Opinio Juris -

Saturday, May 10, 2008

Is It Time to Invade Burma? (Is It Time to Invade Georgia?)

by Chris Borgen

The first part of this post's title is also the title of a new article at Time.com. (Note: on CNN.com, they title the article "Time to Invade Myanmar?")

And so begins the latest iteration of the humanitarian intervention debate. After a recap of the situation in Myanmar, the article notes:

...it's hard to imagine a regime this insular and paranoid accepting robust aid from the US military, let alone agreeing to the presence of US Marines on Burmese soil — as Thailand and Indonesia did after the tsunami. The trouble is that the Burmese haven't shown the ability or willingness to deploy the kind of assets needed to deal with a calamity of this scale — and the longer Burma resists offers of help, the more likely it is that the disaster will devolve beyond anyone's control. "We're in 2008, not 1908," says Jan Egeland, the former U.N. emergency relief coordinator. "A lot is at stake here. If we let them get away with murder we may set a very dangerous precedent."

That's why it's time to consider a more serious option: invading Burma. Some observers, including former USAID director Andrew Natsios, have called on the US to unilaterally begin air drops to the Burmese people regardless of what the junta says. The Bush Administration has so far rejected the idea — "I can't imagine us going in without the permission of the Myanmar government," Defense Secretary Robert Gates said Thursday — but it's not without precedent: as Natsios pointed out to the Wall Street Journal, the US has facilitated the delivery of humanitarian aid without the host government's consent in places like Bosnia and Sudan.

The article concludes that, if current attempts at assistance fail,

"It's important for the rulers to know the world has other options," [Jan Egeland, a former UN emergency reloief coordinator] says. "If there were, say, the threat of a cholera epidemic that could claim hundreds of thousands of lives and the government was incapable of preventing it, then maybe yes — you would intervene unilaterally." But by then, it could be too late. The cold truth is that states rarely undertake military action unless their national interests are at stake; and the world has yet to reach a consensus about when, and under what circumstances, coercive interventions in the name of averting humanitarian disasters are permissible. As the response to the 2004 tsunami proved, the world's capacity for mercy is limitless. But we still haven't figured out when to give war a chance.

I am of two minds when it comes to humanitarian intervention. Cases such as Myanmar may be the less difficult cases--situations where there is a threat of widepread disease or famine (let alone the physical injuries and other forms of suffering caused by the storm) and a government is either incapable or uninterested in actually doing what needs to happen to save its own citizens. I'm not saying that that is an easy case for humanitarian intervention, just that it is not as hard as other examples that are more politically ambiguous, such as intervening because of civil strife or sectarian violence.

Turning such a political decision into a legal rule is fraught with dangers. What do we do if the Russian intervene militarily in Georgia, on the pretext that they are protecting Russian passport holders? What of Turkey's intervention in Northern Cyprus in the 1970's on the argument that it was protecting Turkish Cypriots from violence? As I've written regarding Kosovo, the law of unintended consequences is a mighty force to reckon with.

The people of Myanmar desperately need help and they need it now. Perhaps intervening without the consent of their government will be the necessary and moral thing to do. I don't know enough about the facts on the ground to judge that. But, even if various states do undertake such an action, they should think very carefully about proclaiming the existence of a legal principle favoring humanitarian intervention.

05.10.2008 at 2:45pm 5 Comments 0 Trackbacks

U.S. Law Professor "Demands" to Represent Iran in Case Against israel

by Julian Ku

Francis Boyle, a law professor at the University of Illinois, has "demanded" that Iran let him bring a case against Israel in an international tribunal, according to an Iranian news station. Boyle is quoted as saying:

"I am ready to represent Iran in an international tribunal for trying the Zionist regime on charges of genocide of Palestinians and the blockade in the Gaza Strip,"

I have no idea what court Boyle thinks would have jurisdiction, other than the ICJ. And even if the ICJ had jurisdiction, why would Iran be the proper party to espouse Palestinian claims? Moreover, I think his charge of genocide against Israel is ludicrous. Even if Israel has committed human rights violations against the Palestinians, genocide is of quite another character altogether. And tossing the genocide charge around so loosely undermines the usefulness of the concept. Even President Carter wouldn't go so far.

It's a good thing for Boyle that he has tenure....

05.10.2008 at 12:02am 12 Comments 0 Trackbacks

Friday, May 9, 2008

Guantanamo's Collateral Damage

by Peggy McGuinness

In his January 2002 comments to then-White House Chief of Staff Gonzales on the applicability of the Geneva Conventions to detainees captured in Afghanistan, Colin Powell warned of the foreign policy consequences of abandoning long-accepted Geneva Convention practices, including:

It will reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.

It has a high cost in terms of negative international reaction, with the immediate adverse consequences for our conduct of foreign policy.

It will undermine public support among critical allies, making military cooperation more difficult to sustain.

I added my own thoughts about the foreign policy costs in this response to Eric Posner during last year's Opinio Juris discussion of GWOT legal policy with John Bellinger. Today, we learn of the most recent specific cost of the Guantanomo detention policy: The withdrawal of the nomination of former Guantanamo Commander Jay Hood to head the military liason office at the US Embassy to Pakistan. As the NY Times reports here:

[T]he military has quietly canceled the assignment of General Hood, a 33-year Army veteran who was excoriated in the Pakistani news media for one of his previous jobs: commander of the United States prison at Guantánamo Bay, Cuba.

During General Hood’s command from 2004 to 2006, military authorities force-fed with tubes detainees who were engaging in hunger strikes at the Guantánamo prison, a step they justified as necessary to prevent the prisoners from committing suicide to protest their indefinite confinement. Also during General Hood’s tenure, reports that an American guard may have desecrated a Koran stirred wide protests in the Islamic world.

The decision to withdraw General Hood’s assignment has not been announced, but it appears to reflect the widening shadow that the military prison at Guantánamo is casting over American foreign policy. While the United States considers Pakistan a close ally in its counterterrorism efforts, the accounts by Pakistanis who have returned to Pakistan after being held at Guantánamo Bay have added to anti-American sentiment in the country.

Several leading Pakistani military and foreign affairs commentators denounced General Hood’s selection in recent weeks, calling on their new government to block his appointment. In interviews this week, American military officials said they had reluctantly concluded that General Hood’s effectiveness could be seriously hindered, and that his personal safety might even be at risk if he were to take up the post.

About 65 detainees at Guantánamo Bay have been repatriated to Pakistan, according to Cmdr. Pauline Storum, a military spokeswoman.

What is particularly striking is that the withdrawal came in response to public outcry (though one can assume it was echoed in official communiques) in a place where symbols can be leveraged by very dangerous elements:

“Guantánamo Bay itself has become a symbol of injustice, torture and abuse of Islam, and sending a commanding officer from there to Islamabad begs the question: What is the message coming out of the Pentagon for Pakistanis by this insensitive act?” Shireen M. Mazari, director general of the Institute of Strategic Studies, a research group in Islamabad financed by Pakistan’s foreign office, wrote on March 20 in The News, one of the largest English-language newspapers in Pakistan.

So, will John McCain pick a running mate who thinks we should "double Guantanamo?" Or will he stick to his recent statement calling for its closure?

05.09.2008 at 12:21pm 2 Comments 0 Trackbacks

Thursday, May 8, 2008

How Do You Interpret the Last-in-Time Rule?

by Roger Alford

Boring tax case, interesting international law issue. That's how I would summarize Jamieson v. CIR. The issue in Jamieson is what happens if a treaty says one thing, a subsequent statute conflicts with that treaty, and then there is a subsequent treaty change to the conflicting treaty provision, but that amendment does not remove the conflict. Under the last-in-time rule which provision prevails? Here is what the U.S. Tax Court ruled:

In 1986, while the U.S.-Canada Convention was in force, Congress amended the AMT imposed on noncorporate taxpayers by section 55 and added section 59 to the Code.... [Thereafter] the U.S.-Canada Convention was amended.... The revised Protocol Amending the Convention... made changes to Article XXIV affecting credits for Social Security tax, corporate tax exemptions, and the tax treatment of dividends, interest, and royalties,... but did not alter the general rule found in article XXIV, paragraph 1. Neither the Third nor the Fourth Protocol references section 59 [the earlier conflicting statutory provision].

It is well established that, where a statute and a treaty pertain to the same subject matter, they must be read so as to give effect to both if at all possible.... If, however, the statute and the treaty conflict, the last-in-time rule requires that “the last expression of the sovereign will ... [controls].”...

Applying the last-in-time rule, we hold that section 59(a)(2) is the last expression of the sovereign will and that it takes precedence over the U.S.-Canada Convention to the extent there is a conflict between them. [The statute] makes it very clear that Congress intended the limitation of section 59(a)(2) to supersede existing treaty provisions prohibiting double taxation. The U.S.-Canada Convention was one of those treaties. Neither the Third nor the Fourth Protocol contains any provision clearly indicating that Congress's intention to ensure that taxpayers with sufficient means should contribute a minimum amount of tax to the United States had been superseded.

So a treaty provision conflicts with a statute, and then that treaty provision is amended without fixing the conflict. Under the last-in-time rule, although the amended treaty provision came later, the failure to address the conflict means that the earlier conflicting statute controls? That logic seems more than a little curious to me. I wonder what others think.

05.08.2008 at 11:45am 1 Comments 0 Trackbacks

Opinio Juris Book Discussion: Peter Spiro's Beyond Citizenship

by Julian Ku

Next week we'll be hosting a discussion of our own Peter Spiro's Beyond Citizenship: American Identity After Globalization (Oxford University Press). As readers of this blog know, Peter has many wonderful insights into the way that citizenship and national identity interact in a globalizing environment. (His latest post on Pamela Anderson is just the latest lighthearted example of his much larger project).

The book uses citizenship practice as a lens on national identity, with discussions of birthright citizenship, naturalization, and plural citizenship, as well as of citizenship's place in defining rights and obligations, all in Peter's trademark accessible style. We are very fortunate to have four distinguished guest commentators for the event: Alex Aleinikoff, John Fonte, Cristina Rodriguez, and Jonathan Weinberg. Peter will lead off and respond to comments. We'll look forward to what is sure to be a lively and fascinating discussion!

All Related Posts (on one page) | Some Related Posts:

Wrap-Up Post: W(h)ither America?
Who Needs Citizenship?
My last few words ...
Citizenship: Down But Not Out
Book Roundtable: American Identity in the Face of Globalization
Opinio Juris Book Discussion: Peter Spiro's Beyond Citizenship

05.08.2008 at 12:02am 0 Comments 0 Trackbacks

Wednesday, May 7, 2008

A Sensible Argument Against a Corporate Human Rights Treaty

by Julian Ku

As Roger noted recently, John Ruggie, the United Nations secretary-general’s special representative for business and human rights, has released his third report on human rights and business. In this article, Ruggie offers a sensible and persuasive argument against codifying his principles of business conduct into a human rights treaty.

I have three main reservations about recommending to states that they launch a treaty process at this time. First, treaty-making can be painfully slow, while the challenges of business and human rights are immediate and urgent. Second, and worse, a treaty-making process now risks undermining effective shorter-term measures to raise business standards on human rights. And third, even if treaty obligations were imposed on companies, serious questions remain about how they would be enforced.

Interestingly, many of his arguments here can be made against all types of human rights treaties. In any event, his clear-eyed practical view of human rights realities is to be applauded.

05.07.2008 at 9:10pm 1 Comments 0 Trackbacks

Here Comes the U.N. Convention on the Rights of Persons with Disabilities

by Julian Ku

Now that was fast. The U.N. Convention on the Rights of Persons with Disabilities was opened for signatures in March 2007. And it entered into force on May 3, 2008, barely a year later. Celebrations will be held on May 12, 2008 from 1:15 to 3:15 p.m. at the General Assembly Hall.

Conspicuously absent from the list of signatories is the U.S. I have to admit I know next to nothing about this treaty, so I am unaware of the U.S. objection to the treaty, if indeed, the U.S. objects at all. It could be that the wheels of treaty making in the Executive Branch are grinding slowly on this one. If anyone has more info on the treaty and the U.S. position on it, I welcome their additions to the comments.

05.07.2008 at 5:41am 3 Comments 0 Trackbacks

Melzer, Targeted Killing in International Law

by Kevin Jon Heller

Oxford University Press has just published my friend Nils Melzer's book Targeted Killing in International Law. Here is the description from the Oxford website:

A comprehensive analysis into the lawfulness of state-sponsored targeted killings under international human rights and humanitarian law, this book examines treaties, custom and general principles of law to determine the normative paradigms which govern the intentional use of lethal force against selected individuals in law enforcement and the conduct of hostilities. It alse addresses the relevance of the law of interstate force to targeted killings, and the interrelation of the various normative frameworks which may simultaneously apply to operations involving the use of lethal force.

Through a comprehensive analysis of treaties, custom and general principles of law in light of jurisprudence, doctrine and travaux preparatoires the author demonstrates that contemporary international law provides two distinct normative paradigms which govern targeted killings in situations of law enforcement and the conduct of hostilities. Based on the resulting normative paradigms, the author shows in what circumstances targeted killings may be considered as internationally lawful. The practical relevance of the various conditions and modalities are illustrated by reference to concrete examples of targeted killing from recent state practice.

The book argues that any targeted killing not directed against a legitimate military target remains subject to the law enforcement paradigm, which imposes extensive restraints on the practice. Even under the paradigm of hostilities, no person can be lawfully liquidated without further considerations. As a form of individualized or surgical warfare, the method of targeted killing requires a "microscopic" interpretation of the law regulating the conduct of hostilities which leads to nuanced results reflecting the fundamental principles underlying international humanitarian law.

The author concludes by highlighting and comparing the main areas of concern arising with regard to state-sponsored targeted killing under each normative paradigm and by placing the results of the analysis in the greater context of the rule of law.

The book is obviously very timely, given the debate (see, for example, here and here) about the legality of the recent U.S. airstrike in Somalia. I hope to organize a mini-symposium on the book in the near future. Until then, buy and read it for yourself!

05.07.2008 at 12:30am 6 Comments 0 Trackbacks

McCain Equates International Law (in Constitutional Interpretation) as an "Airy Construct"

by Julian Ku

Some clues to the types of judges a President McCain might appoint can be found in his speech today. Readers of this blog might be interested in McCain's criticism of Roper v. Simmons and its musings on international law.

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

He is basically right about the inherent problems of using international law to interpret the U.S. Constitution in the rights context. But I somehow doubt a President Obama (or President Clinton) would share these sentiments.

05.07.2008 at 12:02am 2 Comments 0 Trackbacks

Tuesday, May 6, 2008

How Do You Chip out of a Mortar Hole?

by Kevin Jon Heller

I'm sorry, I just can't let this one go:

Picture, if you will, a tree-lined plaza in Baghdad's International Village, flanked by fashion boutiques, swanky cafes, and shiny glass office towers. Nearby a golf course nestles agreeably, where a chip over the water to the final green is but a prelude to cocktails in the club house and a soothing massage in a luxury hotel, which would not look out of place in Sydney harbour. Then, as twilight falls, a pre-prandial stroll, perhaps, amid the cool of the Tigris Riverfront Park, where the peace is broken only by the soulful cries of egrets fishing.

Improbable though it all may seem, this is how some imaginative types in the US military are envisaging the future of Baghdad's Green Zone, the much-pummelled redoubt of the Iraqi capital where a bunker shot has until now had very different connotations.

A $5bn (£2.5bn) tourism and development scheme for the Green Zone being hatched by the Pentagon and an international investment consortium would give the heavily fortified area on the banks of the Tigris a "dream" makeover that will become a magnet for Iraqis, tourists, business people and investors. About half of the area is now occupied by coalition forces, the US state department or private foreign companies.

The US military released the first tentative artists' impression yesterday. An army source said the barbed wire, concrete blast barriers and checkpoints that currently disfigure the 5 sq mile area would be replaced by shopping malls, hotels, elegant apartment blocks and leisure parks. "This is at the end of the day an Iraqi-owned area and we will give it back to them with added value," said the source, who requested anonymity.

Potential investors are being encouraged to take a punt that years ahead, Baghdad's fortunes may mirror former war-torn cities such as Sarajevo and Beirut that have risen from the ashes.

Marriott International has already signed a deal to build a hotel in the Green Zone, according to Navy Captain Thomas Karnowski, the chief US liaison. Also in the pipeline is a possible $1bn investment from MBI International, a hotel and resorts specialist led by Saudi sheikh, Mohamed Bin Issa Al Jaber.

One Los Angeles-based firm, C3, has said it wants to build an amusement park on the Green Zone's outskirts. As part of the first phase, a skateboard park is due to open this summer.

The best thing about the "artist's rendering" is the complete absence of background. Wonder why that is?

05.06.2008 at 6:42pm 1 Comments 0 Trackbacks

Pamela Anderson Becomes a US Citizen (But a Member of the Superclass She's Not)

by Peter Spiro

It's true. She was born a Canadian (and presumably remains one, joining the legions of dual citizens). Said Anderson of the development: "Being a citizen excites me not just because I can vote, but because I can crack the whip on Capitol Hill to defend animals." But surely that's a whip that could have been receptively cracked as a noncitizen, too. I doubt many congressmen were asking to see her passport at the office threshold. (Baywatch, by the way, is according to the Guinness Book of World Records the most watched TV show of all time, with 1.1 billion viewers worldwide.)

That said, Anderson clearly doesn't belong to the group of 6000 individuals who run big international organizations and "can have much more power over key aspects of your daily life and over global trends than most officials in Washington are likely to have, except in the most extreme circumstances." See this WaPo distillation by David Rothkopf of his new book Superclass: The Global Power Elite and the World They Are Making, which looks like an interesting, best-seller take on the migration of power in the face of globalization. These folks don't need US citizenship, either, and yet many are cracking less appealing whips here and elsewhere.

05.06.2008 at 12:15am 0 Comments 0 Trackbacks

Monday, May 5, 2008

Reason #856 to Love New Zealand

by Kevin Jon Heller

Stories like this cause barely a ripple of controversy:

Girls may be given free access to the emergency contraceptive pill at their local Auckland pharmacies in a bid to reduce teen pregnancies and abortions.

The medicine can already be sold by many pharmacists without a doctor's prescription, including to girls without parental consent.

An Auckland District Health Board committee will tomorrow consider a staff proposal to make the pill free through community pharmacies in Auckland city.

People given the Levonelle 1 pill by their pharmacist would also be offered a packet of condoms and a pamphlet on sexual health and contraception.

Sane family planning driven by medical experts, not by religious fanatics who are far more interested in controlling women's sexuality than in promoting women's health. What's the world coming to?

05.05.2008 at 8:03pm 19 Comments 0 Trackbacks

ICTR "Disowns" Human Rights Watch

by Kevin Jon Heller

How desperate is the ICTR to fulfill its completion strategy by dumping cases on Rwanda? Enough to disavow the NGO on which it has relied on for nearly 14 years:

The Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) when presenting last week his motion in favour of transfer of genocide accused Yusuf Munyakazi to Rwanda, clearly distanced himself from the Non Governmental Organisation (NGO) Human Rights Watch (HRW), on which, however, the UN Court has relied on for the last 14 years for expert testimony.

Presenting his arguments before the Chamber, the prosecutor accused HRW of lack of credibility and having confused the collection of information on the violations of human rights in general and international criminal proceedings in an apparent attempt to rebuff HRW's contention not to send 1994 genocide accused persons to stand trials in Kigali.

He also affirmed that the HRW's sources were in fact "inadmissible and not very reliable".

Since the first indictment presented at the ICTR, the Office of the Prosecutor (OTP) has relied mainly on the collective investigation carried out by HRW and the book titled "Leave None to Tell the Story", which it presents as evidence in the majority of the trials.

The prosecution, moreover, has called in almost every trial as an expert witness, Dr Allison des Forges, official in charge of Africa for HRW, who is also a historian and specialist in Rwanda.

By "lack of credibility," the prosecutor really means "not letting us get away with allowing ICTR defendants to receive unfair trials in Rwanda." Which they will, as I have argued and as HRW has documented in detail.

Not suprisingly, HRW rejected the prosecutor's allegations:

Responding to the Prosecution's allegations, Ms Reidy informed the Chamber of their systematic compilation of reports, method applied and categories of people interviewed in their investigations of the Rwandan judicial system.

For example, among people questioned, she affirmed, were four current or former ministers of justice, 14 current or former judges, 11 current or former prosecutors, three current or former bar association presidents, 15 national or international NGO representatives and more than 100 Rwandan victims of various abuses of the legal system.

I understand the Security Council's eagerness for the ICTR to close up shop. But that eagerness cannot be allowed to override the rights of ICTR defendants.

05.05.2008 at 6:20pm 2 Comments 0 Trackbacks

Medellin Execution Date Set

by Duncan Hollis

Jose Ernesto Medellin is scheduled for execution by the state of Texas on August 5, 2008. If one assumes that Executive Branch officials have an interest in trying to find new ways to comply with the Avena decision (an open question I know), that does not leave them much time. From my perspective, the Executive Branch has two, equally unattractive, options.

First, they can try for federal legislation, which the Medellin decision suggests would be the appropriate vehicle for converting the non-self-executing treaty obligations of the UN Charter (or the VCCR Optional Protocol) into judicially enforceable domestic law. Of course, getting Congress to pass such a bill in an election year seems pretty unlikely, especially when one considers the crimes for which Mr. Medellin was convicted (and that's without even trying to figure out what the bill would say). Second, before the Supreme Court's decision, the Texas Criminal Court of Appeals had suggested that they'd enforce an Executive Agreement with Mexico "settling" Mexico's claims against the United States even with respect to criminal proceedings such as those involving Mr. Medellin. So perhaps Mexico and the United States could "agree" that Mexico has outstanding claims against the United States for its non-compliance with the Avena decision that will be resolved by providing the named individuals judicial review and reconsideration in U.S. Courts (again, there may be a thorny question of which U.S. courts -- federal or state?) But the Supreme Court's Medellin opinion may have made that option less viable--or at least given the Texas Court cause to reconsider its earlier views--since it took a much narrower view of Executive Power than earlier precedents like Crosby and Garamendi might otherwise have suggested.

Since I know we have a few readers out there who work for the Executive Branch, I'd encourage others to chime in with their views on the options I propose and/or alternative solutions that could lead to Avena compliance in some manner that's consistent with the Court's Medellin decision.

05.05.2008 at 5:29pm 1 Comments 0 Trackbacks

Are Evolving Standards of Decency a One-Way Ratchet?

by Roger Alford

One of the more intriguing questions from the oral argument in the child rape death penalty case of Kennedy v. Louisiana is whether evolving standards of decency are a one-way ratchet. Here is Justice Stevens' question from the oral argument last month:

[O]ne question that interests me but is a little divorced from the terms of the arguments so far. I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply. They suggest that as a matter of international law, there's sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It's kind of a one-way rachet, we look at trends in one direction but we don't look to see if you suddenly have changed gears and go in the other direction. Could you just comment on that argument?... I just use[] that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a — one way direction in which these cases go. Do you think it's appropriate — are you aware of any case saying we can turn around and go in another direction?

The amicus brief of British Law Lords referenced by Justice Stevens summarizes the one-way ratchet argument succinctly:

International authorities have long agreed that nations that retain the death penalty must refrain from expanding the death penalty to crimes to which it currenlty does not apply--a principle that has been codified in a regional convention and reaffirmed by the jurisprudence of human rights bodies. There is an equally strong global consensus that nations should gradually narrow the categories of offenses for which the death penalty may be imposed.

It is an interesting idea. Note that the role of comparative and international law is not with respect to the content of a particular substantive right but rather the methodology by which standards should evolve. The question posed is not what other countries do with respect to child rape and the death penalty, but rather whether other countries allow for the expansion of the death penalty. Justice Stevens is suggesting that perhaps a living constitution should evolve in the same manner that international law evolves, with the death penalty moving in only one direction toward abolition.

The apparent concern that animates Justice Stevens' question is that the national consensus may be trending toward allowing the death penalty for child rape. If the national consensus is evolving toward a conclusion that this punishment is not cruel and unusual, on what basis can Justice Stevens limit the use of that evolving standard? I seriously doubt that the Court will rely on international or comparative law to embrace a one-way ratchet, but it is worth discussing whether our own jurisprudence would allow for such a limit on the evolving standards of decency.

05.05.2008 at 11:19am 1 Comments 0 Trackbacks

Sunday, May 4, 2008

Pope Benedict: International Law Theorist

by Julian Ku

I didn't notice until recently (and thanks to one of my Hofstra colleagues) that Pope Benedict's recent address to the United Nations included a rather learned disquisition on international law theory. The Pope has a pretty traditional liberal internationalist conception of things but it is certainly smart and sophisticated. Here is an interesting snippet, which might be understood to justify international intervention to prevent violations of human rights (although not quite a brief for humanitarian intervention):

IRecognition of the unity of the human family, and attention to the innate dignity of every man and woman, today find renewed emphasis in the principle of the responsibility to protect. This has only recently been defined, but it was already present implicitly at the origins of the United Nations, and is now increasingly characteristic of its activity. Every State has the primary duty to protect its own population from grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made. If States are unable to guarantee such protection, the international community must intervene with the juridical means provided in the United Nations Charter and in other international instruments. The action of the international community and its institutions, provided that it respects the principles undergirding the international order, should never be interpreted as an unwarranted imposition or a limitation of sovereignty. On the contrary, it is indifference or failure to intervene that do the real damage. What is needed is a deeper search for ways of pre-empting and managing conflicts by exploring every possible diplomatic avenue, and giving attention and encouragement to even the faintest sign of dialogue or desire for reconciliation.

In any event, it is interesting stuff and worth investigating further.

05.04.2008 at 12:02am 2 Comments 0 Trackbacks

Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship
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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

Contributors

Guest Writers

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

Special Features

Recent Posts

More links here

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Saturday, May 10, 2008

Friday, May 9, 2008

Thursday, May 8, 2008

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Tuesday, May 6, 2008

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Sunday, May 4, 2008

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