Saturday, November 26, 2005

U.S. States and International Law: Venezuelan Oil Deal with Massachusetts; Global Emission Standards in New York

Federalism can be a tricky issue when it comes to foreign relations. On the one hand, states of the U.S. may not enter into treaties as foreign policy is the reserve of the federal government but, on the other hand, if a U.S. state breaches international law, it is the country as a whole that is responsible under international law.

This week there were two stories concerning states of the U.S. and foreign policy. First, there are the reports of Massachusetts and New York entering into agreements with the government of Venezuela and Citgo, the U.S. sub of the Venezuelan national oil company, to provide cheap heating oil to low income housing in those states. While states are not allowed to enter into treaties, they do in fact enter into many such agreements on a whole host of foreign trade and investment issues. In any given year, in fact, the number of state government foreign trade missions dwarfs the number of such missions from the federal government. Of course, these Venezuelan oil deals are especially contentious since Venezuelan President Hugo Chavez will use them to thumb his nose at the U.S. government. The deal was announced by Chavez during an official visit to Cuba, no less. I guess this is payback for Pat Roberston ordering a fatwa on Chavez, but at least it is payback in which some poor people can get cheaper heating oil.

Another aspect of international law and federalism has been how international standards have affected state regulations. New York has joined ten other states, including California, to have enacted (or be in the process of enacting) greenhouse gas emission standards that more closely hew international standards than those of the U.S. The result is an impending battle royale of litigation over whether New York can set more protective environmental standards than the federal government. New York isn’t claiming that it is doing this because of international law; rather I find this interesting because the international discourse on greenhouse emissions, as centered around the Kyoto Treaty, undoubtedly informed this bit of domestic legal change. The New York Times specifically mentioned that Gov. George Pataki supported the global greenhouse gas emission regulations and subsequently sought action by the NY state government. The results could be significant. The New York Times reports:

"The two biggest contributors to global warming are power plants and motor vehicles," said David Doniger, a senior lawyer for the Natural Resources Defense Council. "If you deal with them, you deal with more than two-thirds of the problem."

But automakers contend that the regulations will limit the availability of many sport utility vehicles, pickup trucks, vans and larger sedans, since they will effectively require huge leaps in gas mileage to rein in emissions. The industry also says the rules will force them to curb sales of more-powerful engines in the state, and ultimately harm consumers by increasing the cost of vehicles.

The standards are the most ambitious environmental regulations for automobiles since federal fuel economy regulations were enacted in the 1970's. They will be phased in starting with 2009 models and require a roughly 30 percent reduction in automotive emissions of carbon dioxide and other greenhouse gases by the 2016 models.

So, between foreign oil deals and the give and take of norms between the international and domestic system, states of the U.S. often affect—and are affected by—international law and international relations.

Rafah Crossing

Palestine moved one step closer to peace with the opening of the Rafah crossing to Egypt. With no international airport open, the Rafah checkpoint is the international gateway into Gaza.

President Abbas was celebrating yesterday at the opening ceremony: "I think every Palestinian now has his passport ready in his pocket. Let them come to cross at this terminal whenever they want." Or as one border crosser put it, "Today is a day of happiness for every Palestinian, the suffering is coming to an end..."

The most prophetic words came from the EU Middle East envoy Mark Otte: "We want to ... transform your borders into bridges with your neighbors and with Israel. Israel is also your neighbor." Secretary Rice said much the same two weeks ago: "This agreement is a good step forward. With the international community, Israel and the Palestinian Authority must keep working hard to make these measures work in practice. As they are implemented, trust can grow. Prime Minister Sharon and President Abbas have shown real statesmanship in making the decisions that led to this agreement."

A map of the Rafah cross-point is available here.

Syria Avoids Security Council Sanctions, Agrees to Cooperate in Hariri Investigation

Syria has agreed to comply with the demands of Security Council resolution 1636 and will cooperate with the Hariri investigation by allowing five Syrian government officials to be interviewed in UN offices in Vienna. This ends, for now, the Syrian stalemate with the Council, and avoids a follow on resolution that would likely have slapped sanctions against Syria. The progress of the Mehlis team investigating the Hariri murder and the Security Council's robust response is significant, fairly rebutting Julian's view that UN investigations tend to produce "muddy, often useless conclusions." But it is also too early to declare complete success here.

What will happen to the co-conspirators in the Hariri assassination? If the earlier conclusions about official Syrian involvement are true, Assad faces further tough decisions with enormous international and domestic implications. It is not a foregone conclusion that the Council will continue to take a tough stance and hold Syria to the stringent obligations of 1636. The Council is, nonetheless, the only mechanism through which meaningful international sanctions can be imposed. As such, the case demonstrates the value of the UN playing the role of the disinterested third party in an investigation in which no one country can claim to be truly neutral.

Friday, November 25, 2005

Canada Whacks the U.S. with a $1.3 Billion Lumber Subsidy

Less than a week after the U.S. surrendered to a NAFTA tribunal's order to eliminate U.S. duties on Canadian lumber, Canada brazenly announced yesterday that it would add a $1.28 billion subsidy to existing supports for the Canadian lumber industry. In other words, just as the U.S. dropped its duties in a good faith gesture, Canada has decided to whack the U.S. by adding even more subsidies to its (already wealthy and prosperous) lumber industry.

This little episode reminds us that there are no good guys or bad guys in most international trade disputes. The U.S. has been dilatory in its response to NAFTA judgments. But for all their posturing about respect for international trade rules, Canada's leaders have proven themselves to be relentlessly pursuing their industry's advantage, even against the spirit of the NAFTA trade rules.

Alpha, Bravo, Charlie: Nixon and Kissinger’s Search for Limited Nuclear Options

Recently declassified documents at the National Security Archives show how President Nixon and Henry Kissinger were concerned that U.S. nuclear strategy was basically only a single option: Mutually Assured Destruction. The documents show how a mix of moralism, strategy, bureaucratic politics, and even Watergate drove the National Security Council to grapple with the idea whether there could be a limited nuclear war. It is the story of how the Single Integrated Operational Plan or SIOP was reconsidered during the Nixon Administration and how its three target packages—Alpha, Bravo, and Charlie—became part of the new doctrine. The documents and the analysis of William Burr of the National Security Archives are available here.

The tone of the memos and transcripts is framed, perhaps, by Kissinger’s quote from one NSC meeting that “to have the only option of killing 80 million people is the height of immorality.” Yes, but that doesn’t mean that the other options don’t make for chilling reading. While Nixon, in particular, was concerned with the specter of nuclear annihilation, there was also the concern was that the U.S.’s nuclear threat would not be credible if the only threat we had was to destroy the world. Credibility required some option that was less extreme. Consequently, pragmatism also informed the strategic reconsideration

The documents also show other factors that may be somewhat surprising. For example, one report notes that

The documents reveal Kissinger's chilling insight that government budget-crunchers would prefer complete nuclear warfare because it was already planned for and would be cheaper than recasting U.S. capabilities to permit limited strikes.
"They believe in assured destruction because it guarantees the smallest expenditure," he told an August 1973 National Security Council meeting in the White House Situation Room.

Watergate also played a part in the increased focus on a survivable nuclear option. Kissinger said in an August 1973 meeting that "My nightmare is that with the growth of Soviet power and with our domestic problems, someone might decide to take a run at us."

The various declassified documents, and William Barr’s guided tour through the documents shed light on how the government went about considering the issues of the utmost importance, which literally had implications for the survival of the species.

Burr notes the following, for example:

Not all in the government agreed with Kissinger on the merits of limited nuclear options. One of Kissinger's close advisers, Winston Lord, signed off on a paper prepared by several members of the Planning and Coordination Staff that took exception to the new thinking. While no one quarreled with the merits of flexibility, the Staff worried about some of the implications of the concept of "controlled nuclear escalation," including a "possible adverse impact on deterrence, overreliance on nuclear forces, and overconfidence in the applicability of nuclear escalation in a wide variety of situations." The arguments did not persuade Kissinger, who scrawled: "Good paper though I disagree with much of it."

For those with an interest in national security or executive decision-making, Burr’s essay and the underlying documents are a compelling read.

Pinochet Released on Bail

Pinochet has posted bail and now remains free. See details here. The BBC has the best coverage of the indictments, one for tax evasion and the other for kidnapping. The coverage includes links, a profile, related articles, and background information. A full list of all news stories about the Pinochet indictments is available from Google here. As of Friday morning few if any major blogs are discussing the indictments, but here is a list of some that are.

Thursday, November 24, 2005

An International Relations Perspective on Washington’s Thanksgiving Proclamation

Today is Thanksgiving Day in the United States, one of the truly great and distinctive national holidays of our country. The only obligation of Thanksgiving is that we celebrate and give thanks for the bounty that is ours.

George Washington’s Thanksgiving Proclamation is a regular fixture at Thanksgiving celebrations in many homes throughout the country. As noted here, it was drafted by the Senate and the House in September 1789 and proclaimed by Washington on October 3, 1789, just months after the Constitution was ratified and Washington was elected as President.

Much of the Proclamation speaks of gratitude for the establishment of the new nation and its Constitution, or as Washington put it, for "favorable interpositions of his Providence ... for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted."

But the Thanksgiving Proclamation also paid particular attention to international relations. I thought it might be interesting to emphasize those provisions of Washington’s Proclamation that specifically invoke international relations:

“WHEREAS it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favour … NOW THEREFORE, I do recommend and assign THURSDAY, the TWENTY-SIXTH DAY of NOVEMBER next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks … for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; … And also, that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; … to protect and guide all sovereigns and nations (especially such as have shewn kindness unto us); and to bless them with good governments, peace, and concord; … and, generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best.”

I especially like the prayer for pardon for national transgressions. To this day Americans are keenly aware of their own shortcomings and recognize that sometimes this manifests itself in corporate wrongdoing.

And then best of all, Washington calls us to collectively hope and pray for the prosperity of others. Washington’s Proclamation petitions a blessing on all nations (not just those who have shown kindness to us), fervently requesting that each nation be bestowed with good government, peace and harmony.

The full text as it originally appeared is here (a more readable version is here).

Happy Thanksgiving!!

Wednesday, November 23, 2005

Canada's Triumph: U.S. Surrenders to NAFTA Panel's Softwood Lumber Judgment

After months of whining by high-level Canadian politicians, the U.S. Commerce Department announced yesterday that the U.S. will comply with a NAFTA tribunal's decision requiring the reduction or elimination of U.S. duties on Canadian lumber. The U.S. refusal to eliminate these duties had been one of the main sources of friction between the U.S. and Canada and potentially threatened the long-term viability of NAFTA itself.

This is far from the end of this long-running, dispute between the U.S. and Canada over lumber. Big Lumber in the U.S. is deeply disappointed calling the Commerce decision wrongful as well as "unconstitutional." As I discussed earlier here, Big Lumber has filed a complaint in U.S. district court seeking to have the entire NAFTA Chapter 19 arbitration process declared unconstitutional.

Still, at least Canada can't complain that the U.S. doesn't respect NAFTA. Hopefully, the U.S. and Canada can now sit down and negotiate a full settlement of this essentially ridiculous dispute between two governments that should know better.

A Hopeless Case: Australia v. Singapore in the ICJ

An Australian national convicted by Singapore of drug running is facing execution next week, causing much justifiable angst in Australia. Some are advising the Australian government to seek a provisional measures order from the ICJ to stop the execution. As Australia's Prime Minister announced today, however, such an appeal to the ICJ would be "pointless" because Singapore hasn't done anything illegal.

I agree that an appeal to ICJ is a hopeless case because Singapore does not accept the compulsory jurisdiction of the ICJ and because Singapore almost certainly hasn't violated any treaty or international law obligations it owes to Australia in convicting and then sentencing the Australian national to death. If the ICJ got involved, though, the court might prove my skepticism about their slow and ineffectiveness wrong. But I doubt it.

Dayton at Ten: Preparing Bosnia for EU Membership?

It is hard to believe that a decade has passed since the signing of the Dayton Peace Accords that brought an end to the war in Bosnia. The peace in Bosnia certainly came too late for many (260,000 lost their lives in the war, over a million were displaced), but it did finally end the bloodshed. The implementation force for Bosnia -- initially a NATO operation and now representing the first EU peacekeeping operation (EUFOR)-- has succeeded in creating the conditions for democratic institution-building, resettlement, construction, foreign aid and investment, and some degree of reconciliation between the warring parties. And all this was accomplished with no casualties among peacekeepers deployed to enforce Dayton. UNPROFOR troops (those sent in under UN auspices to secure aid during the war) did suffer about 1,000 casualties pre-Dayton. So what made Dayton work?

First, the dispute was ripe for resolution. Bill Zartman at SAIS has defined ripeness in an armed conflict as a "mutually hurting stalemate." Bosnia was not a prototypical stalemate in the summer of 1995; the Croats and Muslims had formed a coalition against Serb forces and had turned the tide by regaining territory on the ground. They were assisted by the decision of NATO to begin strategic bombing in response to an attack on Sarajevo and the massacre at Srebrenica. But the shifting fortunes on the ground made it clear that the US had the power to tip the balance in any direction. Second, the U.S. backed the peace. It was clear by 1994 that the earlier UN/EU peace process would not work. Engagement by the U.S., backed by NATO, made a difference. Indeed, it could be argued that by putting the credibility and the future of the NATO alliance on the line, the U.S. committed itself to success. Third, the appropriate number and right kind of troops were contributed to the implementation effort. The UN was kept out of Dayton implementation because they had failed during the UNPROFOR mandate. As Richard Holbrooke pointed out on the News Hour last night, if the ratio of troops currently in Iraq were as high as it was for the post-conflict phase in Bosnia, there would be 600,000 troops on the ground in Iraq, rather than 150,000.

Was Dayton perfect? No. There are flaws in both the process and the political arrangement - including the creation of two separate legal entities within Bosnia -- that resulted at Dayton. The fact that Radovan Karadzic and Ratko Mladic are still at large ten years after their indictment by the ICTY is evidence, for example, that the "justice" part of the peace has had mixed results. And the governmental structures set up at Dayton have proved unworkable. That is why leaders of the main political parties in Bosnia committed themselves Tuesday to constitutional reform aimed at strengthening the central government. Such reforms are an important step toward European integration and eventual membership in the EU.

We will be studying and teaching the disintegration of the former Yugoslavia for many more decades to come. Dayton is just one piece of that complex case study.

For an additional view, Derek Chollet has this excellent analysis at Democracy Arsenal discussing lessons from Bosnia for the current crisis in Iraq.

International Year in Review

The ABA Section on International Law and Practice has just published the 2004 Year-in-Review. It is the best one-volume summary describing the developments in international law for the past year. It always comes out much too late, but it is a great resource. The reference begins at 39 International Lawyer 169 (2005).

Chapters include antitrust, environmental, trade, commercial dispute resolution, courts, criminal law, litigation, franchising, intellectual property, mergers and acquisitions, secured transactions, securities and capital markets, transnational legal practice, non-profits, information services, international transportation, immigration, employment, private tax clients, cultural property, health law, human rights, money laundering, China, Europe, Latin America, and Middle East.

Tuesday, November 22, 2005

A close look at the Padilla indictment

Although it gets us a bit far afield from the focus of Opinio Juris, I'm going to follow Roger and Julian's lead and blog briefly regarding the Padilla indictment. (Yes, I'm still here. Sorry to have been so quite the past two weeks, but I do plan to be more active in the days ahead!)

Many months ago, there was considerable speculation that the government would obtain a criminal indictment against Jose Padilla in the Southern District of Florida, where it was known that a grand jury was investigating a circle of alleged Islamist extremists said to have links to Padilla. This has now come to pass. A grand jury in Miami has issued an indictment against Jose Padilla (and four others), and the President has ordered the Secretary of Defense to transfer him to the custody of the Attorney General. (You can get to the indictment from Roger's post).

This is actually a superseding indictment in the existing matter of United States v. Hassoun, et al., No. 04-600001-CR (Cooke) (S.D. Fla.). Indeed, I believe it is the 5th superseding indictment, although of course it is the first to add Padilla as a co-conspirator (an earlier iteration, with charges against Hassoun, Youssef, and Jayyousi, is described in a DOJ press release here. In any event, the current defendants are: Adham Amin Hassoun (in custody), Mohamed Hesham Youssef (currently in jail in Egypt), Kifah Wael Jayyousi (in custody), Kassem Daher (not sure if he is in custody here, in Canada (where he lives), or not at all), andJose Padilla (in custody, of course).

The indictment is a fascinating example of the way in which federal prosecutors make use of existing federal statutes to prosecute persons allegedly involved, to varying degrees, with Islamist extremism.

1. Section 956:

Conspiracy to commit violent acts outside the United StatesIn this instance, the indictment alleges the existence of a conspiracy - including but not limited to these defendants - the ultimate aim of which was to commit acts of violence in other countries. Based on that claim, the indictment charges a violation of 18 U.S.C. 956, which prohibits conspiracy to commit an act of violence outside the United States, so long as (i) the act would constitute the offense of murder, kidnapping or maiming if committed in the US and (ii) at least one act in furtherance of the conspiracy takes place in the U.S. What is very interesting here - although typical of how 956 has been charged since 9/11 - is that there is no attempt to allege with any particularity what the specific act of violence would be; the indictment instead merely describes at a general level the use of violence by the broader jihadist movement of which this conspiracy allegedly was a part. In this regard, it is worth noting that the indictment does not label the conspiracy as a component of al Qaeda or any other specific group. Instead, the indictment describes the conspiracy simply as part of the overall "radical Islamic fundamentalist movement . . . [based on] a radical Salafist ideology that encourage[s] and promote[s] 'violent jihad'". (Indictment at 1). Several organizations - including al Qaeda - are named as representative and constituent of that movement, but in the end there is no formal attempt to match the defendants to any one group (reflecting the widely-held view that the jihadist movement has network rather than formal group characteristics). Thus, the conspiracy is labeled the "North American Support Cell," rather than, say the "al Qaeda Cell."

2. Section 2339A:

Material Support (to an act, not a group)As also has happened in the past, the indictment pairs the 956 charge with a charge under 18 U.S.C. 2339A, the older of the two material support statutes. This is not the statute that prohibits the provision of support to designated foreign terrorist organizations; as noted above, the indictment avoids formal organizational labels, as it probably must. Instead, this is the version of the material support law that more closely resembles a traditional aiding-and-abetting statute; it forbids provision of suppport (for example, money) to anyone if done with knowledge the support will be used to further a violation of one of several listed statutes, including 956. In this case, the claim is that the cell conspired to (and did) provide money and other logistical assistance (fundraising, mainly) in connection with the 956 conspiracy described above.

3. The other charges:

The other charges all concern defendant Hassoun. He has been charged with unlawful possession of a firearm (18 USC 922); making false statements to federal agents (18 USC 1001); multiple counts of perjury arising out testimony before an immigration judge (18 USC 1621); and obstruction of those same proceedings (18 USC 1505).

Copy of Padilla Indictment

A copy of the Padilla indictment is available from ABC news here. The blogosphore is abuzz with the news. Discussion can be found at SCOTUSblog here, Prawfblawgs here, and Balkinization here.

I'm a little surprised by the reaction I've seen so far. Isn't this somewhat analogous to the Bush Administration's response in Medellin? In that case at the last minute the Bush Administration ordered state court compliance with the ICJ's judgment. It effectively killed the Supreme Court case, but it also resulted in real progress in the case at hand. Medellin's counsel was quite pleased with the development. I also recall most international scholars and practitioners were cautiously optimistic about the Bush Administration's strategic move.

Now at the last minute the Bush Administration has indicted Padilla. The Supreme Court case is now in jeapardy, but haven't critics been asking for a release or indictment all along? Now they've got one. Sure it came on the eve of a briefing deadline before the Supreme Court, but isn't it still a victory for Padilla? As his lawyer put it recently, "I may be the first lawyer to stand here and say I'm asking for my client to be indicted by a federal grand jury." I would welcome thoughts on whether others agree or disagree.

The End of the Enemy Combatant Saga? Jose Padilla Indicted by Grand Jury

The Washington Post is reporting that Jose Padilla, the alleged dirty bomber held for three years as an "enemy combatant", has been indicted by a federal grand jury for conspiring to commit terrorist attacks overseas. Interestingly, the indictment does not include the "dirty bomb" charges that were the basis for Padilla's detention as an enemy combatant.

The obvious reason for bringing this indictment is to avoid a coming showdown in the U.S. Supreme Court over Padilla's detention. As a U.S. citizen, Padilla's detention was probably going to be reversed by the current Court's membership, and even a future court's membership, with Justice Scalia poised to order Padilla's release.

This avoids the enemy combatant issue for U.S. citizens, at least right now. But the issue of the President's authority to hold enemy combatants who are not U.S. citizens, mostly in Guantanamo Bay. That issue may yet be litigated. Or it may not, depending on whether Congress acts to endorse the President's detention of those aliens in Guantanamo.

This is a smart move strategically (less so, from a principled point of view). It may be the last piece in the Bush Administration's retreat from its more aggressive legal positions in the conduct of the war on terrorism. If Congress acts on McCain-Graham, the Bush Administration may yet avoid final court battles on all of its positions. We'll see.

Brad Pitt, Trade Expert

There is a wonderful story in the Washington Post yesterday about Brad Pitt becoming immersed in the intricacies of international trade. Pitt is fast becoming an outspoken advocate for Africa, and he is coming to realize how central trade is to that agenda.

The tutorial was sponsored by a group called DATA (debt, AIDS, trade, Africa) established by U2 lead singer Bono. DATA's mission is to "raise awareness about, and spark response to the crises swamping Africa: unpayable debts, uncontrolled spread of AIDS, and unfair trade rules which keep Africans poor.... At the core of DATA's mission is a view that these issues are not about charity, but about equality and justice."

I have mixed feelings about the news that Brad Pitt is trying to become a trade expert. My first emotion is disappointment. I have been teaching international trade here in Malibu for years and my neighbor Brad has never once expressed interest in auditing my class. Perhaps if I offered it as a night course?

Second, I find the notion rather comical. Can you imagine the tutorial lesson: "Well, Brad, there are three types of subsidies: green light, yellow light, and red light. Green light subsidies are always permitted because they enhance valuable objectives such as research and development. And then there are red light subsidies. You're familiar with red lights, right? Well these subsidies are by definition prohibited because they create import or export distortions, such as a subsidy contingent on export promotion. And then there are yellow light subsidies that cause domestic injury. Are you getting all this Brad? Oh and then yellow light subsidies are actually divided into two types: dark amber and light amber...."

But in the end I greet the news with satisfaction. If Bono and Brad Pitt think international trade is vitally important, then who am I to disagree? They are correct that trade is of tremendous importance to the developing world, and the approach that the developed world takes in continuing subsidies to farmers and the like does have dramatic repercussions in other parts of the world. According to the article, "complete trade liberalization would enrich developing countries to the tune of $135 billion a year, more than these countries receive annually in aid and much, much more than they standto gain from debt relief." The future of Africa is in part the future of international trade liberalization.

Pitt's tutors obviously tried to emphasize the nuances in the fair trade debate. "Campaigning for trade is more complex than campaigning for aid, because trade creates losers as well as winners. Some poor countries currently benefit from preferential access to rich markets -- preferences that would disappear if these markets were opened to everyone. Other poor countries are net food importers, so cutting rich-world farm subsidies and driving up food prices would hurt them."

At the end of the tutorial on Friday, Brad Pitt confessed that international trade can be a bit "fuzzy." Now he knows how my students feel.

Monday, November 21, 2005

Reinventing the Wheel: Creighton's $750,000 Cuba Windfall

Creighton University School of Law has recently been awarded a $750,000 U.S. government grant to create a "a working model to establish a bilateral U.S.-Cuba property claims tribunal." The goal is to have this model in place, along with others, for eventual use to ease Cuba's post-Castro transition to democracy.

The grant to Creighton has already been the subject of some snarky comments in the Washington Post, pointing out that the grant to the Omaha, Nebraska school was awarded by a U.S. government official who graduated from Creighton. One wonders how the folks at the University of Miami Law School are feeling today, for instance. The grant calls for

a two-year factual/claims investigation, extensive multi-level legal analysis, significant field work in the U.S., Europe, Latin America and the Caribbean and legitimacy modeling on sophisticated social science computer software.

I admit that I'm a bit jealous that I didn't get such a cool grant. Still, you don't have to be churlish to wonder how some hypothetical future Cuban government will feel when the U.S. shows up at the bargaining table with a model tribunal and, perhaps, prior legal analysis and factual investigation of disputes that the hypothetical future tribunal will settle.

One might also wonder why it is worth creating a model for a bilateral claims tribunal when this is arguably the one kind of international tribunal the U.S. over which has extensive technical expertise and historical experience. Claims from the U.S. Revolutionary War were settled by an international claims commission, as were claims from the Mexican-American War and the Iran Hostage Crisis. It is a bit surprising that there is $750,000 worth of research on this process. I suppose "legitimacy modeling" software is very expensive.

Sixty Years Ago Today: Robert Jackson at Nuremberg

Professor John Barrett at St. John's has reminded me that sixty years ago today Justice Robert Jackson, Chief Counsel for the United States, appeared before the Nuremberg Military Tribunal and made his opening statement. Jackson's speech is one of the greatest in the modern era of international law.

The opening statement began as follows:
"The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason....

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive."
Then in the closing paragraphs Jackson summarized what was at stake in those trials:

"The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators.

But it points to the dreadful sequence of aggressions and crimes I have recited, it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have "leave to live by no man's leave, underneath the law."

The full text of the speech is here. More on the Nuremberg Trials is available through Yale Law School's Avalon Project here.

Sunday, November 20, 2005

ECHR Upholds Denial of Graduate Student's Right to Wear Hijab

The European Court of Human Rights last week upheld Turkey's refusal to allow an adult Muslim woman the right to wear a hijab (female headscarf) to graduate school. The case is available here and the press release summarizing the case is here. In the case of Şahin v. Turkey, the claimant was a medical student at Istanbul University who came from a traditional Muslim family and considered it her religious duty to wear the hijab. (For many Muslim women, wearing the hijab is a religious duty that preserves their dignity and modesty). The faculty at Istanbul University refused to allow her to enroll in class, attend classes, or sit exams if she wore the hijab.

In her claim she argued that her choice to wear the hijab "had been based on religious conviction, which was the most important fundamental right that pluralistic, liberal democracy had granted her. It was, to her mind, indisputable that people were free to subject themselves to restrictions if they considered it appropriate. It was also unjust to say that merely wearing the Islamic headscarf was contrary to the principle of equality between men and women, as all religions imposed such restrictions on dress which people were free to choose whether or not to comply with." (Para. 101).

The ECHR emphasized that "[p]luralism, tolerance and broadmindedness are hallmarks of a 'democratic society'.... Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society.... Where these 'rights and freedoms' are themselves among those guaranteed by the Convention... it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a 'democratic society'" (Para. 108).

It then applied that balancing test to deny her right to freely exercise her religion and to uphold the centrality of secularism as an essential component of a democratic society. "[I]t is the principle of secularism, as elucidated by the [Turkish] Constitutional Court, which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn." (Para. 116).

What a remarkable decision. A devout graduate student in Turkey must choose between practicing her faith and pursuing her profession. Happily, in the end Şahin chose both, but it required a move to Vienna to continue her studies.

To this American, Şahin reads as a headlong embrace of secularism and a regretful rejection of a more enlightened approach of "preserving religious liberty to the fullest extent possible in a pluralistic society." McCreary County, 125 S.Ct. 2722 (2005) (O'Connor, concurring). Can you even begin to imagine telling a graduate student in this country that a yarmulke, hijab, or clerical collar is prohibited attire? Can you imagine the long-term repercussions of the professional class in a society having few persons who espouse such strongly-held religious convictions?

Of course I appreciate the particular problems that Turkey has in accommodating Islam, including radical Islam. But Turkey is by no means alone in Europe in imposing severe restrictions on religious attire.

Let's just hope that Justice Kennedy does not advert to Şahin anytime soon to justify a curtailment of our First Amendment rights. Of course, there's no obvious reason why the internationalists on the Court would not wish to do so. As Ronald Dworkin put it in the recent issue of NYU Law School Magazine: "These problems are all the same... We have the same basic philosophical issues facing us.... What is the role of the judge? What rights of moral independence do people have? ... What is free speech about? ... We're talking about sensitive people of the same general intellectual background as ours facing the same issues we face and our listening to what they have to say."

UPDATE: More on Şahin from Jacco Bomhoff at Comparative Law Blog here.