agenda, it might be useful to check out some defenses of what the U.S. is seeking in the UN Reform process in the WSJ here and in the NYT here. The U.S. positions seem fairly reasonable, but I leave to Chris or Peggy to explain to me why they aren't.

This is obviously a give or take process so it will be hard to tell what is going to be accomplished in the end of the day. Given the U.N.'s track record, probably nothing. Still, we can count on one thing: Traffic in Midtown is almost certainly going to be a disaster for the next few days.

Monday, September 12, 2005

So You Say You Want an Evolution: The Stakes of U.N. Reform

It seems like everyone wants the UN to change, to evolve, to reform. The trick is getting consensus on what such reform should look like. World leaders will have their chance this week to hammer something out at the plenary meeting of heads of state marking the 60thanniversary of the UN. (See also the State Department site on the Summit.) This is shaping up to be possibly the most important anniversary week for the U.N. since its founding. Numerous reform measures and initiatives are coming to a head and, coupled with recent scandals (oil-for-food), challenges (the tsunami), and divisiveness (the Iraq War), this will be a crucial time for the organization.

The main issues on the agenda of the UN are (1) Security Council reform; (2) managerial reform; (3) replacing the Human Rights Commission with a more effective body and (4) spurring foreign aid to assist development. What may be expected on these issues has been the subject of much prognostication in recent months. The newest prediction: don’t expect much. (See also this from Reuters and also what the folks at Democracy Arsenal have to say here, here, and here.) Here’s a quick summary of the state of play:

Security Council Reform. This is dead in the water. As the Voice of America reports:

Secretary of State Condoleezza Rice's senior adviser on reform, Shirin Tahir-Kheli effectively put the issue to rest in a speech to the General Assembly in July.

"Let me be as clear as possible. The United States does not think any proposal to expand the Security Council, including one based on our own ideas, should be voted on at this stage," said Shirin Tahir-Kheli.

This is a topic that will likely start moving again in the near future: too many rising powers (Germany, Japan, India, Brazil) have too much at stake. But whether one of the various reform measures (rotating “semi-permanent” seats, an EU seat, etc.) actually passes is another matter entirely.

Managerial Reform. On this account, the freshly-minted Volcker Committee Report will give the delegates much to discuss. On the one hand, there is a need for the Secretariat to have greater leeway to hire/fire/enact/change to allow for a more rapidly responsive organization. On the other hand, the Secretariat’s record on oversight is not good (see, Oil-for-Food) and it is unlikely that that report will cause many states to want to give more power to the UN bureaucracy. In any case, though, at some point the states will need to come to grips with the fact that in order for the UN to work efficiently, then the chief executive officer of the UN will need to have some ability to actually act like a chief executive. And the UN’s Secretariat will have to realize that, until the dispose of the power that they do have in a responsible fashion, they are unlikely to be given more. For now reform of methods of oversight and a house-cleaning may be the best we can hope for.

The Human Rights Commission. The Commission in mired with politics and hamstrung by having no real power beyond its attempts to shame bad actors. The US, EU, and other states have sought real reform by replacing the Commission, which only sits periodically and has members chosen by region, with a permanent Human Rights Council that sits year-round and would have members chosen by a two-thirds vote of the General Assembly. The idea is that such a Council would be able to put more constant attention on problems and, due to the new election procedures, would be less likely to have members from states that are bad actors. So Libyan representiative wouldn’t get to be the chairperson (at least for the foreseeable future). But China, Russia, Cuba, Belarus, Egypt, and others that tend not to win best-of-breed awards for human rights protection may be successful in blocking this reform. There are last-minute attempts to save this proposal going on this week….

Development Assistance. The Europeans are trying to set a benchmark for development aid from rich countries at 0.7 % of GDP. The US, which gives about 0.1 %, is not happy with this proposal. Given that nations that are poorer than us are giving more of their GDP to help other countries, we are not winning big public relations points here. Stay tuned on what gets hammered out.

Unless you hate even the idea of the UN, it is hard to see reform faltering as anything but a sad result. There are too many people with too much at stake in the poorest an/or least free parts of the world for this opportunity to be squandered. Moreover, there is too much at stake for the US for us to allow this opportunity to pass: the UN patrols the warzones, builds the infrastructure, and outs the bad-actors in places where we just do not have the time or resources or political will to act directly. Make no mistake, the US gains much more from the UN than any cost—financial or otherwise—levied upon us. For 60 years, we have leveraged our power by using the UN managerial, peacekeeping, and coordination resources of the UN as force multipliers.

On the one hand US is facing the burdens of long-term overseas conflicts and domestic disasters. On the other hand, there are crises in competence and ethics at the UN. The result is that the stakes of UN reform have never been higher. For either of us.

It would be no surprise if this summit ends, as others have, in political gridlock. I think that the chances that a deal will be brokered and that John Bolton and Kofi Annan will get to hug it out before the closing credits are pretty slim. But, sooner rather than later, something will have to change.

Yoo Gets Front Page Treatment

How many law professors get front page treatment in the Wall Street Journal? Today's WSJ profiles Prof. John Yoo of Berkeley, essentially treating him as an architect, maybe the architect of the Bush Administration's legal approach to the war on terrorism. Here are some excerpts:

Mr. Yoo is playing an instrumental role in redefining the murky area where law intersects with foreign policy. The change underpins President Bush's claim that he possesses the sort of far-reaching emergency powers exercised by past presidents during conventional wars.


Mr. Yoo, like others in the academic clique known as "sovereigntists," is skeptical of international law and the idea that international relations are ever based on principle, as opposed to self-interest. Mr. Yoo argues that the Constitution gives Congress limited authority to deter presidential actions in foreign affairs. The judiciary, he says, has almost none.


The Yoo Doctrine, as it might be called, fits with the broader Bush-administration view that pursuing American interests is best for the country and the rest of the world. Before 9/11, Mr. Yoo helped lay legal groundwork for some of the president's high-visibility withdrawals from treaties, including the antiballistic missile pact with Russia and the agreement underpinning the International Criminal Court in the Netherlands, established in 1998 to deal with the gravest international crimes.

While it is nice to get the front page treatment, I'm sure John could do without the sometimes hysterical denunciation he gets, not only from the political left, but from fellow academics and his students. On the other hand, he has a book coming out from the University of Chicago Press, so all types of publicity, I suppose, can only be a good thing.