Friday, September 30, 2005

A Critical Take on Israel and the ICJ

My former colleague and friend Wadie Said has a rather different take on the recent Israeli Supreme Court decision refusing to follow the ICJ's advisory opinion on the legality of the "security fence" Israel has erected. My original post observed that the Israeli Supreme Court was quite deferential toward international law, but not the toward the ICJ's interpretation of international law. I quoted more or less approvingly from the concurring opinion of the Court's Vice-President Chesin and I think the Israeli court's opinion was pretty reasonable. Wadie's more critical comments follow:

Essentially, my most immediate reaction to Chesin's remarks that were quoted from the opinion was that they were a little bit much and I'll tell you why. Israel had a chance to appear at the ICJ and plead its case, but chose not to. Complaining now that the ICJ did not take into account adequately the security situation Israel faces is a bit rich, especially when it made a conscious decision not to appear and represent itself. The ICJ decision itself also came with several other concurring opinions, and, taken in toto, the judges definitely went to great lengths to discuss Israel's security situation. In the United States, we would not give too much thought or consideration to a litigant that complained about the contents of a judicial opinion in a case where that litigant did not appear and was subject to a default judgment.

The second point I would make is that Israel enjoys a well-developed and quite well-regarded legal system based on the common law tradition. Additionally, its Supreme Court prides itself on being quite an enlightened and liberal body that takes very seriously notions of international and human rights law ib issuing its decisions. Where that all goes off the rails in my view is when the Supreme Court is asked to step in what are referred to as "security matters," which are virtually everything related to the West Bank and Gaza Strip. In those case, the Israeli Supreme Court will defer almost inevitably to what the security services want and the occupied Palestinians themselves will be the losers. This is most plainly evident on the issue of torture, for example, where the court finally outlawed the use of torture against Palestinians by the security services in 1999. Of course, the decision itself was deeply flawed because it allowed for the possiblility that torture might be alright in the much-ballyhooed and semi-mythical "ticking bomb" case, but it was widely hailed as a sign that Israel was beginning to break free from the security excesses of the past. Unfortunately, the use of torture re-emerged in a widespread manner shortly after this latest intifada broke out in September 2000.

Torture came back as the norm - if it ever really disappeared at all - with a vengeance (it is applied exclusively to Palestinians and never to Israeli Jews), well before the first suicide bombing of this intifada. Therefore, the key question in my mind would be - how effective have the harsh interrogation methods in use on Palestinians since 1967 been, in light of the fact that the conflict is as violent and unresolved as ever? Alas, this question is never asked by the Israeli authorities of themselves. So, in essence, while there is much more I could write on these issues, I will stop a) because I don't want to bore you anymore and b) because more commentary would necessarily implicate getting into the inner workings of the conflict. I have tried to avoid b) and just focus on a critique of the legal aspects of this issue, since I am normally dismissed as hopelessly biased on this point.

Case of the Month: Padilla v. Hanft

On this last day of September I would nominate Padilla v. Hanft as the most important international law case of the month. The Fourth Circuit decision, per Judge Michael Luttig (on the short list for a Supreme Court nomination), is a great example of the potential impact that international law principles may have on statutory interpretation under the so-called Charming Betsy doctrine.

The case involved the prolonged detention as an enemy combatant of the alleged “dirty bomber” Padilla, an American citizen. Padilla fought in Afghanistan against the United States, but was captured while attempting to enter the United States allegedly to perform a terrorist act on our soil. As an enemy combatant he faces detention until hostilities cease, which in the war on terror is on a date uncertain. If charged and convicted he could well face the death penalty for his treasonous conduct. The Fourth Circuit relied principally on Hamdi v. Rumsfeld, 542 U.S. 507 (2004), which in turn relied on “longstanding law-of-war principles” in its interpretation of the congressional authorizing statute (the AUMF). The Supreme Court in Hamdi concluded that Hamdi’s detention was “necessary and appropriate” within the meaning of the congressional statute because “[t]he capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by universal agreement and practice, are important incident[s] of war.” Consistent with that decision, the Fourth Circuit interpreted the AUMF as authorizing “the President to detain all those who qualify as ‘enemy combatants’ within the meaning of the laws of war, such power being universally accepted under the laws of war as necessary in order to prevent the return of combatants to the battlefield during conflict.”

International law, consistent with Charming Betsy, was imported into the statute in Hamdi, and now the plurality in Hamdi controls Padilla. The statute implicitly authorized detentions of enemy combatants consistent with the laws of war, and the Executive branch, the Fourth Circuit held, is acting consistent with those obligations. No meaningful distinction was made between an American and non-American enemy combatant. Nor was there any meaningful distinction made between the conventional war at issue in Hamdi (the ongoing war in Afghanistan) and the unconventional war at issue in Padilla (the war on terror).

Although many international law academics may resist the decision, Hamdi and Padilla both represent a win for international law in an obvious way: the laws of war were clearly interpreted to circumscribe congressional authorization for executive action. Of course, precisely what the laws of war require in an unconventional war on terror is an exceedingly difficult question. But the Charming Betsy doctrine only mandates that we endeavor to interpret ambiguous statutes consistent with the “law of nations as understood in this country.”

Thursday, September 29, 2005

ICJ Watch: Costa Rica Will Sue Nicaragua

Costa Rica's government announced today that it will apply to the ICJ to resolve a decades-long dispute with Nicaragua over navigation rights on the parts of the San Juan River that run between the two countries (UPDATE: Press release announcing the case is here. It looks like the most important precedent for this case is an opinion by U.S. President Grover Cleveland acting as an arbitrator way back in 1888). Without having any opinions on the merits of the actual dispute, this seems like another example of the limited usefulness of having a permanent international judicial institution like the ICJ to resolve these kinds of border disputes(usually between small countries of roughly equal power and status). Both countries appear to have accepted the ICJ's compulsory jurisdiction.

On the other hand, Nicaragua may oppose the involvement of the ICJ and it seems unlikely that the two countries will agree to the "fast track" arbitration-like process that worked so well for Benin and Niger recently.

Medellin Update: The President v. Texas

I've been remiss in failing to keep up with the proceedings in Medellin v. Dretke, a case involving the enforceability of a judgment by the International Court of Justice that I blogged rather obsessively about here, here, and here. Luckily, Lyle Denniston of SCOTUSBlog is on the case here with a useful report on the latest proceedings, which have become a fascinating struggle over competing visions of executive power and federalism (thanks also to Marty Lederman for pointing me to this post as well as this Texas Lawyer account of the oral argument).

The battle in the original Medellin case focused on the authority of domestic U.S. courts to implement an ICJ order requiring a judicial hearing to determine the effect of a treaty violation on a foreign national's criminal conviction and capital sentence. The battle in the subsequent Texas proceedings have focused on legal consequences of the President's "memorandum" requiring Texas state courts to implement the ICJ's order. Texas is taking the view that the memorandum cannot be considered as "binding" without undermining principles of constitutional federalism and separation of powers. The President appears to be taking a hard line, relying heavily on the Supreme Court's 2003 decision in American Insurance Association v. Garamendi, which seemed to preempt California law via a statement of national policy by the executive branch.

My original view is that a Presidential implementation of the ICJ order is not ideal, but not the worst result (the worst result being the Supreme Court's implementation of the ICJ order). Garamendi, read expansively, probably supports the President's authority to act as he did in ordering Texas to comply with the ICJ order.

But I think a semi-legal realist like myself has to consider a couple of factors that might very well allow Texas to prevail: (1) the changing composition of the U.S. Supreme Court, with the addition of Chief Justice Roberts and Justice O'Connor's replacement still unknown; (2) the Court's somewhat uncertain path on the subject of foreign affairs and federalism veering back and forth between giving deference to the states and running roughshod over them.

Moreover, top-notch scholars like Ernie Young of Texas and Michael Ramsey of San Diego have filed a sophisticated brief supporting Texas by arguing for a limitation of Garamendi. I myself have joined an amicus brief* reiterating my view that the courts do not have the independent authority to implement the ICJ order. So maybe the Texas courts will decide that Texas can ignore both the ICJ order and the President's order. But I still think that's a long shot.

*Update: I was remiss in my first version of this post in forgetting to identify Professor Paul Stephan of UVA as the author of this terrific brief. And I have now added links to the briefs as well.

A Tribute to Chief Justice Roberts Upon His Retirement from the Court

At the dawn of John Roberts’ tenure on the Court, I find it irresistible to ponder what commentators will say about the Chief Justice at the twilight of his career. When he retires decades hence, I suspect much of the praise accorded him will be about the persona of the man. Having watched John Roberts up close and personal for years while I was an attorney at Hogan & Hartson in Washington, D.C., here is my prediction of what many will say about the persona of the potentially future great Chief Justice upon his retirement from the Court:

“Much has been and will be written about John Roberts the justice and legal mind, and I will leave much of that to others more qualified than I am on that score. Suffice it to say that I have always been somewhat amused by the continuing debate over “judicial activism” versus “judicial restraint.” This debate will rage on for years, but, for the purposes of this tribute, I write about the persona of a great Chief Justice…. He is an improbable looking villain or inspirational leader -- though his critics and admirers describe him that way…. Behind that open-hearted and twinkling exterior is a mind of enormous force and determination, a mind that by most accounts has been at the forefront of molding American jurisprudence over the last three-and-a-half decades….

In Washington, where cynicism is often justified, it is quite an amazing thing to learn more and more about a “great man” and to find that he really is great, that his beliefs are genuine, that his work is his life, that his soul is a gentle one, and that he has a rare gift of perception and a tolerance of others, even when their beliefs threaten his…. From the moment of his confirmation hearings, when he was asked about his Catholicism and how it would affect his decision-making, he knew this would be an issue. And he always said that his duty as a Justice was to interpret the Constitution without regard to his own religious feelings….

In writing about Chief Justice Roberts’ impact on the Court, one must deal always with his reputation as a consensus builder, a molder of opinion, a playmaker. The Chief Justice gets quite put out when asked about this, heatedly denying it. What he does do, I think, is accurately judge his colleagues and figure out what is doable…. Chief Justice Roberts’ critics and admirers both have painted him on occasion as some sort of a political Svengali on the Court, persuading others by his charm. He hates that notion, noting that he likes to communicate with other Justices by memo when discussing business. And I don’t think it is his charm that wins cases. But it is a special kind of perceptiveness that sees the problems of a case and can translate them in a way that appeals to the critical Justice or Justices needed for a majority….

In Washington, where compromise is the name of the game and false faces are put forward as a way of life, Chief Justice Roberts is special not only for his devotion to principle, but also for his utter lack of hypocrisy. He has written for decades about the need for a wide spectrum of ideas in government, and he seems not to care one whit about the ideological views of his law clerks….

On my last visit, I’d come to record a short interview, so that we could rerun the old ones, updated, and I of course asked him if he was going to retire. "ABSOLUTELY NOT!" he yelled at me, demanding to know if I was going to quit. When I said no, he said he saw no reason that he should either. I know he did not want to retire. But he had always said that he would leave the Court if he feared he could no longer do the work. His first loyalty was to the Court as an institution.”

Sound familiar? Perhaps it should. It is a verbatim excerpt of Nina Totenberg’s tribute to Justice William Brennan upon his retirement (with the names changed of course). 104 Harv. L. Rev. 33 (1990). The substantive ends will be decidedly different, but in judicial skill as a consensus builder able to secure majorities, I predict we will see in John Roberts a conservative incarnation of William Brennan.

NAFTA Watch: Big Lumber Challenges Constitutionality of Chp. 19 Panels

I hadn't noticed until today this recent lawsuit by the Coalition for Fair Lumber Imports, a U.S. lumber industry lobbying group, challenging the constitutionality of one part of the North American Free Trade Agreement's Chapter 19 dispute resolution system. The complaint challenges a system of binational panels, appointed by the NAFTA secretariat and comprised of U.S., Canadian, and Mexican citizens, that holds the power to reverse judgments of the U.S. International Trade Commission and Department of Commerce. According to the complaint, these panels violate Articles I, II, III and the Due Process Clause of the U.S. Constitution.

There is a lot more to say about this lawsuit, but I have to run to catch a plane so let me be brief. The problem of the NAFTA Chapter 19 panels has long been kicked around by scholars and government lawyers (see here for an interesting summary of previous critiques), but no one seems to have gotten very upset about it until now. Interestingly, the complaint makes an argument that was used to challenge the ICJ's decisions in Medellin -- that an international tribunal's judgments cannot have direct self-executing effect in U.S. law because the decision to decide whether and how to implement such a judgment is held by the political branches.

Of course, in the case of the NAFTA tribunals, the duty to follow the international tribunals is contained in legislation passed by both the House and Senate where as in Medellin, the duty is contained in a treaty. This might matter, but then again it might not.

Wednesday, September 28, 2005

Human Rights Has Got Religion

Or so says secular Neo-Marxist philosopher Jürgen Habermas. In an article by Richard Wolin in this week's issue of the Chronicle of Higher Education, discussed here, Habermas had this to say about the role of religion in the development of human rights:

… Habermas asserts that modern notions of equality and fairness are secular distillations of time-honored Judeo-Christian precepts. The "contract theory" of politics, from which our modern conception of "government by consent of the governed" derives, would be difficult to conceive apart from the Old Testament covenants. Similarly, our idea of the intrinsic worth of all persons, which underlies human rights, stems directly from the Christian ideal of the equality of all men and women in the eyes of God. Were these invaluable religious sources of morality and justice to atrophy entirely, it is doubtful whether modern societies would be able to sustain this ideal on their own.

In a recent interview Habermas aptly summarized those insights: "For the normative self-understanding of modernity, Christianity has functioned as more than just a precursor or a catalyst. Universalistic egalitarianism, from which sprang the ideals of freedom and a collective life in solidarity, the autonomous conduct of life and emancipation, the individual morality of conscience, human rights, and democracy, is the direct legacy of the Judaic ethic of justice and the Christian ethic of love."

One of the great jurisprudential issues in international law concerns the moral basis for universal norms (slavery, piracy, genocide, etc.). I have often found it odd that international lawyers and academics maintain non-consensual international human rights obligations (i.e., preemptory norms or jus cogens) without conceding the non-positivist aspect of their position. Article 53 of the Vienna Convention on the Law of Treaties pointedly avoids this deeper question, simply defining such an obligation as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”

Which is another way of saying that we the international community require you the individual state to obey this obligation even if you would otherwise choose not to. Which begs the question of on what basis does the international community rank a particular norm (but not others) so high that a non-consenting state must conform to it.

Whereas the Dutch theologian Hugo Grotius would happily contend that international law is derived from immutable natural laws of God, the positivist tradition of Lassa Oppenheim would argue that “only a positive law of nations can be a branch of the science of law.” Today it would seem we unwittingly are witnessing in international human rights law a synthesis between the Grotian thesis of natural law international obligations and the antithesis of the international positivists. Consensual international obligations follow in the positivist tradition, while non-consensual universal preemptory norms hearken back to the natural law roots of international law.

Perhaps this deeper point is avoided because, as Habermas suggests (echoing John Rawls), to gain a reasonable chance of public acceptance, "religious reasons must ultimately be capable of being translated into secular forms of argumentation." The secular version of universal human rights norms has succeeded in garnering widespread (near global) public acceptance, whereas it might have had much greater difficulty if it were clothed in religious justification. The roots may be religious, but it is the secular tree and branch that we see and nurture.



Opening the Floodgates to Treaty Litigation

International lawyers have long lamented that it is nearly impossible to get courts to apply and enforce treaties, especially to assess damages against government officials. All of this is about to change.

A federal appeals court has held that the Vienna Convention on Consular Relations (VCCR) creates a private right of action. I believe this marks the first time that a U.S. court has found that any provision of the VCCR is judicially enforceable. While the decision does not necessarily affect other courts' consideration of the Medellin issue -- the judicial enforceability of an ICJ interpretation of the VCCR -- it may have some broad impact. It may also open the door to a wave of lawsuits alleging violations of various treaties of the United Sates.

In Jogi v. Voges, a panel of the U.S. Court of Appeals for the Seventh Circuit (in Chicago) found that the VCCR can serve as the basis for a suit pursuant to the Alien Tort Statute (28 U.S.C. 1350) which permits aliens to bring lawsuits in "violation of the law of nations or a treaty of the United States)." Almost every lawsuit brought under the ATS has alleged a violation of the law of nations rather than a violation of a treaty because very few treaties of the U.S. have been interpreted to create private rights of action or to be self-executing.

The panel's decision is certainly plausible. The U.S. government has conceded that the VCCR is "self-executing," meaning that it does not require any further legislation to implement its provisions. Moreover, the VCCR and the U.S. government have indicated that the VCCR creates individual rights. In such circumstances, it is not a long stretch to then find that the ATS, which the Supreme Court has held creates a cause of action for violations of the law of nations, also creates a cause of action for violations of a self-executing treaty that also creates an individual right.

Bottom line:

(1) Under this holding, any alien who has been arrested by U.S, state, or local officials without being notified of his or her VCCR rights to contact his or her consulate can bring a suit under the ATS. Since thousands of aliens are arrested by state and local officials every year, maybe we should add a new line to the "Miranda" card that police read to everyone, just in case. Moreover, there are lots of other treaties, like the Geneva Conventions or the International Covenant for Civil and Political Rights, that could also serve as the basis for future lawsuits.

(2) The 7th Circuit's decision here mildly helps international lawyers seeking ways to enforce treaties in U.S. Courts. Smart international lawyers have argued that general provisions like the ATS and the habeas jurisdictional statute, which grant federal courts jurisdiction over treaty violations, authorize federal courts to hear lawsuits enforcing treaty rights, even if the treaty itself is not self-executing or does not create a private right of action. This decision does not go so far, but it is certainly sympathetic to such an approach, which is being tried in lawsuits by detainees in Guantanamo Bay.

(3) The 7th Circuit also telegraphed its view that ICJ interpretations of the VCCR should be treated as binding "the United States" and, presumably, U.S. courts interpreting the VCCR. If the current Medellin litigation does not make it back to the Supreme Court, international lawyers know where to file their next VCCR suit if they want to create a circuit split.

Tuesday, September 27, 2005

Private England Goes to Jail


Lynndie England is headed for jail for her abuse of prisoners at Abu Ghraib. Displaying enlarged photos of the abuse, the prosecution emphasized “What soldier wouldn’t know that that's illegal? …She is enjoying, she is participating, all for her own sick humor." Although England is one of the most infamous of the torturers, the Army reportedly has opened more than 400 inquiries into detainee abuse in Iraq and Afghanistan and punished 230 enlisted soldiers and officers.

I haven’t met a single American who is not sickened by what England and others like her did to those Iraqi prisoners and more generally to the cause of freedom in Iraq. The abuse undermined the moral arguments for why we were there. The convictions underscore the moral arguments for why we are different. I doubt the story of their punishment gets the worldwide coverage it deserves.

Should Saddam Hussein Face the Death Penalty?

Fascinating discussion here on whether Saddam Hussein should face the death penalty. The traditional arguments you might expect for and against the death penalty are reframed in the context of the pending trial of Hussein. Which State is urging Iraq to refrain from imposing the death penalty? The United States. Which political leader in Iraq temporarily suspended the death penalty following the toppling of Hussein? Paul Bremer. In turning Hussein over for trial, is Britain under conflicting obligations under human rights law and humanitarian law? Possibly. Are there special circumstances that might justify the death penalty for a deposed leader of a country who is a génocidaire? Yes. Read it.

Monday, September 26, 2005

U.S. v. the World, Again - The U.N. Convention on Cultural Diversity

Sometimes, the U.S. government seems at odds with all of its allies. The most recent example is the battle over the Convention for the Protection of the Diversity of Cultural Contents and Artistic Expressions sponsored by UNESCO, the U.N. Educational, Scientific and Cultural Organization. U.S. Ambassador to UNESCO Louise Oliver criticizes the draft treaty, and UNESCO in general, for failing to deal seriously with the issues in the treaty:

The preliminary text addresses a number of very complex issues. They involve culture, development, intellectual property rights, trade, and most important of all, human rights. Have we discussed all of these issues thoroughly? Is this preliminary text coherent, with clearly defined obligations and objectives? Are we convinced that there are no potentially negative consequences that may result from the provisions of this convention? For us the answers to these questions unfortunately are no, no, and no.

Interestingly, Ambassador Oliver strikes a broader theme: UNESCO should stop sponsoring new treaties and concentrate more on strengthening its existing programs. (this might be true of the U.N. as a whole). In other words, the world needs less international law and better international governance.

This is an interesting critique, but one that seems at odds with a simplistic rational choice analysis of an international agency like UNESCO. After all, UNESCO doesn't appear to be doing a whole lot unless they are sponsoring new treaties and conventions.

Moreover, UNESCO has been studying this for quite some time. They've had lots of meetings, they've heard reports from lots of experts. It's unclear what exactly the U.S. wants to talk about at the next meetings? At least it is hard to tell.

I think the U.S. has lots of substantive agreements here. UNESCO's staff, its independent experts, and the very few people who have been paying attention to this convention have taken the agenda away from the U.S. And it might be a little too late to stop the momentum.

Roger Alford Joins Opinio Juris

Peggy, Chris, and I are very pleased to announce that Professor Roger Alford of Pepperdine University will be joining Opinio Juris on a permanent basis. In addition to being a top-notch scholar, Roger was also a guest blogger here over the summer, contributing a number of fascinating posts from India. We are thrilled to have him as a permanent blogger.

Welcome to the team, Roger!

Why A Little Impunity Might Be Necessary: Eric Posner on Amnesty for Baathists

Professor Eric Posner has a typically provocative piece in the NYT arguing that some kind of political accommodation with the former Baathists in Iraq will have to be made before peace can come to Iraq. This means, as he notes, that while Saddam Hussein and his associates could be convicted of war crimes, the guilt cannot fall on every soldier and government official who carried out Saddam's order. Posner does not celebrate this result, but he does think it will be a political necessity. Perhaps. But will this kind of realpolitik undermine one of the rationales for the invasion in the first place? That is to say, is it politically plausible for the U.S. government to make a deal with the former Baathists if the war is justified as a way to eliminate the Baathists?

New Saddam Trial Blog

The Cox International Center at Case Western is launching "Grotian Moment: The Saddam Trial Blog" which will bring together some of the leading scholars of international criminal law to comment on the upcoming trial of Saddam Hussein. Lots of international law bigwigs will be participating and they have already had quite a few interesting posts on topics such as the legality and legitimacy of the trial and whether the death penalty should be applied.

This could be a great blog! But not as great as this one, of course...