Opinio Juris http://www.opiniojuris.org/ en-us 2008-05-17T04:05+00:00 Australia Considers ICJ Genocide Case Against Iran http://www.opiniojuris.org/posts/1210984262.shtml I have thought all along that bringing an ICJ case against Iran for "incitement to genocide" against Jews in Israel is a useless gesture (and one with a weak legal footing... Julian Ku 2008-05-17T04:05+00:00 Australia is seriously considering such a case.

The Australian government is mulling over a decision to haul Iranian President Mahmoud Ahmadinejad before the International Court of Justice for inciting violence against Israel and denying Jewish holocaust, Prime Minister Kevin Rudd said Wednesday.

I vaguely recall that this was a campaign pledge of some sort during the recent Australian elections. And Australia definitely has all the legal resources to bring a respectable case (unlike Iran's flirtation with Professor Boyle). In any event, it is odd that Australia would be able to bring such a case given that there is no incitement against Australia, but as a number of commenters have reminded me, suffering an injury doesn't seem to matter for a genocide claim. The relevant article seems to be Article 9 of the Convention Against Genocide:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.


And I suppose the key article will be Article 3(c) ("The following acts shall be punishable: (c) Direct and public incitement to commit genocide;")

I just don't think there is the factual basis for such a case (yet). But I'm no expert. Luckily, we have recently had some experts, namely Professor Susan Benesch, weigh in during our recent VJIL symposium. Under her six part approach, I don't think Australia has a case (yet) (see pp. 527-28). But in any event, I do hope that the Australian government is consulting her. ]]> Oscar Pistorious and the Rights of Disabled Athletes http://www.opiniojuris.org/posts/1210980269.shtml The California Supreme Court's decision to legalize gay marriage wasn't the only good human-rights news yesterday. Also exciting is the Court... Kevin Jon Heller 2008-05-16T23:05+00:00 The California Supreme Court's decision to legalize gay marriage wasn't the only good human-rights news yesterday. Also exciting is the Court of Arbitration for Sport's decision to allow Oscar Pistorius, a double-amputee sprinter, to compete for a place in the Beijing Olympics:
The Court of Arbitration for Sport ruled that the 21-year-old South African is eligible to race against able-bodied athletes, overturning a ban imposed by the International Association of Athletics Federations.

CAS said the unanimous ruling goes into effect immediately.

"I am ecstatic," Pistorius told reporters in Milan, Italy. "When I found out, I cried. It is a battle that has been going on for far too long. It's a great day for sport. I think this day is going to go down in history for the equality of disabled people."

Pistorius still must reach a qualifying time to run in the individual 400 meters at the Aug. 8-24 Beijing Games. However, he can be picked for the South African relay squad without qualifying. That relay squad has not yet qualified for the Olympics.

Pistorius appealed to CAS, world sport's highest tribunal, to overturn a Jan. 14 ruling by the IAAF that banned him from competing. The IAAF said his carbon fiber blades give him a mechanical advantage.

[snip]

In its ruling, the CAS said the IAAF failed to prove that Oscar Pistorius' prosthetic running blades give him a competitive advantage.

The IAAF based its January decision on studies by German professor Gert-Peter Brueggemann, who said the J-shaped "Cheetah" blades were energy efficient.

Pistorius' lawyers countered with independent tests conducted by a team led by MIT professor Hugh M. Herr that claimed to show he doesn't gain any advantage over able-bodied runners.

CAS said the IAAF failed to prove that Pistorius' running blades give him an advantage.

"The panel was not persuaded that there was sufficient evidence of any metabolic advantage in favor of a double-amputee using the Cheetah Flex-Foot," CAS said. "Furthermore, the CAS panel has considered that the IAAF did not prove that the biomechanical effects of using this particular prosthetic device gives Oscar Pistorius an advantage over other athletes not using the device."

Pistorius was born without fibulas — the long, thin outer bone between the knee and ankle — and was 11 months old when his legs were amputated below the knee.
I find Pistorius's story profoundly inspiring — there were tears in my eyes as I read the ESPN article. And it's fitting that the decision comes less than two weeks after the UN Convention on the Rights of Disabled Persons entered into force.

Pistorius, of course, is only the latest disabled athlete to earn the right to compete against his abled peers. We can't forget the equally inspiring struggles of golfer Casey Martin, who convinced the Supreme Court to let him use a cart on the PGA Tour, or Marla Runyan, who became the first legally blind athlete to compete in the Olympics when she ran the 1500 meters in Sydney in 2000. And, of course, their stories connect to a much broader narrative of increasing equality in sport, a narrative that runs from Jackie Robinson to Billie Jean King to Mianne Bagger, a transgender golfer from Denmark whose efforts led the International Olympic Committee, the Ladies Golf Union, and the United States Golf Association to allow transgendered athletes to compete.

I've never been much of a track-and-field fan. But you can bet I'll be glued to the television if, as expected, Oscar Pistorius competes in Beijing.

POSTSCRIPT: There are obviously dozens more wonderful stories of athletes who compete despite disabilities or discrimination. As a baseball fan, I always rooted for Jim Abbott, who had a very good career as a pitcher for the Angels, Yankees, Brewers, and my beloved White Sox despite having only one hand. I hope readers will weigh in with the stories they find most inspiring.]]> ATS Apartheid Case Affirmed by Supreme Court http://www.opiniojuris.org/posts/1210952827.shtml In a strange move, the Supreme Court on Monday affirmed the ATS Apartheid case of Khulamani v. Barclay Bank (recaptioned at the Supreme Court as American Isuzu Motors v. Ntsebeza).... Roger Alford 2008-05-16T15:05+00:00 Khulamani v. Barclay Bank (recaptioned at the Supreme Court as American Isuzu Motors v. Ntsebeza). The stated reason? The Court lacked a quorum. From the docket sheet:

Because the Court lacks a quorum, 28 U.S.C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. § 2109, which provides that under these circumstances the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court. The Chief Justice, Justice Kennedy, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.
Under 28 U.S.C. § 1, "the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." And under 28 U.S.C. § 2109, in any case "which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Apparently four justices had to recuse themselves and therefore the Court lacked the six justice quorum required to decide the case.

If you look at the list of defendants it is perhaps not surprising that many of the justices had a conflict. Still, I have never heard of anything like this in such an important case. Lyle Denniston has more here.

]]> Wrap-Up Post: W(h)ither America? http://www.opiniojuris.org/posts/1210888420.shtml Chimene detects some nostalgia in Beyond Citizenship's suggestion that America may be unsustainable in the long run. But how could I not be nostalgic? I'm an American, and America has... Peter Spiro 2008-05-16T02:05+00:00 detects some nostalgia in Beyond Citizenship's suggestion that America may be unsustainable in the long run. But how could I not be nostalgic? I'm an American, and America has had a pretty good run of it.

At least I recognize the nostalgia. One thing that is both fascinating and frustrating about engaging on citizenship issues is the difficulty in keeping some perspective on the conversation. Most of the scholars addressing American citizenship theory are themselves Americans, and proud ones at that, the progressives as much as the conservatives. I think that sometimes adds an ingredient of wishful thinking to the mix. Americans certainly don't want to hear about the end of America (unless of course there's something they can do about it), academics no more than anyone else. There's something, well, slightly unpatriotic about it.

In fact constitutional law scholars may be more sensitive than others to the nation's possible dissipation. As John points out, constitutional governance as we know it is ultimately what's at stake here. Although progressive scholars aren't openly opposed to supra- and transnational forms of governance, it tends to make them fidget for the same reasons. The shift puts everything up for grabs in a slightly scary way. It's not just that power might shift away from America to other states, as the latest bestseller argues, it's that power may shift beyond the state, to zones in which all our received wisdom may just not apply. The United States will be around as a weighty, historic association of individuals, of citizens, into the distant future, but for many it will be a less important component of their identity going forward. America is not for all time. Academics are positioned to be thinking through alternate locations of governance.

Many, many thanks to Alex, Chimene, Cristina, John, Jon, and Ken for participating with their thoughtful and challenging posts in this book roundtable. I think this has been an edifying discussion, or at least I know that I've learned a lot in the process. I hope some readers have also found it to be of interest, though I'm sure others will be relieved that we now return to our regular programming! ]]> John Boonstra on R2P and Burma http://www.opiniojuris.org/posts/1210892280.shtml I had contemplated weighing in on commentators' unfortunate tendency to equate the Responsibility to Protect doctrine with humanitarian invasion, but John Boonstra at UN Dispatch beat me to it. Here's... Kevin Jon Heller 2008-05-15T22:05+00:00 UN Dispatch beat me to it. Here's a snippet:
First, by and large, the R2P doctrine has been misunderstood or misrepresented in calls to "invade" Burma. R2P is often implied to boil down to a simple equation: if a government is unable or unwilling to adequately protect its citizens, then the international community has a right to forcibly intervene to protect these people. The first part of this conditional is accurate, but the second is a gross oversimplification. R2P does not prescribe invasion any more than the Constitution of the United States mandates impeachment. Military intervention is only one component of the R2P framework, and one of last resort, at that; it is only to be undertaken when a series of specific conditions are met, ensuring that intervention is justified, well-intentioned, practical, authorized by the proper authority (i.e., the UN Security Council), and will not cause more harm than good.

Wielding R2P as a Trojan horse for invasion and regime change, as Robert Kaplan seems to desire, is harmful to the integrity and future viability of the concept, as well as to the more pressing concern of alleviating the Burmese people's suffering.
The whole post is well worth a read. It's here.]]> Who Needs Citizenship? http://www.opiniojuris.org/posts/1210874653.shtml Thanks to Ken for injecting the Ignatieff observation, with which I emphatically disagree! Nation-states are useful handmaidens to the superclass, but the real elites could do just fine... Peter Spiro 2008-05-15T18:05+00:00 Thanks to Ken for injecting the Ignatieff observation, with which I emphatically disagree! Nation-states are useful handmaidens to the superclass, but the real elites could do just fine without them, thank you very much. It's nice to have safe streets in places New York and London, but that's the business of local governments, not national ones. In locales where things are dicier, there's always private security. As for the other forms of order that elites depend on, like financial order, again states are useful, but an increasing number of transnational institutions are just fine running on their own non-governmental steam. In any case citizenship in a particular country isn't an issue for elites: the SEC, for example, works for Singaporean, British and Mexican elites, too.

The tougher (and more typical) challenge is whether non-elites need citizenship. As Alex notes, "the transnational trends that Peter identifies may be working on behalf of but a small—and privileged—slice of humankind." For her part Cristina asserts that "[e]veryone needs a citizenship, whether because citizenship is, in Arendt’s formulation, the 'right to have rights,' or the primary security we have that we cannot be banished from at least one place on earth, or the mechanism for ensuring that everyone belongs somewhere such that every person is the ultimate responsibility of some government."

At some level that is obviously still true. If you're not a transnational elite, citizenship is a very nice thing to have, and it's nicer to have US citizenship than, say, Mexican citizenship. But it's not what it used to be. We've left behind the Arendtian world in which the lack of citizenship left you completely exposed to the sovereign elements. That's what the human rights revolution is all about.

As for US citizenship, it gets you absolute locational security and the right to vote, and not much else. Wherever the overall naturalization rate is going, there are lots of permanent residents who don't bother to naturalize, even after decades of territorial presence (more than 25% of those in the country for more than 20 years have yet to acquire citizenship). Why not? Must not be worth that much to them. ]]> My last few words http://www.opiniojuris.org/posts/1210871878.shtml Thanks again to Peter, without whose terrific book we couldn't have done this, and who has responded challengingly and gracefully throughout this conversation. It's been a lot of fun.... Jon Weinberg 2008-05-15T17:05+00:00
I want to reassure John that he really isn't the only one here skeptical of global governance. Speaking for myself, I'm not such a fan either. Governance institutions tend to suffer from ever-increasing democracy deficits as they grow larger, and global institutions are the largest of all. In my other life, doing Internet and telecom law, the track record of global governance is pretty dispiriting.

It does seem to me, though, that we can believe in the nation-state — and believe that governance should take place on that level — without believing that the U.S. should impose arbitrary limitations on immigration-for-permanent-residence-and-ultimately-citizenship. That is, I believe that we can have a strong nation-state consistently with having borders that are much more open than this country's are today. This relates to a key theme of Peter's book that we didn't really get to in this discussion: Can we have a strong conception of citizenship but only weak limits on entry into citizenship? I think we can (or at least we can have a strong enough conception of citizenship), and Cristina has articulated some of the reasons why. But the rest of that discussion will have to wait for another day.]]> Global Governance vs. Liberal Democracy? We are going to have to choose http://www.opiniojuris.org/posts/1210866222.shtml I want to thank Peter for inviting me to participate in this discussion. It has been very useful and clarifying. I will close with a few thoughts. Peter's book addresses what... John Fonte 2008-05-15T15:05+00:00
What we are talking about is the ultimate normative question of politics going back to Plato and Aristotle: who shall govern? For many among Western elites the big idea of the coming century will be how do go beyond the nation-state and national citizenship and create some new form of global governance. In my view (and I realize I'm in a minority in this discussion) global governance (as it has been articulated to date) presents a direct challenge to the legitimacy and authority of the liberal democratic nation-state in general and to American constitutional sovereignty in particular. It is not possible, in my view, to have the new forms of post-national global governance (that have been described in our exchanges) and have, at the same time, constitutional democratic government. At the end of the day, we must choose global governance or liberal democracy?

I choose liberal democracy and its only real historical home, the liberal democratic nation-state as the highest political authority, above any international institution or laws. This is a universal principle and American foreign policy should apply this universally, speaking not simply for American democratic sovereignty, but for the democratic sovereignty of other liberal democratic states as well in arguments over, for example, the International Criminal Court (ICC). Particularly, we should speak up for and protect those democratic nation-states that are under pressure from transnational institutions and forces such as Israel and the Czech Republic (non-ratifiers of the ICC). I will be addressing these issues in my forthcoming (2009) book, Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others? (Encounter Books). Thanks Peter.

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