Opinio Juris -

Saturday, May 3, 2008

Is There an International Law Right to "Autonomy"?

by Julian Ku

I doubt there is any international law relevant to this emerging crisis in Bolivia, where certain regions are seeking "autonomy" (but not independence) from the central government. Still, it is serious enough to spur international action (the OAS is on the case). And perhaps it is a prelude to secession, and autonomy is laying the groundwork. I don't know enough about this area to say that this typically happens in secession situations.

This divided country faces a constitutional crisis Sunday when its richest and second most-populous province votes whether to declare itself autonomous from President Evo Morales's national government, a referendum the president has called illegal.

If the referendum passes, as polls show it overwhelmingly will, leaders of Santa Cruz province say they'll elect a state legislature, organize local police and otherwise set up a government equivalent to that of a U.S. state.

Morales has called the referendum a move to split up this nation of 9.1 million and to thwart his government's efforts to rewrite Bolivia's constitution so that its indigenous majority wins more political power. Bolivia has a centralized government, where police, taxation and other government functions are controlled by federal officials.

"This referendum violates the current constitution, because there's no mechanism to convoke it," said Leonida Zurita , a close Morales ally and a substitute senator with the president's Movement to Socialism party. "They want to found a second Bolivian state, and we won't let the fatherland be divided."

05.03.2008 at 12:20am 3 Comments 0 Trackbacks

Friday, May 2, 2008

The Role of Precedent at the WTO

by Roger Alford

Earlier this week the WTO Appellate Body clarified the role of legal precedent in WTO jurisprudence. The background to the discussion was a WTO panel’s refusal to follow a previous Appellate Body decision because the panel viewed the previous Appellate Body decision as failing to accord proper deference to permissible Member State interpretations. The details of the panel decision are here. I have written about judicial overreaching by the WTO Appellate Body and basically agreed with the lower panel’s legal reasoning on deference to permissible interpretations of Member States in the AD/CVD context.

Well, the Appellate Body in Stainless Steel (Mexico) did not take kindly to the panel’s refusal to follow the previous Appellate Body report and issued the following smack down:

158. It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB….

160. Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system … implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.

161. In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play…. The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU….

162. We are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel's approach has serious implications for the proper functioning of the WTO dispute settlement system ….

Did you catch all of that? WTO Appellate Body decisions are not binding, but they must be followed. Unless, that is, there are cogent reasons not to follow them. But then if you don’t follow them because you think you do have cogent reasons (i.e., the standard of review in the treaty was ignored by the previous Appellate Body report), then the Appellate Body will be deeply concerned.

The role of precedent has always been difficult with respect to international courts and tribunals. But I read the Appellate Body in Stainless Steel (Mexico) as essentially requiring panels to follow Appellate Body decisions and treat them as legal precedent. You can't call it legal precedent, but it is. As one anonymous commenter put it in this post, the message from the Appellate Body to panels is the following:

You really, really should follow prior Appellate Body decisions. It would be quite bad for the system if you do not. But if you've got what you think are compelling reasons for not doing so, we understand if you feel you have to go your own way. Bearing in mind, of course, that if you do, we will almost certainly reverse you on appeal. You may think your reasons are pretty good, but if they were really that persuasive we would have gone that way ourselves, hence they are not, in fact, "cogent".

05.02.2008 at 11:42am 2 Comments 0 Trackbacks

The Real War on Terrorism

by Julian Ku

Critics of the U.S. war on terrorism often suggest that it is not a "real war" and that it is merely a slogan. Indeed, many critics reject the "war" paradigm completely. That's a fair argument, but it is worth remembering that there are traditional war-like aspects of the war on terrorism that don't neatly fit in the law-enforcement paradigm usually favored by the critics. Case in point: the U.S. government's airstrike yesterday in Somalia killing an Al Qaeda leader there. If the U.S. was not engaged in a "war", what could possibly be the legal justification for such a strike, either under international law or domestic U.S. law? Such actions, which are largely uncontroversial in the U.S. and even abroad, need to be explained under some legal paradigm. War may not quite capture what is going on, but it comes close.

05.02.2008 at 12:02am 24 Comments 0 Trackbacks

Thursday, May 1, 2008

John Yoo and the Justice Case -- Post at Balkinization

by Kevin Jon Heller

Marty Lederman has kindly published a long post I have written on what — if anything — the Justice Case has to say about the criminal responsibility of government lawyers like Yoo. Here is the introduction:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:
Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.
I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

I hope readers will check out the entire post, along with Marty's excellent introduction, in which he discusses his general views on the issue. I completely agree with Marty and hope that readers will not misunderstand my position. I am not saying that nothing John Yoo and the other government lawyers did could ever be considered criminal. I am not saying that the Justice Case rules out the possibility of a future prosecution. Indeed, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.

05.01.2008 at 7:34pm 10 Comments 0 Trackbacks

Fine Hiking (Never Mind the Troop Movements)

by Chris Borgen

I'll strike this up to strange timing. On the same day of reports of increasing tensions between Russia and Georgia, including Russian troop movements along the Russian/Georgian border and an increase of Russian forces in the Georgian breakaway regions of Abkhazia and South Ossetia, CNN runs a piece on... wait for it... the joys of hiking along the Russian/Georgian border. Huh?

Anyway, I guess if you are not enticed by the descriptions of "snow-swept crags straining up into the rush of clouds" or intrigued by the stories of dining on boiled sheep's fat, then maybe the whole cross-border conflict and geopolitical tensions thing might interest you.

The CNN piece does contain these "tips," by the way:

Russia's North Caucasus is a volatile, corrupt and mind-boggling place, a mix of mindsets that is one part holdover Soviet bureaucracy, one part clan-driven, xenophobic distrust, one part anti-terrorist police policies. The rewards are immense if you have a thick skin, willingness to grease a palm or two, and the patience to weather capricious bureaucracy.

Yeah, and don't forget the armies on the move.

Somebody call Robert Young Pelton.

05.01.2008 at 4:54pm 1 Comments 0 Trackbacks

Washington & Lee Announces New First-Year Transnational Law Course

by Roger Alford

As regular readers know, I have been critical of Washington & Lee's move toward a third-year experiential learning program, fearing that it would marginalize international law courses. Well, those fears were put to rest yesterday when the faculty at W&L unanimously approved a mandatory three-hour first-year Transnational Law course. The description of the course is as follows:

This course introduces students to core principles of public and private international law, comparative law, foreign law, cross-border legal process and deal-making, transboundary dispute resolution, and elements of U.S. law that have international effect.

The rationale of the course, according to the W&L Educational Planning and Curriculum Committee, was the following:

The overall goal of a first year Transnational Law course is to introduce students, early in their legal education, to the effects of globalization on the formulation, content, and practice of law and regulation in the modern world. Such a course will also usefully serve to place more traditional domestic law offerings into a larger legal context and thereby broaden our students' vantage points on existing courses. We think the Transnational Law course would be an excellent small section writing course, especially with our cadre of expert international law faculty. The opportunity not only to interpret, reason about, and study the methodology of transnational law, but also to write extensively in the area, promises to distinguish our first year course from those being inaugurated at other schools.

Sounds like a great curriculum move. Combine that with W&L's stellar international law faculty (beginning next year the IL faculty will include Johanna Bond, Mark Drumbl, Susan Franck, Fred Kirgis, Russell Miller, Hari Osofsky, etc.) and I think that any concerns about the marginalization of international law at Washington & Lee are misplaced.

Given that Hari Osofsky is a well-known foodie, perhaps she can email me a recipe for the best way to eat crow.

Wednesday, April 30, 2008

Tariq Aziz's Trial Begins

by Kevin Jon Heller

As a brief follow-up to Sonya's post, it's worth noting that the IHT began trying Tariq Aziz, Saddam's deputy prime minister and the highest ranking Christian in Saddam's regime, earlier this week:

Iraq's former deputy prime minister, Tariq Aziz, was known as the 'Ace of Spades' in the United States' deck of playing cards of Iraq's most wanted.

But he was better-known as the regime's moderate public face, who fronted the cameras in the days before the US invasion with his trademark black-rimmed glasses and Cuban cigars.

Aziz has now gone on trial in Iraq on genocide charges, accused of approving the execution of scores of business people while the country was under economic sanctions.

He has been in US custody for the last five years and if he is found guilty, he could face death by hanging.

The 72-year-old entered the courtroom with a walking stick, looking frail and weak.

He and seven others are on trial for executing 42 Baghdad merchants in 1992, who were accused of raising food prices at a time when Iraq was facing stiff UN economic sanctions.

[snip]

Judge Rahim Hassan al-U'kaili says Aziz and his seven co-defendants will be charged with war crimes, genocide and crimes against humanity.

"Tariq Aziz didn't have any role in the issue of the execution of merchants," he said.

"However, his participation in the issuance of two resolutions which stipulated the following - each one who monopolises foodstuffs for commercial purposes should be executed, and his portable and non-portable properties should be confiscated."

Although I haven't examined the case against Aziz in any detail, the genocide charges are puzzling. The victims were merchants executed (almost certainly illegally) for price-gouging. So where is the specific intent to destroy a racial, ethnic, national, or religious group?

04.30.2008 at 9:54pm 1 Comments 0 Trackbacks

The Iraqi High Tribunal Post-U.S. Involvement

by Kevin Jon Heller

The following article was written by Sonya Sceats, Associate Fellow in International Law at Chatham House in London. It first appeared in The World Today, Chatham House's journal. I am reprinting it here for our readers who are interested in the more recent activities of the Iraqi High Tribunal.

Rowdy sessions of the Iraq High Tribunal attracted sensational daily news coverage while Saddam Hussein was being tried. However, following his grim execution in December 2006, coverage all but evaporated. The foreign press and most western monitors packed their bags and left, and television reporting in Iraq dwindled. Now even the United States Department of Justice, which initially provided key financial and political support, is quietly withdrawing its advisers.

So what is happening at the Tribunal and why are the Americans pulling out?

The departure of the American lawyers is hugely significant. In practical terms, it means that crucial technical assistance for the judges and prosecutors will be lost. From a more general perspective, it marks a watershed in the gradual turning inwards of the Iraqi High Tribunal. The desire of the Iraqis to try Saddam Hussein and other senior Ba’athists themselves, and their insistence on making the death penalty available, means that international involvement has always been low. But until recently, the presence of international advisers, and, in the courtroom, journalists and observers, ensured some connection with the outside world.

DYSFUNCTIONAL

According to insiders, the Tribunal is in a state of internal turmoil. Morale among the judges is said to be very low. For example, the judges who heard the case relating to widespread attacks on Kurdish villages in 1998 are reportedly disillusioned by ongoing political wrangling over the execution warrants for Ali Hassan al-Majid, better known as Chemical Ali, and two others found guilty – former defence minister Sultan Hashem Ahmed and Hussein Rashid Mohammed, a deputy chief of staff in the army. Powerful interests are resisting the execution of Sultan Hashem in particular because he is widely respected in the military and in Mosul, where his tribe is fighting Al Qaeda, and there are fears his execution will inflame the insurgency.

It seems likely that the US Department of Justice is withdrawing in a bid to disassociate itself from the high levels of dysfunction. Infighting and absenteeism among the judges have both become rife. This has caused a sharp drop in productivity which will in turn almost certainly delay the commencement of important new trials. Meanwhile the loss of international interest may have compounded the problems. With the departure of the press and most independent monitors, vital forms of external scrutiny have been lost.

GENOCIDE CASE IGNORED

The Tribunal has concluded two trials and is nearing the end of a third. The opening case concerning the massacre of 148 villagers in Dujail was the subject of intense scrutiny by the media, non-governmental organisations (NGOs), academics, and others. Key talking points included the courtroom antics of Saddam and his co-defendants and frequent boycotts by their lawyers, the challenging security context – several staff and defence lawyers were killed while the trial was in progress – and the important question of whether it was fair. Unfortunately, subsequent cases, involving crimes of far greater magnitude, have barely been reported or discussed. The Tribunal’s second, and arguably most important, trial concerned the series of chemical and other attacks launched by Iraqi armed forced on thousands of Kurdish villages in 1998. An estimated 180,000 people lost their lives in what came to be known as the ‘Anfal’ – spoils of war – campaign. Between August 2006 and June 2007, six leaders of the attacks including al-Majid were tried for genocide, crimes against humanity, and war crimes.

Charges were also brought against Saddam, who attended early sessions, but were dropped following his execution. Undoubtedly, his absence was the primary reason for such patchy news coverage. This is deeply regrettable because, in contrast to the Dujail killings, a relatively minor incident, the Anfal campaign was an iconic symbol of the barbarity of the Ba’athist regime. It is therefore understandable that many Kurds feel bitter that Saddam escaped accountability for these atrocities because of a prosecution strategy which prioritised Dujail to secure a ‘quick win’.

Lack of interest also means that ongoing problems and some modest improvements since the Dujail hearing have not been properly acknowledged. Low points included the removal of the first presiding judge, at the request of the Iraqi prime minister’s office, after he stated in court that Saddam was ‘not a dictator’, and another boycott by defence lawyers.

According to the International Center for Transitional Justice, the lone NGO monitor for the Anfal trial, defendants faced many challenges including impossibly vague charges, and a Tribunal failure to accommodate defence testimony; less than ten defence witnesses were heard.

On a brighter note, the proceedings were generally less chaotic. The quality of legal argument also improved – the prosecution made a strong case for the command responsibility of most defendants, proper defences were mounted and the Tribunal demonstrated increased competence in international criminal law.

From a legal perspective, the most important feature of the trial is the genocide verdict. This crime is notoriously difficult to prosecute because of the need to demonstrate a specific intent to destroy, in whole or part, the persecuted group, and this remains one of the few times it has been proved in court. The proceedings were closely followed by Iraqi Kurds. When the verdicts were announced – all but one of the defendants were found guilty – Kurds took to the streets in northern Iraq to celebrate. A decision to confiscate the assets of those convicted should mean their personal wealth is redistributed to the Kurdish communities they sought to destroy.

UPRISINGS TRIAL

A third trial, relating to the brutal suppression of mass Shi’a uprisings in the aftermath of the 1991 Gulf War, is expected to finish in the next month or two. Fifteen defendants including al-Majid are standing trial. According to observers, order has finally been achieved in the courtroom – it is even said that the presiding judge considers al-Majid a ‘model defendant’ because he asks legal questions and is generally courteous; a far cry from his behaviour during the Anfal proceedings. However, discipline in the courtroom is not equivalent to fairness and deep concerns remain over the conduct of this trial. In particular, its hasty commencement last August before investigations were complete, and the Tribunal’s refusal to delay proceedings, has clearly prejudiced the defence.

There has also been criticism of a decision to narrow the scope of the trial to events in Amara and Basra. This was clearly pragmatic – it was thought that more than a hundred defendants would be tried if all the related uprisings were included – however, it means linkage evidence necessary to establish command responsibility may not be presented.

At least four other cases are almost ready. They relate to the infamous gassing of Kurdish villagers in Halabja; the expulsion of Fayli (Shi’a) Kurds in the 1980s; the destruction of marshes relied upon by the Marsh Arabs; and the killing of eleven merchants. The last of these is politically significant because, although the crimes were comparatively small scale, the victims were Sunni and the Tribunal hopes this will counter Sunni perceptions that it is a tool of Shi’a and Kurdish vengeance.

SERIOUS FLAWS

There is no doubt that the Dujail trial was seriously marred by political meddling and a range of fair trial failings, including inadequate time for defendants to prepare their cases, and a lack of rigour in verifying the documentary evidence crucial to establish the guilt of Saddam and his co-accused.

However, the trial was not the complete train wreck many predicted. Most would agree that the standard of justice was an improvement on trials in the mainstream Iraqi criminal justice system. And despite enormous security risks, dozens of witnesses turned up to testify, allowing a detailed record of the killings to emerge.

Since Dujail, there have been some signs of progress. The judges have achieved authority in the courtroom and their skill in trying complex international crimes seems to have improved. And yet the remaining problems are grave. Political interference appears to be continuing – judges have been leant on by politicians to drop cases and initiate others for political purposes, and the chief prosecutor, Jaffar al-Moussawi, was recently removed after criticising the Tribunal’s ‘financial and ethical corruption’.

Many will maintain that Saddam and other senior Ba’athists should have been tried instead by an ad hoc international tribunal like those set up for the former Yugoslavia and Rwanda, however there was no support for this within the United Nations. And, the International Criminal Court cannot try crimes committed before 1 July 2002. Hence a more realistic criticism is that there should have been more international involvement in this Iraqi-led process.

While the original statute for the Tribunal allowed the appointment of international judges, the second statute restricted this to cases involving states; none have been heard yet, despite pressure from Iran and Kuwait. International advisers are also permitted but opposition to the death penalty by European and other countries means almost all such advisers have been American. The departure now of all but four of the American lawyers is merely the latest step towards the Tribunal’s international isolation.

The predictions are that the Tribunal will be wound down in the next year or two. Let us hope that the remaining trials receive the public attention they clearly need, from both human rights monitors and the international media.

04.30.2008 at 7:38pm 0 Comments 0 Trackbacks

Charles Tilly, R.I.P.

by Kevin Jon Heller

Via Crooked Timber, I learned today that Charles Tilly, one of the great political and historical sociologists of his time, has died. The news makes me very sad, because Chuck was one of the most important academic influences in my life: I took every class he offered, from "Introduction to Political Sociology" to a three-person independent study on social movements, at the New School for Social Research in the late 80s and early 90s, and he supervised my Masters thesis there, which was about the Chartists. Chuck's simple response — "Kevin, you could be an excellent scholar" — played an enormous role in my decision to pursue a life in academia. I'm just sorry I didn't stop in to see him at Columbia in the past few years; I had been meaning to.

I was very lucky to be Chuck's student. I will miss his love of "Big Structures, Large Processes, and Huge Comparisons," his categorization of books as "right, wrong, and wrong but interesting," his abiding dislike of Durkheim, and his very, very bad poetry.

Rest in peace, Chuck.

04.30.2008 at 5:00pm 2 Comments 0 Trackbacks

Is "Lesbian" a Geographic Appellation?

by Roger Alford

Now here is a great legal question regarding geographic appellations: Is the term "lesbian" something that the residents of Lesbos, Greece have a legal entitlement to prevent others from misusing? The Associate Press has the story:

A Greek court has been asked to draw the line between the natives of the Aegean Sea island of Lesbos and the world's gay women. Three islanders from Lesbos - home of the ancient poet Sappho, who praised love between women - have taken a gay rights group to court for using the word lesbian in its name. One of the plaintiffs said Wednesday that the name of the association, Homosexual and Lesbian Community of Greece, "insults the identity" of the people of Lesbos, who are also known as Lesbians. "My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos," he said. The three plaintiffs are seeking to have the group barred from using "lesbian" in its name and filed a lawsuit on April 10.... The Homosexual and Lesbian Community of Greece could not be reached for comment.

Of course, rules regarding geographic appellation are extremely important in the international trade context. Such rules resolve questions like what glass of bubbly can be called "Champagne" and what mustard merits the label "Dijon"? But I'm not aware of a similar claim that rules on geographic appellation can be used to prevent a social or political group from usurping the label. (HT: How Appealing).

04.30.2008 at 3:17pm 0 Comments 0 Trackbacks

The Law Firm of 2025: Richer, Larger, More Global

by Roger Alford

The American Lawyer has just published a great article on the future of law firms. The bottom line: successful law firms will be global operations with thousands of lawyers led by an elite group of partners with staggering profits-per-partner. Here is an excerpt:

The projections make it clear that U.S. corporate law firms of the future will be wealthier, larger, and more international than they were in the past…. Six firms … will gross more than $10 billion: Kirkland & Ellis; Mayer Brown; Baker & McKenzie; Jones Day; Skadden; and Latham. By 2025 Latham, at $23 billion, will have dramatically outpaced Skadden, its nearest competitor at $15.9 billion.

The PPP [profits-per-partner] projections for 2025 have Wachtell partners bringing home almost $15.7 million (before adjusting for inflation). Cravath, Swaine & Moore's PPP will be $9.6 million; Skadden's $6 million; and Baker & McKenzie's $2.5 million. The highest 2025 projected profits per partner are at Cadwalader, Wickersham & Taft, where the model suggests partners will net nearly $20 million apiece in 2025….

White & Case is projected to be the biggest of the 47 firms in the analysis, with 13,824 lawyers; Baker & McKenzie will follow closely behind with 13,512. More than three-quarters of the lawyers at both firms will be based outside the United States. Jones Day will have 11,623 lawyers and Latham 11,066, of whom almost 40 percent will be international….

And as the roster of firms atop the PPP and RPL projections indicates, the gap between firms will grow ever larger. The rich will continue to get richer and the poor relatively poorer…. Big firms will become bigger relative to smaller firms; and firms with a strong international presence will stand in greater contrast to those firms that have a minimal or no international presence.

These projections present numerous challenges and opportunities for firms in The Am Law 200. For firms to maintain the growth rates they established in the last 20 years-the rates that resulted in these optimistic predictions-they will have to grapple with a number of critical questions:

Will the market for high-end corporate legal services continue to expand? The projections assume that demand will continue to grow at historic rates. For that to happen, however, law firms will have to penetrate or create new markets, whether in other countries or new practice areas. …

How will the firms of the future manage the complexities of their ever-increasing size and geographical scope? The firm of the past had a few hundred lawyers. Several firms today have more than 1,000-but in 20 years, a 1,000-lawyer firm will be midsize. And firms will be much more geographically dispersed. Managing complexity will require that firm leaders continually develop and market their firm's expertise, while at the same time nurturing talent.

What will be the organizational identity of firms with an increasing percentage of lawyers outside the U.S.? A number of firms will cross the threshold and become global operations, no longer just U.S. firms with an international presence. Will such firms suffer identity crises? Will they be able to create a global identity that unites their partners worldwide?

Will firms that have avoided international expansion be able to continue to grow? Projections suggest that in 2025 Wachtell will still be wholly domestic and Cravath will have only about 6 percent of its lawyers outside the U.S. If the market forces them to move to a more global model, they may suffer significant financial and cultural costs, especially if they have to move quickly. Domestic firms with less marketable reputations may be hurt even more if they have to play global catch-up….

04.30.2008 at 12:18pm 0 Comments 0 Trackbacks

NYU/Government of Austria Issue "The UN Security Council and the Rule of Law"

by Peggy McGuinness

Simon Chesterman of NYU passed along the following summary and link to the report prepared by NYU Law School's Institute for International Law and Justice in collaboration with the Austrian Government titled, "The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rule-based International System." It looks to be a useful contribution to the growing literature on the UNSC as law maker and norm elaborator. The executive summary states:

(i) The UN Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, this included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on Member States under Chapter VII of the UN Charter. Today it embraces establishing complex regimes to enforce its decisions and passing resolutions of general rather than specific application. These expanded powers can facilitate swift and decisive action, but have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law.

(ii) The "rule of law" is widely embraced at the national and international levels without much precision as to what the term means. At the national level, it requires a government of laws, the supremacy of the law, and equality before the law. Strengthening a rules-based international system by applying these principles at the international level would increase predictability of behaviour, prevent arbitrariness, and ensure basic fairness. For the Council, greater use of existing law and greater emphasis on its own grounding in the law will ensure greater respect for its decisions.

(iii) In addition to post-conflict peacebuilding, the rule of law is now also seen as a tool for preventing or resolving conflicts. The preparedness of Member States to take collective action, through the Council, was endorsed, in limited circumstances, at the 2005 World Summit by the adoption of the Responsibility to Protect. It should be supported by firm opposition to impunity and greater efforts to establish or re-establish the rule of law in fragile States. The rule of law must also apply to those who intervene.

(iv) The Council is a creature of law but there is no formal process for reviewing its decisions; the ultimate sanctions on its authority are political. These include challenges to the Council's authority through the General Assembly, or individual or collective refusal to comply with its decisions. It is in no one's interest to push these political limits. For its part, the Council should limit itself to using its extraordinary powers for extraordinary purposes. When it is necessary to pass resolutions of a legislative character, respect for them will be enhanced by a process that ensures transparency, participation, and accountability. When the Council contemplates judicial functions, it should draw on existing institutions of international law.

(v) Sanctions targeted at individuals have presented a challenge to the authority of the Council: legal proceedings have been commenced in various jurisdictions and there is evidence that sanctions are not always applied rigorously. The Council should be proactive in further improving "fair and clear procedures" to protect the rights of individuals affected by its decisions, complying with minimum standards and providing on its own for periodic review.

(vi) The Security Council is most legitimate and most effective when it submits itself to the rule of law. Though the Council does not operate free of legal limits, the most important limit on the Council is self-restraint. Member States' preparedness to recognize the authority of the Council depends in significant part on how responsible and accountable it is -- and is seen to be -- in the use of its extraordinary powers. All Member States and the Security Council itself thus have an interest in promoting the rule of law and strengthening a rules-based international system.

04.30.2008 at 12:15pm 0 Comments 0 Trackbacks

Tuesday, April 29, 2008

Aftermath of the NAFTA Lumber Wars: More Litigation

by Julian Ku

Longtime readers may recall my previous obsession with the seemingly endless Lumber Wars between Canada and the U.S. over Canadian timber subsidies and U.S. tariffs punishing such subsidies. The dispute threatened NAFTA, or at least Chapter 19 of NAFTA, because of the U.S. lumber industry's lawsuit to declare that chapter unconstitutional.

Now it turns out that the deal to end the lumber wars is itself provoking litigation. As Roger noted in a previous post, the deal was itself highly unusual and outside of the NAFTA system. As this article points out, there are big questions about the $1 billion the U.S. government retained in the deal.

Is it an illegal $1 billion slush fund for Bush administration friends in the timber industry, extorted from Canada and designed to evade congressional oversight?

Or is it a fairly negotiated end to an expensive trade war that's "the best thing that has happened to private forest land conservation in the United States in 100 years?"

It depends on your point of view. Now, a federal lawsuit filed in Seattle is bringing more scrutiny to the controversial deal. Sen. Maria Cantwell, D-Wash., is spearheading a Senate effort to get more information about who got the money and what they're doing with it.

Sounds like a neat case. If anyone has a copy of the complaint, I would be happy to post it online here.

04.29.2008 at 3:37pm 0 Comments 0 Trackbacks

When Does Application of the Warsaw Convention End and State Tort Law Begin?

by Roger Alford

Last week a Florida state court rendered an interesting decision on the scope of application of the Warsaw Convention. The court recognized that state tort law is preempted by the Warsaw Convention, but the critical question in Bowe v. Worldwide Flight Services was at what point in exiting a plane does the application of the treaty end and state tort law begin.

The plaintiffs in this case allege they were injured as a result of an accident that occurred on an up escalator as they exited an area the parties describe as a “bus depot,” located one level below Main Concourse E at the airport, when Mrs. Ferguson, Mrs. Deleveaux's eighty-eight-year-old mother, apparently fell backward onto both Ms. Bowe and Mrs. Deleveaux, resulting in all three suffering personal injuries. The complaint alleges the defendants were negligent by failing to fulfill a request for wheelchair assistance made for Mrs. Ferguson, which caused the plaintiffs to fend for themselves and hence, the escalator accident.

The record reflects the accident in this case occurred on July 29, 2001. Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson had just arrived in Miami on an American Eagle commuter aircraft from Nassau. The aircraft arrived at a freestanding building, separate from the main concourse. In accordance with practice for aircraft arriving at that location, Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson departed the aircraft and boarded an American Airlines bus for the short trip to the main terminal. The bus brought them to the bus depot. Although it appears from the record the bus depot is served by two escalators and an elevator, at best the record is murky concerning ingress, egress, and the extent to which the general passenger populace on the concourses is free to enter the depot area….

The preemptive effect of the Convention on local law extends no further than the Convention's own substantive scope. In this regard, it is clear from the text of the Convention it applies only to a “carrier.” Warsaw Convention, art. 17. In addition, the Convention applies only to injuries occurring either on board an aircraft or “in the course of any operations of embarking or disembarking.” Warsaw Convention, art. 17. These requirements constitute the initial inquiries we must make to determine whether the Convention is applicable to the claims being made and those we must consider here….

The Warsaw Convention also does not define or elucidate upon the phrase “operations of embarking or disembarking.” See Warsaw Convention, art. 17. However, it is clear the term does not automatically exclude events transpiring, as is the case here, within an airline terminal building. Rather than impose location-based or other rigid criteria to delimit these periods of liability under the Warsaw Convention, courts employ a three-prong test or guide to determine whether a passenger is entitled to seek the benefits of the Convention by considering: (1) the passenger's activity at the time of the accident; (2) the passenger's whereabouts at the time of the accident; and (3) the amount of control being exercised by the carrier at the time of the injury. In addition, when considering these factors, these same courts have made clear that no single factor is dispositive. Instead, “the three factors form a ‘single, unitary [analytical] base.'"

That three-part test poses difficult questions as to when the application of the treaty ends and state law begins. Depending on what the passenger is doing, where they are doing it, and whether they are “controlled” by the carrier, the Warsaw Convention applies. The key idea is that there is a point in every flight of every passenger that he or she ceases to “disembark” from flight. At that exact moment state tort law applies. But before that moment, the Warsaw Convention applies and preempts contrary state law. So where should that line be? At the airplane door, the terminal gate, the baggage carousel, or perhaps the airport parking lot?

Incidentally, the court in Bowe makes no mention of Medellin and whether the Warsaw Convention should still be interpreted as a self-executing treaty in light of Medellin. Supreme Court precedent indicates that the Warsaw Convention is self-executing, but the preemption analysis in the Supreme Court’s decision in El Al Israel v. Tseng offers a useful comparison to the self-executing analysis in Medellin. In El Al Israel, the Court ruled that a “home-centered preemption analysis … should not be applied, mechanically, in construing our international obligations” and that the “text, drafting history, and underlying purpose of the Convention” should be examined to determine whether a treaty preempts state law. The Court also looked extensively to the interpretations given to the treaty in the “opinions of sister signatories.” Medellin, by contrast, focused primarily on text and the interpretion of the United States, which it said is entitled to great weight. As we try to make sense of Medellin, it would be useful to analyze why the Court ruled that the Warsaw Convention is self-executing in El Al Israel, but that in Medellin it ruled that Article 94 of the U.N. Charter is not.

04.29.2008 at 12:41pm 0 Comments 0 Trackbacks

Monday, April 28, 2008

Bellinger on the United States and the ICC

by Roger Alford

I think there is more to Bellinger’s speech on the United States and the ICC than Julian suggests. Let me just summarize the best parts of the speech. First, Bellinger emphasizes that the ICC is not a partisan issue:

A relatively straight line runs from the positions on the ICC taken by our Congress in 1990, to those of U.S. negotiators in Rome, to President Clinton’s decision not to seek Senate ratification of the Rome Statute and to recommend the same to his successor, and to the current position of the Bush Administration.

Second, Bellinger argues that this position is not likely to change with the next Administration:

Even if a future President were to advocate U.S. accession to the Rome Statute, he or she could very well face a skeptical reaction in the U.S. Senate. It’s worth bearing in mind that the American Servicemembers’ Protection Act – legislation that was not sought by the Bush Administration and that includes a range of restrictions on U.S. support for the ICC – passed the Senate in 2002 by a vote of 75-19, including the affirmative votes of Senators Clinton and McCain, as well as those of the current Senate Majority and Minority Leaders, Senators Reid and McConnell.

Third, if we accept that the United States will remain outside the ICC for the forseeable future, what should be the response? Bellinger has the following suggestion:

The core concerns of the United States about the Rome Statute have not been resolved during the past decade, and are unlikely to be resolved in the next decade, unless the Statute is changed. Accordingly, as we look forward, the United States will very likely remain outside the Rome Statute regime. This is a reality that ICC supporters should accept. Agreeing to disagree about the ICC is the essential first step toward developing a more mature and productive relationship that can effectively advance our shared goal of promoting international criminal justice. This will involve seizing opportunities for cooperative efforts where they exist and avoiding pitfalls that risk reigniting past tensions. We should be guided in our efforts by the premise that the ends we seek are far more important than the means by which we seek them. The United States and ICC supporters can do more to prevent impunity for serious crimes by working together than either can achieve on their own, and it is in our mutual interest to develop a relationship that recognizes this.

Finally, as for concrete ways that the United States and the ICC can work together in a cooperative manner, Bellinger mentions Darfur, the Security Council, and the Rome Statute review conference on a crime of aggression:

It is important that we put aside our differences on these issues because the next decade poses challenges that will require our collective efforts as well as pitfalls that risk further inflaming tensions over ICC issues. Let me now discuss a few issues that I think will shape the relationship between the United States and the ICC in the coming years.

A first area relates to the response to large scale and horrific crimes in Darfur. Absent a decision by the ICC to pursue an investigation or prosecution against a U.S. person, the outcome of the ICC’s Darfur work is likely to do more than any other factor in the near term to shape U.S. perceptions of the role and impact of the ICC…. Darfur is … a good example of an area where, with respect and goodwill on all sides, there may be opportunities for constructive cooperation….

A second more general area that will shape U.S. views and policy toward the ICC in the coming years will be the impact of the ICC’s work on the UN Security Council…. Now that the ICC is a reality, it will be important to the United States to ensure that the work of the ICC complements the work of the Council to maintain international peace and security…. As the ICC proceeds to investigate and prosecute cases under the Rome Statute, the Security Council must be prepared to act if and when necessary to ensure harmony between the ICC’s work and the Council’s broader efforts....

A final area that will shape U.S. views and policy toward the ICC is the outcome of the upcoming Rome Statute review conference, now scheduled for 2010. If Rome Statute parties were interested in trying to address the core U.S. concerns about the ICC, the Review Conference could provide an opportunity to do so. These issues aside, a principal focus of work of the conference will likely relate to proposals to define a crime of aggression over which the ICC could exercise jurisdiction…. Efforts to design an aggression regime for the ICC will also need to address the regime’s applicability to countries that are not parties to the Rome Statute. As I have noted, a core principle of our ICC policy is that, as we acknowledge the decisions of other states to join the Rome Statute and to submit to its jurisdiction, we ask that other states accept our decision not to do so. In this context, should Rome Statute parties seek to make an aggression regime they adopt applicable to non-parties, they will almost certainly provoke a serious new crisis in the ICC’s relationship with a new U.S. Administration.

I’m not sure whether this constitutes new rhetoric or not, but I like the notion that if the United States is not joining the ICC anytime soon, then we should move toward accepting that political reality and find ways to cooperate on areas where the United States and the ICC share common interests. I particularly think that developing a framework for a crime of aggression must be done with the close cooperation of the United States. As a practical matter the world has almost no other major defense force to support the cause of international peace and security. To think that our allies in the ICC would dictate to the United States how it will use those resources without input from the United States is a serious mistake.

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Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics

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Opinio Juris Inaugural On-Line Symposium: Challenges to Public International Law

Special Features

Recent Posts

More links here

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Saturday, May 3, 2008

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Tuesday, April 29, 2008

Monday, April 28, 2008

A weblog dedicated to reports, commentary, and debate on current developments and scholarship
in the fields of international law and politics