Saturday, January 07, 2006

Muslim Immigration Changing the Face of Europe

There was an interesting radio interview earlier this week with Father Joseph Fessio, provost of Ave Maria University and also a student and close friend of Pope Benedict XVI on the subject of Islam in Europe. Particularly interesting is that Father Fessio participated in a September 2005 seminar with the Pope to discuss the topic of Western Civilization and Islam. The essence of Father Fessio's interview was that during this Papal seminar the discussion centered on how the demographics of Muslim immigration will radically change the culture of Europe. He suggests that Europe will eventually look like North Africa. Here is an excerpt:
First of all, we know what the first Europe looked like. I mean, that's where we all, most of us come from in our culture, and even our religious background. ... We can't predict what our role [as Christians] will be in society. But it's probably going to be as a minority.... In fact, this year, ... 2005, there were more Muslims born in France than people of traditional French background. Within four years, the top four cities in Holland will ... have a Muslim majority. I mean, if we look at the demographics, ... I don't see any other issue for Europe, or any result, than looking like North Africa.... Algeria, Morocco, Libya, Egypt, ... they were all Christian, thriving Christian communities ... in the early Church. And now, you can't profess your faith there.... I was in Rome, actually Castel Gandolfo, the Pope's summer residence, in September of 2005. His former students met with him, and the topic of our meeting was the Islamic concept of God, and its consequences for a secular society. And we had two people there who gave talks, one of them extraordinary, a man named Kalil Safir Kalil(?), who is an Egyptian born Coptic Catholic, Lebanese Jesuit priest who runs an Islamic-Christian center in Lebanon, and he's got a book called Ciento Domande Su Islam, 100 Questions On Islam. He knows it inside and out. And he quotes key Islamic leaders saying the following: Because of your religious tolerance in Europe, we will overtake you. We will be coming into Europe. Because of our religious beliefs, we will conquer you. I mean, there should be no doubt about it. They're intent, and I don't blame them for this. They believe they [have] got the true religion. They are going to overcome here. They've been trying to do it for... since the 600's.... I want to say without exaggeration, and without trying to become histrionic here, I see the trends... I've seen them for years, in Europe, of depopulation as you've mentioned. And their immigration is coming from the South, which is mainly Islamic. And there are, I think there are 98 Islamic countries in the world, and 97 of them do not have religious freedom.... And that's what's going to happen to Europe. Once there's an Islamic majority, it is going ... to eliminate religious freedom ... and therefore, Western civilization as we know it. However, in the United States ..., we also are not having children.... But where is our immigration coming from? From Ecuador, from Mexico, from Cuba, from Guatemala. And these people are Christians.... I believe we are in a world historical century.
I am by no means an expert on immigration demographics in Europe. But it is an interesting and important thesis. In fact, when I was in London last year I heard an Oxford don say much the same. In addition, my anecdotal experience of sending my children to the local schools in London was an overwhelming sense of the presence of a significant Muslim population. I would be most curious about what others who are more knowledgeable on the subject think about Father Fessio's thesis regarding the demographics of Muslim immigration changing the face of Europe.

Friday, January 06, 2006

More Hazards on Blogging in China

Disturbing news coming out of China that Microsoft has shut down a blog in China because of its political reporting. The blog is run by Zhao Jing under the blog name An Ti. If you go to An Ti's blog now here is what it says: "The space is temporarily unavailable. Please try again later."

So what was the offense? As reported in the New York Times:
The blog was removed last week from a Microsoft service called MSN Spaces after the blog discussed the firing of the independent-minded editor of The Beijing News, which prompted 100 journalists at the paper to go on strike Dec. 29. It was an unusual show of solidarity for a Chinese news organization in an industry that has complied with tight restrictions on what can be published.... Mr. Zhao said in an interview Thursday that Microsoft chose to delete his blog on Dec. 30 with no warning. "I didn't even say I supported the strike," he said. "This action by Microsoft infringed upon my freedom of speech. They even deleted my blog and gave me no chance to back up my files without any warning."
What is Microsoft doing collaborating with China to stifle fundamental free speech rights? A blogger is providing breaking news without commentary and he is shut down? Perhaps the Person of the Year Bill Gates should turn his attention to matters outside Africa and look to what his company is doing to aid and abet the infringement of basic civil liberties in China.
UPDATE: One of the comments provides a useful link to a proposal from Reporters Without Borders to address the problem of Internet companies who aid and abet the infringement of free speech rights. The article gives numerous examples of Internet companies' "ethical lapses" and offers a proposal for a legislative fix. Definitely worth a read.

Lessons from America's Longest Held Prisoner of War

In an isolated prison cell in the middle of the compound of the Federal Correctional Institute in Miami sits America’s longest held prisoner of war: General Manuel Noriega. The former head of the Panamanian Defense Force and de facto leader of that nation is no longer the defiant machete wielding strongman, but instead an aging relic of a very different national security era.

While the continued incarceration of General Noriega might not come as a complete surprise to many, his status as a prisoner of war protected by the Third Geneva Convention very well might. It indeed seems ironic that in the current era of intense debate over the applicability of this treaty to captured and detained “enemy combatants”, this notorious former “thorn in the side” of the first Bush administration continues to enjoy the benefits of this treaty as he serves his sentence for violation of U.S. domestic law.

Noriega’s status as a prisoner of war, trial, conviction, and continued incarceration offer several potential lessons related to the application of Geneva Conventions. First, how the government classifies a conflict significantly impact subsequent application of the law of war, and the relationship between law and policy in the execution of operations. Second, the conflict classification decision should not be based on political or policy expediency, but instead on the criteria provided by treaty, precedent, and highly respected commentaries. Finally, the liberal grant of prisoner of war status in no way constrains the power of our government to try and punish prisoners for pre-capture offenses.

Operation Just Cause, launched on December 19, 1989 to oust General Noriega and destroy the Panamanian Defense Force that sustained him, was the largest and most intense combat operation conducted by the United States since the Vietnam conflict. Although the combat phase of the operation was relatively brief, it involved fighting between U.S. and Panamanian forces, costing the lives of more than 20 U.S. servicemen and countless Panamanians. While this operation appeared to be a classic example of an international armed conflict, the U.S. government did not provide any conflict classification guidance for our forces until the operation was largely complete. As a result, U.S. forces began their operations without a formal determination of the legal status of the conflict, but instead resorted to the Department of Defense policy of applying the law of war to any armed conflict no matter how characterized.

For the hundreds of Panamanian Defense Force personnel captured by U.S. forces, this resulted in treatment “consistent with” the Third Geneva Convention. The U.S. never formally classified these captured personnel as prisoners of war, because subsequent to initiation of combat operations, the government determined that the conflict in Panama was not an international armed conflict. The rationale for this decision was that Guillermo Endara, the Noriega opposition presidential candidate who had by all accounts won a landslide victory in an election subsequently nullified by the General, had “requested” U.S. assistance. As a result, the U.S. government concluded that there was no dispute between Panama and the United States that led to the intervention of armed forces, and therefore the conflict in Panama was, at most, an non-international armed conflict with the U.S. assisting the legitimate government.

For most of the captured personnel, this decision had little consequence, as they were rapidly released at the termination of hostilities. General Noriega, however, was not so fortunate. As seen by the world on live television, he was ultimately captured by U.S. forces, and transported to the U.S, in his uniform, to stand trial for his alleged involvement in drug trafficking.

Once in the U.S., Noriega was brought to trial in the Southern District of Florida on the indictments that pre-dated the conflict and his capture. Noriega made a number of challenges to this prosecution based on international law, none of which proved successful. However, after his conviction, Noriega asserted his right to the protections and benefits of the Third Geneva Convention. In response, the government asserted the “invitational presence” theory originally relied upon to conclude the operation in Panama was not an international armed conflict. The District Court rejected this theory.

In an unequivocal opinion, Judge Hoeveler held that General Noriega was, as a matter of law, a prisoner of war. In what today seems like a prescient response to the government theory, the court emphasized the requirement to interpret and apply the Geneva Conventions broadly and in good faith. Consistent with this requirement, the Judge noted that conflict classification must be based on the de facto situation, and that the de jure status of the authority opposing U.S. forces is not the controlling consideration. So long as that authority possesses de facto control over the armed forces of the state engaged in conflict with U.S. forces, the international armed conflict test of the Geneva Conventions is satisfied. For the court, the situation in Panama fell so clearly into this category that it seemed to almost summarily dismiss the government theory:

The Convention applies to an incredibly broad spectrum of events. The government has characterized the deployment of U.S. Armed Forces to Panama on December 20, 1989 as the "hostilities" in Panama . . . However the government wishes to label it, what occurred in late 1989-early 1990 was clearly an "armed conflict" within the meaning of Article 2.

In reaching this conclusion, the court relied explicitly and extensively on the International Committee of the Red Cross (ICRC) Commentary to the Third Geneva Convention. This reliance reflected recognition of the value and the authority of this interpretive aid, so well understood by international law experts and practitioners.

Judge Hoeveler also addressed the government argument that it was not necessary to decide whether General Noriega was a prisoner of war because he would, as a matter of policy, be treated consistent with that status. The court rejected this argument, and noted the invalidity of attempting to substitute legal determinations with policy application:

The government's position provides no assurances that the government will not at some point in the future decide that Noriega is not a POW, and therefore not entitled to the protections of Geneva III. This would seem to be just the type of situation Geneva III was designed to protect against.

The limit of policy to resolve issues related to the law of war seems particularly significant today. Even in the most complex operational environment, it is critical for the government to make a timely conflict classification decision in order to establish the legal foundation to control operational execution. Policy then becomes a useful tool to address issues not covered by the applicable law. But when U.S. forces engage in missions involving the application of combat power, the foundation provided by the law of war applicable to either international or non-international armed conflict must be acknowledged at the outset of the operation. Policy may supplement this foundation, but should not be used as a substitute.

The court’s holding that General Noriega was entitled to prisoner of war status did not, however, prevent his criminal punishment for pre-capture violations of U.S. law. As noted above, Noriega remains both an inmate and a prisoner of war. This “dual status” is consistent with the provisions of the Third Geneva Convention, which in no way bars the prosecution and criminal sanction of prisoners of war for offenses committed prior to capture. The power of the detaining state bring such individuals to justice extends to violations of both the domestic law of the detaining state, as was the case with General Noriega; and international law, such as pre-capture violations of the law of war. Prisoner of war status does result in the requirement to comply with certain minimal procedural standards during such prosecutions, and respect for a number of very basic privileges while sentence is being served. But the example of General Noriega clearly demonstrates that these obligations are not particularly burdensome, nor did they in any way meaningfully interfere with the General’s trial and punishment.

The example of America’s longest held prisoner of war suggests that perhaps everything old is new again. This case seems to provide insight into a number of the significant issues related to the detention and punishment of individuals captured during the war on terror: the applicability of the Geneva Conventions; the relationship of law and policy; the value of the ICRC commentaries; the need to interpret this law in good faith; and the feasibility of reconciling prisoner of war status with criminal sanction. Perhaps because this case was decided in a national security atmosphere far less charged than today’s enhances the credibility to the reasoned approach reflected in the opinion. While there are undoubtedly distinctions between the nature of our current enemies and the enemy we confronted in Panama, the final sentiment expressed by Judge Hoeveler seems to provide an excellent perspective on the complex issues related to future application of the law of war:

In the turbulent course of international events -- the violence, deceit, and tragedies which capture the news, the relatively obscure issues in this case may seem unimportant. They are not. The implications of a less-than-strict adherence to Geneva III are serious and must temper any consideration of the questions presented.

Bush's Trade Agreement Legacy

In my estimation President Clinton's greatest economic achievement was securing the passage of the WTO and NAFTA. By contrast, to many trade experts the Bush Administration has not been a forceful proponent of free trade. Steel safeguards and Canadian softwood lumber are exhibits one and two for the case that, when necessary, this administration will sacrifice free trade for other policy or political objectives.

But there is one area where free trade is on the march because of President Bush. The Bush Administration is proving to be a landmark one in the history of trade for the establishment of new free trade agreements. Quietly and unassumingly, the Bush Administration is moving toward an impressive legacy of free trade agreements.

Already the Bush Administration has signed FTAs with thirteen countries: Chile, Singapore, Australia, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Morocco, Bahrain, Oman, and Peru. Of course, most of these fall within the rubric of CAFTA. With the signing of CAFTA, the United States now has trade accords with the two largest U.S. export markets in Latin America: Mexico and Central America. Consider this news summary on CAFTA:
The U.S. exports more than $15 billion annually to Central America and the Dominican Republic, making it the 10th largest export market worldwide, and larger than the export markets of Russia, India, and Indonesia combined. CAFTA levels the playing field, as 80% of CAFTA products already enter the U.S. duty-free under Caribbean Basin Initiative (CBI) and the General System of Preferences (GSP).
After CAFTA came Peru. On December 7, 2005 the United States signed a free trade agreement with Peru. Trade between the two countries exceeds $5.8 billion and U.S. exports to Peru in 2004 were $2.1 billion.

The remaining years of the Bush Administration will focus on new countries. Negotiations are under way with ten more countries: Colombia, Ecuador, United Arab Emirates, Panama, Thailand, South Africa, Batswana, Lesotho, Namibia, and Swaziland. Each individual country may not be a significant trading partner standing alone, but as noted here, "New and pending FTA partners, taken together, would constitute America's third largest export market and the sixth largest economy in the world."

Then in today's trade press comes the news that the United States is considering FTAs with Switzerland, Korea, Egypt, and Malaysia. The U.S. has set an informal late January or mid-February deadline for formally announcing that it is launching official negotiations with new FTA partners.

Thirteen FTAs so far. Ten more in current negotiations. The possibility of an additional four, including Switzerland. It may not be the WTO and NAFTA, but it is a quiet and quite impressive free trade agreement legacy.

Thursday, January 05, 2006

Supreme Court Grants Padilla Transfer

The Supreme Court has granted the U.S. government's request to transfer Padilla to civilian custody in Miami. The one-page order is here. The key language is the following:
"The Solicitor General has now filed with this Court an Application Respecting Custody and Transfer of Jose Padilla, seeking the same authorization previously sought from the Court of Appeals. Padilla has filed a response, arguing instead that the Court should delay his release from military custody and consider his release along with his petition for certiorari. The Government's application presented to the Chief Justice and by him referred to the Court is granted. The Court will consider the pending petition for certiorari in due course."
Scotusblog has the best coverage of the developments. For its discussion on the Government's Reply Brief, see here, Padilla's Brief, see here, the Government's Brief, see here, the Fourth Circuit Order see here, and commentary here, here, and here.

It has struck me all along that the Fourth Circuit's order denying transfer and the subsequent breathless commentary about the Government's "manipulations," the "remarkable" rebuke by the Fourth Circuit, and the "collision" over "inherent powers" was a bit overblown. The key concern of the Fourth Circuit was that the question of Padilla's transfer is best reserved for decision by the Supreme Court. The Supreme Court has now made its decision authorizing transfer. The only sign that the Court treated this matter with a greater sense of importance is the slightly longer length of the order and the referral of the question from the Chief Justice to the full Court.

We are talking, after all, essentially about a simple question of mootness. If the body has been produced and transferred, it would seem a habeas corpus petition is in serious jeapordy of mootness. The Supreme Court ruling suggests that the Court need not deny a transfer both parties desperately want simply to preserve the possibility of a claim on appeal. That would be an attempt by the judicial branch to create facts to affirmatively prevent mootness. As the Government reply brief put it, "A citizen remains detained in military custody as a result of the order of the court, not of a military officer or the President." We already have a rather pedestrian mootness doctrine that addresses the fundamental concerns underlying this transfer: capable of repetition yet evading review.

Wednesday, January 04, 2006

What Are the "Principles" of the Law of War?

When addressing the treatment of individuals captured or detained in relation to the War on Terror, the Bush administration routinely emphasizes the United States commitment to respect the “principles” of the Geneva Conventions. The most recent example of this came during the recent visit by the Secretary of State Rice to Europe, where she reassured her European counterparts that the United States remains committed to compliance with the “principles” of the Geneva Conventions.

Ironically, this reassurance came during the same visit in which Secretary Rice explained to the German Chancellor why a German citizen had been abducted, transported to Afghanistan, and detained for several months without the consent of the German government and based solely on a mistaken perception of “necessity”. Many critics might consider this a reflection of the consistent divergence between Bush administration statements and practice related to the “principles” of Geneva. However, the more troubling aspect of this example is that it reveals the simple truth that the Bush administration has never defined what it considers “principles” of the Geneva Conventions.

This use of this general concept of “principles” of the law of war without more specific definition is not new in the realm of planning and executing military operations. For the last two decades, the “principles” of the law of war have served as the foundation for Department of Defense law of war policy. According to Department of Defense Directive 5100.77, “The DOD Law of War Program”, the armed forces of the United States are obligated to comply with the “spirit and principles” of the law of war during all military operations, no matter how these operations were characterized as a matter of law. (Click here). This mandate was specifically intended to establish a baseline standard for U.S. forces applicable to military operations that ran the spectrum from non-conflict peacekeeping to high intensity armed conflict. Perhaps more importantly, it also ensured that during any military operation involving armed conflict, U.S. forces would apply the full range of law of war provisions as their “default setting” even in the absence of an official U.S. policy decision on the legal characterization of the conflict.

This policy mandate proved invaluable to U.S. forces during operations conducted in the absence of a timely conflict classification decision (such as Operation Just Cause in Panama) and during non-conflict operations (such as Bosnia). However, the Department of Defense never defined what rules constituted the “principles” of the law of war. Instead, defining the content of this mandate was routinely left to judge advocates providing advice in support of military operations. These officers were taught during their professional education that in so doing, they should interpret this mandate broadly and err on the side of humanitarian spirit of the Geneva Conventions. Accordingly, these officers learned that this umbrella term encompassed, at a minimum, three bedrock principles of the law of war: humanity (as reflected in the provisions of Common Article 3 and Article 75 of Additional Protocol I); distinction (as reflected in the rules related to military objective and precautions in the attack contained in Additional Protocol I); and the historically understood concept of military necessity. This was seen consistent with U.S. interests as it would assist in establishing and preserving the moral legitimacy of the overall U.S. effort.

Although this policy provided a basis for Judge Advocates to press for respect for the humanitarian objectives reflected in the law of war during all military operations, the lack of specific content rendered the mandate essentially malleable. This fact was clearly exposed following 9/11 by the policies, directives, and decisions that began to flow from the highest levels of our government. Perhaps the most prominent example of this development came in the form of the President’s February 7, 2002 memorandum addressing obligations towards Al Qaeda and Taliban detainees. In that memorandum, the President concluded not only that these detainees were not entitled to the protections of the Geneva Conventions, but that even the policy mandate that they be treated humanely was qualified “to the extent appropriate and consistent with military necessity.”

Qualifying the humane treatment obligation contradicts the longstanding understanding of the limited authority provided by military necessity, and therefore reflected a fundamental change in the application of the concept of “principles of the law of war” by the Bush administration. Using military necessity as an “override” provision to justify derogation of protections established by the law of war – particularly humane treatment – was universally condemned following World War II. Accordingly, military necessity justifies only those measures not otherwise prohibited by international law which are indispensable to bring about the prompt submission of an enemy. Ironically, it is this understanding of military necessity that is characterized as a “basic principle” in U.S. Army Field Manual 27-10, The Law of Land Warfare (

Subsequent decisions by the Bush administration seemed to confirm that the customary understanding of the universally binding nature of the principle of humane treatment had in fact been reassessed. As a result, military commanders and the judge advocates who advised them were left with even more uncertainty as they struggled to apply a “case by case” assessment of what this policy actually required.

This case by case approach to defining the content of the policy of compliance with the “principles” of the law of war raises serious questions as to true meaning of this commitment. Is the contemporary understanding consistent with the traditional “good faith” approach that served as the foundation for countless military decisions in the past? Or, has the concept of “respecting the principles” become a useful sound-bite in the information battle related to U.S. policy. Policy makers undoubtedly covet the flexibility that flows from an undefined general standard. However, the planning and execution of military operations to achieve national security objectives characterized as having the highest magnitude, in a legal environment laced with uncertainties (often caused by these same policy makers), justifies the official enunciation of a baseline list of rules derived from the law of war that fall under the term “principles.” Until this happens, the reality will unfortunately continue to be that the commitment of the United States to the “principles” of the Geneva Conventions and the law of war will mean whatever it needs to mean to achieve any given policy objective.

Deportation Proceedings and The Rights of the Child Convention

The Second Circuit last week rendered an important decision on the U.N. Convention on the Rights of the Child in the context of a deportation proceeding of an illegal alien. In Oliva v. U.S. Dep't of Justice, available here, the Second Circuit was faced with the question of whether the U.N. Convention on the Rights of the Child had achieved the status of customary international law such that the "best interests of the child" standard should be a primary consideration in determining whether to deport Oliva.

Oliva entered the United States illegally in 1992. He is the father of three children, two of whom live in Guatemala. The third child, a son, was born in the United States on May 21, 1997. Although Oliva is not married to this child's mother, he states that he lived with and provided support for her and their son. On February 25, 1998, INS issued Oliva a Notice to Appear to answer charges that he was present in the United States without having been lawfully admitted or paroled. In essence the issue is whether in deportation proceedings of an illegal alien the INS should take into account the fact that he is caring for a young American-born child.

Two provisions of the Convention at issue were Article 3(1), which states that "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration" and Article 7(1), which states that "as far as possible," a child shall have "the right to know and be cared for by his or her parents." Oliva submitted that, consistent with these provisions, he cannot be ordered removed from the United States without some hearing affording "primary consideration" to whether his removal would be in "the best interests of" his American son with whom he has resided while in this country.

While recognizing the customary international law is part of our law, the Court emphasized that resort to it is appropriate only "where there is no treaty and no controlling executive or legislative act or judicial decision" that speaks to the issue in dispute. This Second Circuit concluded that this principle controlled resolution of the appeal, for Congress has enacted legislation defining the circumstances under which hardship to a child may appropriately be considered as a ground for granting relief from removal to a nonpermanent resident alien, (8 U.S.C. § 1229b(b)(1)) and that statute, not international law, determines the outcome of Oliva's request for a hardship exception to removal.

That statute allows a hardship exception if removal "would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." But the hardship exception is only available if he "(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; [and] (C) has not been convicted of [certain specified offenses]."

Applying the statute, the Court concluded that the statute precluded his hardship claim, because he indisputably had failed the meet the ten-year requirement of Section 1229(b)(1). It refused to interpret the statute in light of international law under the Charming Betsy doctrine, finding no ambiguity in the statute. As a result, the Court avoided a direct finding that the Convention had achieved the status of customary international law binding in the United States.

As painful as the result is for Oliva and his eight-year old son, this is the right result. Congress has considered the criteria for hardship claims based on the impact of an alien's dependants, it has specified the criteria that must be satisfied for invocation of this hardship, and applying these facts, it is undisputed that Oliva does not meet the ten-year criterion. The Second Circuit correctly applied the law to the facts and concluded that deportation was required under the law. In so doing, it apparently had the unintended result of directly benefiting two children in Guatemala at the expense of one child in the United States.

Champagne Without the Caviar

I want to follow up on Chris's great post summing up our past year, but there's a lot there. So in the meantime, I thought I'd point out one definitely non-top 25 IL event for 2005 or 2006. The NYT reports that the secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora has suspended the export of caviar from 10 of the largest caviar-producing nations. To be precise, the secretariat has refused to release export quotas for sturgeon for 2006 until he gets more information of sturgeon stocks, thereby making export of caviar from 10 nations an international legal violation. Whether this "suspension" has any teeth is very hard to say. Much of the caviar trade is already illegal under domestic and international law. Moreover, the U.S. has already banned import of most caviar, but it is not the only or even the major caviar-importing country. The E.U. may actually be more important to the long-term effectiveness of this action, as the secretariat himself pointed out in his announcement. So we'll see. In any case, no caviar for us here in the States, and probably for you folks in Europe as well. It will be tough, but somehow we will all have to get by.

International Human Rites: A Response to Professor Weinberger

Seth has finished his very successful tenure as a guest-blogger here at Opinio Juris and his legacy goes on. One of his posts on the potential for universal human rights deeply intrigued a colleague of mine at Hofstra, Bernard Jacobs, a professor of constitutional law and a classics scholar. His thoughtful and interesting response to Seth's post is below:

I read with interest Professor Weinberger’s piece marveling at the possibility of conflict between International Human Rights and ‘local practice, custom and tradition in the developing worlds.’ Since I live in one of those developing worlds, the United States, I am very much aware of these conflicts.

So here’s an answer to Professor Weinberger’s challenge. It is not yet time for definitive codes of international law or international human rights. There is such a good chance that applying such codes hinders rather than helps. At some point international human rights may become international human rites.

I say that because local customs may, in fact, be necessarily local and, more than that, they may be a better social solution than the one that seems, due to your local customs, more reasonable. This is not a relativistic argument, but one that grows out of the contestedness of morality. Believe me, our local customs are constantly – even here in the backward U.S. – under great and continuing pressure from our striving with other rules and ways of doing things. I am amazed, not so much of different ways of living, but from my sense that so many of them may be right, but inaccessible or wrong, but all too accessible.

The rules we live by have not yet achieved the clarified status of ‘rights.’ The few simplistic rules-of-thumb that merit that status do not begin to deal with the real world, either local or universal. Unfortunately, the process by which, like sausage, human rights are turned out and let loose on the world, does not take that into consideration. There should be no ‘moral force’ in documents containing vague, flatfooted rules that are supposed to replace moral judgment. I eschew the rhetoric of human rights and of international human rights.

So the United States is out of step? Maybe that is so. But with what? The march of history has been a little discredited, and the paper-world of human rights is not a feasible substitute.

International Human Rights, my international law colleagues tell me, is too big a reality on the international scene to be dismissed. I certainly have to admit that the themes it provides are here to stay because they are too tempting to each nation or region or group as a stick with which to beat their rival nations, regions and groups over the head. Every kettle needs to call some pot black. That is what is behind so much of the fecund stew of U.N. conventions.

More than that I suspect that, to some degree, the many international organizations, multi-billion dollar NGO’s, State Department plums and self-congratulatory Institutes, Centers and Foundations at or near law schools all over the country, are united in only one thing. They are united in a rhetorical device, so that they may reduce the discussion of morality and of the careful, prudent management of foreign affairs, to a set of slogans or the unthinking affirmation of some fashionable theme.

Over the past thirty years Mrs. Roosevelt’s well-intentioned gift to the world has transmogrified into a vast structure, an industry, a complex set of careers. As always, institutional structures and dynamics take over. On one level they have become particular political programs and agendas. On another level they have devolved into ritual celebrations of a new personality. The embodiment of that personality I have never met, but it is one which many people the world over, and certainly many bureaucrats, deeply believe in. That mythical being — I dare not give the being a gender, for it does not itself know its gender ---- is the international human. This great being was never born nor raised, speaks no particular language, and has neither kith nor kin.

None of us, not even the International Human’s most impassioned followers, can achieve this wonderful – this immaculate — status. The poor followers do come from particular worlds, have particular needs and desires, and push particular agendas – especially, push agendas. So it is that I find it helpful to recall the friars of the late medieval world who wandered penniless offering solace and salvation. With them, one had to puzzle – sometimes – about whether what they offered was a genuine relic, was truly the toe bone of St. Thomas. I urge you to view claims of rules of international human rights in just that way; good relics are desirable, but are you, good friar or good Amnesty Internationalist, offering a real one. Let’s discuss that and postpone the celebration of international human rites.

Tuesday, January 03, 2006

International Law and Foreign Relations: The Year in Review

Blogging can be an ephemeral activity: reacting to the issue of the day, every day. We move so quickly from topic to topic, that it is easy to lose track of all the issues that (at one time) we thought were so important.

So here, in no particular order, is our take on the 25 (!) big stories in international law and foreign relations from the past year. This survey is idiosyncratic, not scientific. I wrote the first draft of the list based on our posts and then asked my co-bloggers to weigh in. The result is the following list.

I have included links to some (but not all) of our posts on each topic. I tried to link to the posts that represented our various views (if there were various views expressed) or that reflected how the issue evolved. I also did not include links to interesting discussions that were not about any single current event in particular. For example, we have had long ongoing debates on topics such as the function and role of the ICJ or the relation of law to hegemony, but those were more general discussions rather than posts about this year's events so they are not included.

Regardless, reviewing the posts from the past year, I am struck by the breadth of issues that arose. And also how quickly some of them were pushed aside by the Next Big Issue. The velocity of news is always accelerating. It will undoubtedly continue to do so in the next year.

Peggy, Julian, and Roger will likely post follow-ups on related topics that we discussed: which of these topics are especially important, what did we miss, what will be coming next? We also invite and encourage our readers to comment on this list and answer any of these (or other…) questions.

Happy New Year.

The Top Twenty Five Stories (in No Particular Order)

1. Katrina, Rita, and Posse Comitatus. Katrina and the other natural disasters of 2005 –along with the specter of catastrophic terrorism—led to a debate on posse comitatus.

2. The Tsunami and Worldwide Response. The tsunami and effort at a coordinated response to the humanitarian crisis it caused also had international legal implications which we considered here and here.

3. Iraq. Of course the War in Iraq was a major topic of discussion. While we debated some issues concerning the start of the war, we also focused on the international legal aspects related to the new Iraqi constitution and the transfer of power. See, for example, here and here.

4. The Hussein Trial. Whether the Saddam Hussein trial is the mother of all trials remains to be decided by history (though this first draft on history says "no"). For now, you can see this post with links to information about the Iraqi Special Tribunal, this post on the filing of charges and this one on Saddam’s courtroom antics.

5. Judge Green’s Guantanamo Decision. The continued detention of foreigners in Guantanamo Bay was another topic throughout the year. Here are two posts (one and two) on Judge Green’s decision.

6. Hamdan and Military Commissions. The detainee issue was also crucial in the DC Circuit’s opinion upholding the Constitutionality of military commissions. Julian noted how this opinion may be seen as a victory for the administration. Peggy looked at the implications for the application of the Geneva Conventions to al Qaeda detainees.

7. The Padilla Saga Continues. The story of particular detainee, albeit an American one--Jose Padilla, had numerous twists and turns this year, culminating in his indictment. See also this post.

8. The London Bombings. The latest al Qaeda attack didn’t so much bring new legal issues to the fore as it gave us reason to revisit an ongoing question: are such terrorist bombings and other attacks best understood as a crime spree or part of a war?

9. Ongoing Torture Revelations and Transatlantic Relations. There were too many posts on torture, the “torture memos,” and Administration policies to have links to all of them here. Instead, we focus on one aspect that became increasingly important as the year went on: the effects of the continuing revelations concerning Administration policy on our foreign—and particularly Transatlantic—relations. Here's where the EU weighs in, then two posts (one and two) on the U.S. response, and one post following up on the Europeans.

10. Foreign Decisions and Domestic Courts. Besides topics relating to Iraq and the War on Terror, the seemingly dry issue of citation to foreign law by U.S. courts was actually a hot topic from the start of the year. See this flurry of posts: one, two, three. Then this one: one, two, three, four. And this recent post. For those interested, there are many other posts on this topic throughout the year.

11. The Supreme Court Nominations. Speaking of international law and the U.S. courts, a year with a new nomination is worthy of note, a year with two is worthy of its own heading. We spent a significant amount of time dissecting what each nominee might mean for international law. Our discussion of (the then-soon-to-be) Chief Justice Roberts includes these five posts: one, two three, four, five. We then moved on to Judge Alito, ranging from a reading of his senior thesis on the Italian Constitutional Court, to his rulings on asylum cases (one, two, three, four) to other topics (one, two, three)

12. The French “Non” to the EU Constitution. Whither the EU? After the French (and others) say “non” to the Constitution, the story moved on to recriminations in Brussels, and concerns in Central Europe.

13. UN Reform. One of the first topics we considered and probably one that we will keep talking about until the final days of this blog. Here is one post I wrote, a critique from Julian, and then my reply.

14. The Volcker Commission Report. Speaking of UN reform, the Oil-for-Food Scandal and its investigation was one topic that highlighted the need for better accountability at the UN. It also gave us a chance to think about positive steps that can be taken.

15. The Sudan and the ICC. The situation is Darfur first had us discussing whether the issue should be referred to the ICC, then whether the ICC could be effective, and finally looking at what the Security Council actually did or didn’t do. See this post regarding the Security Council referral and for links to our previous posts. See also this post. Not as many are talking about Darfur today, but people are still dying.

16. The Hariri Report and Syria. The UN steps up and investigates the assassination of a former Lebanese Prime Minister and fingers Syria. Or the UN is wishy-washy and succumbs to political pressure. As usual, we find lots to debate about on this topic. See one, two, and three. See also this follow-up.

17. Kyoto Protocol on Climate Change Enters into Force. Is Kyoto good or bad? You decide. Either way, it is now in force.

18. Israel and the ICJ’s Advisory Opinion on the Security Barrier. The ICJ issued a controversial advisory opinion on the security barrier erected by Israel. Julian comments on and then debates the issue here.

19. Medellin/ Withdrawal from Optional Protocol of the Vienna Convention on Consular Relations. The latest case in the “Consular Relation” cases brought a host of Constitutional and International issues. After being granted cert, the President issues a memorandum simultaneously seeking compliance with previous ICJ rulings on the Vienna Convention on Consular Relations and withdrawing from the ICJ’s jurisdiction to hear further cases. And then the Supremes decided that cert was improvidently granted and sent the case back down to Texas. This will likely be on next year’s “Year in Review” list as well. See one, two, three.

20. The Bolton Debate. John Bolton: Good, Bad, or Irrelevant? Two examples of our debates on his controversial nomination and appointment as U.S. Ambassador to the UN. One, Two.

21. ICRC Study of Customary International Humanitarian Law. In a move that was of significance both to the doctrinal area of the law of armed conflict and the jurisprudential topic of the nature and role of customary international law, the International Committee of the Red Cross issues a massive (5,000) page study on the customary international humanitarian law. No, we didn’t read it all. But we know someone who did (see also here and here).

22. Universal Jurisdiction Redux. As the Pinochet proceedings continue their newest iterations in Chile, universal jurisdiction resurfaced as a topic with the latest Spanish proceedings against two Argentines for their involvement in the “Dirty War” of the 1970’s. While this wasn’t a front burner issue this year, it may prove to be a perennial topic as new indictments and the resultant political debates lurch on year to year. See posts one and two.

23. North Korean Nukes. Well, no WMD’s in Iraq this year, either. But what about North Korea...

24. Iranian Nukes. ...or Iran? I wrote this post a while back and there is this recent group concerning Israel and Iran: one, two, three, four.

25. NAFTA and The Lumber Cases. And, while we’re talking about nuclear options, there’s the “nuclear option” in trade disputes: trade war. While we didn’t quite get to that point with Canada over the Softwood Lumber case, it did provide the trade law equivalent of high drama. See the series of posts beginning here and here, and then looking at the endgame here and here.

Blawg Happy Hour at the AALS: Weds, Jan 4, 9:30 pm, Cloud

Our friends over at PrawfsBlawg and Concurring Opinions are co-hosting a law prof blog happy hour at Cloud, 1 Dupont Circle NW (New Hampshire Ave, south of the circle). I'll be flying the flag for Opinio Juris and want to extend an invitation to any OJ readers and friends of readers to stop by and say hello. There may even be some surprise appearances by former guest bloggers. In true blog fashion, click here for a blogger review of Cloud.
See you there!

The McCain Amendment Compromise: Has the Message Been Diluted?

The highly publicized McCain Amendment is now law. In order to secure the commitment of the President to support this statutory codification of the principle of humane treatment, Senator McCain agreed to the inclusion of a “superior orders” defense. The compromise legislation therefore provides that in any criminal or civil action against any employee of the armed forces or any other government agency for violation of this “humane treatment” mandate, obedience to orders may be raised as a defense. Accordingly, unless the activity forming the basis of the allegation is so obviously improper as to lead a person of “ordinary sense and understanding” to realize it was illegal, “just following orders” serves as an absolute defense. In addition, the reliance by the employee on advice of counsel is explicitly included in the legislation as an “important factor” in determining whether a person of “ordinary sense and understanding” would have recognized the action as illegal.

Proponents of principle of humane treatment are justified in their satisfaction that this legislation transforms what has heretofore been an executive policy into a legal mandate. However, it is impossible to ignore the reality is that this provision will discourage subordinates from questioning the propriety of interrogation tactics, techniques, and procedures they are directed to implement so long as that direction comes with the “legally sufficient” endorsement. Unfortunately, this compromise has undermined the important objective of ensuring all detainees in U.S. custody are treated humanely at all times. Instead of emphasizing the “bright line” nature of the principle of humane treatment, the compromise provision has instead validated the Bush administration assertion that when interrogating a terror suspect, the line between humane and inhumane treatment is blurry, and maximum discretion must be preserved for extracting critical information. While this may seem to some observers as a logical reconciliation of the humane treatment obligation and the necessities of national security policy, one should question whether it is consistent with the fundamental principles of the law of armed conflict.

Obedience to orders is without question an essential aspect of effective military operations, and any system of military discipline must ensure subordinates treat all orders with a powerful presumption of legality. This was undoubtedly a factor in the compromise to include a defense for subordinates who obey orders subsequently determined to be unlawful. However, the law of armed conflict relies upon the fundamental principle that the obligation of obedience is not without limit. Every service-member and civilian supporting military operations bears an individual responsibility to first question, and if necessary disobey any order that would result in a violation of the law. There is no question that such a decision to disobey an order carries substantial risk. However, it is a risk that duty imposes upon members of the armed forces and associated civilians. In no area is this duty more profound than with respect to the obligation to respect and protect individuals who are “out of combat”, and it is the principle of humane treatment that provides the standard that guides the execution of this duty. Neither the importance of the intelligence requirement being pursued, the affiliation of the detainee, nor the level of authority directing the interrogation alters this standard.

Historically, commanders were expected to serve as the bulwark against any derogation of humanitarian protections by subordinates. This responsibility extended to ensuring subordinates were properly trained and supervised to ensure “bright line’ rules were not endangered in the heat of battle. The express inclusion of a superior orders defense in the compromise legislation, complete with the emphasis that prior legal review will almost certainly provide subordinates “top cover” in all but the most extreme cases, will have the effect of diminishing the probability that subordinates will exercise independent judgment in assessing the propriety of carrying out a questionable interrogation or detention procedure. As a result, a critical component of compliance with the law of armed conflict in the execution of military operations has been degraded.

The McCain amendment was intended to emphasize the indelible nature of the humane treatment obligation, and the duty of all subordinates – especially those in command – to question orders inconsistent with their basic understanding of how any human should be treated. The initiative to codify this obligation in domestic law reflected the rejection of unlimited presidential authority to decide when and to what extent the principle of humane treatment applied to detainees. Contrary to these objectives, the compromise legislation has essentially confirmed the proposition that it is impossible to create a bright line humane treatment standard, and has endorsed a “top cover” type mentality for future detention and interrogation operations. This is unfortunate, for the obligation to treat all detainees humanely, even those suspected of affiliation with Al Qaeda, is so basic that subordinates should be taught that any order that appears in violation of this principle should be questioned, even when the orders come from the highest levels of command with approval by senior administration lawyers.

Finally, thanks to Julian and Roger for the privilege of guest blogging.

Monday, January 02, 2006

Thanks to Seth and Duncan, Welcome Geoffrey Corn

Special thanks to Seth and Duncan for excellent guest blogging in December. We greatly enjoyed the quality (and quantity) of your posts. Duncan's background at the State Department and Seth's IR background provided real depth and insights to your posts.
We are now pleased to welcome Geoffrey Corn as a guest blogger. Geoffrey is an Assistant Professor of Law at South Texas College of Law who is an expert on the laws of war. Prior to his current position he served as the Special Assistant to the US Army Judge Advocate General for Law of War Matters, and Chief of the Law of War Branch, US Army Office of the Judge Advocate General International and Operational Law Division. Previously, he was a supervisory defense counsel for the Western United States; Chief of International Law for US Army Europe; and a Professor of International and National Security Law at the US Army Judge Advocate General’s School. He has served as an expert consultant to the Military Commission Defense team, and has published numerous articles in the field of national security law. He is a graduate of Hartwick College and the U.S. Army Command and General Staff College, and earned his J.D., highest honors at George Washington University and his LL.M., distinguished graduate, at the Judge Advocate General’s School.
Welcome Geoffrey and blog away!

President Bush's Signing Statements Appended to the McCain and Graham Amendments

Marty Lederman has posted this discussion at Balkinization of what the President Bush's signing statement to the final defense appropriations bill that includes the Graham (stripping jurisdiction of federal courts to hear habeas challenges brought by alien enemy combatants) and McCain amendments (outlawing use of cruel, inhumane and degrading treatment on detainees by US personnel) will mean and the coming showdown at the Supreme Court in the Hamdan case. He includes the full text of the both amendments. Bottom line: The Bush administration is set to argue that Graham cuts off not just future but pending habeas challenges (e.g., Hamdan) and that McCain does not curtail broad presidential authority to treat detainees in any manner necessary to protect national security. But as Marty points out, the first salvo in this interpretive battle may be fired at Judge Alito during his confirmation hearings later this month.

On a related note, the Fed Courts section of AALS is sponsoring a panel discussion of this very topic and related topics at this week's AALS annual meeting in Washington DC (thanks to Janet Alexander):

Friday, January 6, from 8:30-10:15 a.m. "Federal Courts and the War on Terrorism"

Barbara Olshansky, Deputy Legal Director, Center for Constitutional Rights, director counsel of the Guantanamo Global Justice Initiative and counsel for petitioners in Rasul v. Bush, on "Clash of the Titans: The Ongoing Battle Between the Executive and the Judiciary in the War on Terror."

Curtis Bradley, Duke University School of Law and former Counselor on International Law in the Legal Advisor's Office of the U.S. State
Department, on "Military Commissions and Terrorist Enemy Combatants."

Neal Katyal, Georgetown University Law Center, lead counsel for petitioner in Hamdan v. Rumsfeld and former National Security Advisor to the Deputy Attorney General, U.S. Department of Justice, on "Hamdan v. Rumsfeld: Why the Guantanamo Military Commissions are Illegal."

Janet Alexander, Stanford Law School, on "The Graham Amendment: Jurisdiction-Stripping in the War on Terror."

Check the final AALS schedule for a room number.

Anti-Americanism and the Lure of Le Big Mac

The Economist (subs req'd) recently ran this article about the effect of anti-Americanism on the European sales of American-based brands. An empirical examination by political scientists Peter Katzenstein (Cornell) and Bob Koehane (Princeton) reveals that far from suffering ill effects of anti-Americanism following the US invasion of Iraq, US-based brands are prospering in Europe. Indeed, the actual sales reflect a sort of "boycott gap" between what consumers say they will do and how they actually act. According to the Economist:

That sales of firms closely identified with the United States have not fallen overseas is, in some ways, surprising. Messrs Katzenstein and Keohane cite a December 2004 poll, conducted by Global Market Insite, in which thousands of consumers in eight countries (Canada, China, France, Germany, Japan, Russia, Britain and the United States) were asked two questions about 53 American companies: would they avoid American products because of recent American foreign policy and military action? And to what extent did they see particular companies as "extremely American"? Overall, 20% of European and Canadian consumers said they were consciously setting out to avoid American products.

The firms most vulnerable to consumer boycotts included American Airlines, United Airlines, General Motors, Wal-Mart, CNN, American Express, McDonald's, Coca-Cola, PepsiCo and Marlboro. Nike was not far behind. Immediately after the invasion of Iraq, several press reports trumpeted boycotts of American goods in Europe.

The Katzenstein/Keohane study showed no discernible effect of this expressed anti-Americanism or on the boycott movement to sales during the period:

They studied the revenues of three big American-based consumer-products companies --and three of their European competitors--in Europe and the Middle East between 2000 and 2004. The American firms were Coca-Cola, McDonald's and Nike. The three European firms, Adidas-Salomon, Cadbury Schweppes and Nestle, were chosen because they compete in the same industries. As Messrs Katzenstein and Keohane note: "If anti-Americanism had a significant impact on sales, one should find US-based firms' sales falling in 2003-04, when anti-American views rose sharply in Europe, compared to 2000-01...This fall in the sales of American firms should occur both in absolute terms and relative to the performance of European firms."

In fact, the opposite happened. Between 2000-01 and 2003-04 all six firms increased their European sales. American companies also grew at least as fast as their European rivals.

To what can this boycott gap be attributed? The Economist concludes that European customers can draw a distinction "between President Bush and a Big Mac." Or perhaps, as they suggest, it is because US-based brands adopt better marketing strategies to counter the anticipated boycott behavior. More likely, in my view, is the fact that these global "American brands" hardly seem so American anymore. Similarly, Nestle, which owns the venerable "American" brands Libby and Ralston-Purina, and Cadbury Schweppes, which owns Dr. Pepper and Snapple, hardly seem "European." Whom do brand boycotts against global corporations hurt? Local bottlers and distributors? Manufacturing workers? Management and shareholders? And what is the nationality of each of those affected parties?

The efforts of some Americans to boycott French products in the wake of French opposition to the US invasion of Iraq ran into this problem of distinguishing products. (Is the Jerry Springer show really French?) They also failed to have any effect on sales of French brands in the US. At a time when Anheuser-Busch still ends its advertisements in the U.S. with the tagline "Anheuser-Busch, St. Louis, Missouri," but is acquiring beer companies in China with great speed, is there really such a thing as brand "nationality?"

Pope Calls For Nuclear Disarmament, U.N. Renewal

In the traditional Message for the World Day of Peace message, Pope Benedict XVI had a number of important things to say about international institutions, nuclear disarmament, and armed conflict. He is extraordinarily critical of nuclear arms, describing governments that rely on nuclear arms for security as adopting a "baneful" and "fallacious" point of view. He appears to single out Iranian President Mahmoud Ahmadinejad for harsh criticism for inciting citizens to hostility toward other nations and jeopardizing the delicate balance achieved. He also singles out the U.N. for criticism, calling on it to become more efficient at promoting justice, peace, and solidarity.
Here is an excerpt:

12. Looking at the present world situation, we can note with satisfaction certain signs of hope in the work of building peace. I think, for example, of the decrease in the number of armed conflicts. Here we are speaking of a few, very tentative steps forward along the path of peace, yet ones which even now are able to hold out a future of greater serenity, particularly for the suffering people of Palestine, the land of Jesus, and for those living in some areas of Africa and Asia, who have waited for years for the positive conclusion of the ongoing processes of pacification and reconciliation. These are reassuring signs which need to be confirmed and consolidated by tireless cooperation and activity, above all on the part of the international community and its agencies charged with preventing conflicts and providing a peaceful solution to those in course.

13. All this must not, however, lead to a naive optimism. It must not be forgotten that, tragically, violent fratricidal conflicts and devastating wars still continue to sow tears and death in vast parts of the world. Situations exist where conflict, hidden like flame beneath ashes, can flare up anew and cause immense destruction. Those authorities who, rather than making every effort to promote peace, incite their citizens to hostility towards other nations, bear a heavy burden of responsibility: in regions particularly at risk, they jeopardize the delicate balance achieved at the cost of patient negotiations and thus help make the future of humanity more uncertain and ominous. What can be said, too, about those governments which count on nuclear arms as a means of ensuring the security of their countries? Along with countless persons of good will, one can state that this point of view is not only baneful but also completely fallacious. In a nuclear war there would be no victors, only victims. The truth of peace requires that all —whether those governments which openly or secretly possess nuclear arms, or those planning to acquire them— agree to change their course by clear and firm decisions, and strive for a progressive and concerted nuclear disarmament. The resources which would be saved could then be employed in projects of development capable of benefiting all their people, especially the poor.

14. In this regard, one can only note with dismay the evidence of a continuing growth in military expenditure and the flourishing arms trade, while the political and juridic process established by the international community for promoting disarmament is bogged down in general indifference. How can there ever be a future of peace when investments are still made in the production of arms and in research aimed at developing new ones? It can only be hoped that the international community will find the wisdom and courage to take up once more, jointly and with renewed conviction, the process of disarmament, and thus concretely ensure the right to peace enjoyed by every individual and every people. By their commitment to safeguarding the good of peace, the various agencies of the international community will regain the authority needed to make their initiatives credible and effective.

15. The first to benefit from a decisive choice for disarmament will be the poor countries, which rightly demand, after having heard so many promises, the concrete implementation of their right to development. That right was solemnly reaffirmed in the recent General Assembly of the United Nations Organization, which this year celebrated the sixtieth anniversary of its foundation. The Catholic Church, while confirming her confidence in this international body, calls for the institutional and operative renewal which would enable it to respond to the changed needs of the present time, characterized by the vast phenomenon of globalization. The United Nations Organization must become a more efficient instrument for promoting the values of justice, solidarity and peace in the world.

Links to all major news feeds on the message are here. The blogosphere is also abuzz with commentary.
As one of his first major messages on international relations, it certainly portends a pope who will be active and outspoken on international concerns.

International Law Bestsellers

If you go to Amazon and do a seach for "international law" and sort by "bestselling" you can quickly get a sense of what the public is buying in the field of international law. It appears the rankings change dramatically from day-to-day, (and the ranking function does not work perfectly) so this is just a snapshot. Without filtering for books that appear to be slightly off-topic, here are the twenty-five top selling books that prominently reference international law (with sales rank):

1. Law School Confidential (Robert Miller) (#2,473)
2. Fundamental Perspectives in International Law (William Slomanson) (#10,481)
3. Understanding International Conflicts (Joseph Nye) (#12,842)
4. How to Get Into Law School (Susan Estrich) (#15,396)
5. Akehurst's Modern Introduction to International Law (Peter Malanczuk) (#17,724)
6. Business Law (Robert Emerson) (#22,255)
7. Careers in International Affairs (Maria Carland, et. al.) (#22,633)
8. International Criminal Law (Antonio Cassesse) (#23,364)
9. How to Adopt Internationally (Jean Nelson-Erichsen) (#23,755)
10. Political Theory and International Relations (Charles Beitz) (#24,223)
11. International Financial Management (Cheol Eun, et. al.) (#24,342)
12. International Law (Malcolm Shaw) (#28,952)
13. Gigalaw Guide to Internet Law (Doug Isenberg) (#32,248)
14. International Law: Norms, Actors Process (Jeff Dunoff, et. al.) (#35,141)
15. Law, Business and Society (Tony McAdams) (#37,283)
16. International Law in the 21st Century (Christopher Joyner) (#43,691)
17. An Introduction to International Law (Mark Janis) (#43,941)
18. Work Worldwide: International Career Strategies (Nancy Mueller) (#60,863)
19. Law and Moral Action in World Politics (Cecilia Lynch) (#61,489)
20. Indigenous Peoples in International Law (James Anaya) (#62,559)
21. International Human Rights in Context (Henry Steiner) (#66,023)
22. International Law (Mark Janis) (#80,014)
23. International Law Cases and Materials (Lori Damrosch, et. al.) (#82,948)
24. Foundations of International Law and Politics (Oona Hathaway, et. al.) (#94,428)
25. Sales Law: Domestic and International (Clayton Gillette) (#96,244)

Sunday, January 01, 2006

"Underneath Their Robes" Back Online

One of the more innovative and irreverent law blogs is now back online. As of yesterday, Underneath Their Robes is back up and running. The blog was taken offline abruptly in mid-November after it was revealed in The New Yorker that the blogger, David Lat, was a U.S. attorney in New Jersey. According to this report, he left Justice on Friday and started resuming blogging the following day. He links to an article in New York Times today with a spokesman at Justice stating that Lat left the Justice Department of his own will and that it had nothing to do with the blog.

Now that the blog is back up, the real question is: Will A3G continue to be a roaring success now that the world knows the identity of the blogger and that it is a "he" and not a "she" who is blogging about "judicial hotties"?

Happy New Year! But Will It Be A Happy "New" UN?

The New York Times greets the arrival of 2006 with this lead story about UN efforts to revise the much maligned Human Rights Commission (it has counted among its members Sudan, Cuba, and Zimbabwe; Libya chaired it in 2003). Although I had earlier predicted (see here) UN hopes to have a new "Human Rights Council" in place by the end of 2005, the NYT story provides a new timetable, suggesting efforts are now focused on having a UNGA resolution for the new Council adopted by March 2006. The key sticking points appear to be how to convert a body that now meets semi-annually and is composed of members chosen by geographic region with little independent power into a standing body whose members are elected directly and authorized to act freely when human rights violations are alleged.

My own sense is that at the end of the day, any new Council will not differ all that dramatically from the current Commission (last month, Seth offered a similar assessment on UN reform more generally - see here). The NYT story emphasizes the opposition to reform from developing countries worried about the impact reform will have on their sovereignty – either to open their internal practices to UN oversight, or to exclude them from Council participation because of such practices. Certainly, we can count on these countries to work against more restrictive membership requirements and greater UN autonomy.

But what about the United States? Publicly, the United States has pushed for reform – critiquing the Commission for allowing states with poor human rights records to be Commission members and noting the restrained nature of the Commission’s reporting on violators as a result. I wonder, however, how firm U.S. support for a robust Council will be in the final negotiations. The United States may want to exclude states such as Sudan, Cuba and Zimbabwe from the Council, but is it prepared to accept membership requirements that might allow other states to oppose U.S. membership given U.S. detainee and rendition policies? (Indeed, I would expect U.S. negotiators to bear in mind the 2001 fallout when the United States was voted off the Commission). Similarly, how independent does the United States really want the Commission to be if it means that body would opine in some authoritative way on U.S. practices and policies?

Let me be clear – I am not suggesting the Commission does not need reform. Nor am I suggesting the United States will not push for some reform. But, I suspect U.S. efforts will seek to reform the Commission in limited ways: i.e., to produce a new Council with less controversial members and greater reporting, but not to invest the new body with any authority that would influence or restrict U.S. conduct in meaningful ways. In that sense, we are still faced with the age-old problem of human rights law – how can states participate in the creation of generally applicable rules and procedures when each state is most concerned with ensuring such rules and procedures do not require unwanted changes to its own activities. Thus, it will be interesting to see at the end of the day what new Human Rights Council is created, and exactly who gets the credit (or blame) for its final structure and authorities.

Good News for the New Year!

Hope everyone had a happy new year! As we move into 2006, it seems a good time to reflect a bit on where we've been the last few years. A new report from the Human Security Centre at the University of British Columbia has been released that deals with a new concept in international relations theory known as "human security." As the Human Security Report details, in contrast to traditional understandings of national and international security, which focus on the security of states and the prevention of large-scale inter-state war, "human security is about protecting individuals and communities from any form of political violence." There are two main frames for human security: A narrow one, articulated in the Report, which focuses on "violent threats to individuals, while recognizing that these threats are strongly associated with poverty, lack of state capacity and various forms of socio-economic and political inequity" and a broader one, preferred by the UN, which "argues that the threat agenda should be broadened to include hunger, disease and natural disasters because these kill far more people than war, genocide and terrorism combined." Human security is a controverisal concept, as traditional IR scholars believe it detracts conceptually and in policy matters from more relevant and dangerous security threats.

Nonetheless, the Report has some very interesting findings about the state of international security. Namely, that the world is becoming, year by year, more peaceful and less bloody. The number of armed conflicts around the globe has dropped by almost 50% since 1992, when 50 wars raged world-wide. 100,000 people died in those wars (and 340,000 died in 1972), but only 20,000 died in armed conflicts in 2002. Military coups are disappearing, down to 10 failed coups in 2004 from 25 in 1963. Terrorism is the one form of international violence on the rise, growing from 17 incidents in 1987 to 175 in 2003 and 651 in 2004. However, even as the number of terrorist attacks rise, the death toll -- an average of 1,000 people a year over the last 30 years -- is but a small fraction of the cost of large-scale war.

Why the decline in violence? The Report identifies four main reasons: the spread of democracy, an increase in economic interdependence, a decline in the economic utility of war (that is, modern economies are no longer fueled by raw materials and territory, and thus war has become less profitable), and the growth of international institutions and international law, that have produced a ideational shift away from the use of violence as a tool of statecraft. The report concludes that "
the best explanation for this decline is the huge upsurge of conflict prevention, resolution and peacebuilding activities that were spearheaded by the United Nations in the aftermath of the Cold War." Of course, the end of the Cold War, in which the US and the USSR fought "proxy wars" across the globe is cited as well. I have no doubt that these factors have been critical in the reduction of interstate violence.

However, I also have a hunch that these factors are intervening variables that hint at a more important and fundamental cause of increasing international peace: US hegemony. It is US hegemony that allowed NATO to cement the democratic status of the former Soviet satellites in Eastern Europe, US hegemony that allows the EU, Japan, and other democracies to focus on economic expansion rather than military spending, US hegemony and its attendant military supremacy that has made large scale conflict almost unthinkable, and US hegemony that allows the UN and other international bodies the space to operate and build functioning legal institutions. It is hard to imagine any of these things occurring in a multi-polar, or even a bi-polar, world in which traditional security problems would likely dominate national agendas. The US, in essence, provides the monopoly of force that any government needs to enforce its laws. Of course, the US is not answerable to the UN, nor does it always act in the interests of international law. The system is not perfect. But in the absence of that hegemony, I believe international law would be even more enfeebled than it is today. Before criticizing US hegemony for blocking or undermining the spread of international law, ask yourself: Where would international law be without it?