Saturday, October 29, 2005

ICJ Watch: Court's President Notes "Unprecedented Workload"

This past week, the President of the ICJ Shi Jiuyong addressed the U.N. General Assembly as part of of the ICJ's submission of its annual report (which can be found here, the President's speech can be found here). It was, of course, very boring. But it also reveals that the ICJ doesn't realize the seriousness of the problem I have complained about here and here: the ICJ's unbelievably light workload and its ridiculously low productivity.

The ICJ President's speech blithely noted that in the past few years, the ICJ has made great strides to improve its organization and its speed in resolving cases. In the past year, the ICJ reduced its docket from 21 to 11, meaning it has resolved 10 cases over the past year. As the President notes, "[t]he level of activity displayed by the Court over the past years is, simply put, unprecedented in its history."

With all due respect to ICJ President Shi, he is blatantly exaggerating the amount of work the ICJ has done during the past year (although he may be right that even this little amount of work is "unprecedented").

The ICJ has actually issued one final judgment in a contentious case during the past year: Benin v. Niger, which was an expedited arbitration-like proceeding involving a specially constituted chamber of the court.

It removed eight cases from its docket in one fell swoop by issuing preliminary judgments dismissing Serbia's (identical) lawsuits against nine NATO countries arising out NATO's actions in the 1999 Kosovo war. It issued one other preliminary judgment in a dispute between Lichtenstein and Germany dismissing that case from its jurisdiction. It should be noted that the court took five years to remove the Serbia cases and four years to remove the Lichtenstein case, both without reaching the merits of the cases.

In other words, the full ICJ (not counting special chambers) has issued zero final judgments in the past year and essentially two preliminary judgments. It has also held two public hearings.

Obviously, the ICJ President has a duty to present the Court's work in the best light, especially because his main purpose is to request appropriations from the General Assembly. The ICJ's budget, in absolute terms, is quite small (about $30 million per biennium). And the ICJ only employs about 98 staff members. So at least the ICJ doesn't appear to be a bloated wasteful international organization.

On the other hand, it is hard to see exactly why the court needs even this small amount of money and staff to issue three judgments a year (roughly $5 million per judgment). Or why a cash-strapped U.N. should give them any additional funds.

Thursday, October 27, 2005

"Outsourcing Authority": Symposium at Albany Law School

Albany Law Review sponsored a symposium today on the topic of “Outsourcing Authority: Citation to Foreign Court Precedent in Domestic Jurisprudence.” It included a number of speakers, including Ken Kersch, Susan Karamanian, John McGinnis, John Baker, Mark Tushnet and yours truly. Wonderful debate about Roper v. Simmons, Lawrence v. Texas, Charming Betsy and the general trend toward citation of foreign and international authority.

The most revealing comment came from Mark Tushnet on the subject of constitutional comparativism. He said, “If contemporary U.S. liberals have gotten off the rails they should get back on the rails. So what.” When asked whether this meant we might need to revisit cases such as Mapp v. Ohio, Skokie, New York Times v. Sullivan, and Roe v. Wade in light of international norms that provide lesser protections, he unequivocally said, “Yes.”

Testing the Limits of International Law: Symposium at Univ. of Georgia, Oct. 28-29

Peter Spiro and Dan Bodansky at the University of Georgia Law School are hosting a symposium this weekend to discuss and critique Jack Goldsmith and Eric Posner's informative and provocative book, The Limits of International Law. I discussed the book's central thesis -- that international law is merely a reflection of states acting rationally to pursue their interests in relation with other states -- in an earlier post. In addition to Goldsmith and Posner, papers are being presented by Philippe Sands (London), David Golove (NYU), Kal Raustiala (UCLA), Andrew Guzman (Boalt), Ken Anderson (American) and Allen Buchanan (Duke, philosophy). Oh, and yours truly will be presenting as well. If you're in the neighborhood of Athens (Georgia, that is) come on by. I'll post some reflections next week.

If Everyone is Corrupt, Does it Matter that the U.N. is Also Corrupt?

The final Volcker Independent Inquiry Committee Report has been released (see here). News summaries have generally emphasized the final report's conclusion that over 2000 companies participating for Oil-for-Food were involved in illegal or at least illicit kickback schemes with the Saddam Hussein Iraqi government. But the report also rightly faults the U.N. itself for failing to prevent or stop such widespread and blatant corruption.

Before Chris jumps on me again for complaining about the U.N. without acknowledging its good qualities, let me say that I think the U.N. can be effective in some cases. And I also find the reports of private companies like Daimler Chrysler or Volvo receiving kickbacks from Saddam Hussein just as damning as the reports of malfeasance at the highest levels of the U.N. Secretariat. The fact that diplomats such as France's former U.N. Ambassador and politicians like Britain's George Galloway also appeared to benefit from the scheme is equally troubling. Corruption appears to have been endemic in this program.

Having said that, I do think supporters of the U.N. are underestimating the seriousness of the Oil for Food scandal for the institution's long-term survival. Petty corruption is one thing, but petty corruption that directly undermines the U.N.'s administration of sanctions against Iraq is quite another.

If the U.N. cannot effectively administer sanctions against Iraq without succumbing to rather easy and blatant corruption by an unsavory figure like Saddam Hussein, it is hard to see why the "international community" should "trust" the U.N. to deal effectively with other serious threats to international peace and security. It is also hard to see why, for instance, the U.N.'s claims that it could effectively monitor Iraq's weapons program should be taken seriously.

The U.S. government has made many mistakes of its own, and it perhaps deserves to have its good intentions questioned around the world. But the Oil-for-Food scandal reminds us that the U.N. has its own serious problems and that its claims of high-minded disinterested protection of world peace deserves just as much skepticism.

Wednesday, October 26, 2005

The Breyer-Scalia Road Show

Justices Breyer and Scalia have now taken their debate about foreign precedent on the road. They were in Melbourne, Australia this weekend to discuss with Australian High Court Justices Kirby and Heydon the topic of judicial activisim. A summary of the discussion is in a John O'Sullivan column here. (No word yet from the University of Melbourne as to whether the event was recorded or transcribed).

On the subject of relying on foreign precedent, Sullivan indicated that the skeptics at the Melbourne discussion (Scalia and presumably Heydon) feared the countermajoritarian thrust of the foreign precedent movement. "Instead of being ruled by elected representatives in Congress and the presidency, we gradually find ourselves living under laws shaped by a new political elite of international lawyers. " Makes them sound almost as important as Article 38(1)(d) of the ICJ Statute! Meanwhile proponents of judicial activism (Breyer and Kirby) argued that "judicial activism was essential to save us from the kind of human rights abuses that occurred in the 1930s in Europe -- a necessary restraint on the potential oppression of minorities by majority rule..." Sullivan gives more details on the debate. Read it.

A far more amusing version of the discussion is available from a Melbourne law student over at Underneath Their Robes. Favorite quote, "When I saw him [Justice Breyer], I noticed that he was wearing the lapel pin of the French Legion of Honour, which seemed to be taking this whole 'foreign law' thing a bit too far."

Foreign Protection from the Tyrranny of the Majority

While on the subject of foreign precedent, the ABA has published a letter and issued a news report that sharply criticizes H.Res. 97, the resolution that expresses the sense that "judicial interpretations regarding the meaning of the Constitution ... should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution...."

Part of the objection to H.Res. 97 expressed in the letter is that "the founders devised a system whereby the federal judicary was made an independent, coequal branch of government precisely so that it could withstand the 'tyranny of the majority' in order to protect the rights of individuals against possible overreaching by the political branches. The federal courts not only have the obligation to faithfully interpret the laws popularly enacted, but also to strike them down if they run afoul of the U.S. Constitution."

While I'm not particularly impressed with H.Res. 97, does it not strike you as more than a little unusual that the ABA is suggesting that courts might rely on foreign precedents to protect minorities against the tyranny of the majority? Let's look outside our community to make sure that democratic preferences within our community are not tyrannizing minorities within our community?

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Feinstein Withdraws ATS Amendment

Senator Feinstein has withdrawn her bill that would amend the Alien Tort Statute. Her terse letter to Senator Specter states that while the legislation was designed to address concerns about the clarity of the existing statute in light of Sosa "I believe that the legislation in its present form calls for refinement in light of concerns raised by human rights advocates, and thus a hearing or other action by the Committee on this bill would be premature."

A copy of her withdrawal letter is available here.

More on Complying with International Tribunal Judgments

Julian, regarding your last post, I take a different view of the Canadian softwood lumber cases. My perspective on whether the United States shall give effect to international tribunal decisions depends first and foremost on whether there is a federal mandate relevant to the question. Obviously our obligation to implement a decision of an ICSID arbitral panel is very different from our decision whether to recognize an ECJ decision. In the case of ICSID decisions, there is a federal statute requiring that we give “full faith and credit” to an ICSID award “as if the award were a final [state court] judgment.”

We have something similar in the softwood lumber dispute. There is a federal statute requiring the relevant executive agencies to comply with any binational panel or extraordinary challenge committee decision that has been rendered. See 19 U.S.C. § 1516a(g)(7)(A). Under that provision, if a panel or committee renders a decision, the executive branch agency “shall, within the period specified by the panel or committee, take action not inconsistent with the decision of the panel or committee. Any action taken by the [executive agency] … shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise.”

I read that to impose a congressional obligation on executive agencies to give effect to these binational panel decisions. It is not a matter of discretion, unless of course executive agencies have discretion to violate federal statutes. Nor is it a matter of little moment; several billion dollars potentially rides on the question of whether the United States must comply with these international tribunal decisions.

Tuesday, October 25, 2005

The Painfully Slow and Political Process of Complying with International Tribunal Judgments

U.S. Secretary of State Rice is visiting Canada this week in a likely futile attempt to defuse a worsening U.S.-Canada trade dispute over softwood lumber. As I've blogged in the past (here and here), U.S. relations with Canada have been steadily worsening over the past few years over a variety of issues. But the refusal of the U.S. to comply with a final NAFTA tribunal judgment is now a trade "casus belli" in Canada and the top item on the agenda for Secretary Rice's visit.

I think as a policy matter, the U.S. position on softwood lumber and other trade issues is hard to defend (although it is worth remembering that Canada is hardly free from blame for this ongoing dispute). But, as I've argued rather incessantly in the past, compliance with international tribuanal judgments, even trade tribunals like NAFTA and the WTO, remains a policy decision for the U.S. Congress and President. It is not something that would be appropriately delegated to the federal courts, as many international lawyers often suggest. If trade disputes are a diplomatic bargaining process, the U.S. shouldn't be burdened with a system of automatic compliance since this would undercut its bargaining power.

Compliance here will occur if and when the President and Congress decide to do so. Which is why the Canadians are going to have to bargain, rather than simply whine about U.S. non-compliance. The U.S, for instance, is already moving to comply with a separate WTO case involving Canada. Compliance can happen, but it is a long, slow, and political process. Which is as it should be.

The Feinstein Amendment and Presidential Waivers

The proposed Feinstein Amendment to the Alien Tort Statute includes an interesting provision regarding presidential waivers of litigation. That provision would stipulate that “No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.”

It has been asked in another context whether there are similar provisions allowing the President to terminate lawsuits on his independent determination of the negative impact of the foreign policy interests of the United States. The answer is yes.

First, the Helms-Burton Act authorizes litigation against foreign corporations that traffick in property confiscated by Cuba. Section 306 of that statute provides that, "The President may suspend the effective date under subsection (a) for a period of not more than 6 months if the President determines ... that the suspension is necessary to the national interests of the United States...." Every six months since 1996, the President has made such a determination, such that Title III of Helms-Burton has yet to become effective. In each case the President has precluded litigation from ever going forward, thereby making the litigation section of Helms-Burton an effective dead letter. This suggests the President has express delegated authority to preclude litigation that is against the national interest.

Another example is the Algiers Accords. As part of the settlement of the Iranian hostage crisis, the Carter Administration signed an executive agreement with Iran stipulating that all legal proceedings against Iran shall be terminated in United States courts. A month later President Reagan signed an Executive Order ratifying the obligation. The Court in Dames & Moore affirmed this executive action, finding that Congress had implicitly authorized such action in the IEEPA and the Hostage Act. Litigation that could have otherwise gone forward in U.S. courts was suspended by virtue of executive action in the national interest. This suggests that the President has implied delegated authority, and perhaps inherent authority, to preclude litigation that is against the national interest.
Third, there have been various examples in which the President waives the right of nationals to pursue claims, such as the San Francisco Peace Treaty that was dispositive in the Japanese POW claims against Japanese corporations. In Article 14 of that treaty the United States waived all reparation claims of U.S. nationals against Japan and their nationals. This suggests the President has inherent executive authority to preclude certain litigation that is against the national interest.

On the other hand, in the Holocaust context the President signed an executive agreement with Germany as part of the German slave labor settlement in which the President promised to submit a formal foreign policy statement of interest that all Holocaust-related claims against Germany and its nationals be dismissed. Thus far, every claim in which such a U.S. statement of interest has been filed has resulted in dismissal of the lawsuit. That said, it has never been suggested that the courts are required to dismiss the claims, and according to his book Imperfect Justice, Ambassador Eizenstat negotiated the statement of interest on the belief that an executive order to courts to dismiss pending litigation could not be constitutionally imposed absent a statute. (p. 220). This suggests that the President believed he did not have inherent authority to preclude litigation that is against the national interest.
The presidential waiver provision in the Feinstein Amendment appears to be a version of delegated ad hoc jurisdiction stripping. It is fairly radical in that it provides express delegated authority to dismiss any pending ATS litigation that is determined to be against the national interest. Applying the provision to the facts of Sosa, the President could have dismissed the litigation against U.S. officials who allegedly engaged in transnational kidnapping. It seems odd that the Executive branch could terminate litigation against one of its own.

Monday, October 24, 2005

The Hariri Report, the UN, and Legitimacy

It is difficult to imagine a situation when Julian may ever be satisfied with what the UN has done. Here the UN actually accuses high-level Syrian and Lebanese officials of taking part in a murder and he thinks this is another example of the UN being inconsequential. There’s just no pleasing some people.

Julian mentions “allegations” of possible “high level” interference by UN officials, causing the report to be redacted, specifically removing the names of Assad’s brother and members of his inner circle. Before we get all wound up in some conspiracy theory, one should note that Detlev Mehlis, the author of the report, said he himself made the changes without the urging of any other UN official once he learned that the report would be made public and would not be confidential. This is a perfectly reasonable explanation but, even if you don’t accept it, one should still see the report for what it is: a political disaster for the Syrian regime.

Let’s set aside the rhetoric and actually look at the effects of the report so far. Julian implies that, like reports of other international organizations, this report ends up with “muddy, often useless conclusions in an attempt to avoid rocking the boat.” Well, I guess someone better tell all those demonstrators in Damascus to calm down. That is not the result of a document that avoids rocking the boat.

What is even more interesting are the comments of some of the Syrians in the street when asked about the report. Comments were along the lines of, “well, if these allegations turn out to be true then whoever supported the assassination are traitors,” and “if anyone in Syria was responsible, they must be brought to justice.” Probably not the sound bites that Assad and his cohorts were hoping for when they planned this “spontaneous” demonstration.

No one seems to find that this is a report that was muddy or useless. Look at the news cycles, the report was portrayed not as milquetoast but a bombshell. Even Al Jazeera read the whole report on air. Keep in mind, even without the name of Assad’s brother, the upper echelons of the Syrian and Lebanese security agencies were implicated after an investigation. Maybe this is just like going after Scooter Libby instead of Dick Cheney.

Anyway, what unremitting detractors of the UN miss is when it actually does some good. They don’t realize, perhaps, that in many parts of the world the UN’s voice is believed to be more legitimate than that of the United States, or at least that of the current Administration. Especially after the intelligence fiasco leading up to the Iraq War, the U.S. is not perceived as being especially credible when it starts pointing the finger in the Middle East. But the UN, for all its flaws, is. This is one of the particular strengths of a global organization and one of the things that those who would wish that the UN would just collapse should realize: legitimacy matters. And, even if some in the U.S. see the UN as illegitimate, their view does not map to the rest of the globe. When thinking about foreign policy, we need to remember how others perceive situations as opposed to simply our own ideological views. In this case the UN is the enemy of our enemy. Any realist knows what that means.

For Liberty, For Justice, and for ... Yale?

“I love Yale…. [but] why bother giving to it? My resources are very far from limitless, so why not give where it makes a difference?” That is the question posed in a wonderful New York Times article on Sunday by Republican multi-millionaire entertainer Ben Stein to, among others, Democratic human rights advocate/scholar and Yale Law School Dean Harold Koh. It is a deeply interesting question.

Yale has an endowment of $12.7 billion. Through its investment team it earned about 17 percent per year, or one billion dollars every few months. Stein notes that with such staggering profits, those gains dwarf whatever pitiful little gifts that he might offer. By comparison his donations of several thousand dollars to other organizations that promote animal rights or assist widows of deceased American vets does far more good. “There are only a few tens of thousands of us alums, so what we give has to be totally insignificant… Why give them money, then?” Donating thousands of dollars is “virtually meaningless to Yale, so why bother giving to it?” Indeed. (Full disclosure: I am not a Yalie, but am married to one).

If we care deeply about human rights or similar public concerns, Stein raises the serious question of why we should divert funds to fantastically rich organizations like Yale Law School instead of human rights organizations that can directly and materially benefit from every single dollar we donate. Yale University earns from its endowment about 6 million dollars a day, or about $4,000 per minute. Rather than give to Yale, why shouldn’t Yale alums give to an organization like International Justice Mission? When I was in India this summer working with IJM, it was clear that a few thousand dollars would pay the annual salary of an Indian human rights lawyer working daily to free those in bonded labor or child prostitution. So with $4,000, an alum could give one minute to Yale, or one year to IJM? Why give money to the anointed “little princes or princesses” at Yale Law School (Stein’s term) instead of the true nobility of our profession who desperately need our support?

Now I do not mean to paint with a broad brush and suggest that all gifts to all law schools are similarly suspect. Certainly gifts to many law schools can make a dramatic difference in the life of that school. For example, Yale’s endowment earns in a few months the total endowment of my current employer. If one of our alums makes a gift to help fund our newly established human rights initiative that is fighting religious discrimination in remote parts of the world, it will materially and dramatically improve the experiences of our most inspired students and their clients. I would suspect most schools are in a similar situation. (The average university endowment is $361 million, and the median is $72 million).

Rather than make a donation to the fat and happy Yale Bulldogs, why shouldn’t Yale Law alums donate a real live bull to the desperate and starving through Heifer International? Better yet, why not have the Yale Law School Dean (whom I greatly respect) spend countless hours campaigning for their alums to make donations to human rights organizations in the school’s name out of a deep sense of institutional gratitude and an abiding commitment to human rights? The capital campaign could announce that Yale would donate one dollar of every two dollars raised from alums to a truly needy non-profit organization of their choice. That may be the best way for Yale to continue to win Ben Stein’s money.

Related links:
For Loyalty, For Irrationality, and For Yale

More on the U.N. and Hariri

Before we get too excited (see Chris' post here) about the U.N.'s wonderful effectiveness in the investigation of Harari's death, it is worth pointing out that allegations of high level U.N. interference have been circulating almost from the moment the report was released. In particular, the electronic version of the U.N. Harari report contained embedded text of last-minute changes. According to the Times of London, these changes removed"[t]he names of the brother of Bashar al-Assad, President of Syria, and other members of his inner circle . . ." and instead pointed to "unnamed Syrian officials." Obviously, the U.N. may have good reasons for redacting the report, but its intervention here to protect the current Syrian president also points to one of the problems with investigations run by international organizations - they tend to try to avoid pointing fingers and end up with muddy, often useless conclusions in an attempt to avoid rocking the boat.

Sunday, October 23, 2005

The UN and the Hariri Investigation

Suzanne Nossel at Democracy Arsenal has a good post on the UN report implicating the Syrian government in the Hariri killing.

She explains succinctly how and why the UN can play an important role in investigating such crimes, especially in situations where we, the U.S., cannot. Nor could anyone else (such as the E.U. or the ICC) have done the job.

This is another example of the value of a global organization such as the UN, despite its flaws.