Saturday, December 17, 2005

International Law Is Part Of Our Law, Or Is It?

Last Monday, I attended a conference at Vanderbilt Law School, sponsored by the American Society of International Law’s Interest Group on International Law in Domestic Courts. It was a great conference on many levels. For one thing, it afforded me the chance to see several of my Opinio Juris colleagues--Julian, Peggy, Roger and recent alum, Bobby Chesney--in person (for those of you looking for gossipy details, let’s just say what goes on at the conference, stays at the conference). On a more academic note, I had an opportunity to present my own work in progress, Executive Federalism, which I’ll post on later.

For now, I wanted to flag a paper presented by Professor William S. Dodge of the Hastings College of Law, entitled “The Story of The Paquete Habana: Customary International Law as Part of Our Law” which is available here on SSRN. At a time when so many law students (and their professors) are preparing for their international law exams, it is worthwhile to read Professor Dodge’s take on this chestnut of the public international law course. Professor Dodge offers both an historical and theoretical context for Justice Gray’s famous statement that “international law is part of our law.” More interestingly, Dodge rejects reading the Paquete Habana to support the idea that a "controlling executive act" may supersede customary international law. Check it out.

Using State Tort Laws to Combat Terrorism Abroad

While on the subject of the extraterritorial application of state laws, a federal district court in Washington D.C. this week rendered an important and puzzling decision applying state tort laws to combat terrorism abroad. The case of Damarrell v. Iran concerns the Iranian government's involvement in the Beirut embassy bombings of 1983, one of the defining moments in the modern era of terrorism. As the court correctly notes, “the bombing was the first large-scale attack against a U.S. embassy anywhere in the world.”

The claims were brought against Iran and its intrumentalities pursuant to the Flatow Amendment of the FSIA. Recent D.C. Circuit opinions in Cicippio-Puleo and Acree ruled that the Flatow Amendment, while a valid exception to the FSIA for terrorism claims, does not itself create a private right of action. In response, the district court in Dammarrell authorized the claimants in this case to amend their complaint to plead specific causes of action under the common law or statutes of their respective home states.

This week the court in Dammarrell ruled that the claimants were entitled to $126 million against Iran. But it did so on the basis of state tort laws for wrongful death, battery, and the intentional infliction of emotion distress. That’s right, the state tort laws of Georgia, Florida, North Carolina, New York, Texas, Virginia, and the District of Columbia were applied extraterritorially to combat terrorism in Beirut. Notably absent from this decision, or any other Dammarrell decision, is the word “extraterritorial.” There was absolutely no discussion of the presumption against extraterritoriality for this patchwork of state tort laws.

I am a strong advocate of using U.S. courts to fight state-sponsored terrorism against the United States and U.S. citizens. I therefore welcomed the Flatow Amendment. But it seems odd, to say the least, that we are applying state tort laws for battery, wrongful death, and emotional distress to combat terrorism in Beirut. If we can use those laws to combat terrorism, what prevents their use in others contexts for lesser evils? If a soccer hooligan violently assaults an American at a Chelsea football game in London, is that cognizable too? If not, why not under Dammarrell? It would seem that relying on the antilogy of this decision, every American tourist abroad is a walking vehicle for the potential application of their state tort laws against anyone anywhere who commits an intentional tort against them. Now that's what I call tort reform.

One can hardly fault the claimants, as it appears the court previously instructed them to amend the complaint to include state law causes of action. But if the Flatow Amendment does not create a private right of action, and state tort laws do not evince a legislative intent to be applied extraterritorially, what are claimants to do? The court earlier this year had ruled here and here that the TVPA does not apply to foreign states and there is no federal common law private right of action. And, of course, the ATS cannot be invoked by American citizens.

It seems odd to say, but Americans still have no obvious statutory basis for a private right of action to combat state-sponsored terrorism abroad. State tort laws will (or should) have difficulty overcoming the presumption against extraterritoriality, and all federal causes of action appear wanting. I always hate it when academics blithely suggest amending statutes, but perhaps the only obvious (but unlikely) solution is a legislative override of Acree and Cicippio-Puleo, or an amendment to the TVPA to address this most egregious form of state-sponsored extra-judicial killing.

Friday, December 16, 2005

Declaring War and Executive Power

In the run-up to the invasion of Iraq, I published an op-ed in the Detroit News (8/28/02; the page is no longer available on the paper's web site, but if you want to see it, email me and I'll send it to you) arguing that the president did not need Congressional authorization to deploy troops for the invasion. My claim was that over time, as a result of precedent and Supreme Court rulings, Congress had effectively ceded the power to command troops to the president. However, Congressial war powers are still very important, and take two distinct forms. One is the power of the purse: If Congress is truly opposed to the use of force, they can cut off funding. Second, a formal declaration of war is essential if the president wants to mobilize or use the domestic arena in pursuit of the military objective. For example, during the Korean War, President Truman wanted to seize a steel mill that had been shut down by a strike, arguing that it was a critical part of the war effort. The Supreme Court, in Youngstown Sheet & Tube Co. v. Sawyer (United States Supreme Court, 1952), declared the seizure unconstitutional, as it was an executive order that infringed on an individual's status, and therefore was legislative in nature. In his opinion for the court, Justice Black wrote that although the President is Commander-in-Chief, this role does not carry over into the domestic arena, but applies only to the actual prosecution of the hostilities. Therefore, if the president, in the course of prosecuting a conflict, needs to seize an industry, establish rationing patterns or special production schedules, or suspend the writ of habeas corpus, he must have a declaration of war from Congress. I concluded the piece by arguing that while the president could invade Iraq without a declaration of war, he might not want to, as the very nature of the war made it likely that he would in fact want to operate in the domestic arena.

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that "all of the resources of the country are hereby pledged by the Congress of the United States." This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal. And legal or not, it is certainly troubling. Especially in a war that has few metrics for victory (and I refer here to the war on terror, not the war in Iraq), it seems imperative that the president's power to do things like this be controlled by Congress.

The Legally Meaningless McCain Amendment

As Duncan notes below, President Bush has reached a deal with Senator John McCain on the so-called anti-torture bill. I agree with Duncan that as a political, and maybe as a moral matter, the bill is a victory for McCain and critics of the U.S. detainee policies. I disagree with Duncan, however, that the bill is a "legal victory". As a legal matter, I think the bill is largely meaningless.

Human rights groups are declaring the final bill, which had been the subject of substantial negotiations, a complete victory. According to Human Rights First, “All U.S. personnel – the military, the CIA, everyone -- will now be on notice that torture and abuse are illegal, and those who engage in it will be subject to prosecution. Secretary Rice toured Europe last week claiming this is U.S. policy -- and now it will be a clear U.S. law. Practices like waterboarding, stress positions, sleep deprivation and hypothermia are off the table."

Human Rights First is a great organization but they are stating their aspirations for the bill - not what the bill actually does...

(1) Torture has always been (since 1996) illegal under U.S. law, no matter where it takes place

I am distressed at how the media and otherwise smart and thoughtful lawyers have mischaracterized his bill as a ban on "torture." Even President Bush says that this bill "prohibits" torture. But "torture", as defined in the Convention against Torture, is already illegal under U.S. law, whether at home or abroad. This bill does not ban torture, at least as it is defined in U.S. treaty obligations and in U.S. law. This bill bans "cruel, inhuman, and degrading" treatment (CIDT), which as I will explain, is also already illegal under U.S. law.

(2) CIDT overseas is already illegal
As I noted, though, Secretary Rice's statements last week clarified and perhaps shifted U.S. policy to accomplish the same exact legal result. This bill simply codifies the policy that the U.S. government has already adopted, and which arguably was always the policy of the U.S. government (although poorly enforced).

(3) The definition of CIDT has not changed
It is far from clear that practices like "waterboarding" are off the table. The McCain bill adopts the definition of "cruel, inhuman, and degrading" treatment that was already established U.S. law - "CIDT" equals the prohibitions imposed by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. "Waterboarding" may be immoral, but it still may not violate the U.S. Constitution. The bill adopts the lowest possible standard for CIDT. The only thing the bill arguably does is clarify that this ban applies to U.S. personnel overseas, which may not have been true before. (UPDATE: Although for a more aggressive reading of the language, see this article by Andrew McCarthy who suggests that the bill may actually require Mirandizing alleged terrorists overseas.

(4) There is still no enforcement mechanism
Moreover, the McCain bill itself is studiously silent on how it would be enforced (at least the last version I saw). Would alien detainees be able to bring civil suits? Does it create criminal liability? If so, what are the penalties? Who knows? The most likely mechanism are prosecutions under the Uniform Code of Military Justice, but what about CIA interrogators?

o o o

Everyone is kidding themselves if they think this is going to change the legal landscape dramatically, if at all. I think the bill is worth passing however, because I think it will push the Administration to focus on improving the implementation of the law regulating treatment of detainees. The implementation of the law has been the real problem, and hopefully, this bill will shift the focuse away from abstruse legal arguments and toward the nitty-gritty of trying to come up with effective but humane policies for interrogating detainees in the war on terrorism.

A Legal (and Moral) Victory Over Torture

Those in favor of a “gloves off” approach to the war on terror are finding themselves increasingly isolated both politically and legally. Last week, Secretary of State Rice made front-page news with her pronouncement that “As a matter of U.S. policy, the United States’ obligations under the CAT [the Convention Against Torture], which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.” Julian has argued that this represented a shift in policy, although Marty Lederman over at Balkinization disagrees.

Today’s news is more significant. President Bush, after months of opposition by his office (and notably personal lobbying by Vice President Cheney), has accepted Senator John McCain’s amendment to the Defense Appropriations Bill. The McCain Amendment, as it is known, will ban all U.S. government personnel from engaging in cruel, inhuman or degrading treatment of detainees -- which is defined in terms of the Due Process Clause's “shock the conscience” standard -- anywhere in the world. Evidently, even the CIA will be covered under the Bill, although Senator McCain did accept certain additional protections for civilian interrogators equivalent to those already available to military interrogators (I’m not an international criminal law expert, but it’s interesting to note that McCain was quick to disassociate these new protections from the superior orders defense denied at Nuremberg). Why the capitulation? Well, on Wednesday, the House of Representatives backed the McCain Amendment by a vote of 308-122, following an earlier 90-9 favorable vote by the Senate in October. Those votes suggest any President Bush veto of McCain’s amendment might not have withstood a Congressional override.

Obviously, this represents a moral victory for those opposed to torture, the kind of conduct witnessed at Abu Ghraib and extraordinary renditions, regardless of what the terrorists do. At the same time, from a legal perspective, the McCain Amendment may reflect a shift in the locus of power which has resided almost entirely with the Executive since 9/11. Senator McCain’s campaign signaled the willingness of certain legislators to take back a Congressional role in the conduct of U.S. foreign affairs, a role now cemented in an amendment that by all accounts will become law in the days ahead. Of course, perhaps the most important question will be whether these laws actually change U.S. conduct on the ground, and, in doing so, improve the United States’ moral standing in ways that advance (rather than restrain) further efforts to achieve success against terrorism in all its forms.

Thursday, December 15, 2005

The Noble Lie and International Politics

In the December 19th issue of the New Yorker, Orhan Pamuk (one of my favorite writers, the author of Snow and My Name is Red) has a fascinating piece about his impending trial in Turkey for insulting "Turkish identity" by discussing the Armenian genocide following World War I. Pamuk discusses his confusion at why a state like Turkey that is having so much trouble convincing the EU that it is sufficiently "Western" and "European" to merit membership would be pursuing such a troubling course of action. From an IR perspective, the answer is something along the lines of the limitations that law has to compel or induce states on issues of critical national importance. But, why would this issue, which is certainly not controversial to or disputed by most historians, constitute a sufficiently important issue that Turkey would be willing to jeopardize its EU accession talks? I'm reminded of the noble lie in Plato's Republic, in which it is acknowledged that all states have their origins in brutality and blood, and therefore all states create national myths about their foundings that obscure those origins. These lies, while repugnant, may be necessary in the eyes of states for maintaining national identity and patriotism. So, international institutions may be limited in their ability to affect Turkish behavior on this issue. We can only hope, as does Pamuk, that the Turkish judge feels differently.

Enforcing Law and Punishing Syria, Part 2

Unsurprisingly, and as I suspected, the UN is having difficulty maintaining its focus in the investigation into Syrian involvement in the assassination of Lebanese former Prime Minister Rafik al-Hariri. And, while the investigation has been extended by six months, several members of the Security Council, including Russia, China (both with veto power) and Algeria, have resisted calls to accuse Syria of uncooperative behavior and to pressure Syria towards greater cooperation with the probe. This points out a serious problem for the UN specifically, and the prospects of international law more generally, (which I'll address in more detail tomorrow when I get a break from grading final exams) namely the tension between the sovereign equality of states and the need to enforce law and punish violators. Until the UN resolves this tension (which I don't think is likely), it's ability to uphold international law will be limited, at best.

Arab Silence in Response to Ahmadinejad's Remarks

The West has shown an impressive display of shock and disgust in response to Ahmadinejad's remarks yesterday that the Holocaust is a myth. But as reported here, the silence from the Arab world has been deafening. "While official Arab reaction in such cases is usually slower than international reaction, any issue involving a defense of Israel is a thorny one for Arab governments, who risk appearing to side with Israel against a Muslim nation."

Why is an admission that the Holocaust actually occurred and that millions of Jews actually were killed sixty years ago in any way perceived to be an appearance of siding with Israel? What kind of courage is required for a moderate Muslim leader to say that simple truth?

Live Blogging the Iraqi Elections

Pajamas Media has a nice set of stories from Kerbala, Basra, Baghdad, Babil, Mosul, Kirkuk and elsewhere in Iraq on the Iraqi elections. Just click here and then the left-hand menu gives you snapshot stories and pictures of the election in different cities.

This is very interesting stuff coming out of Pajamas Media, although I must say the contrast between pictures of serious Iraqi women voting in Iraq and wearing full-body abayas and hijabs juxtaposed right next to perky Victoria's Secret models selling Christmas lingerie is a bit jarring.

Alaskan State Criminal Statute Applied in Canada

If someone sexually assaults a woman in Canadian territorial waters, where would you expect that person to be prosecuted? Why, in Alaska of course. Earlier this week the Alaska Supreme Court rendered an unusual decision in State v. Jack addressing the question of whether a state criminal statute against sexual assault could be applied extraterritorially to prosecute someone who committed the act in the territorial waters of Canada.

I'm all in favor of prosecuting persons who commit sexual crimes in Canadian territorial waters. But the question is, by whom and under what law? I am not a maritime expert, but it would appear the options are prosecution under the law of the coastal state (Canada) or prosecution under the law of the flag (United States). But in the latter case, does the law of the flag refer to state or federal law? One would have thought federal law.

There are two remarkable aspects of the decision. First, the Alaska Supreme Court ruled that the statute’s reference to commission of the crime on the “high seas” could encompass the territorial waters of Canada. The relevant Alaska statute provided that “The jurisdiction of the state extends to … the high seas to the extent that jurisdiction is claimed by the United States of America, or to the extent recognized by the usages and customs of international law or by agreement to which the United States of America or the state is a party.” It made no reference to jurisdiction over the commission of crimes in the territorial waters of another country. Nonetheless, the Court ruled that "[i]n view of the broad interpretation that should be given to the statute, we think that the State’s definition [of ‘high seas’] encompassing all ocean waters beyond the boundaries of the low-water mark is appropriate.” The obvious problem, of course, is that criminalizing conduct on the high seas does not encroach on the territorial sovereignty of another country, whereas criminalizing the commission of a crime in Canada has the potential to encroach on Canada’s authority as the coastal state, not to mention U.S. federal authority as the flag state.

Second, the Alaska Supreme Court broadly construed the effects doctrine to encompass this sexual assault. It ruled that “the Alaska ferry route to the state of Washington is an important transportation link between the state and the contiguous forty-eight states. Most of the cities and towns in Southeastern Alaska served by this link lack any road access. Further, the ferries are important to the tourism industry. As the State puts it: ‘If people believe that crimes can be committed on ferries traveling to Alaska without any real risk of being prosecuted, it will have a harmful effect on Alaska’s welfare--particularly on the personal security of ferry crew members and persons traveling to and from Alaska on ferries as well as on tourism and the economy.’ These interests are substantial and suffice to satisfy the application of the effects doctrine in this case.”

Unfortunately, it appears the Alaska Supreme Court fails to appreciate the full nature and purpose of the effects doctrine. The doctrine was developed to address extraterritorial economic violations that caused direct and substantial effects on the U.S. domestic market. This seems a somewhat strained interpretation for upholding a criminal conviction for sexual assault based on the potential economic harm to Alaskan tourism, particularly in the absence of some cognizable legislative intent to address such economic harms.

The prospect of a patchwork of state criminal laws regulating extraterritorial crimes occurring in the territorial waters of other countries should give one pause. For example, if Jack is correct, then potentially several coastal U.S. states on the Pacific or Atlantic seaboard could plausibly regulate crimes of this sort occurring in the territorial waters of Canada, Mexico, or various Caribbean countries. And of course, Canadian provinces potentially could assert a claim to do the same in U.S. territorial waters.

Wednesday, December 14, 2005

Airstrikes on Iran Move One Step Closer to Possibility as Ahmadinejad Declares Holocaust a "Myth"

While on the subject of the Holocaust, in case you missed it, the madness of Mahmoud Ahmadinejad is now nearing clinical diagnosis with his latest remarks. As reported in the New York Times, Ahmadinejad had this to say today: "Today, they have created a myth in the name of Holocaust and consider it to be above God, religion and the prophets ... If you committed this big crime, then why should the oppressed Palestinian nation pay the price? This is our proposal: if you committed the crime, then give a part of your own land in Europe, the United States, Canada or Alaska to them so that the Jews can establish their country." Mahmoud Ahmadinejad appears to seriously think that Israel should relocate. Now ask this: Exactly how do you move a country against its will? One can see how Israel might interpret this "proposal."

At this moment Israel reportedly is preparing for airstrikes on Iran in March. As reported in the London Times, "defence sources in Israel believe the end of March to be the 'point of no return' after which Iran will have the technical expertise to enrich uranium in sufficient quantities to build a nuclear warhead in two to four years. 'Israel — and not only Israel — cannot accept a nuclear Iran,' Sharon warned recently. 'We have the ability to deal with this and we’re making all the necessary preparations to be ready for such a situation.'"

The "Begin Legacy" of airstrikes on Iraq in 1981 is one step closer to reality for Iran.

Related Links:
The Madness of Mahmoud Ahmadinejad

New Book on Holocaust Restitution

The book that Michael Bazyler and I have been working on for over two years, Holocaust Restitution: Perspectives on the Litigation and Its Legacy (Bazyler & Alford, eds., 2006) is now available for purchase at Amazon here or NYU Press here.
The book has received good reviews (available here) such as IAGS President Israel Charney's blurb that the book is "an invaluable text for students and scholars as well as a fascinating read for all those concerned with Holocaust and genocide issues in all disciplines and on behalf of all victims."

The book is the culmination of months of effort to convince almost all the major players in the Holocaust litigation drama to put pen to paper and retell the story from their own perspectives. It is divided into six sections: Overview, Bank Litigation, Slave Labor Litigation, Insurance Litigation, Looted Art Litigation, and The Litigation's Legacy. It includes chapters from the top diplomats (including Stuart Eizenstat and Otto Graf Lambsdorff), top historians (including Michael Berenbaum and State Department historian William Slany), top plaintiffs (including Burt Neuborne, Mel Weiss, Gideon Taylor, and Robert Swift), top defense counsel (including Roger Witten and Owen Pell) and prominent judges (including Thomas Buergenthal and Edward Korman). The full list of all contributors is available here. In all, we have gathered 38 contributors who have written over 30 chapters.

Since the "Look Inside This Book" feature is not yet available on Amazon, I will give you a sense of its contents from the Introduction:
Holocaust restitution is not about money. It is about victims. It is about individuals who have waited sixty years for something. Of course it is not about 'perfect justice,' a phrase that may never pass one's lips in the same breath as 'Holocaust.' But it is about waiting for some recognition, some voucher to validate the misdeeds that have been perpetrated.... [But] Holocaust restitution is not only about the victims. It also is about those who victimized. As German president Johannes Rau put it in the December 1999 ceremony on the signing of the German slave labor settlement, ... 'I know that for many it is not really money that matters. What they want is for their suffering to be recognized as suffering, and for the injustices done to them to be named injustices. I pay tribute to all who were subjected to slave and forced labor under German rule and, in the name of the German people, beg for forgiveness.' Such an apology is, in the words of one survivor, a 'moral victory that will live forever.' It is a recognition that promises a cleansing for the chlidren and grandchildren of those who victimized. It offers, if you will, a release from their past too. Holocaust restitution, then, is about satisfying the victims' and the victimizers' historic need for a moral accounting regarding the horrific events that transpired during and after the Second World War.
If you are interested in Holocaust restitution as a scholar or lay person, I would encourage you to purchase the book. I'm not tooting my own horn when I say that it was a joy to work with these great people and I think you will find it a delight to read.

Tuesday, December 13, 2005

Strawberries versus Skin Cancer

That's a central question for states as they gather this week in Dakar, Senegal for the 17th Meeting of the Parties to the Montreal Protocol. Unlike its more controversial cousin, the Kyoto Protocol, the Montreal Protocol is widely regarded as the success story for using treaties to address a global problem -- i.e., the hole in the ozone layer. Although it's a harmful pollutant at ground-level, it is well documented that we need ozone gases in the atmosphere over our heads, as they block out harmful ultraviolet-B radiation from the sun. The less protection we get from the ozone layer, scientists say, the more we'll see incidences of skin cancer and weakened immune systems, not to mention damage to crop yields, fisheries, and other eco-systems. So, it was largely hailed as an achievement, when states banded together and agreed to limit their consumption and production of ozone-depleting substances. For example, you have the Montreal Protocol system to thank for no longer having ozone-depleting chemicals such as Freon or other chlorofluorocarbons (CFCs) in your automobile air conditioner or your refrigerator. Based on these results, UN Secretary General Kofi Annan has called the Montreal Protocol "[p]erhaps the single most successful international agreement to date."

But, we're not out of the woods yet, as there are still chemicals being produced today that threaten the ozone layer, most notably methyl bromide. Methyl bromide is a pesticide that protects certain crops, such as California strawberries and Florida tomatoes, from harmful organisms. Under the Montreal Protocol, as amended, developed states, including the United States, agreed to phase-out their consumption and production of methyl bromide by January 1, 2005, with a few exceptions, including one for "critical uses" as agreed by the parties to the treaty.

The problem was that the 2005 U.S. request for continued critical uses of methyl bromide not only exceeded all of the other states' critical use requests combined, but the levels requested by the United States actually exceeded the consumption and production limits EPA had put in place in 2003. The U.S. position is that its farmers need methyl bromide since it's often the only pesticide that really works; i.e., there are no technically and economically feasible alternatives to it. Thus, the claim, that without methyl bromide, you can forget about eating strawberries. On the other side, NGOs and, to a lesser extent a number of European states, have cried foul, suggesting the U.S. position is not science-based so much as it involves protecting the economic position of politically powerful lobbying groups in swing states at the expense of human health (i.e., increased rates of skin cancer) and the environment. There have also been allegations that the chemical manufacturers and distributors have long stockpiled methyl bromide in ways that won't be covered by the treaty, but which, when used, will actually affect the ozone layer.

The methyl bromide issue proved problematic in both of the last two Meetings of the Parties, each of which required separate Extraordinary Meetings of the Parties to deal with the question of how much of a critical use exemption to give the United States and other similarly situated states (disclosure notice: I served as the U.S. lawyer to some of these meetings in 2003 and 2004). In both cases, the United States generally got what it asked for. Thus, the score to date, strawberries: 2; skin cancer: 0.

But since the treaty requires the critical use exemptions to be approved on an annual basis, the game is far from over. I am sure the methyl bromide question will prove equally tough this week in Dakar. Without wading into the quagmire of how "critical" these continued uses of methyl bromide really are, I would expect that we'll see foreign states upping the pressure on the United States to demonstrate some political will to reduce its consumption and production of methyl bromide, regardless of whether it makes technical or economic sense to the individual farmers to do so. For example, the CFC phase-out originated before alternatives existed, and it was the phase-out itself that drove industry to find replacements. I would bet some states will take the position that the continuing broad availability of methyl bromide under the critical use exemption may actually have stymied such innovation here (although USDA says they're working hard on researching alternatives). In any event, keep an eye on the Montreal Protocol this week to see who wins the latest round. My money is on strawberries, although I'll use my winnings to buy SPF 40 for my kids just in case.

Council of Europe Finds Credible Evidence that US Detention Sites and Flights Were Unlawful, Investigation to Continue

Dick Marty, the Council of Europe Rapporteur to the Committee on Legal Affairs and Human Rights announced today that there is credible evidence of secret detention centers and of detainees being transported through Council member states without required judicial involvement. No detainees are currently being held by the United States in Europe, though Poland and Romania are believed to be the two European states in which the US operated the detention centers. Any detainees that had been held in Europe, Marty asserted, the US has moved to North Africa. Marty made clear that his report does not conclude that wrongdoing has taken place, but rather that the allegations of illegality -- most of which are familiar from press reports and from investigations by human rights groups -- are credible. His full report to the Council is due in January. Here are some excerpts from today's statement:

From a general point of view, the rapporteur underlined that the information gathered to date reinforced the credibility of the allegations concerning the transfer and temporary detention of individuals, without any judicial involvement, in European countries.

Legal proceedings in progress in certain countries seemed to indicate that individuals had been abducted and transferred to other countries without respect for any legal standards. It had to be noted that the allegations had never been formally denied by the United States. The rapporteur takes note of the situation and deplores the fact that no information or explanations had been provided on this point by Ms Rice during her visit to Europe.

The rapporteur urges all member governments to commit themselves fully to establishing the truth about flights over their territories in recent years by aeroplanes carrying individuals arrested and detained without any judicial involvement. The Rapporteur intends to ask the leaders of the parliamentary delegations to the Assembly to take initiatives within their parliaments in order to obtain more precise information on this matter, either by putting questions to their governments or by proposing the setting up of committees of enquiry. In fact, the delegations to the Parliamentary Assembly can make use of their unique position to lobby national parliaments to shed light on the matter. Mr Marty welcomes the fact that steps have already been taken here by certain national parliaments.

While it was still too early to assert that there had been any involvement or complicity of member states in illegal actions, the seriousness of the allegations and the consistency of the information gathered to date justified the continuation of an in-depth inquiry. If the allegations proved correct, the member states would stand accused of having seriously breached their human rights obligations to the Council of

In this connection, the rapporteur underlined that, although contacts between secret services were entirely normal and even necessary in the fight against terrorism, it was important for governments to exercise proper supervision over them (see here the detailed principles set out by the Assembly in Recommendation 1402 (1999) on control of internal security services in Council of Europe member states).

Dick Marty stressed that the aim of the Parliamentary Assembly, as the Council of Europe’s political/parliamentary organ, was not to condemn individual countries or seek to impose penalties but to defend the values shared by the member states and combat terrorism resolutely and thoroughly, while, however, complying with the fundamental principles of states founded on the rule of law and the observance of human rights.

The full press release from the Council is here. I am not familiar with the principles governing intelligence service cooperation in the Council, but it appears that the investigation is focused on the extent to which the members of the Council have complied with those as well as other minimum human rights requirements in the Charter.

As I blogged last week, the European investigations will likely remain a focus of trans-Atlantic relations until the Council investigation is complete and, perhaps until some of the legal proceedings (including this case brought in Italy against CIA officials) are resolved.

NB: The Italy case raises some interesting questions about the application of consular immunity to a U.S. intelligence officer operating under official consular/diplomatic cover.

France's Rift: Culture, Not Color...

... this is the title of an op-ed in today's International Herald Tribune by Spencer Boyer. Spencer and I were law school classmates and I appreciate his insights.

His essay returns to a topic that we have discussed here on Opinio Juris--the riots in an around Paris--but he is provocative in how he assesses prejudices on both sides of the Atlantic. Here are a couple of excerpts:

I had my first interaction with the French police on a December night in 1991. I had recently moved to Paris, and was strolling back to my tiny apartment in an exclusive neighborhood. I probably looked scruffy in my old army jacket and jeans. Suddenly two unmarked police cars pulled up. Four officers climbed out, asked where I was going, and demanded to see my "papers." But when I began speaking French, one of the officers heard my accent. "Oh, you're American? Please excuse us. Have a great evening."

I was stunned. Americans had warned me that the French didn't welcome people of color and constantly harassed Arabs and Africans. But I soon learned that being an African American in France is wonderful. I was generally treated better than I would have been back in the States...

Throughout the 20th century, legions of black American artists, writers, and jazz musicians escaped racism at home by fleeing to Europe. Paris, in particular, has been a second home for black intellectuals such as Richard Wright and James Baldwin.

I have inherited that legacy. Europeans associate me with the aspects of America they embrace, especially African American art and music, and the historical struggle for freedom and civil rights - exotic, but not threatening. It never seemed to matter that I personally was not artsy or hip. I was "ethnic," but I wasn't an immigrant with a culture and customs that were so different as to be feared. I was Christian, not Muslim. Different, but not too different.

And this, in my experience, is why prejudice in Europe is such a dramatically different beast from prejudice in the United States. In America, prejudice has long been a question of color. In Europe, it's not about color, it's about culture. France doesn't have a race problem. It has a problem embracing the culture and customs of its immigrants and their children.

The whole essay is well worth reading.

Swedish Supreme Court Decision in Åke Green

An English translation of the Swedish Supreme Court decision in Åke Green was sent to me today by the religious liberty organization Alliance Defense Fund. A copy of the English translation is here (UPDATE: link now fixed). The original Swedish Supreme Court decision is here. In brief, the case involved the prosecution of pastor Åke Green for hate speech for preaching and publishing a sermon against homosexuality. The text of the sermon is here.

The most interesting aspect about the decision is that the Court viewed the Swedish constitution as imposing no impediment to his prosecution, relied almost exclusively on Green's rights under the European Convention on Human Rights, and then rendered its decision based on its understanding of what the European Court of Human Rights would do if seized with the case. It is an important example of a national court enforcing European Convention obligations in light of ECHR jurisprudence. Here is the key language:
It is not obvious that the constitutional protection of freedom of expression would constitute an impediment to convicting ÅG as charged....Nor does the Constitution in other respects prevent him from being convicted under the provision on agitation against a national or ethnic group....The assessment that then must be made is to what extent the European Convention affects the issue of responsibility for ÅG. Freedom of religion is there regulated in Article 9 and freedom of expression in Article 10...

Freedom of religion under Article 9 includes freedom, either alone or in community with others, and in public or private, to manifest one’s religion or belief, in worship, teaching, practice and observance. Freedom of expression under Article 10 includes the right to receive and impart information and ideas without interference by public authority. Both freedoms may be subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of health or morals, or for the protection of the rights of others. In other respects it can be noted that freedom of religion may also be restricted to protect public order and freedom of expression to prevent disorder or crime and for the protection of the reputation of another....

What is conclusive seems to be whether the restriction of ÅG’s freedom to preach is necessary in a democratic society, which means that an evaluation must be made of whether the restriction is proportional in relation to the protected interest....In view of the central significance a religious conviction has for the individual, it must be assumed that when applying the European Convention some restraint must be maintained with regard to approving restrictions as legitimate under Article 9. The equivalent applies if ÅG’s statements were to be judged in accordance with Article 10. The European Court of Human Rights’s practice in applying Article 10 may provide guidance even if the assessment is on the basis of Article 9....

In an overall assessment of the circumstances – in the light of the practice of the European Court of Human Rights - in the case of ÅG it is clear at the outset that this is not a question of such hateful statements that are usually referred to as hate speech. This also applies to the utterance of his that may be regarded as most far-reaching, where sexual abnormalities are described as a cancerous tumor, since the statement, seen in the light of what he said in connection with his sermon, is not of such a nature as can be regarded as promoting or justifying hatred of homosexuals. The way in which he expressed himself cannot perhaps be said to be so much more derogatory than the words in the Bible passages in question, but may be regarded as far-reaching even taking into account the message he wished to convey to the audience. He made his statements in a sermon before his congregation on a theme that is in the Bible. The question of whether the belief on which he based his statements is legitimate or not is not to be taken into account in the assessment...

Under such circumstances it is probable that the European Court of Human Rights, when examining the limitation on ÅG’s right to preach his ideas based on the Bible which a verdict of guilty would constitute, would find that the limitation is not proportionate and thereby would constitute a violation of the European Convention.

Monday, December 12, 2005

Enforcing the Law and Punishing Syria

Lots of news today regarding the involvement of Syria in Lebanese politics and specifically the assassination of former Lebanese Prime Minister Rafik a-Hariri. On the same day that the UN annouced that it has new evidence of Syrian involvement in the assassination and accused Syria of obstructing the investigation, a car bomb exploded in Beirut , killing a prominent anti-Syrian legislatorGebran Tueni (suspicious, no?).

Now, while we haven't seen the complete results of the UN investigation into Hariri's death, nor do we know whether Syria will be implicated in today's bombing, let's assume that Syria is eventually determined to be complicit, if not responsible, for both acts. Here is an excellent test of whether the UN is willing and able to enforce its own laws. Assassination of the political leaders of another state is, short of naked aggression, about the most clearly illegal act one state can take (leaving aside the question Julian considers here of targeted killings/assassinations during times of war). Will the UN punish Syria? Will Russia accept the evidence and judgment against its former client and refrain from vetoing any sanctions? My guess is that international opinion and pressure will be so overwhelming that Russia will go along with any punishment against the Syrian state, but that the punishment will be sadly weak. Sanctions are a fairly inefficient tool of statecraft, have little effect (link is to the JSTOR database; subscription required), and typically punish the civilian population more than political leadership (I'll consider the problem of sanctions in a post later this week). So, for those of you who have faith in the UN and international law, how do you see this playing out? Will the UN be able to punish Syria sufficiently, and what form will that punishment take?

Top International Law Journal Or Mid-Level Mainline Journal?

Two stories on choosing between publishing in a mid-level mainline journal and an international law journal:

Story Number 1:
I had a colleague a few years back who was going up for tenure that year and had outstanding offers to publish her article from the Harvard International Law Journal and the Rutgers Law Review. She was particularly concerned that year about getting tenure first and foremost and therefore canvassed the opinions of various tenured faculty members about her choice. The uniform answer: Rutgers Law Review. As a tenured faculty though, she looks back on that decision with some regret and wishes that she had chosen the Harvard International Law Journal because she has a strong suspicion it would have been read and cited by more scholars in her field.

Story Number 2: I had a colleague at a major law school who is an old friend who doesn't write in the international law field but writes prolifically on the subject of negotiation. He did a one-off piece on negotiating the Middle East peace conflict. He called for guidance on where to place the article because he really wanted to target international scholars. He had an offer from Yale International Law Journal and wanted to know what was the cut-off for expediting with mainline journals that made it more worth his while to go with one of them instead of the YILJ. Given his objectives, I recall that I said something like top 25, otherwise go with YILJ. He ended up going with the Yale International Law Journal, and the article is cited quite frequently.

As most readers know, thanks to Washington & Lee Law School's "Most Cited Legal Periodical List" there is now objective data to assist in making such choices. According to that website these are the top ten international law journals in terms of citations (excluding Tulane Law Review which I don't count as a true international law journal), together with their overall rank among all law journals:

1. American Journal of International Law (#18)
2. Virginia Journal of International Law (#54)
3. Fordham International Law Journal (#61)
4. American Journal of Comparative Law (#69)
5. American University International Law Review (#75)
6. Harvard International Law Journal (#78)
7. Yale International Law Journal (#82)
8. Michigan Journal of International Law (#83)
9. Vanderbilt Journal of Transnational Law (#85)
10. International Lawyer (#99)

This is very helpful as far as it goes, but I am still troubled with the possible implications of this information. This data would suggest that by and large international law scholars will be cited with greater frequency if they go with mid-level mainline journals than top international law journals. But do our international law colleagues really read and cite those journals with greater frequency? Is it really better to go a with any top fifty law journal (such as Houston Law Review, or Depaul Law Review, or University of Cincinnati Law Review to name but a few) instead of a top five international law journal? I rather doubt it.

I would be quite curious what your opinions are on this topic, as it is a perennial problem for many international law scholars. Scroll down and vote.

Given the choice between any top fifty mainline journal or any top five international law journal you should publish in which journal:
One Of The Top Fifty Mainline Journals
One of the Top Five International Law Journals

Free polls from

Sunday, December 11, 2005

Israel Defends Legality of Targeted Assassinations

The Israeli Defense Forces has long used targeted assassinations to eliminate alleged terrorists, as Steven Spielberg's newest film Munich reminds us. Interestingly, the government of Israel is currently defending the legality of the practice, invoking the customary international law of war to justify its recent killing of two alleged Palestinian terrorists. The theory here is that after Israel withdrew from the Gaza strip, any assassinations in Gaza are legal attacks on Israel's military enemies on their own territory.

I have to admit I haven't thought much about the legality of assassinations or killings like this. The U.S. also engages in this practice, although I think the favored term is "killing" since assassinations are prohibited by Executive Order 12333 . Unlike Israel, though, the U.S. has not (to my knowledge) defended the legality of killings or assassination. I imagine, though, that when and if that time comes, the U.S. will look to Israeli courts for legal precedents.

Law Student Crowned Miss World

On the lighter side of international law, over the weekend a law student was crowned Miss World 2005. You would think the most beautiful law student in the world would attend the most beautiful law school, (as ranked by 100,000 students who attend elsewhere). But no, Unnur Birna Vilhjalmsdottir, 21, is a law student in Iceland of all places, and apparently a serious one at that. As reported here, Unnur was in China on a four-week tour with the other 101 Miss World contestants and while at the contest, she found time to continue her studies. “I brought my law books with me and study in the evenings after dinner."

I know at this point I should post a photo to drive up traffic, but I just can't bring myself to. Oh, and what was her response when asked if she could have one wish granted what would it be? You guessed it. "That the people on this planet could live in peace..."

Rice's Strategic Vision - A Democratic Peace, But What About International Law?

Secretary Rice continues her PR offensive. This time, her target audience is U.S. readers of the Washington Post's Sunday Outlook section and her topic is not torture, but a restatement of the Bush Administration's main strategic goals in foreign policy as the search for a Kantian(?) "democratic peace." None of this is new exactly, but it is interesting nonetheless. Here's a key graf:

Our experience of this new world leads us to conclude that the fundamental character of regimes matters more today than the international distribution of power. Insisting otherwise is imprudent and impractical. The goal of our statecraft is to help create a world of democratic, well-governed states that can meet the needs of their citizens and conduct themselves responsibly in the international system. Attempting to draw neat, clean lines between our security interests and our democratic ideals does not reflect the reality of today's world. Supporting the growth of democratic institutions in all nations is not some moralistic flight of fancy; it is the only realistic response to our present challenges.

This is all very well and good, but there is something missing. There was no reference to building a world of democratic states that band together through international treaties to develop a global rule of law. Or to strengthen international institutions like the U.N. There was, in short, no explicit reference to the development of international law.

Was this omission deliberate? You betcha!