Friday, November 04, 2005

Roper v. Simmons and Our Constitution in International Equipoise

For those of you interested in constitutional comparativism, my latest article, Roper v. Simmons and Our Constitution in International Equipoise, 53 UCLA L. Rev. 1 (2005) was just published and is now available on SSRN here. It essentially is a postscript to my earlier (and much longer) article, In Search of a Theory for Constitutional Comparativism, 52 UCLA L. Rev. 639 (2005), available on SSRN here.

The latest article makes two essential points. First, it argues that the Supreme Court in Roper is moving away from a majoritarian paradigm in Eighth Amendment jurisprudence to a natural law approach, with all the attendant problems associated therewith. I argue that:
“The Court's references to comparative experiences are best understood as objective signposts in the Court's search for constitutional limits grounded in natural law…. If Glucksberg defines the objective limitations on substantive due process, Roper defines the objective limitations on cruel and unusual punishment. It prohibits excessive sanctions based on the "objective indicia of [a national] consensus" confirmed by "fundamental rights" affirmed by "other nations."… The difference of course is that Glucksberg looks backward and inward, while Roper looks forward and outward….Roper's benchmark for natural law is the shifting current of the enlightened present, not the abiding wisdom of the blinkered past. What gives one pause about Roper is that it is unclear whether the objective indicators proffered impose any significant limitations on the Court. Objectivism is invoked, but it has no purchase.”

Second, it more broadly suggests that the Court in Roper may be expressing a willingness to distribute international values liberally throughout our constitutional jurisprudence to ensure foreign and and domestic equilibrium. As Justice Ginsburg put it at the ASIL annual meeting this spring, comparative experiences are indicators of "common denominators of basic fairness governing relationships between the governors and the governed." Thus, Roper may signal a new methodology, one of "international equipoise." If so, then the consequences may be quite significant:

"Plotting constitutional rights based on their international disequilibrium shows how this new interpretive medium offers something for everyone. Social conservatives no doubt will be intrigued by an interpretive device that undermines Roe v. Wade, chips away at the wall of separation between church and state, and offers only halting support for gay marriage. Libertarians will welcome an approach that makes greater room for personal choice on issues such as polygamy, euthanasia, and property rights. Law and order conservatives will welcome a rethinking of the exclusionary rule, the need for a Miranda warning, and the freedoms we grant neo-Nazis to spread their hate. Plaintiffs' lawyers will delight in possible new causes of action for defamation, while defendants will thrill at a curtailment on tag jurisdiction. Liberals will embrace the abolition of the death penalty, enhanced protections for welfare and education rights, greater limits on associational rights to discriminate, and firm support for gun control. A constitution in international equipoise has the potential to become a great political anodyne, offering soothing hope for past constitutional failures. Virtually every group can benefit from robust constitutional comparativism. But, of course, it also risks becoming a great political irritant, upsetting settled expectations of constitutional doctrine. Virtually every group can lose from constitutional comparativism, although at present its patrons are from the left as the protesters howl from the right. But if Roper portends the loss of Roe, the left will rue this day."
I conclude on a note of caution, contending that although the Court in Roper is confident that comparative references do not lessen fidelity to the Constitution, it is by no means certain that others share this confidence. This is no small matter, for as Richard Fallon has admonished, "a crucial aim of constitutional theorizing is to identify interpretive principles that others can reasonably be asked to accept."


That is a reference to "Opinio Juris" in Chinese. Links to Opinio Juris by other blogs are always welcome. But when a Chinese blogger successfully links to Opinio Juris, it takes on much greater importance. Why? Because all news is filtered in China, and a blogger republishing prohibited news in China does so under pain of severe sanction.

The Wall Street Journal recently had an interesting article on Chinese attempts to restrict content on the Internet. "Can China really control the Internet? It has launched a new bid to try. In an effort to crack down on the information access and activities of China's 100 million Internet users, the Chinese government is imposing new regulations that will attempt to centralize all China-based Web news and opinion under a state regulator. The laws would prohibit content that 'goes against state security and public interest,' likely affecting Chinese bloggers, bulletin boards on popular portal sites, and other independent Chinese-news Web sites....The government has long maintained theoretical control over all Chinese media, including the Internet. But the new laws, which update regulations issued in 2000, have drawn a line in the sand for China's netizens, imposing fines of up to $3,700 and the threat of complete closure to Web sites that provide news without government authorization. The laws also change the legal definition of Internet 'news,' vaguely defined in the past as 'news published and republished,' to now also include 'reports and comments on political, economic, military, foreign policy and other social public affairs.'"

The level of scrutiny by Chinese authorities is truly alarming. According to a recent article by Rebecca MacKinnon, this past summer "Chinese trying to create blogs on a Microsoft-hosted service using words like 'democracy', 'freedom,' or 'human rights' in the title received a rude reminder: 'The title must not contain prohibited language, such as profanity. Please type a different title,' said a message. This warning equating democracy and freedom to profanity marks a new milestone in the continuing battle for free expression in China."

So go to this blog and celebrate. You won't be able to read a word of it, but know that billions can, and every successful posting of prohibited international news on the Internet in China is a small victory.

Thursday, November 03, 2005

Criminalized Association and Counterterrorism

As this is my first post as a guest blogger for Opinio Juris, I'd like to begin by saying thanks to Peggy, Chris, Julian, and Roger for their generosity in inviting me to participate. I really appreciate it, and hope that I can make some useful contributions. Now, on to the topic at hand....

In the course of studying the legal aspects of the U.S. response to terrorism both before and after 9/11, I've often been struck by the fact that federal criminal law - notwithstanding its considerable scope in this area - does not go so far as to overtly criminalize the mere act of being a member of certain terrorist organizations. To be sure, certain statutes (particularly, 18 U.S.C. 2339B, prohibiting material support to terrorist organizations) come rather close to outlawing membership in foreign terrorist organizations so designated by the Secretary of State. Indeed, I have argued elsewhere that during the prosecution of the "Lackawanna Six," federal prosecutors employed an interpretation of the material support statute that was tantamount to a membership prohibition. The fact remains, however, that we have no post-9/11, terrorism-oriented parallel to the Cold War-era Smith Act membership prohibition that was upheld (albeit with a very important narrowing construction) by the Supreme Court in Scales v. United States.

Some European states, in contrast, have taken precisely this approach. In Brussels today, proceedings began in the trial of a group of 13 men on charges including the act/status of membership in the Moroccan Islamic Combat Group, an outlawed terrorist organization. According to a statement from the Beglian Federal Prosecutor's Office reported by the AP, the membership ban makes it "easier for police and investigators to shut down suspected terror cells and detain those believed to be aiding and abetting terrorists . . . . Prosecutors do not have to prove that the defendants themselves were involved in carrying out an attack, only that they belong to terrorist groups." (Note that the statement may be paraphrasing by the AP reporter).

That the U.S. Justice Department has not sought similar authority in the U.S. says something, I think, about the distinctive role that First Amendment freedoms play in our society. That, in turns, leads me to wonder about the status of the Belgian membership ban under Article 11 of the European Convention on Human Rights and Article 25 of the ICCPR. According to both, freedom of association may be restricted "in the interests of national security." I can certainly see that argument's theoretical applicability here, but am not certain whether this issue has been litigated previously under either convention (might this have come up in connection with UK law relating to the IRA, or Turkish law relating to the PKK?). I suspect that if this has been litigated such provisions have been upheld, particularly given the "margin of appreciation" often said to be owed to the state's determination of its own national security interests.

That's all for now. I hope some of you have some thoughts or insights to share!

EU Commission to Investigate CIA "Black Centers"

The EU Commission has announced an investigation into the CIA "black" detention centers. (Chris discussed the sites here.) The earlier Washington Post article by Dana Priest exposing these CIA black sites did not name names, but noted that several of the CIA facilities are in Eastern Europe. According to the BBC news, the EU inquiry is beginning with official requests from the Commission to the member state capitals. Both Romania and Poland have been named by Human Rights Watch as possible sites -- and both have issued official denials. The existence of the sites and the nature of the detentions would be a violation of the European Convention on Human Rights, to which those countries are signatories.

All this comes, not coincidentally, in a week where the White House is pushing for exceptions to the McCain amendment (prohibiting "cruel, inhuman and degrading treatment" of detainees in US government custody) for CIA and other intelligence agencies. It appears that the voices of sanity within the intelligence agencies and the State Department are finally being heard. At the end of the day, Powell and Taft's original views may win out: carving out legal black holes is bad foreign policy and a bad way to fight the war on terrorism. Perhaps the press revelations of the detailes of the black centers and the pressure from the Europeans will solidify support in favor of McCain and against attempts at weakening or killing his amendment.

(For a discussion about the internal administration debate about the applicability of Common Article 3 of the GCs to detainees generally, see this piece by Marty Lederman on Balkinization. )

The Sands-Yoo Debate

Earlier this week Professors Philippe Sands and John Yoo debated global legal rules at an event sponsored by the World Affairs Council. The full debate is available here.

Here is a brief excerpt of Philippe Sands’ opening remarks (beginning at the 12th minute):

"[The Bush Administration has undertaken] a systemic assault on global rules… But it is not states that break the rules. It is people that break the rules…. In the case of torture, one of those advisors was Professor Yoo. He prepared a number of legal opinions which plainly are not supportable in the rules of international law.… [I]n the case of the torture that has been prosecuted apparently as a matter of policy by the United States, the Torture Convention is going to come back to haunt individuals associated with it…. There is international authority in Nuremberg … that legal advisors who prepare legal advice that is so erroneous as to give rise to an international crime are themselves subject to the rules of international criminality. I think that … [Articles 4, 5 and 7 of the Torture Convention] which require that any state that finds on its territory any individual who has been associated with the promotion of a policy of torture is either to be investigated and prosecuted in that state or to be extradited to a country where it will happen. And I suspect that with the passage of time the rules of international law that are reflected in this Convention will come to be seen as rather robust and the individuals who have been associated with the deplorable policy, the un-American policy, of torturing anybody under any circumstances whatsoever are likely to find themselves facing the very same tap on the shoulder that Senator Pinochet got so unexpectedly on October 16, 1998.”

Here is a brief excerpt of John Yoo’s opening remarks (beginning at the 18th minute):

“I do agree with what Professor Sands says that the United States is engaged in a project to change the rules of international law in this area…. I would say a lot of the wars that the United States fought [during the Cold War] were not self-defense: Panama, Grenada, Libya… Those were all clearly illegal as well as many of the other conflicts around the world. So the question is should we have a legal system in which practice and rules are so inconsistent…. The world has changed. These rules were written in 1945…Our great enemies are not nation states. The great problems affecting the United States are … international terrorist organizations like Al Qaeda …, rogue states and failed states, states that commit massive human rights violations against their own citizens, and … weapons of mass destruction proliferation. So if you agree that those are the pressing security problems that we face in the world today, should we maintain a system that is designed to prevent military intervention to solve those kinds of problems? It seems to me that what we have now … is a collective action problem…. The international legal rules made it illegal to intervene in places like Rwanda … like Kosovo…. International law in this case …. makes things worse because it prohibits intervention in almost all of these situations. Unless these states are actually committing attacks or some kind of threats against their neighbors or unless the Security Council intervenes it’s illegal for the United States and other nations of the world to intervene….The United States … is trying to change the international legal system to permit countries to intervene in those kinds of situations.”

Regarding various questions relating to torture, Professor Yoo responded (beginning at the 52nd minute) that “It is American policy and law that torture is prohibited … both to Al Qaeda, … the Taliban, and Iraq, and everywhere…. [As for] Abu Ghraib … what we saw in the pictures was clearly a violation of American law and the Geneva Conventions and I think what we have there is a problem of a small force sent over to do a big job and we had people who violated the rules…. There is a military justice and investigatory service whose job it is to follow the chain, no matter how high up the chain of command it goes, to make sure that those who created that policy are investigated and punished. I do think that there is a different legal regime that applies in the war on terrorism, that applies in Guantanomo Bay and that is that torture is prohibited and it is not policy, but that the Geneva Conventions standards do not apply there….”

Following these responses, Professor Sands interjected (beginning at the 55th minute) that “I suppose it is moderately entertaining to engage with a sparring partner when the use of facts and law are so skewed as to depart entirely from reality. The problem is not renegade actors, the problem, frankly, is renegade lawyers. I’m sorry to say that Professor Yoo is one of them. He drafted advices which … completely redefines torture…. Sure you can unilaterally change the definition and then say what you are doing is not amounting to torture, but you won’t get away with it in the international context because in the international context the only standard that is relevant is ... international law.”

To which Professor Yoo replied (beginning at the 59th minute) that “Mr. Sands, I could sit here and call you names… I have not and you can certainly engage in ad hominem criticisms, but I choose not to….”

Finally, Professor Sands concluded (beginning at the 69th minute) that “I don’t for a moment believe that what has happened at Abu Ghraib, and at Guantanomo … and elsewhere in Iraq is just a case of a few bad eggs. There is a paper trail … of policies, of decisions, of legal advices, and I think that with the passage of time it will become abundantly clear that there is a direct line from the legal advices to acts of torture that occurred….”

It is worth an hour of your time to listen to the whole debate.

Wednesday, November 02, 2005

Assessing the ICJ: Getting Off the Merry-Go-Round

Julian doesn’t want us to keep arguing about the same point. I heartily agree; I wouild like the conversation to move forward rather than around in circles. That's why my previous post on this topic challenged Julian to get past complaining about what he didn't like and actually suggest what, if anything, should be done.

First, though, let's keep track of what we are actually saying. Julian wrote that I had an
"odd suggestion that in order to analyze and study an institution effectively, I have to subscribe to some normative internationalist agenda, e.g. that in order to have something useful to say about the ICJ or the U.N., I have to first admit that I support their existence or legitimacy."

What I actually wrote was this: “Does Julian attack the ICJ because he does not like the idea of such a Court? If so, fine, we can disagree on that. But, if that is not the case, then what does he think we should do to make the institution work better?” I never said or even implied that you need to take an oath to "believe in the ICJ" (as Julian also implied) or anything along those lines. And I am somewhat amazed that Julian could read my post and think that. Nice straw man maneuver, but let's stick to the actual issues.

My question remains: to what end are Julian’s arguments? There are many possible criticisms of the ICJ from the left, right, and center. For example, some may argue that the ICJ takes on too many politically contentious issues (like the Israeli Security Barrier case), while others criticize it for not taking enough. Both are criticisms, yet both are based on profoundly different views of the role of the ICJ in international relations and are mutually exclusive.

My concern is that some critics of the ICJ will criticize it for anything they can think of: too many cases, too few, too political, too legalistic, etc., regardless as to whether their criticisms taken together are in any way coherent. To criticize something is to say that it should be somehow different. That inherently has a normative view attached to it. Julian has been deft in criticizing the ICJ for a whole host of reasons without ever explaining the result of his critiques. He even calls his post “Why I Don’t Hate the ICJ or the UN But Why that Shouldn’t Matter” and never even mentions why he doesn’t hate the ICJ or the UN. To paraphrase Cat’s comment to Julian’s post, does he think the ICJ should be eliminated, reformed, or replaced?

If he does not think the ICJ is a useful institution, that is a perfectly valid point and, as I did say, we can disagree on that in good faith. If that’s the case, Julian can just say so. But if he thinks it should survive but be reformed, my question was (and still is): how? We all know that the ICJ has many problems (although we may not agree on what those problems are) but, at then end of the day, just what is Julian’s point?

I’ve put my cards on the table from the beginning: I think the ICJ, although flawed, plays a useful role in the international system not only in resolving disputes but, as I’ve said before, especially in the elucidation of norms. What this implies as far as a critique of the ICJ I’ll get to in a moment.

Yet, rather than setting out the role he thinks the ICJ should or should not play in international relations, Julian goes back to citing stats on numbers of cases heard, etc. In part, I think this shows some of the weakness in how “empirical” research is sometimes deployed: if one is not careful, one can cite to a lot of numbers but not really say much that moves the debate forward. That is how discussions can turn into merry-go-rounds. And, depending on what you (de-)emphasize, you can make numbers say almost anything you want.

For example, Julian claims that the ICJ is decreasing in importance because, even though the number of cases is increasing, so have the number of States, therefore the importance is really decreasing. Well, except that Romano’s work has shown that the levels of litigation, as it now stands, is at the level we would expect of a stable litigation system. If there were more cases, one may have reason to be concerned.

We need to stop slinging numbers and actually look at substance for a minute. Why were there more cases than one may have expected in the early day of the ICJ? Because the international system was in crisis: in particular many of these early cases dealt with the problems faced due to decolonization around the world. There were many cases because there were many problems of the type the ICJ was particularly suited to deal with (boundary delimitation and self-determination being two main issues). In deciding these cases, the ICJ clarified the relevant norms and, by the time you got to the end of the Cold War and another spate of boundary issues, there was much greater certainty as to the norms the international system espoused; the diplomatic pronouncement of States (especially those of the US and the EU) in the 1990’s were able to point to fairly stable sets of norms that they could then apply in unstable times. There were some new ICJ cases on these topics but you did not need to have as many.

This is part of the criticism I lay on those who cling to empiricism as if it is a security blanket: empiricism can be an important and incisive tool, but to properly analyze your findings you need to then apply normative or historical analyses. You need to see beyond your data set. Otherwise, you’re just churning numbers.

Julian also noted that the fraction of the number of States on the Security Council that have accepted the ICJ’s compulsory jurisdiction has dropped. Well, that’s because the size of the Security Council has increased, thus making the fraction smaller. However, the number of treaties that specify the ICJ as its method of dispute resolution has increased, although the rate of that increase, as Julian noted, has decreased. This is just one more time around on the merry-go-round.

In any case, the number of States that use the ICJ’s compulsory jurisdiction is just not something that as I see as a problem since I think the ICJ’s special function is one of norm elucidation and you simply don’t need to have every possible case haled into the ICJ for it to be effective at that function. Does Julian think it is an important problem? If so, why?

Moreover, new specialized tribunals handle dispute resolution in many areas of international law. The International Tribunal on the Law of the Sea is likely to become the main tribunal for Law of the Sea issues, the European Court of Human Rights and the Inter-American Court of Human Rights handle the majority of human rights related litigation that stem from those two regions, the WTO handles trade law disputes, etc. There are simply more possible fora today than fifty years ago. Thus, the ICJ doesn’t need to take on every possible case, but rather those for which it has the confidence of the States’ members to define the rights and responsibilities of the litigants and, by analogy, other similarly situated States. Note how the rulings of the ICJ form much of the caselaw that these specialized tribunals refer to. The Court’s function of norm-elucidation provides these specialized tribunals with a basic framework of caselaw and norms.

OK, enough of the tit-for-tat. Let me try to get off the merry-go-round and encourage Julian to step off with me. I’ll set out three supposed problems of the ICJ that I think are not important and four that are. I come to these conclusions because I think that a key function of the ICJ is actually norm elucidation moreso than thinking of the ICJ as some sort of district court for States. As such I come to these results:

Three supposed problems that I do not think are especially important:

Number of Cases per Year. As a norm-elucidator the ICJ can hear relatively few cases but still make legal pronouncements that re-frame basic concepts in the international legal system. Too many cases can actually lead to normative confusion if they cause too much change. In short, I am not concerned about the number of cases the ICJ currently hears and decides per year.

“Slow” Tempo. Most of the cases before the ICJ do not require immediate decisions, rather the States are more concerned about a definitive statement of their rights and responsibilities. As such, taking a year or so after briefings to write a final opinion is not a big concern, in my eyes. What is in the final judgment is of greater importance.

Few States Submit to Compulsory Jurisdiction. As described above, I am not so concerned with whether a State has to go to the ICJ, as there are many methods of peaceful dispute settlement (other tribunals, mediation, standard diplomacy, etc.). Rather, I am more concerned with the results of the processes for the States that actually use the ICJ.

Four problems I think are in need of greater consideration:

Overpoliticization of the Bench. As one person commentated to an earlier post I had where I set out the ICJ as quasi-legislature, this means that the ICJ shouldn’t here cases that are highly politically contentious, such as issues dealing with the Palestinian question. With some qualifications, I agree. I do not think the ICJ is at its best when dealing with hot-button political issues. Two recent example: (a) the Israeli Security Barrier process, which gave short-shrift to Israel’s legitimate security concerns and (b) Judge Bruno Simma’s opinion in the Oil Platforms (Iran v. U.S.) case in which he invited himself to rewrite the law on use of force and chiding his fellow judges for “inappropriate restraint.” The issue then is not simply the political nature of the dispute but rather when politicization is allowed to overtake legal craftsmanship. Consider by contrast, the experience of the European Court of Justice. Judges from that court have stated that the incredible increase of the ECJ’s usage by parties and in referrals from domestic courts was due in part to the carefully crafted “lawyerly” opinions that they wrote which caused the ECJ to become respected in domestic courts. The ICJ can learn from this example.

Access Problems for LDC’s. If the ICJ is critical as a norm clarifier, then, although it does not need to have many cases, it should have cases in which a wide variety of issues are argued. Consequently, it is as important that voices of poor States have effective representation before the ICJ as it is for poor individuals to have effective representation before national courts. The ICJ has attempted to address this situation with the Trust Fund, a sort of legal assistance fund for lesser developed countries. However, as Cesare Romano has pointed out, donations to the Fund are voluntary and the funds can only be tapped when both parties to a dispute have agreed ahead of time to give the ICJ jurisdiction to the dispute at hand. Consequently, there are inherent weaknesses one concerning whether the Fund will have adequate respurces and the other as to whether many important, but contentious cases, will not come within its purview. Whether the Trust Fund actually addresses the problems it has been built for is thus an issue that needs monitoring.

The Role of International Organizations. International organizations have become central actors on the world stage. The activities of NATO, the E.U., the African Union, ECOWAS, the OAS and other international organizations have significant impact on international practice. They can also neither file a claim nor have a claim filed against them before the ICJ. If the ICJ wants to be effective in norm-setting, that is a significant problem. As I mentioned in my previous post, this is an issue worthy of consideration. More generally on theme of international organizations and international law, Jose Alvarez of Columbia Law School has a new book, International Organizations as Law Makers, which builds on his seminal article “The New Treaty Makers,” 25 Boston College International and Comparative Law Review, 213 (2002), which would be of interest to anyone who wants to learn more about this issue.

The Relation of the ICJ to the Specialized Tribunals. Although the many new specialized tribunals have relied on the ICJ until now as a means of providing underlying legal norms and coherence, will that relationship persist? Or will these new tribunals actually cause legal fragmentation and, if there is a risk of that, can or should the ICJ do anything about it? Jonathan Charney handled this question in his 1998 Hague Lectures. (He thought that concerns of fragmentation had not been borne out in practice at the time.) There is also an excellent set of articles published by NYU Law’s Journal of International Law and Politics and available here. The International Law Commission, by the way, currently has a study group assessing the fragmentation of international law.

I’ll leave a longer consideration of each of these points for another time.

For now, I simply ask Julian what he thinks are the key problems of the ICJ and which are not and, most importantly, what does he think should be done? In sum, what role, if any, does the ICJ have in the international system?

I look forward to our ongoing conversation.

Charming Betsy and Psychedelic Tea

A summary of yesterday's Supreme Court oral argument in Gonzalez v. O Centro is available at SCOTUSblog. The case raises concerns about the interplay of two federal statutes--the Controlled Substances Act and the Religious Freedom Restoration Act--and a treaty, the 1971 Convention on Psychotropic Substances.

From the summary it appears that the international law arguments did not hold much sway with the Court, particularly given that RFRA was enacted after the treaty. According to the post, "[w]hen the small religious sect’s lawyer, Hollander, was being pressured to defend the religious use of hoasca tea against the government’s reliance on a 160-nation treaty banning the import of the hallucinogen, Scalia came to her rescue. 'Statutes trump treaties,' he said, so 'if RFRA can trump a statute [like the Controlled Substances Act], it can trump a treaty.'" The precise nature of the international obligation also was at issue, with Hollander questioning "the government's reliance on the global treaty banning import of the hallucinogen, arguing that hoasca tea is not even covered by that pact, and noting that other nations that have signed the treaty do not regard it as covered."

There also is extensive discussion of Charming Betsy in the Supreme Court briefs in O Centro. In her brief, Hollander argued that Charming Betsy does not control. "First, it applies only where the statute is ambiguous ... and the government does not claim that RFRA ... is ambiguous. Second, there is no tension between RFRA and the Convention. Third, even if a conflict did exist, it would be immaterial since RFRA is later in time."

The government, by contrast, argued in its brief that the international obligation seves as the compelling state interest under RFRA. "The government's argument is not that the Convention renders RFRA inapplicable, but that compliance with a longstanding, multi-Nation international treaty that is critical to combating illicit transnational drug trafficking and to obtaining international law enforcement cooperation ... constitutes a compelling interest under RFRA."
It will be interesting to see whether the Court follows its recent approach in Spector v. Norwegian Cruise Line and struggles to find a creative way to reconcile the federal statute with the international obligation. In that case the Court noted an exception to the ADA's requirement of barrier removal if compliance was difficult, and then interpreted "difficulty" to include creating a conflict with an international treaty governing safety standards on foreign-flag ships.

Executive Deference and the CIA's "Black Sites"

Since a couple of previous posts on Judge Alito generally mentioned the topic of deference to the executive, it is useful to keep in mind that such deference, even in issues relating to foreign affairs and national security, is not always a good thing. Consider the ongoing legal struggles having to do with national security, individual rights, and the ability of the executive to unilaterally make unreviewable decisions regarding how the balance should be struck. To put it bluntly: unilateral unreviewable decisions as to the ability to torture. This is the story, as told in the current issue of the Washington Post, and in the excerpt below from CNN, of the CIA’s international network of detention/torture areas known as “black sites.”

CNN reports that:

The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held.

Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long…

To [acknowledge the existence of the sites], officials familiar with the program told the Post, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad…

[The concerns of human rights groups and lawmakers] escalated last month, when Vice President Cheney and CIA Director Porter J. Goss asked Congress to exempt CIA employees from legislation already endorsed by 90 senators that would bar cruel and degrading treatment of any prisoner in U.S. custody.

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency's approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay.

Claims of deference to the executive is one thing, demands of prostration to the executive are another. Whoever becomes the next Associate Justice on the Supreme Court (as well as those already on the Court) will hopefully understand the difference.

Judge Alito and Forced Sterilizations

There is still more on Judge Alito and international law. It seems remarkable that one appellate court judge could be faced within the span of two years two terribly wrenching asylum applications. But Judge Alito was. As I recently posted, his decision in Chen v. Ashcroft addressed the denial of asylum to someone engaged to a person forced to undergo an abortion. One year later in the case Zhang v. Gonzalez, 405 F.3d 150 (3d Cir. 2005), Judge Alito was faced with an asylum application by a woman who allegedly was ordered by Chinese authorities to undergo a forced abortion and a forced sterilization.

The immigration authorities denied Zhang's application, finding her story of forced abortion and forced sterilization not credible. Zhang had documents showing she was fined hundreds of dollars for having too many children, and another document ordering Zhang to "go to the local hospital for [a] sterilization operation. Otherwise we will be forced to complete the sterilization operation, and punish severely as well." The immigration authorities rejected these documents because they were not properly authenticated by the U.S. consulate in China and therefore denied her asylum application.

On appeal, the Third Circuit, per judge Alito, reversed. While recognizing the extraordinary deference that is owed to immigration authorities, Judge Alito concluded that the evidence compelled a contrary conclusion. Finding that the documents were improperly excluded, he ordered the agency to explain more fully why these documents were excluded.
"The document ordering Zhang or her husband to submit to a sterilization procedure on pain of severe punishment would corroborate Zhang's testimony that the Chinese authorities threatened her with forced sterilization and would bolster her claim that she has a well-founded fear that she would again be threatened with forced sterilization if she were sent back to her native country. Because of the significance that the documents in question would have if they are authentic and accurate, it is obvious that the IJ must have given them reduced weight or no weight at all.The IJ never explained which of these options he chose or why he did so."
The significance of this case again concerns deference. Judge Alito strongly favors deference, but Zhang suggests he will not defer to agency findings if compelled by a conclusion that the decision was clearly wrong. Excluding without explanation documentary evidence that strongly corroborated Zhang's story of forced sterilization precluded a finding of deference.
Considering Zhang and Chen in tandem, the wrenching stories are remarkable, but his approach to executive deference is not.

Tuesday, November 01, 2005

Welcome to Guest Blogger Bobby Chesney

Professor Bobby Chesney of Wake Forest University School of Law will be guest blogging at Opinio Juris all month. Professor Chesney is an expert on U.S. national security law and his recent scholarship has focused on legal responses to terrorism. One of his recent papers tackles the transfer of detainees at Guantanamo to their home countries, a practice that, while different from extraordinary rendition of detainees to third countries, raises similar issues about U.S. compliance with international legal obligations (e.g., the Torture Convention, the Geneva Conventions). We look forward to Professor Chesney's contributions and extend him a warm welcome to Opinio Juris.

Judge Alito and the Case of the "Stateless" Marijuana

I agree that Alito's international and comparative law record is thin, but in addition to the cases Roger and Julian discuss here and here, let me add US v. Rosero, a 1994 case reversing and remanding a conviction of possession of marijuana, with intent to distribute, on a vessel "subject to the jurisdiction of the United States." The issue before the Third Circuit was whether the jury had been properly instructed on what constituted "statelessness" of a vessel under the Maritime Drug Enforcement Act. The case involved the US Coast Guard's seizure of a boat carrying 200 bales (!) of marijuana in the waters off the coast of the Saba Island, Netherlands Antilles. The vessel was not marked with a port or country registry and was not flying a flag. (A later search of the ship turned up flags of three different nations.) The ship was brought into port at St. Croix, US Virgin Islands, where the ship's crew was booked and later indicted under the US statute.

The US statute in question extends jurisdiction for possession and intent to ships outside US waters that were "stateless." The general rule under international law is that jurisdiction of the state of registry or flag of a ship extends to it on the high seas. Thus, the US drug law would apply to a US registered ship, but not one registered in the Netherlands. But where a ship is "stateless" or "without nationality," any country could seek to apply its law extraterritorially.

The issue before the court was whether the jury instruction, which applied the definition of "a vessel without nationality" from the US statute, and also allowed the jurors to take into account the "totality of the circumstances" concerning the nationality question, was in error. Alito concluded the instruction was in error because the statute did not include the "exhaustive definition" of "vessel without nationality" and that therefore international law should have been incorporated:

"Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meanings of these terms." NLRB v. Amax Coal Co. , 453 U.S. 322, 329 (1981). See also Community of Creative Non-Violence v. Reid , 490 U.S. 730, 739 (1989). This same principle logically applies when Congress uses a term that has acquired a settled meaning under customary international law. We therefore think that it is reasonable to assume that the residual category of vessels "without nationality" under 46 U.S.C. App. § 1903(c)--i.e., those not within subsections (c)(2)(A) or (B)-- are those that would be regarded as without nationality or stateless under international law.

Alito then proceeded to describe the international law of "stateless vessels" by reference to the 1958 Convention on the High Seas and Oppenheim on International Law. A vessel, he concluded, could be "stateless" under international law, whether or not it satisfied the non-exhaustive categories in the statute. The statute, therefore, should be read to incorporate the international law standards for determining statelessness.

Now, the broader effect of Alito's interpretation would appear to expand the ways in which the US government can arrest individuals on international waters who possess drugs that may or may not be destined for the US, expanding the reach of governmental power that may be in line with his overall jurisprudential record. But in drawing an analogy between common law/equity and customary international law, he does so in a very un-Scalia-like way.

Alito and Deference to Foreign Courts

Roger and I can now proudly boast we have provided the most comprehensive analysis of the Alito record on international and comparative law in the blogosphere. But this record is pretty thin, I have to admit. Which is why I am thankful that John Brewer, an attorney in Manhattan and a former Alito clerk, alerts me to this Alito dissent in Dailey v NHL, 987 F.2d 172 (3d Cir. 1993) involving a ERISA lawsuit by retired National Hockey League players against their pension administrators (the NHL). What does this case reveal about Alito's internationalist temperament?

Not a tremendous amount, but it does suggest Alito will not go out of his way to defer to a foreign court proceeding, especially where Congress has spoken by statute to the issue. The majority of the panel refused to allow the district court to exercise jurisdiction in the ERISA case in deference to parallel proceedings already occurring in Canada. It invoked the Princess Lida doctrine, which is deference doctrine previously applied only to competing state and federal jurisdictional claims. Judge Alito rejected applying that same doctrine to competition between federal and foreign courts, writing that the majority opinion's deference to Canadian proeceedings "has abrogated federal statutory rights."

In other words, Alito is unlikely to be sympathetic to claims that the U.S. Supreme Court should go out of its way to extend comity doctrines to require deference to foreign and international courts, at least in cases where Congress has spoken directly to the issue at hand.

Why I Don't Hate the ICJ or the U.N., But Why That Shouldn't Matter

Many blogs start fights with other blogs, but Opinio Juris has to be unique in that we continually have knock-down battles among our regular contributors. Chris and I (to take just one example) have been fighting about international institutions like the U.N. and the ICJ since we initiated this blog almost a year ago and our disagreements show no signs of abating.

I have some substantive defenses of my posts about the ICJ's "slowness" and some new criticisms of the ICJ's general ineffectiveness. But I also have a response to Chris's odd suggestion that in order to analyze and study an institution effectively, I have to subscribe to some normative internationalist agenda, e.g. that in order to have something useful to say about the ICJ or the U.N., I have to first admit that I support their existence or legitimacy. Let me start with a substantive defense of my ICJ post.

Chris has three main responses to my claim that the ICJ is slow: (1) Given the number of potential litigants, the size of the ICJ docket is more than respectable; (2) Resolving two or three cases a year is not bad, as a percentage of such a docket; (3) State litigants want a slow process, and they are often responsible for the delays in issuing judgments.

(1) With respect to the size of the ICJ's docket, I think Chris overlooks the fact that the ICJ docket has actually been declining steadily in recent decades, especially cases invoking the ICJ's full chambers. As Professor Eric Posner at U.Chicago has noted in his article here,
  • There were 36 filings during the ICJ’s first twenty years (1946-65); there were 53 filings during the ICJ’s last twenty years (1985-2004) (including 10 filings emerging from essentially the same event, the intervention in Kosovo). But the number of UN member states increased by more than three times during this period (from 55 in 1946 to 191 in 2004). Thus, the number of filings per state dropped quite substantially.
  • The fraction of states that are subject to compulsory jurisdiction has dropped from about 2/3 to about 1/3.
  • The fraction of permanent members of the security council that are subject to compulsory jurisdiction has dropped from 4/5 to 1/5.
  • During the ICJ’s first twenty years, states entered treaties that provided for ICJ jurisdiction at a rate of almost 10 per year; today the rate is less than 2 per year.

(2) Given the actual decline in its docket, it strikes me as odd that the ICJ is not eager to move a little more quickly on the cases it does have. Even Chris points out that the ICJ took 1.5 years since its last filing deadline to resolve the Serbia cases. I accept that resolving 2 or 3 cases a year is not bad, but it is not great either.

Let's put it this way: If I am one of fifteen ICJ judges, I attend two or three public hearings per year and decide two or three cases a year. I draft (maybe) one opinion a year. I ask (maybe) one question at a public hearing per year. Let's be honest, if I'm that ICJ judge, I am not doing a whole lot of work. (This is only slightly mitigated by the fact that I am not being paid a whole lot of money either).

(3) State litigants sometimes want a slower process, but not always. Sometimes, one side wants speed, the other doesn't. Certainly, prior to a litigation occurring, most states would say they want speedier dispute resolution. It is only afterward that they start dragging their heels. And the ICJ is certainly free to adjust its procedural rules to require speedier briefing, especially on jurisdictional issues, where there is almost no fact-finding. (While we are at, can we dispense with the oral argument process, since litigants travel all the way to the Hague to simply read their briefs into the record and the judges almost never ask questions?).

I don't think ICJ judges are lazy. I think the ICJ as an institution is probably slow for institutional reasons. If the ICJ cleared its docket, it would look even worse than if the Court has a long docket. They want to look like they are doing something and that they are continuing to be busy. This is just a theory, but one that fits more with the evidence, I think, then the alternative explanations.

In any case, Chris offers a more fundamental criticism of my approach. He suggests that if I don't support having an ICJ (or an U.N.), then my criticisms of the ICJ or U.N. aren't really in good faith or at least aren't very useful. But this can't be right. Scholars or analysts surely have normative views on institutions they study, but they don't have to adopt a supportive normative view in order to have something useful to say. I don't have to first take an oath to "believe in the ICJ" before I can criticize it. Such a view would further insulate the international law community from its critics, reinforcing that community's already regrettable tendency to dismiss all criticism from those outside their "enlightened circle."

Memo to Critics: Don't Misunderestimate the ICJ

Julian’s recent post on the work of the ICJ is interesting, in part because of its common misperceptions. I think his most recent post on the ICJ and others similar to it are inaccurate in their description of the work of the ICJ and muddled as to any prescription concerning how to ameliorate the institution. Both concerns, I think, stem from a misunderstanding as to the role of the ICJ as a dispute resolution mechanism. I think it is worth taking a little time to consider carefully what the ICJ is and is not.

While the ICJ undoubtedly has numerous problems—when has an attempt to encourage nonviolent dispute resolution among States not had serious institutional flaws?—it may be more useful to focus on the form and function of the ICJ as a method of inter-State dispute resolution rather than falsely analogizing to domestic litigation between private parties. Many critiques of public international law stem from the observation that it is not like a domestic legal system. I agree; it is not. Consequently we must consider the ICJ based on its actual tasks, as opposed to on an inaccurate analogy.

Julian’s argument in his latest post is essentially that the the ICJ has an “unbelievably light workload and… ridiculously low productivity.” Really? Compared to what, exactly?

The issue is not simply the number of cases filed before the ICJ or decided in a given year. Rather, it is important to compare the number of cases filed to the population size of potential litigants. As Dr. Cesare Romano of NYU and the Project on International Courts and Tribunals has argued , when you take into account that there are only 191 potential litigants (the States party to the ICJ Statute), then having approximately 20 cases on your docket per year is actually consistent with the ratio of litigousness of a domestic society such as France. (See Cesare’s comment to an earlier post by Julian here.) Twenty cases on a docket with two or three resolved each year is not “unbelieveably light;” as a ratio of cases to potential litigants it is actually similar to what we can see within States.

While Julian contends that the ICJ President is exaggerating the work of the Court, Julian himself plays fast and loose with the numbers. Consider that Julian concludes that the ICJ has only resolved one case in the last year. That is because he does not count eight other cases that were resolved in the jurisdictional phase. An opinion is an opinion and writing those eight opinions on jurisdictional grounds resolved eight cases, all the same. We don’t look at the work of domestic judges, for example, and say their opinions on jurisdictional grounds “don’t count.” Dr. Pieter Bekker, who chairs Committee on Intergovernmental Dispute Settlement of the American Branch of the International Law Association has noted that Keith Highet (who before he passed away was the U.S. litigator with the most appearances before the ICJ) used to stress in his writings and speeches that the emphasis in ICJ litigation is on jurisdiction and that this explains why decisions on preliminary objections take so long and are so lengthy.
In the year previous to the one Julian considered, the ICJ decided three contentious cases including the long-standing dispute between the U.S. and Iran considering the U.S. destruction of Iranian oil platforms and the more recent dispute concerning the Mexican nationals on various U.S. death rows who had not been given their rights of consular access. The Court also received a request for and issued an Advisory Opinion concerning the security barrier erected between Israel and the Palestinian territories. Three other cases were otherwise discontinued and nine orders were also issued. Does Julian want the ICJ to get involved in a greater number of political disputes or does he think this might be a good amount of judicial intervention in a given year?

In any case, considering the range of issues and their wide-ranging implications, this is not “ridiculously low productivity.” And, given that the Court operates on a budget of only $30 million per year, it is dispute resolution at bargain-basement prices.

Moreover, one should note that the level of litigation before the ICJ has been increasing from the 1970’s when the Court had an average of one to two cases on its docket per year, to the 1990’s where it was around ten cases and then from 1997 through 2004 there were always at least twenty cases on the docket. That number now stands at about thirteen, in part due to the eight cases filed by Serbia against various NATO member States for the Kosovo bombing campaign having been dismissed on jurisidictional grounds. Julian seems perturbed that it took four years to reach this conclusion, but the cause may be other than what he implies. The parties themselves jointly agreed to various extensions on their briefing deadlines. The Judgment was actually rendered about a year and a half after the final brief was submitted (as opposed to four years, as Julian implied). Not great by U.S. standards but actually not bad at all considering the high-stakes of these cases and that there was not a pressing time-constraint on the litigation. Speaking of the merits, I bet Julian actually thinks the decision reached was the right one. So if the delay was due to the common agreement of the litigants—read sovereign States—and the Court reached a just result, is this really an example of the ICJ getting it wrong?

Note that the slow tempo for many of these cases is the speed that is sought by the litigants themselves. As States view these issues as having significant stakes, such as boundary delimitations, liability for military actions, etc., they tend not to want to rush the proceedings. Is Julian actually implying that a bunch of international judges should override the will of the States involved in litigation and order faster timetables? Or should the ICJ proceed instead with dispute resolution at the speed that the member States actually want?

One way to get more cases heard, and heard more quickly, would be to have greater use of special chambers. As it now stands, the ICJ hears all of its cases in en banc hearings, with all the permament judges as well as any ad hoc judges. (Parties who do not have a national sitting on the court may appint an ad hoc judge of their own or another nationality to sit on the Court for their case.) Some have argued that it would be better to use special chambers, benches of 3-5 judges, for the reoslution of many cases. Currently, special chambers may only be used if both parties to the litigation agree. However, even though this would speed proceedings and save time and money, States almost never want to use special chambers. Why? Because the full court is a known quantity, some random sub-grouping of judges is not. The irony is that the lack of efficiency and speed that Julian bemoans can actually be solved by the States themselves, but they do not choose to do so.

Or, keeping in mind Julian’s complaint of the duplicative proceedings in the Kosovo Air Campaign case, some have argued that the proceedings would have been much more efficient if Serbia could simply have filed suit against NATO, rather than the eight suits originally filed against the various NATO member States involved in one way or another in the bombing campaign. Given the changes in the international system and that an increasing number of disputes are between States and international organizations (say, for example, between the U.S. and the E.U.), then the member States of the UN should agree to submit the international organizations to which they belong to the ICJ’s jurisdiction as well. This would of course, require an amendment to the ICJ Statute. But think of the possibilities… duplicative cases that just sap the Court’s limited resources could be consolidated into a single suit… cases dealing with serious concerns in the international community could be heard... If you really want to improve efficiency and efficacy this could be a step in the right direction…

Or maybe not. The point is that if you really want to get into a discussion on the strengths and weaknesses of the ICJ, you have to go beyond just saying “hey, they don’t have a lot of cases, do they?”

There are lots of problems at the ICJ, ranging from serious concerns over judicial ethics to the problem of poor States being priced out of using the ICJ as a forum to hear their cases. And for those interested in learning about the deeper issues in ICJ reform, there is no better place to start than the website of the Project on International Courts and Tribunals. I particulalry recommed the Burgh House Principles on Independence of the Judiciary (available via the PICT homepage).

Also, Dr. Cesare Romano, whom I mentioned earlier, is in the last stages of writing a report under the auspices Bekker’s Committee on Intergovernmental Dispute Settlement concerning ICJ reform. I had the opportunity to read an early draft of the report and it is both clear-headed and enlightening. It does an excellent job describing the major problems of the ICJ, their institutional causes, and possible reforms. I will post a link to it once the final version is released.

In closing, my criticism of Julian’s post is based on two concerns. The first is that Julian uses caseload figures in a manner that leads to an inaccurate conclusion. Shabtai Rosenne, probably the best known living scholar on ICJ practice has pointed out that "in the long run, the bare figures may be misleading as the point of departure for an evaluation of the role of the Court in the international scene today." Yet, when you contextualize the figures the result you get is one that is not as negative as Julian would have it. My second point is perhaps less a criticism than a comment about some of these posts concerning the ICJ, the UN, etc. It is one thing to throw stones, it is another to build with them. Does Julian attack the ICJ because he does not like the idea of such a Court? If so, fine, we can disagree on that. But, if that is not the case, then what does he think we should do to make the institution work better?

Judge Alito and Internationalism

In the mass of articles about the newest U.S. Supreme Court nominee Judge Samuel Alito, there has been very little discussion about his views on international and comparative law (Roger's post here is the great exception). This is probably because most activist groups really don't care about his views on these questions and because his paper trail in these matters is very thin compared to his other writings.

Still, readers of this blog might ponder two indications that Alito is more of an internationalist than his comparisons to Justice Scalia might indicate. First, my Hofstra colleague Nora Demleitner, a former Alito clerk and professor of immigration and comparative law, lauds Alito here (via Volokh)for his majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), which denied asylum* to an Iranian woman but held that her home country's gender-specific laws and social norms could be considered persecution for purposes of U.S. asylum laws. Nora calls this one of the most "progressive opinions in asylum law on gender-based persecution."

Additionally, the Daily Princetonian reports here that Alito wrote his 1972 senior undergraduate thesis on the Italian Constitutional Court, which perhaps suggests he was actually ahead of the curve on comparative constitutionalism. Alas, as the Daily Princetonian reports, the Alito thesis is (mysteriously?) missing from university's archives.

*My original post (and the Legal Times article I referenced) misstated the holding suggesting that the 3d Circuit panel actually granted asylum to the Iranian female petitioner. Actually, the petitioner was denied asylum on the grounds that she could not show she would have refused to follow gender-specific laws. Still, the opinion is still widely cited for recognizing that gender discrimination overseas could serve as the basis for political asylum.

Case of the Month: Broniowski v. Poland

My vote for the most important international law case of the month is Broniowski v. Poland, the ECHR decision that paves the way for "class action" human rights litigation in Europe. As discussed in my earlier post, an international tribunal in Europe may now order systemic, national relief to a class of similarly-situated claimants. The decision that launches this "pilot judgment procedure" is here and the press release discussing the decision is here.
Under the "pilot judgment procedure" the Court will render a principal judgment finding a violation that is systemic and widespread and will order the national government to provide general measures at the national level to redress the wrong. Once the national government has done so, it may approach the Court and request assistance in settlement talks with the claimant. In Broniowski the Court actively assisted in settlement negotiations between the parties. Once a settlement is reached, the Court will approve the settlement and strike the application from the list.

The decision is significant for several reasons. First, the ECHR had become a victim of its burgeoning caseload. According to its annual report, in 2004 it rendered 21,000 decisions, the overwhelming majority of which were deemed inadmissible. Over 700 full judgments were rendered by the Court. With 45 judges on the Court, that is 466 decisions and 15 full judgments per judge per year. ECHR judges are nearing a point of institutional incapacity to handle the work. A class action procedure affords a way to treat similarly-situated claimants together. As the Broniowski Court put it, "One of the relevant factors considered by the Court was the growing threat to the Convention system and to the Court’s ability to handle its ever-increasing caseload that resulted from large numbers of repetitive cases deriving from, among other things, the same structural or systemic problem." (para. 35).
Second, the Court is not focusing simply on resolving individual cases. It is now focusing on systemic wrongdoing. "In view of the systemic or structural character of the shortcoming at the root of the finding of a violation in a pilot judgment, it was evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand." (para. 36). The Court can thus order a national government to provide redress to thousands of similarly-situated victims.
Third, the Court can order a national government to provide a specific type of class remedy. In this case, the Polish government was required to pay compensation to all affected claimants. It established a "right to credit" scheme that offered claimants 20% of the original value of their property.
Finally, the systemic wrong that was at issue occurred in the 1940s and early 1950s. The ECHR was established in 1953. The Court is ordering retroactive class relief for violations that originally occurred prior to the Court's existence.
There are huge risks and rewards with class action litigation, as any American litigator can attest. With class action litigation, courts veer precariously close to performing legislative functions. In the European context unfamiliar with this novel device, the "pilot judgment procedure" may become one of the most important new developments in human rights litigation.

Monday, October 31, 2005

Hariri Report Leads to Security Council Action

Earlier today the UN Security Council issued Resolution 1636 demanding that Syria cooperate with the Hariri investigation “or else.” OK, it didn’t really say “or else” but that was the gist of it. See a summary of main points here; UN press report here.

The UN press report explained that

The resolution called on all States to prevent the entry or transit of suspects designated by the Commission or the Government of Lebanon and to freeze all assets of such person on their territory.


The resolution determined "that any involvement of any State in this terrorist act would constitute a serious violation by that State of its obligations to work to prevent and refrain from supporting terrorism."

As CNN summarized:

Last-minute diplomatic haggling deleted a direct reference to the threat of sanctions on the Syrian government, but the effect of Monday's resolution is the same.

The resolution is under Chapter 7 of the U.N. Charter, which holds open the ultimate possibility of the Security Council considering the use of force with failure to comply.

Russia and China simply would not have voted for stronger wording. But this nonetheless puts Syria in a fairly tight spot as the Security Council’s Chapter VII authority is the diplomatic equivalent of ending your demand with “or else.” Resolutions under Chapter VII must be followed by UN members States. The specifics of that “or else” may require another resolution but under Chapter VII no options are off the table, as certain Washington politicians are fond of saying.

The Hariri Report was the step that made getting a Chapter VII resolution politically feasible. Heated rhetoric alone from the U.S. could not have done this. Now UN member States are required to assist in the investigation. If Syria persists in stonewalling, then UN member States may soon be required to have sanctions against Syria.

But still, isn’t this less direct than the U.S. going in and trying a little regime change? Well, yes, but the point is that what sometimes seems to be the most direct method (hey guys, let’s topple a government!) can be the least effective. Rather, here we see the role of consensus building and coordination. Moreover, as I mentioned in my previous post on this topic, the UN’s role gives a legitimacy to the process that gung-ho unilateralism simply would not have had. And, with legitimacy, we may get a better and more sustainable outcome.

Christopher Le Mon has commented that the full text is available here. Thanks for the link.

Judge Alito and Forced Abortions

A quick review of Judge Alito's decisions suggests very few that have international law implications. One recent decision that merits significant attention is Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004). At issue is whether the fiancée of a woman who was forced to undergo an abortion in China is entitled to asylum.

Factually the case is extraordinarily sympathetic. A young Chinese couple in China become pregnant, want to marry, and do not want to abort their child. But China has two offensive policies: forced abortions and severe restrictions on the permissible age of marriage. Couples in China are prevented from getting married if they are not of marriageable age (25 for a man and 23 for a woman). Chen and his fiancée were 19 and 18 at the time they sought a marriage license. When they attempted to secure a marriage license they were refused. When his fiancée was finally found by Chinese authorities, she was forced to undergo an abortion in her eighth month of pregnancy.

A few key legal aspects of the case are important. First, our asylum law only affords protection for specific reasons: a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. Second, these decisions are initially made by immigration judges, and federal courts grant Chevron deference to their decisions. Past immigration decisions recognize that a forced abortion is persecution on the basis of political opinion and that a woman and her spouse could secure asylum on that basis. But in Chen the agency held that a fiancée of a woman forced to abort did not enjoy such protection. Thus, marital status was the defining distinction that precluded Chen from securing asylum because his fiancée was forced to abort.

The Third Circuit, per Judge Alito, upheld the agency determination. Judge Alito found that there was a rational basis for the distinction. The immigration authorities use "marital status as a rough way of identifying a class of persons whose opportunities for reproduction and child-rearing were seriously impaired ... as the result of the performance of a forced abortion or sterilization on another person." The decision to adopt a bright-line rule and not extend this protection to unmarried partners was found to satisfy the requirements of Chevron deference. To conclude otherwise would force the agency to make difficult distinctions between unmarried persons who had a truly close relationship with the woman forced to abort and those persons who do not.

The most interesting section of the opinion was the question of whether China's refusal to permit Chen to marry was itself persecution. Judge Alito opined that it was not.

[A]lthough minimum marriage ages of 23 and 25 are contrary to our traditions and international practice, we cannot go so far as to say that enforcement of these laws necessarily amounts to persecution. American constitutional law recognizes marriage as a fundamental right … but all states impose minimum marriage age requirements, and we assume that these laws are constitutional. Laws setting reasonable minimum marriage ages are also recognized as legitimate and desirable under international human rights law. It is certainly true that marriage laws in this country set the minimum age for marriage considerably below 23 or 25. Almost all states set 18 as the minimum age to marry without parental consent…. It is also true that the marriage laws of other countries generally set the minimum marriage age at 18 years or less, and it appears probable that no other country sets the minimum as high as does China. A law or practice, however, does not necessarily rise to the level of “persecution” simply because it does not satisfy American constitutional standards or diverges from the pattern followed by other countries. As we have noted, persecution is an “extreme” concept that “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Here, we cannot say that the BIA was bound to conclude that minimums of 23 and 25 amounted to persecution.

There are several interesting thoughts regarding the Chen decision. Admittedly this is not a constitutional case and therefore it provides little to no information on his views of abortion in that regard. In addition, it is very hard to draw firm conclusions regarding Judge Alito's stance on key issues in a case that involves Chevron deference. The government rarely loses in a case involving such a deferential standard. If our immigration authorities had said yes it was persecution, he likely would have deferred to that decision as well. But Chen does provide insights on Alito's decision-making.

First, it appears Judge Alito takes executive deference very seriously. This is a borderline case of an agency refusing to broaden a rule the spirit of which could encompass Chen's situation. Second, Judge Alito appears to embrace cultural diversity in human rights. He is unwilling to presume that a practice that does not satisfy American standards and near uniform foreign practice necessarily constitutes persecution. Third, the decision is neither pro-life nor pro-choice. It is pro-deference. Forced abortions deny choice and deny life. But the question is not whether the practice is abhorrent, which he no doubt would agree. The question is whether a fiancée of someone who suffered such a terrible procedure is entitled to asylum based on a well-founded fear of persecution. Our immigration authorities said no, and Judge Alito was unwilling to find that conclusion to be wholly irrational.

Canada Charges Rwandan of Genocide

This is an interesting story. Under Canada's Crimes Against Humanity and War Crimes Act, Canada has charged a Rwandan living in Canada of genocide, war crimes, and crimes against humanity. Under Article 8 of the Act, Canada can charge anyone for genocide if the crime or the criminal has a Canadian nexus. This is very broadly defined to include (1) citizens or employees of Canada who committed crimes; (2) citizens or employees of a state engaged in armed conflict against Canada; (3) persons who committed crimes against Canadian victims; (4) persons who committed crimes against a Canadian ally in armed conflict; and (5) persons present in Canada after the crime was committed.
This statute thus embraces an expansive approach to prescriptive jurisdiction that includes the nationality principle, passive personality, and universal jurisdiction. In this case, Desire Munyaneza was a refugee in Canada who allegedly led attacks on Tutsis at the National University of Rwanda. Canada therefore must prosecute based on universal jurisdiction.
The Rwandan Justice Minister welcomed Canada's move, stating that "Canada has demonstrated that it won't sit and watch genocide perpetrators roam about its territory," Mukabagwiza said. "Our only surprise is that other countries are still sheltering genocide suspects. They should learn from this example."
What is unusual about Canada's act is the notion of domestic criminal prosecution of war crimes and genocide at a time when we have international criminal tribunals that also are entrusted with this responsibility. It appears to overlap with the authority of the ICTR to investigate and prosecute war crimes in Rwanda.
Which raises the larger question if countries such as Canada exercise jurisdiction to prosecute alleged war crimes, we will have the very real possibility of concurrent jurisdiction in multiple fora--the national court where the offense took place, the national court of the victims, the national court where the alleged criminal is present, and the relevant international criminal tribunal (in this case the ICTR). We have long had the theoretical possibility of concurrent jurisdiction under notions of universal jurisdiction, but it now appears to be becoming a reality.
How these competing jurisdictions will coordinate their prosecutions remains to be seen. Whether the international criminal tribunals will take cognizance of third country prosecutions as part of their determination of whether to prosecute is uncertain.
And whether these third country national courts will adopt the ICC's approach of complementarity and deference to the primary national court prosecution is even more uncertain. Certainly the Spanish judge that issued an arrest warrant against three American soldiers exonerated by the United States military justice system suggests that in at least some circumstances they will not.