Saturday, December 03, 2005

Litigation Trends in the U.S. and U.K.

I figured Saturday morning would be a good time to publish a post specifically targeted at all those seriously overworked and slightly bored lawyers in law firms who simply must work this weekend. As Opinionista (the Law Firm Drone du jour) notes in her blogroll, this group is always in need of a few links to click when bored at work. For the rest of us, hopefully we will be ignoring our computers, taking the weekend off, and doing something really important like watching to see if Reggie Bush will clinch the Heisman Trophy as the USC Trojans battle the UCLA Bruins. (I obviously have put more strategic thought into the random Google-rich words in this post than Fiona de Londras did here over at Mental Meanderings).
So what better subject to target weekend warriors in big firms than ... trendy info about life in law firms. Seriously, the folks at Fulbright & Jaworski have just published what is actually quite an interesting survey of litigation trends in the United States and the United Kingdom. The U.S. findings are available here and a short summary is available here. The U.K. findings are available here and a short summary available here.
The shiny glossies are quite impressive, and the facts inside them are somewhat surprising. As reported in this article, some of the findings of the U.S. survey include:
Domestic and International Arbitration Preferences – Arbitration has been keeping lawyers busy at $1 billion-plus companies this year: over 50% of such respondents reported having arbitrations initiated against their companies in the past year; 18% reported being on the receiving end of least four to 10 new arbitrations. By contrast, only 4% of small companies had four to 10 arbitrations initiated against them during the last year. And while no companies in the small- or mid-market range reported having 100 new arbitrations, 3% of the $1 billion-plus group did. When it comes to drafting international arbitration clauses, American lawyers have a clear preference for AAA/ICDR; two thirds identified that as their tribunal of choice. The second most popular (selected by less than a third) was the International Chamber of Commerce. Roughly 10% each said they prefer the London Court (LCIA) and the CPR Institute. Respondents gave an overwhelming thumbs-up to administered arbitration over non-administered arbitration, with more than half reporting that they liked the process and the rules better and are more “familiar with that type.” Paris may be lovely, but American corporate counsel are not particularly anxious to arbitrate there, citing convenience and cost; far and away the favored spot for Americans to arbitrate international disputes is New York. Close to 30% of U.S. respondents believe they have realized “some savings” from international arbitrations, with a small percentage achieving “large savings.” No companies reported large cost increases from arbitrating international disputes, although 4% reported that their company had experienced some cost increases.
Litigation Dockets – Eighty-seven percent of U.S. companies are engaged in some form of litigation in the U.S. Twenty percent had one to three cases pending, nearly a quarter had between four and 10 cases pending, and another quarter of respondents had up to 50 cases pending. That still left a full 20% facing an average caseload of 50 to 100 litigation matters. Given how much of an equalizer litigation is – hitting all companies regardless of size, industry or regional differences – it seems remarkable that as much as 13% of U.S. companies surveyed managed to avoid business disputes. Companies most likely to be litigation-free: those with revenues under $100 million. However, 12% of $1 billion-plus companies also reported that they are free of litigation, which may be one of the survey’s biggest surprises.
Litigation as a Percentage of Overall Legal Spending – Litigation is not eating up all of the legal costs in corporate America, though it is a significant chunk. Among counsel who track litigation costs, about a quarter said that they account for 21 to 50% of their legal budgets; an additional 12% reported that litigation expenses accounted for more than 50% of the total legal budget. Broken out by size, counsel for 15% of mid-market companies and 16% of businesses in the $1 billion-plus range reported that litigation consumes over half of their legal budgets. For companies with revenues under $100 million, that figure dropped dramatically to only 8%. Translated into the bottom line, nearly a quarter of U.S. companies are spending 2% or more of their gross revenues on legal fees; 10% of them spend more than 5%.
Top Current Litigation Matters – Despite the dramatic headlines about corporate corruption, the top two slots on the in-house litigation docket are contracts claims and labor/employment matters. For mid-market and $1 billion-plus companies, these types of actions accounted for as much as half of their litigation matters. For smaller companies, contract disputes account for more than a quarter of their caseload. Following contracts and labor/employment actions, the third most frequent type of case filling corporate America’s litigation plate is personal injury actions. Rounding out the top five – product liability and IP disputes. A snapshot of each sector reveals more of a spread: the most frequent type of case pending against health care companies was professional services litigation, whereas insurance litigation topped the list for insurance companies. For manufacturers, product liability cases were most commonly pending, while real estate companies face personal injury lawsuits. The most common cases for other industries were: energy and finance (contracts); tech/comm (labor/employment); and retail/wholesale (split equally between contracts and labor/employment).
Class Conscious – The bigger the company, the more likely it is to end up at the receiving end of a class action. While only 5% of smaller companies were targeted with class actions in the past year, nearly 40% of companies with revenues of $1 billion or more were served with class action lawsuits. Manufacturers were the most likely to be named as defendants in class actions; almost a quarter of them had at least one such action pending. Energy, finance and tech/comm companies were the next most likely to have at least one class action filed against them last year, although real estate companies were most likely to have been hit with more than three such actions.
What Litigation Concerns Are On the Horizon? – Reflecting the types of cases in-house counsel currently face, contract and labor/employment actions topped the list of matters that U.S. counsel were most concerned about for the future. Number three was IP disputes, followed by class actions. For counsel at $1 billion-plus companies, however, class actions rose to the number two spot, over concerns about contract-based litigation. Technology companies are far more focused on IP/patent issues then any other industry, whereas real estate and energy companies are understandably more concerned than other sectors about environmental/toxic tort litigation. Professional services litigation naturally was the leading concern for health care companies, but not for others, while insurance litigation was of principal concern only for those in the insurance industry. Only the financial and real estate industries had serious concerns about securities litigation/enforcement in the future.
Read the whole thing. Well, actually, don't.

Friday, December 02, 2005

ACLU Sues the CIA, Challenges "Extraordinary Rendition"

The ACLU will be suing the C.I.A. (at least according to this BBC Report) alleging C.I.A. officials broke U.S. and international law "when they authorised agents to abduct an innocent man, detain him in incommunicado, beat him, drug and transport him to a secret CIA prison in Afghanistan. . ." The BBC refers to a press release, but I can't find it on the ACLU website yet nor a copy of the complaint. I assume at least part of the claim will be brought under the Alien Tort Statute alleging violation of customary international law, but I'll have to wait and see.

I've called this and other lawsuits challenging the U.S. government's conduct in the war on terrorism the "Third Wave" of Alien Tort Statute lawsuits (see here for my essay). The first wave was against foreigners, the second was against corporations, and the third is increasingly against the U.S. government itself. Each lawsuit may have merits in their own right, but I have to believe that these third wave lawsuits will ultimately lead to the eventual elimination of the ATS in its current form.

Is Life Imprisonment an "Unusual" Punishment?

For the last several years Mexico had certainly thought so. But on Tuesday, Mexico’s Supreme Court decided to lift a ban on extradition of persons who would be subject to life imprisonment, reversing an earlier 2001 decision that had found such extraditions violated the prohibition on “unusual penalties” in Article 22 of the Mexican Constitution. As a result of the 2001 decision, hundreds, if not thousands of fugitives had been able to avoid extradition because U.S. prosecutors could not give assurances that life imprisonment was off the table or were unwilling to press lesser charges that did not involve such a penalty. I find the Court’s decision to reverse its earlier ban interesting for international lawyers on no less than three levels.

First, it opens the door to resolving a nascent treaty dispute over whether Mexico could deny extradition of U.S. nationals on the basis of the potential life imprisonment sentence to be imposed. Under Article 1 of the 1978 U.S.-Mexico Extradition Treaty, Mexico agreed to extradite to the United States persons charged with 31 named offenses (e.g., murder, robbery, fraud) which are punishable by not less than one year in prison. Article 8 makes an exception, however, for capital punishment cases, such that Mexico would not have to extradite someone who would be subject to capital punishment, unless it receives assurances from the United States that the death penalty would not be imposed, or, if imposed, not executed. Those assurances, however, by their terms only extend to capital punishment cases, not life imprisonment. Separately, under Article 9, Mexico does not have to extradite its own nationals, provided it submits their case to its competent authorities for purposes of prosecution. Thus, even though Mexico could argue the treaty allowed it to decline extradition of its own nationals whether or not life imprisonment was at issue, it did not seem to have a textual claim for doing so for non-Mexican nationals, even if its Constitution required such a result. The Court’s recent decision, however, removes this problem and should ensure Mexico can more fully comply with the treaty.

Second, the fact that for four years Mexico did not extradite persons who faced possible life imprisonment, reminds us that the United States is not the only state to take a dualist stance on the relationship between international and domestic law. In the United States, the Supreme Court has made it clear that treaties cannot contradict the Constitution. Mexico’s treatment of the life imprisonment question suggests it takes a similar approach. Even though the Extradition treaty required Mexico to extradite non-nationals for life imprisonment offenses, such extraditions did not take place given the finding of a constitutional prohibition.

Finally, the decision could also suggest an easing of tensions in the longstanding dispute over the legality of various U.S. law enforcement activities vis-à-vis Mexico and Mexican nationals. Mexico’s earlier objections have been well publicized, from its outrage over the U.S. abduction of Dr. Alverez-Machain to its more recent efforts in the Avena case and elsewhere to obtain new trails for Mexican nationals on death row who had not received consular notification under Article 36 of the Vienna Convention on Consular Relations. Combined with President Bush’s earlier decision on the Avena case, Tuesday’s court decision suggests that conditions may now be more favorable to greater law enforcement cooperation between U.S. and Mexican officials.

I would be interested in whether readers have alternative perspectives on this issue as well as the underlying "why" question – why did the Court change its opinion after only 4 years? Was it influenced by the fact that its prior interpretation had put Mexico in breach of at least some of its treaty obligations? Could the reluctant shift in the U.S. position on consular notification and the death penalty have influenced the Mexican Supreme Court to soften its own stance? Or, could the court be responding to different pressures, namely the recently enacted State Department Appropriations Bill, P.L. 109-102. Section 583 of that Act prohibits (subject to waiver) certain financial assistance to any “country with which the United States has an extradition treaty and which government has notified the Department of State of its refusal to extradite to the United States any individual indicted for a criminal offense for which the maximum penalty is life imprisonment without the possibility of parole.” Congress clearly had Mexico in mind when it passed that law. So, I wonder how much Mexico’s Supreme Court had that bill in mind when it decided that life imprisonment isn’t such an “unusual" punishment after all.

International Law in the South Africa Gay Marriage Case

In Minister of Home Affairs v. Fourie the Constitutional Court of South Africa yesterday recognized the marriage of two women and gave the Parliament one year to extend legal marital rights to all same-sex couples. A copy of the opinion is here.

Just a quick thought on one aspect of the Court decision, namely its methodology in relying on international law. If you are at all interested in the issue of constitutional comparativism, you really should read the entire international law section of the opinion (paras. 99-105) and the one passing reference I could find to comparative experiences. (para. 127, n. 119). International law was one of the four main arguments articulated for refusing to extend the right of marriage to gays and lesbians. (para. 84).

It should be emphasized that constitutional comparativism is not in the least suspect in the South African context. The key difference between the South African Constitution and the U.S. Constitution is that the former has a specific provision (Section 39) stipulating that "[w]hen interpreting the Bill of Rights, a court ... must consider international law." (See para. 99 discussing Sections 39 and 232). Thus, reference to international law in constitutional decision-making in South Africa is not only recommended, it is textually required.

At first blush what is most intriguing to this American about Fourie is its apparent facial incompatability not only with its own celebrated comparative approach in the death penalty case of Makwanyane, but also with the comparative approach urged by the U.S. Supreme Court in the recent decision in Roper v. Simmons.

In Makwanyane, the South African Constitutional Court relied extensively on international and comparative experiences to inform whether the death penalty was consititutionally suspect in that country. (paras. 33-109) The Court there argued that "The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention." (para. 34).

In Roper the U.S. Supreme Court concluded that there was near universal international support for abolition of juvenile capital punishment, both in state practice and international agreements. The U.S. Supreme Court seized upon this fact to conclude that the Eighth Amendment must be read consistent with this international standard of decency.

In Fourie, by contrast, only four countries in the world recognize gay marriage (Netherlands, Belgium, Spain, and Canada), and the government expressly relied upon international law to maintain that the current international law standard does not recognize homosexual marriage. That standard, the state argued, should inform whether to extend the right in South Africa.

The approach taken by the South African Constitutional Court in Fourie does not inspire confidence for the future of constitutional comparativism. Unlike in Makwanyane, the Court all but ignored comparative law and severely discounted the importance of international law. It recognized that while there is no international law support for gay marriage, neither does international law expressly prohibit it. "[W]hile it is true that international law expressly protects heterosexual marriage, it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples..." (para. 105). This suggests that international law is not being used as confirmation of a standard, as in Roper and Makwanyane, but simply as a floor that can be ignored as necessary.

Instead of relying on international law to articulate an international standard of decency and equality, the Court opted for a breathtakingly open-ended version of living constitutionalism, quite literally a constitution with limitless horizons: "[E]ven if the purpose of the [international] instruments was expreslly to accord protection to a certain type of family formation, this would not have implied that all other modes of establishing families should for all time lack legal protection. Indeed, rights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on new texture and meaning. The horizon of rights is as limitless as the hopes and expectations of humanity." (paras. 101-02).

The Court also undescored that international law can only be used to expand rights, not contract them. "It would be a strange reading of the Constitution that utilised the principles of international human rights law to take away a guaranteed right." (para. 104). So we should use international law to interpret the Constitution, but only if we use it as an intepretive device to grant a right, not curtail one?

In light of these excerpts, query whether you can square the comparative approach in Fourie and the comparative approach in either Makwanyane or Roper. As the former decision is still fresh off the press, I have not had the chance to think it through fully. But they do not seem particularly consistent with each other, to say the least.

As I have written elsewhere, it appears that constitutional comparativism is a one-way ratchet. Fourie certainly leaves one with that impression. If international and comparative law does not support the expansion of rights, it will be discounted. If international and comparative does support the expansion of rights it will be used as confirmation of what the Constitution requires. This gives one pause, causing many to wonder if the goal of this project really is a thorough-going methodology of international norm internalization, or a selective and results-oriented borrowing of international source material to reach a desired result. This only underscores the fears of skeptics that the constitutional comparativism game is rigged.

If you want to know the comparativists' game plan for discounting the importance of international and comparative law when it affords less capacious protections than they would like, just take a look at Fourie.

Thursday, December 01, 2005

When Pacifists Become Hostages

The story coming out of Iraq of four members of Christian Peacemaker Team being held hostage by an insurgent organization provides a new twist on hostage-taking in Iraq. There are several factors that make this situation so complicated.

First, these hostages are pacifists. CPT is founded by Mennonites and Quakers and is one of the latest incarnations of that long pacifist tradition. These hostages are prepared to die as a witness to the cause of peace. As the BBC reported, their commitment to the cause of peace is no less strong than a soldier's commitment to the cause of war. "We are convinced they are on the wrong track as soldiers, so we are challenging ourselves and asking: 'Do we not have as much faith and as much courage as soldiers have and are we willing to put our own lives on the line'?"

Second, they are opposed to the war in Iraq and even blame the Americans for their plight. According to the organization's website, they "are angry because what has happened to our teammates is the result of the actions of the U.S. and U.K. governments due to the illegal attack on Iraq and the continuing occupation and oppression of its people." This perspective seems to conflate but for with proximate causation.

Third, they do not want ransom payment or armed intervention to rescue them. According to this report, CPT "policies state that ransoms will not be paid for workers taken hostage [and] ... its members ... do not use armed protection in Iraq, are prepared to die for peace and would eschew the use of violence to rescue hostages." What they want, apparently, is to make a statement. The CPT members had previously issued a "statement of conviction" expressing the hope that "in loving both friends and enemies and by intervening non-violently to aid those who are systematically oppressed, we can contribute in some small way to transforming this volatile situation."

So what should be our response to the plight of such hostages? CPT has stated that "[o]ur experience is that violence can be disarmed with the witness to peace, truth, love and justice. The willingness to give life instead of taking life is very powerful." I have spoken with pacifists I know well and they say that their deaths will make a profound statement for the cause of peace. But a statement to whom? The bloodthirsty radical insurgent groups bent on killing civilians? The allied forces in Iraq? The public or politicians back home?

In some respects it appears their non-violent peacemaking efforts are intended to be a modern manifestation of Martin Luther King's nonviolent civil rights movement or Gandhi's nonviolent revolution in India. I am quite familiar with the peacemaking movement that spawned those great successes. But the enemy here is an altogether different animal than the "enemy" in those celebrated causes. How will nonviolent protests from the likes of CPT members work in a situation like Iraq? Any clarification would be most welcome, as I just don't see how the violent death of these hostages will have the intended effect they envision. I suspect that if the hostages are killed, it will only embitter the public against this enemy and embolden the soldiers to root out the insurgents by force. The death of these pacifists will not beget peace, but only further violence.

Prior to leaving for Iraq, one of the hostages, Norman Kember, age 74, was quoted on this video as saying "I've done a lot of writing and talking about peacemaking ... but that is what I would call 'cheap peacemaking.' This is a bit more costly, or could be." Indeed.

Fourth Circuit Slaps Government on Padilla?

SCOTUSBlog notes that the Fourth Circuit has, unusually, denied the government's unopposed motion to transfer former enemy combatant Jose Padilla to civilian custody. Instead, it has ordered the government to brief the question of whether the Fourth Circuit should vacate its current judgment upholding Padilla's detention as an enemy combatant in light of the new facts revealed by the government in Padilla's civilian court indictment.

It is somewhat unclear what this means, although it probably isn't good news for the Government's effort to keep the Fourth Circuit panel opinion (which basically upholds the Government's views) the law of the Fourth Circuit, thereby supporting its ability seize other enemy combatants in the future. Either way, Padilla will eventually be transferred. The only question is whether the Government will have to discard its enemy combatant theory (doubtful) or whether it will have to explain more about why it has changed Padilla's designation.

Wednesday, November 30, 2005

Is the U.S. Still a Signatory to the ICC Statute? It Depends on Who You Ask

The International Criminal Court Assembly of States Parties has opened their second session in the Hague this week. The Assembly of States Parties is composed of representatives of all of the governments party to the ICC Statute, that is to say, those countries that have signed and ratified the ICC Statute.

Of course, the U.S. has famously revoked its signature to the ICC Statute. Or has it? According to the ICC's official statement, the U.S. is a "observatory signatory." That is, the U.S. is not a party "to the Statute but ha[s] signed either the Statute or the Final Act of the Rome Conference. . ." As such, it "may be [an] observer[] in the Assembly. Observer States are allowed to participate in the deliberations of the Assembly, but may not participate in the taking of decisions."

Does "unsigning" even matter if the U.S. is not a party to the treaty? It might, because states that sign a treaty generally have an obligation to try to comply with the treaty until it ratifies. This obligation is one of the reasons the U.S. tried to "unsign" back in 2001. In any case, it looks like the ICC hasn't accepted the U.S. revocation of its signature. This might or might not matter, but it is certainly a strange situation. Perhaps it represents the ICC's wishful thinking -- if they can just hold on until 2008 and President Hillary...

Charming Treaties

First of all, I want to thank Chris, Peggy, Julian and Roger for letting me spend some time here at Opinio Juris. As an avid reader, I’m looking forward to the opportunity to exchange ideas with other Opinio Juris readers.

To that end, I want to start off with a question about judicial treatment of non-self-executing treaties. U.S. courts have certainly devoted considerable (albeit often inconsistent) attention to the question of when to enforce a U.S. treaty by declaring it “self-executing” or “non-self-executing.” But the inquiry always seems to end once a court decides the treaty in question is “non-self-executing.” Having made that determination, U.S. courts generally view such treaties as irrelevant to the case at hand.

What I am wondering is why courts don’t proceed to apply the Charming Betsy canon—i.e., “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” 6 U.S. (2 Cranch) 64, 118 (1804). After all, U.S. treaty practice is not to join a treaty unless the necessary domestic steps have been taken for the United States to be able to comply with the treaty. Sometimes this will require new legislation (e.g., the Senate gave advice and consent to the Basel Convention in 1992, but the United States has not ratified it pending the enactment of existing legislation). But other times the United States goes ahead and joins the treaty under the assumption that existing legislation meets the treaty’s requirements. This was the case, for example, with U.S. adherence to human rights treaties such as the ICCPR where, subject to the U.S. reservations and understandings, the Executive Branch (with Senate concurrence) took the position that existing law generally satisfied U.S. obligations under the treaty. If that’s true (and certainly we could debate the U.S. interpretation of what the treaty required), why don’t courts who decide a treaty is non-self-executing look at whatever law the United States indicated was the basis for U.S. adherence and analyze it with an eye to the treaty itself? Why not apply the Charming Betsy canon to non-self-executing treaties?

Let me be clear -- I’m not suggesting direct judicial enforcement of such treaties, although I suspect some might view a Charming Betsy analysis as a back-door way of doing so. Rather, I am suggesting that courts that decide not to enforce a treaty directly could still utilize the treaty as an interpretative tool with regard to whatever law(s) the Executive Branch indicated was the basis for U.S. adherence to a treaty in the first place. I wonder whether such an approach could bridge the gap between those who object to giving treaties direct legal effect and those who want to ensure treaties receive recognition as the supreme Law of the Land under Article VI? I’d be interested in whether people are aware of any courts taking the approach I am suggesting (I think some WTO caselaw might lean this way but wonder whether the Uruguay Round Agreements Act makes it a case sui generis)? If there’s no existing precedent on this front, do people think it would be a feasible or appropriate thing for U.S. courts to do?

My Final Post - Growing Tensions Between U.S. and Europe

Today is my last day as a guest-blogger here at Opinio Juris, and so I'd like to begin by thinking Peggy, Roger, Julian, and Chris for their hospitality. I must say that I have a new respect for the effort that they put forth in generating the wonderful product from which we all benefit on this blog. Let's hope they keep at for a long time to come.

On to more interesting matters...this just isn't a good week for the U.S. vis-a-vis cooperation with our European allies with respect to counterterrorism. Yesterday, an Italian judge determined that a former diplomat at the U.S. embassy in Rome who was, apparently, the CIA's Chief-of-Station at the time, should not receive the benefit of diplomatic immunity with respect to the arrest warrant issued in connection with the extraordinary rendition/seizure of Egyptian cleric Osama Moustafa Nasr. Don't hold your breath on any U.S. citizens being extradited in connection with this case, of course. Meanwhile, both the Council of Europe and some member states continue to move forward with investigations associated with claims that the CIA operates "black site" detention centers for high-level al Qaeda detainees in undisclosed European locations (or at least transships such detainees through European airports).

That's all for now. It's been a real pleasure!

Comparative Law and Language

Larry Solum at Legal Theory Blog is highlighting a chapter entitled Comparative Law and Language by Vivian Grosswald Curran in a forthcoming book The Oxford Handbook of Comparative Law edited by Reinhold Zimmermann and Mathias Reimann. From the abstract it sounds quite interesting:
Comparative law is law's cybernetics, or 'theory of messiness.' It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law's traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular.

The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today's world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge.

Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning.

Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other.

Executive Treaty Interpretations

Federal courts routinely assert that they are bound to give deference to treaty interpretations adopted by the Executive branch. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1992) (stating that the "meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight"). And, at least as an anecdotal matter, conventional wisdom holds that the executive viewpoint does prevail in most, if not quite all, instances. But is conventional wisdom accurate on this score? I'm inclined to agree that courts do tend to conform to the executive viewpoint, but it also seems likely that the nature of judicial deference to executive treaty interpretations might vary in different contexts.

Potentially relevant variables might include: the manner in which the Executive's "view" is made known to the court (e.g., the view might be stated by the U.S. as a litigant in its own brief; it might be stated by the U.S. as amicus; it might be stated in diplomatic correspondence that is brought to the attention of the court by private litigants; or it might be implicit in U.S. practice which is then brought to the attention of the court by litigants); whether the Executive's "view" was presented to the Senate during the process of obtaining its consent to the treaty (an issue that generated considerable debate during the 1980s in connection with the Reagan Administration's proposed reinterpretation of the ABM Treaty); whether the current Executive view departs from a prior view; and, of course, the subject-matter in issue. The more one thinks about these and other potential distinctions, the more it seems that it would be a mistake to view judicial deference to executive treaty interpretations as a monolithic phenomenon.

Why do I mention all of this? Well, I've recently drafted an essay setting forth my initial thoughts on the topic, and am now in the process of collecting cases in connection with a quasi-empirical inquiry into the matter. I'd be quite grateful for any suggestions that readers may have as I go about refining the design of this project.

Salvadoran Torture Victims Win $6 Million Verdict

Somehow in the Thanksgiving rush this important story escaped my attention. Last week a jury in Memphis, Tennessee awarded $6 million to four victims of torture in the early 1980s. Nicholas Carranza, a former colonel in the Salvadoran Army, was held responsible for the torture of the plaintiffs and the death of family members. CNN has a brief story here. A more detailed analysis is provided here by a NGO group, the Center for Justice and Accountability, that brought the litigation. The law firm of Bass, Berry & Sims was co-counsel with CJA and has a story of the verdict here.
Two things are worthy of note. First, unlike Filartiga and similar ATS torture cases, this case involves command responsibility. Carranza as a commanding officer was found liable for ordering the torture, not commiting the acts. According to CJA, "[t]he verdict represents the first time that a U.S. jury in a contested case has found a commander liable for crimes against humanity."
Second, it is particularly alarming that a former U.S. Ambassador to El Salvador, Robert White, as well as Carranza himself both testified that Carranza had been receiving money from the U.S. government since 1965 as a paid informant of the CIA. These payments continued while Carranza was Vice-Minister of Defense and a member of the High Command in 1980. According to CJA, Ambassador "White asked the CIA station chief in El Salvador to remove Carranza from the CIA payroll because of his deplorable human rights record but no action was ever taken."
On the heels of my last post about Doe v. Israel describing how difficult it is to win most human rights cases, it is important to note that sometimes ATS plaintiffs are able to secure stunning courtroom victories. As one plaintiff put it, "Now that the jury has held Colonel Carranza responsible for these crimes my family has finally found the justice that we have been seeking all these years."

Tuesday, November 29, 2005

Welcome to Guest Blogger Duncan Hollis

Professor Duncan Hollis of Temple University School of Law will be blogging with us for the next month. Professor Hollis is a specialist in treaty law and has edited a new book, National Treaty Law and Practice. Other examples of his scholarship can be found on his SSRN page. Prior to entering the academy, Professor Hollis was in the U.S. State Department, where (among other things) he worked on treaty affairs, international environmental matters, and also served as Counsel to the United States in the provisional measures phase of the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) and contributed to the U.S. presentation in the Oil Platforms Case (Iran v. United States).

Welcome to Opinio Juris!

Case of the Month: Doe v. Israel

My vote for the most important international law case in November is Doe v. Israel, ___ F.Supp.2d ___ (D.D.C. Nov. 10, 2005), available here. The case arises out of claims by Palestinians living in Israel or the West Bank against public and private Israeli defendants, including Ariel Sharon, Shimon Peres, the State of Israel, Israeli government instrumentalities, and various private defendants, including Israeli West Bank settlers.
The case has virtually everything. The claims range from the exotic (genocide) to the mundane (trespass), with over a dozen others thrown in for good measure. You get the impression the plaintiffs opened the human rights playbook and threw everything they could possibly think of at the defendants. According to the opinion, "The complaint exceeds 140 pages and includes nearly 600 paragraphs, broadly alleging that plaintiffs, or their loved ones, have been personally and financially injured by the actions of the Israeli defendants-and those acting under their command or policies-regarding settlement activities in the West Bank." The defendants responded in kind and raised the ramparts high, including every obstacle they colorably could propose.
Most important, the case offers a primer on many, if not most, of the issues typically addressed in an international litigation class: ATS, TVPA, RICO, jus cogens, the political question doctrine, the act of state doctrine, head of state immunity, sovereign immunity, FSIA exceptions, the Hague Service Convention, jurisdictional discovery, personal jurisdiction over private defendants, and the extraterritorial application of substantive laws. If you wanted a good introduction to the salient issues in human rights litigation, Doe v. Israel is not a bad place to start.
What is most interesting about the case is that it illustrates just how difficult it is to clear the many hurdles that stand in the way of most human rights cases. As Doe v. Israel underscores, there are a host of procedural and substantive doctrines that have been established to restrain judicial interference with foreign affairs. Each doctrine has its place, but the combined effect is to make it exceedingly rare for a human rights case to run the gauntlet and secure success in the end. This is as it should be, for these doctrines were designed to ensure that only a special and narrow category of international human rights cases will survive scrutiny. Any other approach would risk having a wide range of international disputes resolved in U.S. courts. It would be, for example, a strange development indeed if a large portion of the Palestinians' grievances against Israel were resolved in a federal courthouse in Washington D.C.

Monday, November 28, 2005

Gareth Evans on the “Dogs that Don’t Bark”: Are regional and international peacekeeping efforts reducing the incidence of war?

The LA Times recently carried this op-ed by former Australian FM Gareth Evans on the successes of preventive diplomacy and peacekeeping (perhaps better described as peacemaking) missions around the world. He cites the Human Security Report 2005 for evidence that the incidence of war is on the decline, and that third-party interventions (diplomatic, sanctions, military deployments) play a large role in the success stories.

As Evans notes, one of the problems of measuring success is how to determine the conflicts that were avoided – the Holmesian (Sherlock, not Oliver Wendell) “dogs that did not bark.”

There are many reasons for these turnarounds. They include the end of the era of colonialism, the aftermath of which generated two-thirds or more of all wars from the 1950s to the 1980s. The end of the Cold War meant no more proxy wars fueled by Washington or Moscow, and it also hastened the demise of a number of authoritarian governments that each side had been propping up and that had generated significant internal resentment and resistance.

But the best explanation is the one that stares us in the face: the huge increase in international efforts to prevent, manage and resolve conflicts.

The best stories are the ones that do not reach the evening news: the dogs that never barked. Using the hard lessons learned from the disastrous days of the early 1990s in places such as Bosnia, Rwanda and Somalia, the international community is much better now than it ever used to be at preventing conflict. Between 1990 and 2002, the number of U.N. diplomatic missions aimed at stopping wars before they started increased sixfold, according to the Human Security eport. Although sometimes an imperfect tool, economic sanctions against abusive regimes around the world increased elevenfold between 1989 and 2003. Early and sensible action in places such as Burundi, Indonesia and Macedonia has kept most Americans blissfully unaware that these were countries that recently veered away from the large-scale violence that has plagued them in the past.

Evans is a proponent of the doctrine of the “responsibility to protect” – an effort to create a norm that the international community has not a right, but a duty under international law to go into states where through armed conflict, mass human rights violations or large-scale humanitarian disaster, the state has not protected the most basic rights of its inhabitants. Evans explained the concept in this article (via the International Crisis Group website) in Foreign Affairs last fall:
Using this alternative language will help shake up the policy debate, getting governments in particular to think afresh about what the real issues are. Changing the terminology from "intervention" to "protection" gets away from the language of "humanitarian intervention." The latter term has always deeply concerned humanitarian relief organizations, which have hated the association of "humanitarian" with military activity. Beyond that, talking about the "responsibility to protect" rather than the "right to intervene" has three other big advantages. First, it implies evaluating the issues from the point of view of those needing support, rather than those who may be considering intervention. The searchlight is back where it should always be: on the duty to protect communities from mass killing, women from systematic rape, and children from starvation. Second, this formulation implies that the primary responsibility rests with the state concerned. Only if that state is unable or unwilling to fulfill its responsibility to protect, or is itself the interpetrator, should the international community take the responsibility to act in its place. Third, the "responsibility to protect" is an umbrella concept, embracing not just the "responsibility to react" but the "responsibility to prevent" and the "responsibility to rebuild" as well. Both of these dimensions have been much neglected in the traditional humanitarian-intervention debate. Bringing them back to center stage should help make the concept of reaction itself more palatable.

What do OJ readers think of the “responsibility to protect?” Is it just another name for “humanitarian intervention?” Or does it imply a new conception of sovereignty itself, conditioned on “right conduct” at home and within the international community? Comments are open.

Radical Islam and the Egyptian Elections

Results from the Egyptian elections reveal that members of a radical Islamic group, the Muslim Brotherhood, have won up to 29 more seats in the 444 seat Egyptian parliament. Members of that group now have 76 seats overall, or 17 percent of all parliamentary seats. As the Financial Times has noted, "President Hosni Mubarak’s National Democratic party still looks set to retain a large majority in spite of its losses but the elections have underlined Washington’s dilemma in pushing for greater democracy in the Middle East." The next test will come December 1, when the Muslim Brotherhood will field candidates to fill 49 of 136 seats.

The Bush Administration hopes that the hallmark of its second term will be the spread of democracy in the Middle East. Experts speak of "the Bush Administration's unprecedented willingness to publicly criticize oppressive actions ... by friendly governments" in the Middle East. The American-sponsored Greater Middle East Initiative is a call for the G-8 to promote democracy in the region by committing to free elections, sponsoring parliamentary exchange and training, increasing women's participation in the legislative process, promoting judicial and legal reform, enhancing an independent media, promoting transparency, and developing civil society. A Brookings Institution scholar has praised the GMEI, stating that "The new GMEI draft reveals that the United States is no longer alone in its quest to address the region's acknowledged deficits in freedom, knowledge, and women's empowerment, but has engaged its European allies in a fruitful discussion of how to go about promoting reform."
If you are uncertain of Bush's commitment to democracy in the Middle East, read this speech, and this, and this, and this. Especially telling are the parallels Bush draws between Reagan's efforts at democratization in Europe and his own in the Middle East:
"President Reagan said that the day of Soviet tyranny was passing, that freedom had a momentum which would not be halted.... A number of critics were dismissive.... According to one editorial of the time, 'It seems hard to be a sophisticated European and also an admirer of Ronald Reagan.' In fact, Ronald Reagan's words were courageous and optimistic and entirely correct.... And now we must apply that lesson in our own time. We've reached another great turning point -- and the resolve we show will shape the next stage of the world democratic movement."
A senior State Department official told me last month that the top foreign policy objective of the Bush Administration's second term would be the global march toward democracy. Time will tell whether this is in fact true. Other priorities compete for prominence, including "access to oil, cooperation and assistance on counterterrorism, fostering peace between Israel and its neighbors, stemming the proliferation of weapons of mass destruction, and preventing Islamist radicals from seizing power." Bush's response to the success of the Muslim Brotherhood in the Egytpian electoral process will be a good test of his priorities. In past meetings with Mubarik, Bush has avoided the issue, strongly praising Mubarik's support in the global war on terror, while also encouraging the "ongoing debate on reform in Egypt, including the excellent discussions involving civil society representatives from the Arab world." But what happens when civil society reform shows itself to be decidedly uncivil?

Despite the fact that there arguably has never been a truly free Arab democracy in 1,500 years, we may be on the cusp of a nascent move toward democracy in the region. There are encouraging signs of democracy's progress in Iraq, Afghanistan, Lebanon, Palestine, and Egypt. One wonders if we are witnessing an inchoate Arab democracy movement that will revolutionize politics in the Middle East. The rosiest vision is that democracy will flower there much as it did with the Polish Solidarity movement in the early 1980s, which in a few short years revolutionized politics throughout Eastern Europe. But even if democracy in the Middle East one day mirrors Eastern Europe, we should expect both successes and a share of setbacks.

Of course, the Muslim Brotherhood is a far cry from Polish Solidarity. The great risk of democracy in the Middle East is that free and fair elections will result in dramatic in-roads for radical Islam. Middle East suffrage may portend suffering at the hands of a tyrannical fundamentalist majority. Alternatively, budding democracies in the Middle East may exhibit a strong commitment to fighting Islamic terrorism, but not prove particularly successful in combating it.

In the end, I share the assessment that "the Arab world's authoritarian political climate has itself fueled the growth of militant Islamist movements ... In an environment where freedoms of speech, association, and assembly are heavily restricted, Islamists also enjoy a natural advantage because they can organize and express themselves through mosques and other religious institutions, where governments are typically reluctant to intervene. If relatively free and fair elections are held under such conditions, radical Islamists are likely to achieve inflated electoral success.... [But] the risks in giving democracy a chance in the Arab world are more manageable than the risks of appearing to be indifferent to this popular aspiration."
One might say that it is exceedingly unlikely that any country that belongs to the axis of democracy will also become a member of the axis of evil.

Sunday, November 27, 2005

Ramsey Clark to Defend Saddam Hussein

Today it was announced that former U.S. Attorney General Ramsey Clark will join the defense team for Saddam Hussein.

This is good news. It should dispel any notion anywhere in the world that this is not a serious trial with top-notch defense counsel. In the words of Robert Jackson, this should "dispose of the contention that to put [this man] to trial is to do [him] an injustice entitling [him] to some special consideration. [This] defendant may be hard pressed but [he is] not ill used." Saddam will be but the latest leader "of a defeated nation to be prosecuted in the name of the law, ... [and] also the [latest] to be given a chance to plead for [his] life in the name of the law."