Saturday, July 14, 2007

Clark & Pickering: A Treaty That Lifts All Boats

Vern Clark (Former Chief of Naval Operations) & Thomas R. Pickering (Former U.S. Permanent Representative to the United Nations & Under Secretary of State for Political Affairs) have an op-ed in today's New York Times entitled A Treaty That Lifts All Boats. This continues the discussion of whether the Senate should provide its advice and consent to ratification of the Law of the Sea Convention. (Other recent op-eds can be found in previous posts.) Here it is:

As the world’s most significant maritime power, the United States protects its national security interests by full freedom of navigation around the globe. The seas make up about 70 percent of the surface of the earth. Yet we have not ratified an international treaty that would enable our armed forces to defend us at home and abroad with legal certainty, and would vastly increase our sovereign rights off the coasts of the United States.

That treaty is the Convention of the Law of the Sea, and the Senate should ratify it during this session of Congress as President Bush has requested. Joining the treaty is a national security action that would protect our country and its interests.

The treaty provides our military the rights of navigation, by water and by air, to take our forces wherever they must go, whenever it is necessary to do so. Our ships - including vessels that carry more than 90 percent of the logistic and other support for our troops overseas - are given the right of innocent passage through the territorial seas of other states. In addition, the treaty permits American warships to board stateless vessels on the high seas.

The treaty also provides an absolute right of passage through, over and under international straits and through archipelagoes like Indonesia. These rights - the crown jewels of the treaty - did not exist before 1982, when the Convention was concluded. Our security and economic interests are tied directly to these rights.

Another provision in the treaty establishes the breadth of the territorial sea - the area within which a state may exercise sovereignty - at 12 miles. This allows the United States to extend its territorial sea from three miles to 12 miles, while making several other nations reduce their excessive claims.

Our national security interests alone should be sufficient to persuade the Senate to act now. But the Convention also advances the economic interests of our country. It gives us an exclusive economic zone out to 200 miles, with sovereign rights for exploring, exploiting, conserving and managing the living and non-living natural resources of the zone.

Coastal states are given sovereign rights over the continental shelf beyond 200 miles if the shelf meets specific geological and other scientific criteria. Under the Convention, our Arctic continental shelf could extend out to 600 miles.

Our nation will be in a much stronger position to advance its military and economic interests if we ratify the treaty. We can guide and influence the interpretation of rules, protecting our interests and deflecting inconsistent interpretations. The agreement is being interpreted, applied and developed right now and we need to be part of it to protect our vital interests in the area of security and beyond.

The treaty is more favorable to our security interests now than we could achieve if we started all over again today. Yet as the debate over ratification takes place, you will see and hear arguments against it that are confected of half-truths and imagination.

The treaty does not authorize a "United Nations navy" or "United Nations taxes." We are not giving away American sovereignty by ratifying it, nor would joining it hinder our intelligence activities. An international institution would not control the
world’s oceans.

The Reagan administration objected to certain treaty provisions related to seabed mining. But a 1994 agreement fixed all flaws in the original Convention. The treaty now guarantees appropriate American influence with a permanent seat on the decision-making body. It eliminates earlier provisions that would have required countries to share technology. And it generally facilitates access to mining on reasonable commercial terms. With the modifications enacted in 1994, the treaty now meets all the criteria established by President Reagan in 1982 to make the treaty in the interest of the United States.

Twelve years ago we missed the opportunity to ratify the treaty in its present form. Our national security, if anything, is more reliant on worldwide access to the sea and the air on an open and undisputed basis than it was then.

The Convention of the Law of the Sea is by all lights in our national interest and has earned bipartisan support. President Bush and his administration have spoken out favorably. The Clinton administration also fully supported ratification.

We need to convert this important consensus into that simple action of advice and consent in the Senate, thereby preserving and protecting our national security and other interests embodied in this important treaty.

Kahn & Wälde: New Aspects of International Investment Law

Philippe Kahn (l’Université de Bourgogne - Centre de recherche sur le droit des marchés et des investissements internationaux) & Thomas Wälde (Univ. of Dundee - Centre for Energy, Petroleum and Mineral Law and Policy) have published New Aspects of International Investment Law/Les aspects nouveaux du droit des investissements internationaux (Martinus Nijhoff Publishers 2007). Here's the abstract:
This collection of essays offers a precise and evocative image of a remarkable evolution in concepts and practices within international economic law, which may be a preparatory phase on the way towards a true law of globalisation.

Friday, July 13, 2007

Treaty Transmittal: International Convention for Suppression of Acts of Nuclear Terrorism

Yesterday, the President transmitted to the Senate, for its advice and consent to ratification, the International Convention for Suppression of Acts of Nuclear Terrorism. The transmittal package (Treaty Doc. 110-4) is here. Pursuant to its Article 25, the Convention went into force for States Parties on July 7, thirty days following the deposit of the twenty-second instrument of ratification. David P. Fidler (Indiana, Bloomington - Law) posted this backgrounder on the Convention last week.

Hoekman & Mavroidis: The World Trade Organization: Law, Economics, and Politics

Bernard M. Hoekman (World Bank) & Petros C. Mavroidis (Columbia - Law) have published The World Trade Organization: Law, Economics, and Politics (Routledge 2007). Here's the abstract:

The World Trade Organization (WTO) is one of the most important international organizations in existence today. It contains a set of disciplines that affect the ability of governments to impose trade restrictions, and has helped to support the steady expansion of international trade since the 1950s. It is a unique organization in providing a framework for member states to make binding policy commitments that are enforced through a unique dispute settlement system and a variety of transparency mechanisms.

Despite - or because of - its success, the WTO has recently become the focus of vociferous protests by anti-globalization activists. This book separates the facts from the propaganda and provides an accessible overview of the WTO's history, structure and policies as well as a discussion of the future of the organization. It also confronts the criticisms of the WTO and assesses their validity.

The World Trade Organization is essential reading for students of international trade, international political economy, commercial law and international organizations as well as activists and others interested in a balanced account of a key global institution.

WTO Panel Report: Japan - Countervailing Duties on Dynamic Random Access Memories from Korea

A Panel established by the WTO's Dispute Settlement Body today issued its Report on the case Japan - Countervailing Duties on Dynamic Random Access Memories from Korea. The full Report can be found here. An excerpt containing just the Panel's findings and conclusions can be found here. A summary of the case can be found here.

Symposium: Public International Law and Economics

Last December, the Max Planck Institute for Research on Collective Goods hosted a conference on Public International Law and Economics: The Power of Rational Choice Methodology in Guiding the Analysis and the Design of Public International Law Institutions. A number of the conference papers will be published in a forthcoming issue of the University of Illinois Law Review. (Other papers have been and will be published elsewhere.) Some of the Illinois Law Review pieces have recently been posted on SSRN:

Anne Van Aaken (Univ. of St. Gallen - Law), Tom Ginsburg (Univ. of Illinois - Law), & Christoph Engel (Max Planck Institute for Research on Collective Goods), Public International Law and Economics Symposium Introduction. Here's the abstract:

It is a commonplace that we live in an era of increasing international interdependence, in which there has been a proliferation of international law and international organizations. Yet our understanding of the workings of international law has not kept pace. While we have a good deal of work on international law doctrine, our analytic tools are much weaker, and we are far from anything approaching a science of institutional design. We are therefore ill prepared to advise policy makers in the project of developing effective tools to solve transnational problems, and to provide global public goods. The contributions to this special issue, though they involve a wide range of different approaches and topics, share a commitment to using the core methodological assumptions of the rational choice approach in seeking to answer important question in International Law. The papers published in this issue were first presented at a conference at the Max-Planck Institute for Research on Collective Goods in Bonn, Germany in December 2006. In putting together the conference, we had two aims, one interdisciplinary and one intercultural. We wanted to contribute to the nascent law and economics of public international law. We noticed, however, that the use of the rational choice approach to international law has been largely confined to the United States, creating a methodological gap between European and American international law scholarship. We sought to generate a trans-Atlantic discussion not only about the substantive papers but on the appropriateness of the rational choice approach to international law.
Svitlana Chernykh (Univ. of Illinois - Pol. Sci.), Tom Ginsburg (Univ. of Illinois - Law), & Zachary Elkins (Univ. of Illinois - Pol. Sci.), Commitment and Diffusion: How and Why National Constitutions Incorporate International Law. Here's the abstract:

This paper considers why it is that drafters of national constitutions incorporate international law, a phenomenon that is of growing importance. It argues that designers do so when they need to make credible commitments, and that international law has some unique features that render it attractive as a commitment device. The paper then considers an alternative hypothesis, namely that countries adopt such provisions as part of a process of diffusion, following other country's choices. The paper develops an empirical test of these hypotheses, and finds support for both, suggesting that commitment and diffusion operate in a complementary fashion.
Anne Peters (Univ. of Basel - Law), Precommitment Theory Applied to International Law: Between Sovereignty and Triviality. Here's the abstract:

International agreements have been reconstructed as precommitments in the sense of giving up future choices to guard against preference shifts. This paper criticizes precommitment theory. First, the analogy between states and precommitments of individual persons is problematic. In reality, different governmental actors bind one another. Additionally, the flow of time brings about a change in the composition of the collective. Second, viewing treaties as an "epitome" of sovereignty necessarily implies that the "will" of the states, especially their will to bind themselves, is not only the (factual) reason why states enter into agreements in the first place, but also the (normative) reason why states should observe them. So the precommitment-paradigm serves as a savior of sovereignty. Third, legal obligations can not logically be explained as flowing from the unilateral choice to bind "oneself". If the "sovereign" decision matters, then it is hardly conceivable why the "sovereign" decision at time 1 is superior to the "sovereign" decision at time 2. International treaties can be more plausibly understood as commitments towards other actors. The bindingness of a legal instrument results from the promise given to the other party and the normative expectations created thereby in the other. Fourth, the idea of precommitment appears to inflate something which is the normal function of international law, namely to place some types of action beyond the control of domestic actors. But if all treaties are precommitments, the meaning of precommitment is expanded to the point of uselessness. Ultimately, international treaties should not be viewed as worthy of respect because they reflect actual and concrete (more or less rational) choices of the actors. Instead, public international law deserves respect because it is an indispensable functional device to uphold international relations.
Andreas Zimmermann (Univ. of Kiel - Walter Schücking Institut), Is it Really All About Commitment and Diffusion? - Why Do States Incorporate International Law in Their Domestic Constitutions?. Here's the abstract:

The comment discusses the reasons for implementing international law obligations (of a customary or conventional character). The paper argues that any such implementation may not be explained (or, if ever, only partially) by the idea of precommitment. Rather, States have a genuine interest in the stability of the international legal system and their own adherence to rules of international law, the incorporation of which serves to avoid, as far as possible, committing violations of international law by rendering such violations unconstitutional or at least illegal under domestic law.

Thursday, July 12, 2007

New Volume: Recueil des Cours

Volume 321 (2006) of the Recueil des Cours, Collected Courses of the Hague Academy of International Law (Martinus Nijhoff Publishers 2007) is out. Contents include:
  • M.I. Shaker (Egyptian Council for Foreign Affairs), The Evolving International Regime of Nuclear Non-Proliferation
  • P. Klein (l'Université libre de Bruxelles - Law), Le droit international à l'épreuve du terrorisme

New Volume: Netherlands Yearbook of International Law

The latest volume of the Netherlands Yearbook of International Law (Vol. 36, 2005) is out. Contents include:
    • Deirdre Curtin & André Nollkaemper,
      Conceptualizing accountability in international and European law
    • Jutta Brunnée, International legal accountability through the lens of the law of state responsibility
    • Wouter G. Werner, Responding to the undesired state responsibility, risk management and precaution
    • Ige F. Dekker, Making sense of accountability in international institutional law An analysis of the Final Report of the ILA Committee on Accountability of International Organizations from a conceptual legal perspective
    • August Reinisch, Accountability of international organizations according to national law
    • Esa Paasivirta & Pieter Jan Kuijper, Does one size fit all? The European Community and the responsibility of international organizations
    • Walter van Gerven, Which form of accountable government for the European Union?

Wednesday, July 11, 2007

The Lugovoi Extradition Request

As has been widely reported, Russia has denied the United Kingdom's request for the extradition of Andrei K. Lugovoi, a Russian national who is wanted for the murder of Alexander V. Litvinenko. The legal basis for the British request was the Council of Europe's European Convention on Extradition, as supplemented by its Additional Protocol. And the legal basis for Russia's refusal was Article 6 of the Convention, which states that "A Contracting Party shall have the right to refuse extradition of its nationals." (Article 61(1) of the Russian Constitution prohibits the extradition of Russian nationals, and a declaration attached to Russia's instrument of ratification notes this provision.) Prime Minster Gordon Brown (through his spokesman) described the Russian decision as "extremely disappointing," and he "deeply regret[ted] that Russia has failed to show the necessary level of cooperation in this matter." Brown also rejected Russia's offer to try Lugovoi in Russia, as is permitted under Russian law (and as is recognized by the Convention as a legitimate alternative in the event extradition is refused on the basis of the nationality of the fugitive): "This was a crime that was committed in London, the evidence and the witnesses are in the United Kingdom, and we do not have confidence that a trial in Moscow would meet the standards of impartiality and fairness that we would deem necessary." Apparently, the British are considering retaliatory measures such as the expulsion of Russian diplomats.

Contrary to the heated rhetoric, for those who follow international extradition, the Russian decision is no surprise. Even under the Convention (which entered into force between the two countries in March 2000, following Russia's ratification), there have been no extraditions between Russia and the United Kingdom, even in less politically sensitive cases than this. Indeed, Russia has made at least seventeen extradition requests, including for billionaire political dissident Boris A. Berezovsky, not one of them successful. (This was only the second British request.) Further, in accordance with its Constitution, Russia never extradites its own nationals. As a Russian Foreign Ministry spokesman quipped, the West had "persistently called on Russia to build a state functioning according to the law," so how can the U.K. complain when Russia was complying with its domestic law?

If the Russian response was predictable (and it was), and if the Russian denial was in accord with its international and domestic obligations (and it was), why did the British bother to ask for Lugovoi and why did they make such a fuss when Russia refused? There are at least four possible reasons. First, the British may have felt that they needed to take all steps (no matter how remote) to solve a serious crime within their jurisdiction. They've now checked this box. Second, and relatedly, the British authorities may have been under domestic pressure to take this step, and so they did it despite its evident futility. Third, the Russian denial of Lugovoi's extradition can now be used as a counterpoint by the British any time that Russia complains about the U.K.'s failure to extradite a fugitive (such as Berezovsky) to Russia. And fourth, the British must think that further stirring the Litvinenko pot in this way will be otherwise useful in their bilateral relations with Russia.

UPDATE: A fifth explanation seems just as, if not more, likely: It is thought that Lugovoi's actions on British soil were at the direction of certain components of the Russian Government. The failure to extradite provides the U.K. with the predicate to take action against Moscow itself. A strong British reaction, particularly through expulsion of persons accredited to the Russian Embassy in London, would send a signal of severe displeasure not just with the extradition decision but also (and more importantly) with the underlying act itself and the Russian Government's presumed involvement therein. That is, the British simply will not abide by a foreign government operation like this on its territory.

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 28, no. 2, Winter 2007) is out. Contents include:
  • Tom Allen, Compensation for Property Under the European Convention on Human Rights
  • Orde F. Kittrie, Averting Catastrophe: Why the Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity and How to Restore It

Goldsmith & Katyal: The Terrorists' Court

Jack L. Goldsmith (Harvard - Law) & Neal Katyal (Georgetown - Law) have an op-ed in today's New York Times entitled The Terrorists' Court. Here it is:

Nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts.

The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.

Such a court would have a number of practical advantages over the current system. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialize and to assess over time the trustworthiness of the government and defense lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the United States and abroad.

Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalizing group membership. In addition, the evidence against a particular detainee may be too difficult to present in open civilian court without compromising intelligence sources and methods. And the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.

A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented. The Supreme Court has recognized that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society - the insane, child molesters, people with infectious diseases, and the like - but who have not committed crimes.

Congress should draw the national security court’s judges from a pool of current federal judges, the same process used for the special court we already have to issue intelligence warrants. The court would have a permanent staff of elite defense lawyers with special security clearances as part of its permanent staff. Defense lawyers trained in the nuances of taking apart interrogation statements, particularly translated statements, are crucial because often the legal proceedings will involve little else in the way of evidence.

Congress should require the national security court to make sure that there is a continuing rationale to detain people years after their initial cases were heard. Congress should also insist on rights of appeal for detainees, ensuring scrupulous review by a second layer of specialized, repeat judges who will keep the initial judges on their toes. And consistent with the values enshrined in the Constitution’s equal protection clause, Congress should insist that the same rules apply to citizen and
non-citizen terrorist detainees.

Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun. A terrorist captured in Afghanistan should not be able to seek release because he was not read his Miranda rights. A national security court, while it would operate in public, would not have the same public and press access as an ordinary criminal trial.

We already have specialized federal courts to deal with matters like bankruptcy, taxes and patents; the case here is far more compelling. In the past, Americans might have hoped that a national security threat would abate over time, and so the pressures on the civilian courts, whatever they were, would subside. Today we have no such luxury. We must create sensible institutions for the long haul.

New Issue: Stanford Journal of International Law

The latest issue of the Stanford Journal of International Law (Vol. 43, no. 2, Summer 2007) is out. Contents include:
  • David L. Nersessian, Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity
  • Tom Ruys, Crossing the Thin Blue Line: An Inquiry into Israel's Recourse to Self-Defense Against Hezbollah

Tuesday, July 10, 2007

Shany: Similarity in the Eye of the Beholder

Yuval Shany (Hebrew Univ. - Law) has posted Similarity in the Eye of the Beholder: Revisiting the Application of Rules Governing Jurisdictional Conflicts in the Lauder/CME Cases. Here's the abstract:

Although an identifiable body of law governing jurisdictional relations among international judicial institutions has emerged in recent decades, the Lauder/CME cases, which involved closely connected parallel proceedings before different arbitration tribunals, reveal a crucial limit on the application of jurisdiction-regulating rules - the unclear scope of the 'same proceedings' requirement, which underlies jurisdiction regulation.

Arguably, the Lauder/CME cases are indicative of a wider trend to erode or circumvent the application of jurisdiction-regulating rules through emphasizing differences between related claims in order to justify the existence of multiple proceedings. This trend, which coincides with other disintegrative techniques designed to separate complex multi-faceted disputes into distinct 'mini-disputes', has considerable theoretical and practical implications given the ever-growing complexity of international disputes and the increased propensity to refer them to international adjudication and arbitration.

Tomuschat: Reparation in Cases of Genocide

Christian Tomuschat (Humboldt Univ. - Law) has posted Reparation in Cases of Genocide (J. Int'l Crim. Just., forthcoming). Here's an excerpt:
The judgment of the International Court of Justice of 26 February 2007 must have left the Muslim population of Bosnia and Herzegovina in a state of perplexity and bitterness. First of all, the finding that Serbia, at the relevant time the Federal Republic of Yugoslavia, did not commit genocide was contrary, in their eyes, to what they as the victims had witnessed as first-hand evidence. Second, the finding that Serbia violated its obligation to prevent genocide is not accompanied by any tangible consequential finding. The Court confines itself to stating that ‘a declaration of this kind is “in itself appropriate satisfaction”’. No reasons are given for this rather cursory treatment of the request for reparation. Thus, the death of more than 7,000 Bosnian Muslim men entails no substantial reparation for the benefit of the next of kin of the slaughtered victims. Serbia receives a blame which has a legal character but this boils down to no more than a gesture of moral reprobation - and that disposes of the matter. It is true that the perspective of the layman cannot be determinative. To establish legal responsibility in accordance with the applicable rules of international law is a complex juridical process which cannot be accomplished solely by looking at the relevant facts. These facts need to be assessed and evaluated by lawyers - but even lawyers will find it hard to follow the Court’s convoluted line of reasoning.

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 7, no. 1, 2007) is out. Contents include:
  • Juan Carlos Ochoa S., The Settlement of Disputes Concerning States Arising From the Application of the Statute of the International Criminal Court: Balancing Sovereignty and the Need for an Effective and Independent ICC
  • Alexandra V. Orlova, A Hope for the Future? Prosecuting Crimes Against Humanity in Russia's Courts
  • Sébastien Jodoin, Terrorism as a War Crime
  • James Meernik, The Evolving Application of International Law: Insights from the Appeals Chamber of the Ad Hoc International Tribunals
  • William A. Schabas, House of Lords Prohibits Use of Torture Evidence, but Fails to Condemn Its Use by the Police
  • Héctor Olásolo, Reflections on the Treatment of the Notions of Control of the Crime and Joint Criminal Enterprise in the Stakić Appeal Judgement

New Issue: International Arbitration Law Review

The latest issue of the International Arbitration Law Review (Vol. 10, no. 3, June 2007) is out. Contents include:
  • Richard H. Kreindler, The importance and urgency of the Energy Charter Treaty
  • Kaj Hobér & Sophie Nappert, Provisional application and the Energy Charter Treaty: the Russian Doll Provision
  • Laurance Shore, The jurisdiction problem in Energy Charter Treaty claims
  • Adnan Amkhan, Consent to submit investment disputes to arbitration under Article 26 of the Energy Charter Treaty
  • Richard Happ, The legal status of the investor vis-a-vis the European Communities: some salient thoughts
  • Philippe Pinsolle, The dispute resolution provisions of the Energy Charter Treaty
  • Domenico Di Pietro, The use of precedents in ICSID arbitration: regularity or certainty?
  • Veijo Heiskanen, "Unreasonable or discriminatory measures" as a cause of action under the Energy Charter Treaty

IMF: Managing Director Selection Update

As noted yesterday, EU Finance Ministers met today, and, as predicted, they agreed to back Dominique Strauss-Kahn for IMF Managing Director, succeeding Rodrigo de Rato. The EU's Portuguese Presidency is quoted, as follows: "Ecofin agrees to support Dominique Strauss-Kahn for IMF director." The EU acted quickly in order to preempt any internal squabbling that might open the door for a non-European candidate. The next move belongs to developing countries, such as Brazil and South Africa, which have opposed the non-transparent and restrictive appointments processes at the major international financial institutions.

UPDATE: The IMF Executive Board met yesterday and issued the following statement:

The IMF's Executive Directors met informally on July 9 to begin the process for the selection of the Managing Director to succeed Mr. Rodrigo de Rato when he steps down. Under the Articles of Agreement, the IMF's Executive Board is responsible for the selection of the Managing Director of the Fund. Any Executive Director may submit a nomination, regardless of nationality, for the position, consistent with past practice.

Directors will meet again to finalize the selection procedure expeditiously to ensure a timely decision in an open and transparent manner, consistent with the Fund's Medium-Term Strategy.

Monday, July 9, 2007

Interpol, Counterterrorism, and International Law Enforcement

Interpol Secretary General Ronald Noble's op-ed last week in the International Herald Tribune, his interview in the Sunday Telegraph, and his open letter responding to the Telegraph article have received a good deal of press (for example here, here, here, and here). Noble, a former high-level federal law enforcement official in the United States, makes three principal points in the wake of the recent events in the United Kingdom. First, he complains that national authorities are not checking Interpol's databases (e.g., for stolen passports and arrest warrants) prior to granting a visa or permitting a traveller's entry. Such steps, Noble asserts, could significantly reduce the risk of terrorism. Only seventeen countries currently check the passport database, says Noble; the United Kingdom and the United States are not among them. Second, Noble criticizes the United Kingdom for not sharing its terrorist watch list with Interpol. Third, Noble calls on countries to spend more on international law enforcement. Noble's first and third points are important ones, and it appears that some governments (including the U.K.) are making progress in linking up with Interpol's stolen passports database. But his second point is trickier. As a default, Interpol shares the information it receives from its member countries with all other member countries. It is, after all, Interpol's purpose to facilitate police-to-police cooperation worldwide. One can easily imagine, though, that the U.K. (or any number of other countries) may be reluctant to share its terrorist watch list with some Interpol member countries. It is theoretically possible to restrict access of data shared with Interpol to only certain member countries, but there are obvious and serious risks associated with that. No doubt it is for that reason that the U.K. has not shared its watch list with Interpol. It would be a mistake, however, to conclude that the U.K. is not sharing that information at all; it is, presumably, simply using other channels. Noble is more outspoken than most heads of international organizations and his tireless efforts to enhance international law enforcement cooperation are generally quite laudable. Nonetheless, he does see the solution to most problems through the lens of his own particular organization. It just may be the case that his organization, through no fault of its own, cannot provide the full solution to this particular problem.

Anderson: US Counterterrorism Policy and Superpower Compliance with International Human Rights Norms

Kenneth Anderson (American Univ. - Law) has published "US Counterterrorism Policy and Superpower Compliance with International Human Rights Norms" (Fordham Int'l L.J., Vol. 30, no. 2, Feb. 2007). Excerpts appear on his wonderful blog (see here, here, here, here, and here). Anderson describes the piece as follows:

One short note about what is in this speech-essay. I call for Guantanamo to be closed in this piece. But I make it conditional on very specific and frankly unlikely events - viz., the legislative creation of a special counterterrorism/national security system that, while 'civilianized', does not put everyone into the regular US court system. We need a system of civilian administrative detention with processes for regular review, and we need a system for trying terrorist offenses, narrowly defined as a matter of substance and not applicable outside of terrorism thus narrowly defined (ie, no using the Patriot Act to prosecute (unrelated crimes of, say) child pornography - but which has its own set of more permissive procedural and evidentiary rules. If you can get that, then moving away from the miltiary tribunal system, closing Guantanamo and moving those not released to the US, etc., makes good sense. If not, well, then not.

People need to be clear that not everyone at Guantanamo - even beyond the undisputed "high value detainees" - is merely the innocent shepherd sold by the Northern Alliance. Hamdan was not, on his own admissions. Guantanamo contains people who were detained for regular war crimes on ordinary Afghan battlefields - including the murder of US military personnel - under circumstances which have always warranted military justice. Pure political expediency, not justice, argues for letting them go - and moreover, we already know that released detainees have returned to the battlefield, and more would do so if released - the people they will kill, however, are more likely to be Afghans, or people in Asia, than Americans.

Looking to the future, merely closing Guantanamo does not change the fact that we will pick up people whom we will want to detain for potentially years and yet will not be able to try in a regular court under regular domestic court rules. Either we find conditions of administrative detention, or . . . well, what? We might find that we have thereby created an incentive not to detain, but instead to engage in assassination. Or we might look to sponsor proxy forces - eg Ethiopia in Somalia - somewhat in the way that Reagan policy used proxies and surrogates in Central America. Or we might rely on the French and Spaniards and other European countries and the fact that, despite the Western European human rights protection, structurally Continental legal systems provide nowhere near the legal protections of the US constitution in criminal investigation and prosecution, as a structural feature of an inquisitorial, rather than adversarial, system. Or perhaps we simply won't do much of anything at all - caught in stasis between clashes of different policies and different legal standards and different decisionmakers, frozen and immobile - the disaggregated state unable to be proactive in the protection of its citizenry - and so make a very different kind of bet about our safety.

It is easy for the Democrats and Congress to pretend that it is all otherwise and that we can just go back to Sept 10 criminal law paradigms, with some modest increases in homeland security, with targets that won't complain about discrimination - inanimate cargo containers, for example. Possibly the Democratic party would even enact that preference if in charge of the presidency and Congress. But I doubt it. We live at this moment in a period of Republican-facilitated Democratic kibbbutzing - facilitated and enabled by the Cheney policy of pure executive power - sniping without having to take proactive responsibilty and ownership of what protecting against terrorist attacks should mean as a going-forward policy of the United States. That condition is unlikely to last forever and, at the end of the day (if for no other reason than the fact of a new attack), the electorate will know where their leaders stand on counterterrorism and the legal regime shaping it, the necessary and inevitable tradeoffs between security and liberties that define counterterrorism in a liberal democracy.

So by all means let us avoid a police state - although what numbers of my colleagues in the legal academy seem to regard as the police state we supposedly already have seems to me a dangerous case of boy-crying-wolf - but let us also strive to avoid piles of body parts in American cities. The truism that there are necessarily trade-offs between these two is increasingly something denied by a significant part of elite opinion. The academics act as the high-intellectual end of a narrative that an increasing part of the electorate is eager to hear and absorb - there is no real terrorism danger, it stems from our own policies and attitudes, the problem is not terrorism but the invasion of civil liberties, talking about terrorism is simply a way of justifying the police state. Terrorism is not therefore the issue; counterterrorism is. 'They' are not the issue, 'we' are - and ignoring 'them' and focusing on 'us' promises a way back to the blessed land of nostalgia, a way of going back to live in the time of lovely ignorance, otherwise known as September 10, the quiet life, the morally unstrenous time of Before-Bush.

The intellectuals' attitude is not explainable, it seems to me, except on the assumption - which I wearily hear repeated without dissent at many, many academic conferences - that really there is no terrorism problem, except the one that the Bush administration created by invading Iraq or - the more intellectually grand alternative - the one that the West created for itself by being so intolerant of Muslims and Islam and, of course, Israel. But anyway, on either narrative, the problem turns out miraculously not to be terrorism, but instead our own viciously overreactive counterterrorism, which simultaneously creates a police state and promotes a cycle of Muslim radicalization.

Terrorism, on this account, is merely a second order problem. But it's not.

IMF: Who Will Be the Next Managing Director?

European Finance Ministers are gathering in Brussels today for Eurogroup discussions (ministers from the Eurozone) and tomorrow for an Economic and Financial Affairs meeting of the EU Council (Ecofin). One topic for discussion will be the selection of the next Managing Director of the International Monetary Fund. Since the first Managing Director was named in 1946, the position has always gone to a European national, and EU officials believe the choice of Rodrigo de Rato's successor is theirs to make. (In the wake of the U.S. choice of Robert Zoellick as World Bank President, U.S. Treasury Secretary Henry Paulson has indicated that the United States will not dispute the traditional right of the Europeans to make the IMF pick.) French President Nicolas Sarkozy has strongly endorsed Dominique Strauss-Kahn, and apparently the former Socialist finance minister has German support as well. Developing countries, which have increasingly sought to end the U.S. and European monopoly on high-level appointments at the IMF and World Bank, have reportedly called for a meeting of the IMF Executive Board this week to discuss the process of selecting a new Managing Director.

Sunday, July 8, 2007

Bolivia's Denunciation of the ICSID Convention

It is old news by now, but still worth noting: On May 2, Bolivia notified the International Centre for Settlement of Investment Disputes (ICSID) that it was denouncing the ICSID Convention. In accordance with Article 71 of the Convention, Bolivia's denunciation becomes effective six months subsequent to written notification. Article 72 of the Convention states that denunciation "shall not affect the rights or obligations under this Convention of that State or of any of its constituent subdivisions or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice was received by the depositary." Certainly, then, any arbitrations that have already been initiated will be unaffected. (There is some question as to the viability of arbitrations commenced during the six-month period.) Bolivia's withdrawal will not effect future BIT-based arbitrations, so long as they provide for the use of other institutions or rules, such as the UNCITRAL Rules or even ICSID's Additional Facility Rules. Nicaragua and Venezuela have also threatened to withdraw from the Convention. (Venezuela's President Chavez has said that Venezuela plans to withdraw from the IMF and the World Bank, as well.) Ecuador has indicated it may withdraw from its BIT with the United States, and Bolivia is said to be reviewing all its BITs.