The Bush administration is so intent on securing its legacy in Iraq that it is once again ignoring the Constitution. Without seeking the consent of Congress, it is well on its way toward a long-term agreement with the Iraqi government that threatens to deepen the American commitment without the congressional support the Constitution requires.
President Bush's plan to cut out Congress has provoked a growing chorus of criticism, joined by both Sens. Hillary Clinton and Barack Obama. In response, the administration has begun to back-track from its vision of a sweeping military and economic agreement. Speaking to the Senate Foreign Relations Committee, Secretary of State Condoleezza Rice said that the agreement would not contain a security guarantee committing the country to fixed troop levels or permanent bases. Secretary of Defense Robert M. Gates, speaking before the Senate Armed Services last week, stated that the agreement will be "like other Status of Forces Agreements," which deal with the rights and obligations of the military when operating on foreign soil.
Such agreements, the White House is quick to point out, are not usually subject to congressional approval. That is true. But this truth will not suffice, since the administration is still aiming for an agreement that moves far beyond the traditional scope of these limited military accords. We should not allow false advertising to serve as a cover for a constitutional fait accompli.
For example, the administration plans to exempt civilian contractors from prosecution under Iraqi laws. Military personnel also enjoy this exemption, but they can be court-martialed. These military tribunals have no jurisdiction over civilian contractors. Indeed, many of them will be immune from prosecution anywhere. Current federal law only subjects contractors working in support of the Defense Department to prosecution in American courts for felonies in Iraq. Yet those working for the CIA or the State Department could be left operating in a "no-law" zone if the president had the power to commit America unilaterally. If that happens, contractors could shoot Iraqi civilians without cause or commit sexual assaults against their fellow contractors without facing prison time. No existing status of forces agreement, including those used in such places as South Korea and Germany, contains anything like this wide-ranging exemption.
And for good reason. As commander in chief, the president has the constitutional power to make unilateral agreements concerning military personnel and those directly supporting them. But the Constitution only makes him commander in chief of the "army and navy" - not all Americans working overseas. He can't reach an agreement with Iraq that exempts independent contractors without Congress getting into the act. At the very least, Congress should not give its consent without amending existing statutes to assure that all civilians granted immunity from Iraqi law can be held criminally responsible in American courts.
Worse yet, the administration is keeping most of its plans secret. (Much of what we have learned comes from leaks reported in the press.) Congress has held two hearings - on Jan. 23 and Feb. 8 - on the legitimate scope of the Iraqi agreement, and the administration has twice refused to testify. While Gates and Rice have made a few reassuring remarks, they have fallen far short of full disclosure.
This is unacceptable. Sen. Joseph Biden, as chairman of the Foreign Relations Committee, is a strong critic of the administration's unilateral approach. But if the stone-walling continues, he should make it his committee's business to sponsor a congressional resolution declaring invalid any military agreement that seeks to go beyond the traditional limits of the standard Status of Forces Agreement. No president has the unilateral power to impose broad international obligations on the nation without congressional support. But it is especially wrong for a lame-duck president to make such commitments about a controversial policy that is at the very center of the debate among the candidates vying to succeed him.
Saturday, February 16, 2008
Ackerman & Hathaway: An Agreement Without Agreement
Conference: Annual Meeting of the American Society of International Law
Friday, February 15, 2008
Dupuy & Traisbach: Taking International Law Seriously: On the German Approach to International Law
This short article outlines the systemic characteristics of what is identified here as the German approach to international law. Starting from the post-WW II situation of German legal scholarship, the paper describes a holistic approach to international law as a unified legal system which is characterized by both a true commitment to the rule of law and a constructive vision of the International Community based on constitutional form.
Workshops: Bernaz, Brown, White
Chester Brown (Legal Division, Foreign and Commonwealth Office) will give a talk today at the University of Cambridge Lauterpacht Centre for International Law Lent Term Lecture Programme on "Procedure and Remedies Before Different International Courts and Tribunals: Convergence or Divergence?"
Lucie White (Harvard Univ. - Law) will give a talk today at the Georgetown University Law Center International Human Rights Colloquium on "Stones of Hope: African Lawyers Reclaim Human Rights to Challenge Global Poverty."
Thursday, February 14, 2008
Trbovich: A Legal Geography of Yugoslavia's Disintegration
A Legal Geography of Yugoslavia's Disintegration explains the violent break-up of the former Yugoslavia in early 1990s in the context of two legal principles - sovereignty and the self-determination of peoples. The author recounts Yugoslavia's history, with a focus on the country's internal, administrative divisions, and aspirations of different ethnic groups in order to effectively explain the genesis of the international community's political decision to recognize the right of secession for the largest administrative units of Yugoslavia.
Delimatsis: International Trade in Services and Domestic Regulations: Necessity, Transparency and Regulatory Diversity
In 2005, the WTO Appellate body ruled that the United States' total prohibition on cross border gambling services was unlawful under the General Agreement on Trade in Services (GATS). The questions raised by the case - whether and how a government could block service provision on moral grounds - went to the heart of key controversies surrounding international economic law. How do you reconcile a liberal system of international trade in services with national governments' desire to protect social values through service regulation? How much control are the WTO members willing to transfer to the WTO? How much regulatory diversity can the traditional trading system withstand?
This book provides a comprehensive analysis of the regulation of services under the WTO's GATS Agreement. Through a thorough examination of the GATS negotiation history, substantive provisions, judicial interpretation, and ongoing reform process, the book presents a clear picture of how the multilateral trading system justifies and tolerates regulatory diversity. The book develops a horizontal framework for the assessment of whether a national barrier to trade in services is lawful, across all service sectors, focusing on the core general principles of necessity and transparency.
Workshops: Allott, Weiler, Wurm
Joseph Weiler (New York Univ. - Law) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "Prolegomena to a Meso-theory of Treaty Interpretation at the Turn of the Century."
Jakob Wurm (Associate Editor, International Law in Domestic Courts) will give a talk today at the University of Oxford Public International Law Discussion Group on "International Financial Institutions Before National Courts."
Wednesday, February 13, 2008
American Isuzu Motors: United States Files Amicus Brief in Support of Petitioners
The court of appeals’ decision allows an unprecedented and sprawling lawsuit to move forward and represents a dramatic expansion of U.S. law that is inconsistent with well-established presumptions that Congress does not intend to authorize civil aiding and abetting liability or extend U.S. law extraterritorially. The decision does so, moreover, in an area fraught with foreign relations perils, where “judicial caution” is especially appropriate before “exercising innovative authority over substantive law.” Sosa, 542 U.S. at 726. The consequence is to invite lawsuits challenging the conduct of foreign governments toward their own citizens in their own countries - conduct as to which the foreign states are themselves immune from suit - through the simple expedient of naming as defendants those private corporations that lawfully did business with the governments. Such lawsuits inevitably create tension between the United States and foreign nations, as the present litigation demonstrates.
This Court should grant certiorari on the second question presented to review the court of appeals’ extension of the ATS to encompass claims of aiding and abetting a foreign state’s violation of international law in its own territory. Although the court left open the possibility that the district court might yet dismiss the lawsuit based on “case-specific prudential doctrines,” it has categorically held that “a plaintiff may plead a theory of aiding and abetting liability under the [ATS].” That holding invites similar lawsuits to be filed and will preclude their early dismissal, which, in turn, will undermine efforts to encourage foreign investment.
Rice & Gates: What We Need Next in Iraq
Over the past year, we have seen that Iraqis are committed to affirming their own sovereignty. The Iraqi army and police are taking the lead in providing security over much of the country. Iraq is building relationships with other nations in the Middle East. The Iraqi people want to meet their own needs and control their own destiny. And they desire a more normal relationship with the United States.
Our troops and diplomats have made untold sacrifices to help put Iraq on the path to self-sufficiency. A crucial phase in this process will unfold in the coming months, when our ambassador in Baghdad, Ryan Crocker, begins negotiating a basic framework for normalized relations with the Iraqi government - to include what is known as a "status of forces" agreement. We encourage Congress and the public to support the efforts of our senior diplomats and military officers as they forge ahead with these talks - which we believe are essential to a successful outcome in Iraq and, by extension, the vital interests and security of the United States.
First, some background. Whenever American troops are stationed or temporarily present on foreign soil, a number of legal questions arise, ranging from the overall scope of their mission to the minutiae of day-to-day life - from authority to fight to rules for delivering mail. In more than 115 nations, we have individually tailored status-of-forces agreements. These agreements are crafted to take into account circumstances in each host country as well as the unique requirements and missions of our forces there.
In Iraq, the presence and role of the United States and our coalition partners have been authorized by U.N. resolutions. The current U.N. authorization expires at the end of this year, and Iraq has indicated that it will not seek an extension. It would rather have an arrangement that is more in line with what typically governs the relationships between two sovereign nations.
There is debate here at home about the future presence, composition and mission of U.S. forces in Iraq. It is clear, however, that U.S. forces will need to operate in Iraq beyond the end of this year for progress in stabilizing Iraq to continue.
In these negotiations, we seek to set the basic parameters for the U.S. presence in Iraq, including the appropriate authorities and jurisdiction necessary to operate effectively and to carry out essential missions, such as helping the Iraqi government fight al-Qaeda, develop its security forces, and stem the flow of lethal weapons and training from Iran. In addition, we seek to establish a basic framework for a strong relationship with Iraq, reflecting our shared political, economic, cultural and security interests.
Nothing to be negotiated will mandate that we continue combat missions. Nothing will set troop levels. Nothing will commit the United States to join Iraq in a war against another country or provide other such security commitments. And nothing will authorize permanent bases in Iraq (something neither we nor Iraqis want). And consistent with well-established practice regarding such agreements, nothing will involve the U.S. Senate's treaty-ratification authority - although we will work closely with the appropriate committees of Congress to keep lawmakers informed and to provide complete transparency. Classified briefings have already begun, and we look forward to congressional input.
In short, nothing to be negotiated in the coming months will tie the hands of the next commander in chief, whomever he or she may be. Quite the contrary, it will give the president the legal authority to protect our national interest - and the latitude to chart the next administration's course.
There is wide recognition of the need for a normal bilateral relationship of this type. It has the support of moderate political forces from all of Iraq's communities - Sunni, Shiite and Kurd. A bipartisan group of senior senators have called for it - among them Carl Levin, John Warner and Richard Lugar. And it has been promoted by bipartisan panels such as the Independent Commission on the Security Forces of Iraq, chaired by retired U.S. Marine Corps Gen. James L. Jones. Similarly, the Baker-Hamilton commission advocated a series of longer-term missions that would require an agreement of this sort.
There is little doubt that 2008 will be a year of critical transition in Iraq as our force levels continue to come down, as our mission changes and as Iraqis continue to assert their sovereignty. But to continue the success we have seen in recent months, the Iraqi people and government will continue to need our help. Iraqis have requested a normalized relationship with us, and such a relationship will be part of a foundation of success in Iraq - a foundation upon which future U.S. administrations can build.
Call for Papers: Does International Law Mean Business: A Partnership for Progress?
The 2008 annual conference of the British Branch of the International Law Association will be held on Friday 16th and Saturday 17th May 2008 at the offices of Clifford Chance LLP in Canary Wharf, London. The theme of the conference will be: "Does International Law Mean Business: A Partnership for Progress?".
As is traditional, the conference will follow a programme mixing plenary sessions with concurrent panels of speakers. This Call for Papers is designed to encourage young members of the Branch (those aged 35 years and under during the academic year 2007-08, i.e. 1st September 2007-31st August 2008) to submit a proposal for a paper to be delivered on one of the panels. A list of panels and a brief accompanying summary of the issues to be addressed by them is attached. This is not the definite programme and the information attached is for general guidance only.
Any eligible member wishing to speak on a topical subject within the themes should submit a synopsis (350-600 words) of their proposed presentation no later than Monday 3rd March 2008 at 5pm. The synopsis should provide an outline of the proposed paper and should, inter alia, identify the thesis to be advanced, and the major issues to be addressed. Proposal submissions should be accompanied by a short c.v. (no more than 2 pages).
All papers should be sent in the first instance by email to Rebecca Wallace (Director of Research, ILA British Branch) at email@example.com. The proposals will then be considered by members of the conference programme committee, in consultation with the officers of the Branch. The outcome of the review will be intimated not later than 21st March 2008.
Given the conference theme, a broad range of submissions is being sought from those in the academic community, be they students, doctoral candidates or teachers, as well as from legal practitioners of international law and related subjects.
Requests for further information should be directed in the first instance to:
Rebecca Wallace (firstname.lastname@example.org); or Mary Footer(mailto:Mary.Footer@nottingham.ac.uk).
PANEL SUMMARIES (Preliminary)
Panel 1: International Law and the Bottom Billion
This Panel will consider theses advanced by Professor Paul Collier in his recent book, The Bottom Billion (Oxford University Press, 2007) and, in particular, the role international law might play in improving the lives and prospects of the bottom billion (the poorest and most oppressed of the world's populations).
Panel 2: International Law and Business
This Panel will consider the interaction and possible interdependency of international law and business. Why is international law relevant for business (and vice versa)? How might international law adapt to embrace business as both a rule maker, and a rule taker? How can international law assist in harnessing the resources of business towards lifting the bottom billion out of poverty and distress?
Panel 3: The Race for Resources
As the world's resources come under greater pressure and increasing demand, how can international lawyers deal with the three challenges of scarcity, sustainability, and security? Is international law presently capable of preventing future resource conflicts? Can international law moderate the race for resources so that it does not exacerbate the plight of the most vulnerable populations of the world?
Panel 4: Money and Governance
This Panel will examine the role of donor governments and intergovernmental organisations in achieving effective governance in fragile and post-conflict states. It will also examine recent international law initiatives aimed at combating corruption and recovering misappropriated assets. How can investment in developing economies and post-conflict states (whether donor-led or private) be made more effective?
Panel 5: Current Human Rights Challenges
This Panel will explore a number of topical human rights themes relevant to the peoples of the world's poorest countries, or countries in conflict: including, for example, displacement of populations; immigration and refugee issues; child labour; human trafficking.
Panel 6: Dealing with Climate Change
This Panel will look at: the ways in which climate change is affecting the world's poor; and how businesses are responding to climate change. Is the private sector assisting the search for sustainable solutions? Can business play a role in forging consensus for a post-Kyoto regime?
Panel 7: Trade and Poverty
This Panel will examine the indications of stalemate in the Doha Development Round and the shift of focus towards the elimination of poverty, and towards trade policy coherence amongst the major international financial institutions and the World Trade Organisation.
Panel 8: Security Issues in a Post-Conflict Environment
This Panel will cover a range of issues including the international law dimensions of the fragility of borders in a State-centric system; the role of private security in post-conflict situations (and accountability dilemmas that arise from that role).
Panel 9: Foreign Direct Investment and Human Rights
This Panel will seek to answer the question, how can the protection of foreign investors' economic interests be reconciled with the promotion and protection of the human rights of local populations?
Panel 10: Is Transnational Law Eclipsing International Law?
This Panel will examine whether public international law has kept pace with globalisation; in particular, has it adequately responded to the emergence of new global, but non-State, actors? Or, is transnational law the "truly international" law? What lessons are there for international lawyers in studying the development of transnational law?
Symposium: Public and Private Law in the Global Adjudication System
At the turn of the twentieth century, Department of State Solicitor William L. Penfield listed "international arbitration" among "[t]he distinctive features of human progress in the nineteenth century." While noting that the acceptance of arbitration as a dispute resolution mechanism had been slow, he remained hopeful. As he wrote:If the paths of international peace lead through the open gateway of international arbitration, the problems to be solved in reaching the goal in view, are the most intensely practical, as they are the most fascinating problems of the statesmanship of the present and of the future. The visionary of yesterday is therefore the practical statesman of today. The foundation has been established by the Hague convention of July 29, 1899, for the pacific settlement of international disputes. The task remains to broaden the foundation and to build the superstructure. It is an intensely practical work, which time and experience will undoubtedly complete, as nearly as institutions, merely human, can be brought to perfection.
Since then, the number of arbitral tribunals adjudicating international disputes has skyrocketed, and modern international relations have generated a sea of new international norms. What is the relationship between these private arbitral tribunals and both international and national courts? How are these new norms of international law incorporated in each forum?
This year's symposium, sponsored by Duke Journal of Comparative & International Law and the Center for International and Comparative Law, focuses on the emerging importance and impact of international arbitration as a venue for dispute settlement. The day long event will feature four panels, bringing together some of the foremost minds in these fields to discuss recent developments in public and private law in the global adjudication system of the twenty-first century.
Tuesday, February 12, 2008
Weller: Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies
The development of international standards for the protection of minorities has been slow and fragmented. In the absence of a comprehensive and universal binding set of rules, the development of minority protection has been left to regional agreements and judicial interpretation of wider human rights treaties. Universal Minority Rights brings together, for the first time, the full set of all regional and international jurisprudence from courts and treaty bodies concerned with issues of minority rights.
The commentary is arranged around ten thematic areas of investigation, including religious rights, education, cultural rights, political participation and socio-economic opportunities. Each substantive chapter offers an introduction to the issue at hand and its special relevance to minority communities, a general survey of legal standards addressing the issue, and an examination of specific problems that are being tackled through legal standards and judicial review. Each chapter concludes with an evaluation of the contribution of the case-law reviewed to the development of universal standards of protection.
Throughout, the commentary takes full account of international treaties and their associated bodies, including the ICCPR, the ICESCR, the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and the Convention on the Elimination of All Forms of Racial Discrimination. In addition, the commentary analyzes the regional standards that have developed through the Council of Europe and the jurisprudence of the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Commission on Human and People's Rights.
Through an exhaustive, comparative analysis of principles and substantive rules, the commentary provides an invaluable reference point for the development of minority protection.
Bederman: Diversity and Permeability in Transnational Governance
Part of a larger book-length project on globalization and international law (forthcoming in 2008), this article challenges the claims made by those who argue that traditional nation-States are becoming increasingly irrelevant as international legal actors. This has become a major theme of discussion about plural governance in a decentralized world and the changing role of the nation-State system as the defining characteristic of a traditional global order. The article fully surveys the diverse set of actors in transnational governance. It concludes that while new, non-State actors have emerged in importance on the international legal scene over the past few decades - giving rise to the emergence of disciplined market-State institutions or liberal cosmopolitan transnational networks - the continued influence of nation-States on the levers of international law-making and transnational governance seems to be undoubted. The article's second focus of analysis is the permeability of governance mechanisms in the global legal order. Many aspects of the porosity of contemporary transnational governance are attributable to the manifest influences of globalizing trends. Among these are the re-emergence of private-ordering mechanisms and customs among international economic actors (a new lex mercatoria), as well as the extraterritorial application of domestic laws, and the availability of legal recourse from national to international regulatory and dispute-settlement mechanisms. Perhaps most significant of all is the structuring of a new global regulatory order, and the relevant considerations which are being marshaled in the fashioning of novel solutions to problems of transnational governance. The overall picture is that the processes of globalization interact and influence trends in transnational governance in surprising, and sometimes counter-intuitive, ways.
Call for Papers: The United States and International Law: Legal Traditions and Future Possibilities
The American Branch will again hold its annual International Law Weekend in New York, featuring numerous panels, a distinguished speaker, receptions, and the Branch’s annual meeting. International Law Weekend 2008 will take place on October 16-18, 2008, at the Association of the Bar of the City of New York. The Weekend’s overall theme is “The United States and International Law: Legal Traditions and Future Possibilities.” Co-chairs of ILW 2008 are Catherine Amirfar of Debevoise Plimpton (email@example.com), Katarina Grenfell of the United Nations Office of Legal Affairs (firstname.lastname@example.org), and John Noyes of California Western School of Law (email@example.com). The co-chairs invite proposals for panels for ILW 2008. Please submit proposals to the co-chairs no later than Friday, April 25, 2008. Proposals should be geared for 90-minute panels and should include a formal title, a brief description of the panel (no more than 75 words), and the names, titles, and affiliations of the panel chair and three or four possible speakers.
Conference: Does International Law Mean Business: A Partnership for Progress?
In today's world, millions of people are trapped in conflict. Many more do not enjoy the most basic of human rights, or live in fragile states that, even while rich in economic potential, have been unable to escape cycles of corruption and bad governance. Globally, our environment is also under threat, not only from climate change but also from humankind's increasing appetite for our world's natural resources.
International business is readily condemned as exacerbating the plight of impoverished peoples and their environment. But is this a reactionary, simplistic and ultimately counterproductive perspective? Should the (non-)status of the corporation as an actor under international law be reconsidered? How might international law harness the power and influence of the private sector as a force for positive change?
The 2008 Annual Conference of the British Branch of the International Law Association will ask whether we can conceive of an international legal order in which business participates as a partner - alongside governments and other international organisations - in confronting the challenge of moving fragile states and their peoples, through sustainable development, to peace, security and prosperity.
Monday, February 11, 2008
Conference: A Just Empire? Rome’s Legal Legacy and the Justification of War and Empire in International Law
Roman law and other texts dealing with Roman armed expansion and warfare were among the most influential traditions in the 16th and 17th century development of the law of nations in Europe and in European imperial expansion. The first panels of this conference inquire into the importance of Roman law and of judgments about Roman practice as sources for later thinking about the law of nations, imperialism, and just war. Several of the papers will use the work of the sixteenth-century Roman law scholar Alberico Gentili (1552-1608) as one focal point for the discussion of these wider issues. The later panels consider connections between these Roman traditions and major European thinkers on international law in the 18th century such as Barbeyrac, Montesquieu and Vattel, and the impact of this tradition and of other justifications of European expansion in the Americas and elsewhere. The conference aims to bring together participants from several different disciplines, extending from ancient historians to specialists in modern international legal and political theory, in order to deepen understandings of this Roman tradition and of its ebb and flow among the different projects to justify and shape imperialism through law. The conference will also draw wider attention to Alberico Gentili's work, and provides an opportunity for deeper evaluation of the traditions of Roman and international legal thought on war and imperialism to which he was a signal contributor.
Busch, Reinhardt, & Shaffer: Does Legal Capacity Matter? Explaining Patterns of Protectionism in the Shadow of WTO Litigation
Does legal capacity matter in the World Trade Organization (WTO)? The conventional wisdom is that the right perseveres over might under the WTO's more legalistic dispute settlement system. Yet, others stress that members can only take advantage of the rule of law if they have the resources to protect their rights through litigation. Despite all the interest in this topic, there is virtually no empirical evidence about how legal capacity affects patterns of litigation and import protection. Using an original survey of WTO delegations, we construct a novel index of legal capacity, and include this in a study of 1321 antidumping (AD) investigations between 1995 and 2005 by 17 WTO Members against firms located in 33 countries. We hypothesize that Members with more legal capacity are more likely to challenge AD suits brought against them at the WTO, and less likely to be named in AD petitions in the first place. The results strongly bear out our expectations; legal capacity matters.
Workshop: McCrudden on "Buying Social Justice"
Sunday, February 10, 2008
New Issue: Indian Journal of International Law
- B.W. Daly, The Permanent Court of Arbitration in Indian Treaties: Its Role, Potential Procedural Problems, and Drafting Solutions
- A.H. Ansari, Trade and Environment: Trade Embargo under Article XX (b) & (g) of the GATT and Dispute Settlement Practice on Them
- M.H. Rahman, Deep Seabed Mining and Marine Environment
- R.T. Ako, A.A. Adedeji, & S.A. Coker, Resolving Legislative Lapses Through Contemporary Environmental Protection Paradigms - A Case Study of Nigeria's Niger Delta Region
- L. Jambholkar, Problems Relating to Women Married to Non-Resident Indians