Friday, September 23, 2005

American Astronauts, Russian Rockets, and Iranian Nukes

What do American astronauts, Russian rockets, and the Iranian nuclear program have in common? More than I ever realized.

As it happens, the Senate approved a bill this week that would allow NASA to purchase Russian Soyuz space vehicles that could be used as a stop-gap between the end of the operational life of the shuttle fleet and the debut of the new Crew Exploration Vehicle (CEV) that is being developed for the US spapce program.

So what about the Iranian nuclear program? The catch to the US/Russian deal was a clause in the Iran Nonproliferation Act of 2000 that would prevent the purchase by the US of hardware for manned space missions from the Russians while the Russians continued to supply Iran with nuclear reactor technology and/or weapons development tech. The bill approved earlier this week included a special waiver to allow this deal. For more information, there’s a Congressional Research Service study the effects of the Iran Nonproliferation Act on the International Space Station available here.

Now for the next hurdle… if we fly these vehicles, will they still be called Soyuz capsules?

Thursday, September 22, 2005

Israel's High Court Embraces International Law - But Not the ICJ

Israel has had a long and often unhappy relationship with international institutions, especially the U.N. Moreover, Israel's struggle with the Palestinians and the Arab states has also given it good reasons to be suspicious of international law, especially the kind of international law used to restrain its military power. So it is not exactly surprising to see this recent decision from the Israeli High Court of Justice largely disagreeing with the conclusions of the ICJ's 2004 Advisory Opinion, which found the "security fence" dividing Israel and Israeli settlements from Palestinian-controlled areas constituted a violation of international law.

On the other hand, the Israeli High Court decision is also remarkable in its assumption that most forms of international law, especially the customary international law governing armed conflict and international human rights treaties, has been incorporated into Israeli law and may be applied to constrain the activities of the Israeli government.

In fact, the Israeli High Court's judgment differed from the ICJ's judgment only in that it applied the law differently, but not because it disagreed that the various forms of international law applied. Both courts agreed that "the legality of the wall/fence route depends upon an appropriate balancing between security needs on the one hand and the impingement upon the rights of the local residents on the other." The reason for the difference in conclusions between the Israeli High Court and the ICJ flowed from different factual findings, e.g. that the security needs were greater than the ICJ realized.

In the end, the Israeli High Court did require the Israel government to reconsider the line as it applied to five villages, which the villages' lawyer immediately declared a huge victory. But for me, the most interesting opinion in the case is the concurring opinion by Vice-President of the Court Chesin, where he expressed grave disappointment with the shoddy and political nature of the ICJ's advisory opinion in this case.

International law has undergone many welcome revolutionary changes in recent decades. I remember that 50 years ago – when I was a young student at the Faculty of Law of the Hebrew University of Jerusalem – the subject of Public International Law (as opposed to Private International Law) was a negligible and peripheral subject (even though it was taught as a required course). Public International Law was not seen by us – we the students – as worthy of the title "law", and the institutions of the international community, including the International Court of Justice, received the same treatment. The years passed, and public international law got stronger and began to stand on its own two feet as a legal system worthy of the title "law". That is the case, at least, as far as certain areas or certain states on the face of the globe are concerned. It is fortunate that public international law has developed in that way, although the road is long before it will turn into a legal system of full standing; as a legal system whose norms can be enforced against those who violate them. In the same context, we should know and remember that the International Court of Justice at the Hague, even when asked to write an Advisory Opinion, is still a court. Indeed, when the ICJ sits in judgment as the giver of an advisory opinion, the proceedings before it are not regular adversary proceedings, and its decision does not have immediate operative force – as opposed to the decision of a regular court. However, the way in which the ICJ writes its opinion is the way of a court; the proceedings of the ICJ are, in principle, like the proceedings of a court; and the judges sitting in judgment don the robes of a judge in the way familiar to us from regular courts. Take these procedural distinguishing marks away from the ICJ, and you have taken away its spirit as a court. For we have no lack of political forums.

3. I read the majority opinion of the International Court of Justice at the Hague, and, unfortunately, I could not discover those distinguishing marks which turn a document into a legal opinion or a judgment of a court. . . .

. . . the factual basis upon which the ICJ built its opinion is a ramshackle one. Some will say that the judgment has no worthy factual basis whatsoever. The ICJ reached findings of fact on the basis of general statements of opinion; its findings are general and unexplained; and it seems that it is not right to base a judgment, whether regarding an issue of little or great importance and value, upon findings such as those upon which the ICJ based its judgment. The generality and lack of explanation which characterize the factual aspect of the opinion are not among the distinguishing marks worthy of appearing in a legal opinion or a judgment. Moreover, generality and lack of explanation infuse the opinion with an emotional element, which is heaped on to an extent unworthy of a legal opinion. I might add that in this way, the opinion was colored by a political hue, which legal decision does best to distance itself from, to the extent possible. And if all that is not enough, there is the ICJ's almost complete ignoring of the horrible terrorism and security problems which have plagued Israel - a silence that the reader cannot help noticing – a foreign and strange silence. . . .


. . . I am sorry, but the decision of the ICJ cannot light my path. Its light is too dim for me to guide myself by it to law, truth, and justice in the way a judge does, as I learned from those who preceded me and from my father's household.

Wednesday, September 21, 2005

Transnational Tribunals and Domestic Societies

Transnational tribunals—mechanisms that allow sub-national actors such as individuals and companies to sue States for alleged infringements of their rights—are not only proliferating in number, they also have larger caseloads covering more substantive areas than ever before. I have just posted to SSRN an article assessing whether and how such tribunals cause normative change in the domestic legal and political systems of member states. The full abstract and link to the article download are available here.

Many scholars recently have focused on the issue of international tribunal effectiveness—essentially whether States comply with adverse rulings. I ask whether the repeated use of transnational tribunals, ranging from investor-State dispute resolution to human rights litigation before courts like the European Court of Human Rights, may cause a change in the beliefs and habits of domestic societies.

I conclude that instead of normative transmission being simply a form of legal imperialism by Western democracies, as some have argued, there are actually many different constituencies building alliances across state and class lines in attempts to forward their claims both domestically and internationally. All of these constituencies—corporate interests, human rights activists, environmentalists, and indigenous peoples—access and use the tools of globalization via the means of transnational legal process, such as adjudication before transnational tribunals. This is neither the North versus the South, nor the global versus the local, but rather the struggle of communities that transcend state borders, have competing conceptions of the good, and use the tools of globalization. Their common use of similar legal mechanisms leads to a “hegemony of process” in which certain outcomes are favored by certain procedural structures.

Tuesday, September 20, 2005

The North Korea Agreement - The Usefulness of Non-Legal Agreements

Here is the U.S. Govt description of the recent deal where North Korea sort of agreed to give up its nuclear weapons program. Who knows if this deal will stick? But one thing to keep in mind from an international lawyer point of view: the agreement has some chance of success, precisely because it is probably not a treaty or binding agreement under international law. Rather, it is a non-binding understanding that allows each party to say it is agreeing, but seems to leave many details for later. It does refer to traditional sources of international law, e.g. previous treaties and the U.N. Charter, as a basis for future action. But the agreement itself doesn't appear to bind anyone to do anything, as a legal matter. I suppose this is an example of the success (maybe) of diplomacy rather than international law.

For the cause of peace and stability on the Korean Peninsula and in Northeast Asia at large, the Six Parties held, in the spirit of mutual respect and equality, serious and practical talks concerning the denuclearization of the Korean Peninsula on the basis of the common understanding of the previous three rounds of talks, and agreed, in this context, to the following:

1. The Six Parties unanimously reaffirmed that the goal of the Six-Party Talks is the verifiable denuclearization of the Korean Peninsula in a peaceful manner.

The DPRK committed to abandoning all nuclear weapons and existing nuclear programs and returning, at an early date, to the Treaty on the Non-Proliferation of Nuclear Weapons and to IAEA safeguards.

The United States affirmed that it has no nuclear weapons on the Korean Peninsula and has no intention to attack or invade the DPRK with nuclear or conventional weapons.

The ROK reaffirmed its commitment not to receive or deploy nuclear weapons in accordance with the 1992 Joint Declaration of the Denuclearization of the Korean Peninsula, while affirming that there exist no nuclear weapons within its territory.

The 1992 Joint Declaration of the Denuclearization of the Korean Peninsula should be observed and implemented.

The DPRK stated that it has the right to peaceful uses of nuclear energy. The other parties expressed their respect and agreed to discuss, at an appropriate time, the subject of the provision of light water reactor to the DPRK.

2. The Six Parties undertook, in their relations, to abide by the purposes and principles of the Charter of the United Nations and recognized norms of international relations.

The DPRK and the United States undertook to respect each other's sovereignty, exist peacefully together, and take steps to normalize their relations subject to their respective bilateral policies.

The DPRK and Japan undertook to take steps to normalize their relations in accordance with the Pyongyang Declaration, on the basis of the settlement of unfortunate past and the outstanding issues of concern.

3. The Six Parties undertook to promote economic cooperation in the fields of energy, trade and investment, bilaterally and/or multilaterally.

China, Japan, ROK, Russia and the US stated their willingness to provide energy assistance to the DPRK.

The ROK reaffirmed its proposal of July 12th 2005 concerning the provision of 2 million kilowatts of electric power to the DPRK.

4. The Six Parties committed to joint efforts for lasting peace and stability in Northeast Asia.
The directly related parties will negotiate a permanent peace regime on the Korean Peninsula at an appropriate separate forum.


The Six Parties agreed to explore ways and means for promoting security cooperation in Northeast Asia.

5. The Six Parties agreed to take coordinated steps to implement the aforementioned consensus in a phased manner in line with the principle of "commitment for commitment, action for action".

6. The Six Parties agreed to hold the Fifth Round of the Six-Party Talks in Beijing in early November 2005 at a date to be determined through consultations.

Monday, September 19, 2005

The Milosevic Trial: An Inside View

Over at Slate, Julian Mortenson has submitted a series of dispatches from the Slobadan Milosevic trial at the ICTY which offer an up-close-and-personal angle on the 3-plus-years old prosecution of the notorious Serb leader on a series of war crimes charges. International prosecution has an important part to play in accountability for past crimes, for creating a forum for victims to tell their stories, and to provide an authoritative historical account of the atrocities. But I have long believed that its deterrance value is overstated. Mortenson's account reminds us of the potential downside of long, protracted and much-delayed trials of aging thugs. This excerpt on the genocide at Srebrenica in 1995 is a chilling example of the way in which the formalism of the trial allows Milosevic to legitimate his own position (that the tribunal is illegal) and score political points:

When the testimony turns to Srebrenica, the good-natured joshing ends. It's a settled matter at the tribunal that the mass murder of more than 7,000 unarmed Bosnian Muslims at the Srebrenica U.N. "safe haven" constituted genocide. Earlier this year, the new release of sickening video clips of the Srebrenica executions jolted The Hague and Serbia—and, many court observers thought, Milosevic himself. So this is a minefield for both men. And while they understate the scale of the killings (Seselj is skeptical that even as many as 1,200 were killed, because "it was impossible for this small group of soldiers to kill so many men by individual shooting"), neither Milosevic nor Seselj deny that what happened was an epic atrocity: Seselj calls it "a great shame on the Serbian people." But, as they tell it, it certainly wasn't a top-down crime: "Can anyone claim," Milosevic asks, "that the authorities in Yugoslavia tried to hush up the crime in Srebrenica?" "That claim is untenable," Seselj snaps, "We thought it was our legal, political, and moral obligation that the crime of executing Muslim prisoners of war in Srebrenica should not go unpunished."

Milosevic's examination is really quite well done. As soon as the question of Srebrenica arose, his mood turned somber, and his gestures became mild, almost delicate, giving off a vaguely scholarly vibe. Whether affected or in earnest, it's good courtroom theater. Gravely denying any connection between the top Serbian leadership and the events at Srebrenica, Milosevic gets Seselj to repeatedly refer in amazement to the mere five-year prison sentence the tribunal imposed on Drazen Erdemovic, who admitted to personally killing some 70 helpless prisoners at Srebrenica. (They glide over the trial court's finding that Erdemovic participated only in the face of death threats from his superiors.) It's all part of Milosevic's constant chipping away at what he calls an illegitimate, illegal institution. Does it matter in any legal sense whether Erdemovic got a "fitting" punishment for his crimes? Of course not. But rhetorically it's an effective buttress for his overriding claim that he is the only person in this courtroom with real moral authority.

To a first-time visitor, that would probably be the most surprising thing about the trial. Early reports left the impression that Milosevic wasn't mounting a serious legal defense against the crimes he is charged with but was instead using his trial as a platform to make a political case against the Western powers most responsible for his fall. It's been my experience that he's actually having it both ways. To the extent he can, he's chipping away at the prosecution's legal claims while taking every opportunity to score political points (fair or not) for the Serb audience back home—and for history. It is an impressive balancing act.

Althouse on Foreign Sources in Court Opinons: No big deal

Ann Althouse has a reasonable view of citation to foreign law in constitutional cases in her op-ed in today's NYTimes. It's easy to agree with someone who shares one's own views.

Sunday, September 18, 2005

What is Bolton Up To? Not Much.

Here is a sympathetic profile in the WSJ of newly-installed U.N. Ambassador John Bolton's activities during the latest U.N. reform effort. Perhaps I am wrong when I argued here that U.N. ambassadors, and ambassadors in general don't matter very much. But then again, this profile doesn't really suggest Bolton has been able to do very much, one way or the other, during the supposedly-crucial U.N. negotiations in recent months.

Which makes me wonder again about all the noise and thunder surrounding his nomination and recess appointment. What was the point of all of that? Has Bolton done anything to radically undermine the U.N.? Or to stand up to the U.N. in the way conservatives wanted? Not that I can tell. The moment where Bolton might have made the greatest difference in U.S. relations with the U.N. has pretty much passed. And barely anyone noticed.