- Steffen Bauer, "Admit that the Waters Around You Have Grown": Die Bedeutung des Klimawandels für die Vereinten Nationen
- Frank Biermann & Ingrid Boas, Für ein Protokoll zum Schutz von Klimaflüchtlingen: Global Governance zur Anpassung an eine wärmere Welt
- Daniel Mittler, Schwach, schwächer, CSD? Die Kommission für nachhaltige Entwicklung der Vereinten Nationen 15 Jahre nach Rio
- Doris König & Thilo Neumann, Streit um die Arktis: Bestehendes Vertragswerk reicht aus
- Alistair D. Edgar, Der "Academic Council on the United Nations System": Ein internationales Netzwerk von UN-Forschern
Saturday, May 3, 2008
New Issue: Vereinte Nationen
Williams, Goose, & Wareham: Banning Landmines: Disarmament, Citizen Diplomacy, and Human Security
Banning Landmines: Disarmament, Citizen Diplomacy, and Human Security looks at accomplishments and setbacks in the crucial first decade of the 1997 Mine Ban Treaty. The first half of the book considers the implementation of the prohibitions and humanitarian assistance provisions of the treaty, as well as efforts to promote universal acceptance of the treaty among governments and non-state armed groups. The second half of this book considers the impact of the landmine movement on other issues (such as cluster munitions and disability rights), as well as the extent to which it has contributed to the field of human security.
Edited by Nobel Peace Laureate Jody Williams and two other long-time leaders of the mine ban movement, Stephen Goose and Mary Wareham, Banning Landmines features contributions by grassroots activists, diplomatic negotiators, mine survivors, arms experts, and human rights defenders. This diverse group of writers at the forefront of the landmine ban movement is well placed to provide insights into this remarkable process, its precedents, and implications for other work and issues.
Stone: The Historiography of Genocide
- D. Stone, Introduction
- A. Curthoys & J.Docker, Defining Genocide
- A. Weiss-Wendt, Problems of Comparative Genocide Scholarship
- D. Moshman, Conceptions of Genocide and Perceptions of History
- V. Das, Collective Violence and the Shifting Categories of Communal Riots, Ethnic Cleansing and Genocide
- R. van Krieken, Cultural Genocide in Australia
- A.D. Moses, Genocide and Modernity
- D.L. Bergen, Religion and Genocide: A Historiographical Survey
- A. Jones, Gender and Genocide
- W. Schabas, Prosecuting Genocide
- A.A. Cave, Genocide in the Americas
- T. Barta, Decent Disposal: Australian Historians and the Recovery of Genocide
- J. Zimmerer, Colonial Genocide: The Herero and Nama War (1904-1908) in German Southwest Africa and its Significance
- D. Bloxham & F.M.Göçek, The Armenian Genocide
- D. Stone, The Holocaust and its Historiography
- N. Werth, The Crimes of the Stalinist Regime: Outline for an Inventory and Classification
- I. Talbot, The Partition of India
- J-L. Margolin, Mao’s China: The Worst Non-Genocidal Regime?
- B. Kiernan,m Documentation Delayed, Justice Denied: The Historiography of the Cambodian Genocide
- R.M. Hayden, Mass Killings and Images of Genocide in Bosnia, 1941-45 and 1992-95
- S. Straus, The Historiography of the Rwandan Genocide
- V. Sanford, !Si Hubo Genocidio in Guatemala! Yes There Was Genocide in Guatemala!
- R.K.Hitchcock & T.E.Koperski, Genocides of Indigenous Peoples
Friday, May 2, 2008
Conference: New Approaches to Self-Determination
ASIL: Reports on International Organizations
These biannual reports are intended to highlight the work of IOs - both regional and subject-specific - whose actions are not well-known to international lawyers. Many electronic resources now exist giving updates on legal developments at organizations such as the United Nations, the European Union, and the World Trade Organization. Few, if any report on the work of the Commonwealth, INTERPOL, the Southern African Development Community, the United Nations Environment Program, and Pacific Islands Forum, to name just a few of the organizations we report on in this first edition.
We believe information on these under-reported organizations will assist international lawyers in two ways. First, the reports will make plain the enormous breadth of issues now addressed by international organizations. Second, the reports attempt to highlight legal questions that cut across the work of many IOs and will thus be of interest to those who study this area of law, though not the particular organization involved.
RIO is modeled on the Recent Developments section of the American Journal of International Law. The first section summarizes important legal developments in each IO. The second section analyzes their significance. The context given in this second section is intended to help readers who may not be familiar with the organization. But it is also where reporters will make links to broader issues of international law and compare the reported developments with similar developments in other IOs.
Knoops: Defenses in Contemporary International Criminal Law, 2nd edition
The Second Edition of Defenses in Contemporary International Criminal Law ventures farther into this uneasy territory than any previous work, offering a meticulous analysis of the case law in the post World War II Military Tribunals and the ad hoc tribunals for Rwanda and the Former Yugoslavia, with particular attention to the defenses developed, their rationales, and their origins in various municipal systems. It analyzes the defense provisions in the charters and statutes underlying these tribunals and the new International Criminal Court, while examining the first judgment in this field rendered by the Special Court for Sierra Leone, on June 20, 2007.
The conceptual reach of this work includes not only the defenses recognized in the field's jurisprudence and scholarship (superior orders, duress, self-defense, insanity, necessity, mistake of law and fact, immunity of States), but also presents a strong case for the incorporation of genetic and neurobiological data into the functioning of certain defenses. Procedural mechanisms to invoke these defenses are also addressed.
New Volume: Recueil des Cours
- F.J. Garcimartín Alférez (University Rey Juan Carlos, Madrid), Cross-Border Listed Companies
- S. Vrellis (l'Université d'Athènes), Conflit ou coordination de valeurs en droit international privé. A la recherche de la justice
New Issue: Transnational Dispute Management Journal
Conference: Does International Law Mean Business: A Partnership for Progress? (Update)
Bellinger: Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches
Thank you very much for that kind introduction. And thank you all for having me here at Vanderbilt. I’m delighted to have the opportunity to visit this great university and law school. And I’m particularly grateful to Dean Rubin, and to Professor Newton for arranging my visit. I'd also like to thank Mrs. Sharon Charney for endowing this lecture in honor of her late husband Professor Jonathan I. Charney. As you know, Professor Charney taught at Vanderbilt for many years. He was well-known to the Legal Adviser's office as one of the world's foremost experts on maritime law and as author of a leading treatise on the subject. He also served on the original U.S. delegation to the UN Conference on the Law of the Sea.
U.S. foreign policy – under every Administration – involves promoting respect for human rights around the world. Most of you probably know that the State Department spends a great deal of time and effort, abroad, persuading foreign governments to change their human rights behavior and administering programs to advance the cause of human rights. What many of you may not be aware of, though, is that we are now quite frequently occupied, domestically, with suits by foreign plaintiffs in U.S. courts – often arising from conduct that occurred in other countries and has no significant connection to the U.S. – that may not be consistent with our governmental policies for promoting human rights.
That is where I will focus my remarks today – in particular, on the Alien Tort Statute, or “ATS,” a nearly 220-year-old statute that has been interpreted to allow foreign plaintiffs to bring suit in U.S. courts for violations of international law. The ATS was the subject of a seminal Supreme Court decision in 2004, Sosa v. Alvarez-Machain, which outlined the limited reach of the ATS. Still, ATS litigation continues to present complications for U.S. foreign policy and our efforts to promote human rights.
Let me make several observations regarding the ATS at the outset. The first is that ATS litigation continues largely unabated, despite the Supreme Court’s attempt in Sosa to rein it in. Second, the ATS has given rise to friction, sometimes considerable, in our relations with foreign governments, who understandably object to their officials, or their domestic corporations, being subjected to U.S. jurisdiction for activities taking place in foreign countries and having nothing to do with the United States. Third, the development of the scope of the ATS has largely been left to litigants and the courts, without formal involvement from Congress and largely contrary to the views of the Executive. This has been a problem, not least because many recent ATS suits have tended to implicate important aspects of U.S. foreign policy. In the end, there are good reasons for limits on the scope of the ATS – through courts exercising restraint, or if necessary, through legislation. We need to ensure the ATS does not complicate international efforts by the political branches to promote human rights abroad, a cause to which the United States is deeply committed.
But first, some background on the statute. Many of you are likely familiar with the Alien Tort Statute, sometimes referred to as the Alien Tort Claims Act. And you may already know that this is one instance where reading the text of the statute doesn’t get you very far. In its entirety, the statute reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS was included by the First Congress in the Judiciary Act of 1789, but in its first 190 years, the statute provided jurisdiction in only two cases, and why it was enacted is something of a mystery. This led Judge Friendly famously to call the ATS a “legal Lohengrin,” because “no one seems to know whence it came.”
What little we do know about the ATS’s origins suggests that its principal motivation was to provide redress for offenses committed by U.S. persons against foreign officials in the United States. In the pre-Constitutional period, there were concerns that foreigners would not have adequate redress in state courts for wrongs committed against them in violation of the law of nations. Under the law of international responsibility at the time, the U.S. would be held accountable internationally for the failure to provide such redress. The jurisdictional scope of Article III of the Constitution, and the enactment of the ATS by the First Congress, addressed this issue by providing jurisdiction for foreigners to seek remedies in federal court.
The modern origins of ATS case law date to the Second Circuit’s 1980 decision in Filartiga v. Peña-Irala, which permitted an ATS suit by two Paraguayans living in the U.S. against a former Paraguayan government official (who also was living in the U.S. at the time of the suit) for the torture and killing of a family member in Paraguay. The court held that torture is a violation of the law of nations and that, under the ATS, U.S. courts could decide a torture claim arising in a foreign country. The decision in effect sanctioned use of the ATS for international human rights litigation, and from there, ATS cases in the federal courts grew substantially. After Filartiga, federal courts heard myriad suits alleging human rights abuses by individuals, including, notably, a suit brought against the leader of Bosnian-Serb insurgents by citizens of Bosnia-Herzegovina and a suit against former Philippine president Ferdinand Marcos by Philippine nationals.
In the 1980’s, most ATS cases tended to involve circumstances like those in Filartiga – suits by foreign nationals against officials of their own government for conduct that occurred in a foreign State. By the 1990’s, the focus of ATS litigation expanded, with plaintiffs bringing more suits against private actors, mainly corporations, for among other things, aiding and abetting alleged human rights abuses perpetrated by foreign governments. In all, more than 100 ATS suits have been filed since Filartiga.
Against this background, the Supreme Court for the first time considered the ATS in its modern incarnation in the 2004 case of Sosa v. Alvarez-Machain. In Sosa, a Mexican plaintiff alleged that the defendant, also a Mexican national, acted at the direction of the U.S. Drug Enforcement Agency to help abduct the plaintiff in Mexico. The plaintiff was thereafter transferred to the United States, where he was eventually prosecuted by U.S. authorities and acquitted. The plaintiff contended that his forcible abduction in Mexico by the defendant amounted to an arbitrary detention in violation of customary international law.
The Supreme Court ruled that the ATS is only a jurisdictional statute, and does not by itself create a cause of action. But the Court also reasoned that the First Congress “understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations.” Justice Souter’s opinion for the Court identified three 18th-century causes of action as paradigmatic: offenses against ambassadors, violations of “safe conduct,” – that is, official permission for a foreigner to travel freely through U.S. jurisdiction – and piracy. The Court also did not foreclose certain additional suits for violations of international law, provided, among other limitations, that the claim “rest[s] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features [of these paradigmatic offenses].” Applying this limitation, the Court rejected Sosa’s specific claim that international law prohibited “arbitrary detention.”
Justice Scalia, in a concurring opinion, would have held that the ATS is a jurisdictional statute and nothing more, and that it does not authorize present-day federal courts to create any causes of action for violations of international law. That task would necessarily fall to the Congress.
The Court thus accepted the narrow “jurisdictional” interpretation of the ATS advocated by the Executive Branch, but held that the ATS authorized federal courts to recognize certain new causes of action. Significantly, however, the Court identified a number of factors that counseled special “judicial caution” and a “restrained conception of the discretion a federal court should exercise in considering a new cause of action” under the ATS. Among other things, the Court recognized the “potential implications for the foreign relations of the United States” that “should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Accordingly, the Court stressed that devising new federal common law causes of action based on international law “should be undertaken, if at all, with great caution.” Justice Souter’s opinion summed up the situation: the door for ATS litigation was “still ajar subject to vigilant doorkeeping.”
Notwithstanding the Court’s directive for restraint, almost four years later, litigation has showed no signs of slowing down. Plaintiffs continue to push against the door the Court left “ajar,” arguing for expansive applications of customary international law. Among the suits courts have heard are a suit against an American company for selling Israel bulldozers under a U.S. military assistance program that were eventually used to demolish Palestinian homes; a suit against U.S. chemical companies that manufactured Agent Orange used by the U.S. military as a defoliant during the Vietnam War; a suit against two high-ranking government officials of the United Arab Emirates alleging involvement in abuses of underage camel jockeys; and a suit against a Canadian energy company for aiding and abetting human rights abuses by investing in Sudan. The Second and Ninth Circuits, in particular, have proceeded as before. One post-Sosa federal court has frankly conceived of its role as that of a “quasi international tribunal[ ],” dispensing an international law that “supersed[es] and suppl[ies] the deficiencies of national constitutions and laws.” [Judge Jack Weinstein of the Eastern District of New York, in the Agent Orange case. 373 F. Supp. 2d 7, 17 (EDNY 2005).]
This continued litigation under the ATS reflects fundamental problems with how lower courts have approached these suits. These problems center on five key issues: First, whether the ATS applies extraterritorially – that is, whether a U.S. court can properly apply U.S. federal common law under the ATS to conduct that occurred entirely in the territory of a foreign State. Second, even if such a cause of action could properly be recognized, whether exhaustion of adequate and available local remedies in that foreign country should be a prerequisite to bringing an ATS suit. Third, whether corporations or other private entities may be held liable under the ATS for aiding and abetting human rights abuses perpetrated by foreign governments. A fourth issue is how to apply Sosa’s requirement that an international-law norm be sufficiently accepted and specific. And fifth, in what circumstances should courts dismiss suits based on what Sosa referred to as “case-specific deference to the political branches”?
American Isuzu Motors v. Ntsebeza, also known as the Apartheid case, which is now in the petition stage before the Supreme Court, exemplifies both some lower courts’ resolution of these questions and their approach to the ATS after Sosa. This suit was brought by former victims of Apartheid in South Africa against more than three dozen private corporations for allegedly aiding and abetting human rights abuses committed by the former Apartheid regime. In essence, the case seeks to hold those corporations liable for doing business in South Africa during the Apartheid era.
In the district court, the post-Apartheid government of South Africa filed a statement of interest objecting to the suit and urging its dismissal. The filing stated that the litigation threatened investment in South Africa and interfered with South Africa’s resolution of the legacy of Apartheid, which was “informed by principles of reconciliation, reconstruction, reparation and goodwill.” When the case was still being litigated in the district court, the Supreme Court in Sosa took the extraordinary step of singling it out by name in a footnote as possibly appropriate for dismissal based on “case-specific deference to the political branches.”
The district court heeded these cautions, dismissing the suit on the ground that aiding and abetting claims are not actionable under the ATS. The Second Circuit reversed, relying in part on the absence of any express restriction in the ATS on aiding and abetting liability – this, despite the Supreme Court’s admonition in Sosa that courts exercise restraint and look to positive legislative guidance.
In February, the United States filed an amicus brief requesting that the Supreme Court grant certiorari in the case to consider whether the ATS allows suits for aiding and abetting and allows U.S. courts to apply U.S. federal common law under the ATS to conduct occurring in a foreign State. If the Supreme Court grants review, the case could be heard as early as this fall.
The U.S. government’s brief urging certiorari in the Apartheid litigation is one of many statements of interest and amicus briefs that we have filed post-Sosa in those ATS suits that implicate significant U.S. foreign policy interests. Since Sosa, we have made such filings in about a dozen cases. Given the nature of the underlying allegations in certain cases, the decision whether to file can be a weighty one.
Our usual practice in these cases has been to make arguments for general legal principles concerning ATS litigation, and to avoid delving into the underlying merits of any particular case. We have typically argued, as we have in the Apartheid case, for limiting ATS litigation by resolving legal issues in light of Sosa. These include the issues of extraterritoriality, aiding and abetting, and exhaustion of local remedies. For example, we argued in a Ninth Circuit case that a cause of action does not lie under the ATS for a suit against a British mining company concerning conduct that occurred in Papua New Guinea, and that in any event, plaintiffs should seek their remedy first in Papua New Guinea, not in federal court in California. The Executive has sought to have courts dismiss one case – the suit involving the bulldozers used by the Israelis – based on “case-specific” deference to the political branches, as suggested in Sosa. Although the bulldozer case was dismissed, these arguments have not always won traction in the lower courts. Still, they remain in play in a number of cases and ultimately their validity will likely be determined by the Supreme Court.
Now let me turn to some of the issues raised by ATS litigation.
To start, it has been argued that ATS litigation holds out the possibility of certain benefits. Let me mention three quickly. First is that ATS suits can promote accountability and provide a public voice to victims of terrible human rights abuses, when no other forum is available, and that allowing claims of human rights abuses to be heard in court helps recognize the dignity of the victims. Second is that ATS litigation may help to raise public and political awareness of human rights abuses that might not gain attention otherwise, which, it is said, might have the effect of spurring political action to address ongoing abuses, prevent future abuses, or devise appropriate standards of conduct for corporations. Third, ATS litigation might advance U.S. participation in the development of customary international law.
Apart from the fact that they are not legal arguments, and were not the reasons for enactment of the ATS, these suggested benefits also may not be as significant as they might first seem. ATS cases might not be always driven by a simple desire to see justice done; like all private civil litigation, they might sometimes be motivated by other considerations, such as money or politics. Moreover, litigating issues in U.S. courts does not generally promote the development of effective remedial mechanisms in the foreign country concerned. The benefits of having U.S. courts engage in the development of international law are also not altogether clear, because much ATS litigation has focused on defining U.S. domestic law and its proper reach. And properly so: the Supreme Court held in Sosa that the law to be applied under the ATS is U.S. federal common law. That law governs, for example, the extraterritorial application of the ATS, and also in large part aiding and abetting liability and exhaustion of local remedies. When courts do consider customary international law, there is also a risk that their interpretations could be in tension with those advanced internationally by the Executive Branch. Still, an assessment of the ATS as a matter of policy should consider these issues.
There are also substantial costs to ATS litigation. The important ones are not financial – ATS suits can be expensive to contest, but so far, ATS litigation has not produced large judgments that can realistically be executed. Indeed, that is one of its weaknesses – it does not provide any effective relief in the vast majority of cases. The real costs, however, fall into two basic categories: what I will call “diplomatic” costs and “democratic” costs.
First, the “diplomatic” costs. Here, I can assure you that foreign governments do not see the ATS as an instance of the United States constructively engaging with international law. Quite the opposite: we are regarded as something of a rogue actor. We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.
In letters to the State Department or in amicus filings in federal courts, foreign governments consistently argue that the assertion of U.S. court jurisdiction over cases that have little connection to the United States is inconsistent with customary international law principles and interferes with national sovereignty. Canada, for example – internationally, a strong promoter of human rights and accountability for human rights violations –strongly objected to a case in the Second Circuit against a Canadian energy company for allegedly aiding and abetting human rights abuses in Sudan. The U.K. and Australia – also leading human rights advocates – have similarly argued that the scope of ATS jurisdiction is inconsistent with principles of international law.
When you consider the Sudan case, or the Apartheid case, from other countries’ perspective – a good thing to do generally in international law and relations – there is considerable force to these criticisms. Imagine, for example, what the U.S. reaction would be if a Swiss court sought to adjudicate claims brought against U.S. government officials or businesses for Jim Crow-era racial restrictions, or – since (without a statute of limitations) ATS suits can reach far into the past – even for slavery. As much as we might denounce past injustices, most of us would probably take offense at the notion that a Swiss court could hear such a suit and decide it based on the court’s own articulation of international law. The United States, after all, has come to terms with and sought to remedy the effects of slavery and Jim Crow laws through domestic measures under Acts of Congress and state laws resting on a strong moral consensus of our people – and according to the principles, procedures, and norms of our legal system. From the South African perspective, the Apartheid case must look very similar, and it is no wonder that the South African government has asked that the case be dismissed.
Serious diplomatic costs also attend Filartiga-type litigation against foreign officials. For example, a series of ATS suits against Chinese officials by Chinese Falun Gong members is an issue of considerable importance to the Chinese government. In these suits, plaintiffs have served Chinese officials while they were traveling in the United States on official business, which is the basis for the courts’ personal jurisdiction. The diplomatic friction caused by these cases runs directly contrary to one of the reasons for enacting the ATS – to prevent harassment of foreign officials in the United States and prevent international incidents. And it strikes other countries as hypocritical to entertain such suits at the same time we complain about civil and criminal actions brought against U.S. officials in other countries.
In addition to causing diplomatic friction, ATS litigation also exacts “costs” through the lack of democratic checks and accountability. For one, the ATS places few limits on who may bring suit. By its terms, any “alien” can bring suit, and often suits are brought by aliens who have no presence in, or contacts with, the United States. Unlike criminal cases, which are subject to policy and political checks through the exercise of prosecutorial discretion, Sosa has not – at least not yet – provided an effective restriction on the types of claims asserted under the ATS. Indeed, the American bar is actively soliciting alien plaintiffs to open up new areas for ATS claims, for instance in the area of environmental litigation.
More broadly, the lack of a predicate judgment by the political branches that such suits should be brought is a significant problem. As I noted earlier, Congress, in the text of the ATS, has provided virtually no guidance to courts as to how to define causes of action under U.S. law based on international legal norms. The modern ATS is mainly the product of judicial decision-making. This fact was noted by the Supreme Court in Sosa and was clearly part of the reason for its “restrained conception” of the statute.
Furthermore, unlike the limited and specific nature of 18th-century law-of-nations offenses, such as piracy, international law today has developed significantly and comprises a significant and somewhat unwieldy body of norms. ATS plaintiffs nearly always rely on customary international law. As a practical matter, management of ATS litigation depends on the least politically accountable branch – the Judiciary – interpreting an ill-defined body of law – customary international law – that is the President’s responsibility on the international plane, and that unlike statutory or treaty law, is not the product of a formal Legislative or Executive process.
The text of the ATS does not provide for a formal role for the Executive Branch in ATS litigation. Here, it is worth comparing the role of the Executive in policing the terrorism exception to foreign sovereign immunity. As you probably know, under the Foreign Sovereign Immunities Act, or FSIA, foreign states are immune from suit subject to certain exceptions. In 1996, an exception was added for suits based on acts of terrorism. Whatever the terrorism exception’s merits, in enacting it, Congress took some account of the fact that it could complicate the President’s conduct of foreign affairs, and gave the Executive an important role in the application of the exception. Rather than permitting suits against any State based on allegations of terrorism, only States designated by the Executive as “state sponsors” of terrorism lost their immunity as to terrorism claims. While litigation under the terrorism exception presents some of the same problems raised by ATS litigation, the fact that the Executive has a role in the scope of that litigation has helped limit potential frictions between the courts and the Executive arising from terrorism-related lawsuits. And, of course, the FSIA exception was the result of an affirmative Act of Congress, which has the authority (and political accountability) under the Constitution to define the Law of Nations and the jurisdiction of the federal courts.
As I have said, the Executive Branch often participates in ATS litigation as an amicus. Such filings are made by the Justice Department in coordination with the State Department and, as appropriate, other components within the Executive Branch. Sometimes, especially in the district courts, filings are made in response to an invitation from the court to express the views of the United States. Those requests are themselves a sign that ATS litigation is putting the courts in the awkward position of adjudicating issues touching on U.S. foreign policy. If an area of the law is fraught with such risks to broader national interests that it requires courts to regularly seek the advice of the Executive Branch, perhaps courts are being asked to delve into matters that are not well-suited for litigation in U.S. courts, and are more appropriately addressed by other means.
Such case-by-case participation can put the Executive Branch in a difficult spot, too. Foreign governments will continue to press U.S. Administrations to weigh in on their behalf in ATS litigation. If the Executive is expected to weigh in when litigation presents foreign policy concerns, courts may come to infer (wrongly) from its silence in other cases that there are no such concerns. In addition, foreign governments may come to regard the Executive’s decisions whether or not to file as a reflection of the United States’ view of its bilateral relationship with that government. Domestically, foreign policy submissions will often be read as partisan support for the activities of foreign governments over the deserving interests of the plaintiff victims.
But despite the problems of case-by-case participation, the Executive Branch has real interests in ensuring that as a matter of policy, ATS litigation does not interfere with its conduct of foreign relations. I have already noted foreign governments’ concerns about the scope of U.S. court jurisdiction under the ATS. In addition, recent ATS suits have been used by litigants to duplicate, replace, or proceed on top of the U.S. government’s systemic efforts to reform foreign government practices or help end foreign conflicts. Often, these suits are brought as class actions for all aliens injured by the challenged conduct, effectively asking the U.S. courts to serve as administrator of an international claims program for foreign nationals. This is illustrated by the nature of the claims in the Apartheid and Falun Gong cases, in which the plaintiff classes potentially comprise millions of South Africans and Chinese, respectively. Cases such as these tend to directly implicate broad U.S. foreign policy concerns.
Without a formal role in the statute, the Executive’s participation through statements of interest and amicus briefs is one of the few practical ways that the United States can seek to confine the scope of the ATS in a manner that is faithful both to its limited historical roots and the restrained conception of the ATS explained by the Supreme Court in Sosa. Compare for example the Torture Victims’ Protection Act, or TVPA. Congress enacted the TVPA in 1992 to provide an express cause of action for aliens or U.S. citizens to sue for torture or extrajudicial killing committed under the color of foreign law. In enacting the TVPA, Congress included several important provisions requested by the Executive. Accordingly, the statute requires exhaustion of adequate and available local remedies, limits suits to conduct by state actors, and provides for a 10-year statute of limitations. The TVPA is far from perfect, and it can have the effect of thrusting U.S. courts into foreign relations. But it is the result of a legislative process – one that resulted in several limitations in the TVPA that take account of U.S. foreign policy interests. For these reasons, there are fewer occasions for the U.S. to file statements of interest or amicus briefs in TVPA litigation. By contrast, the U.S. government’s practice of filing statements of interest and amicus briefs in ATS cases can be understood as a necessary substitute for the fact that there was never a legislative process resulting in an Act of Congress creating causes of action for the assorted international norms that plaintiffs have asserted under the ATS.
Going forward, we need to consider how to limit the costs of the Alien Tort Statute – both diplomatic and democratic. A critical first step is to recall the ATS’s original purposes of providing foreigners an adequate means of redress for other offenses committed in U.S. territory, and perhaps on the high seas in the case of piracy. ATS actions should be confined to situations that closely resemble the types of suits the First Congress had in mind.
In addition, to the extent causes of action are allowed under the ATS, it would make particular sense to bring the ATS in line with the TVPA by requiring exhaustion of local remedies. It seems odd, for example, that exhaustion is required for claims of torture or extrajudicial killing under the TVPA, but not for a less heinous abuse alleged in an ATS suit. Even if, contrary to the U.S. position, an ATS suit based on conduct in a foreign territory can be entertained, an exhaustion requirement would protect our courts from wading into disputes more appropriately litigated elsewhere and could spur foreign governments to develop their own adequate means of redress.
In Sosa, the Supreme Court expressly “welcome[d] any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations.” A bill introduced by Senator Feinstein in 2005 would have resolved some of the problems I have identified, but was withdrawn without the Senate taking any action.
If Congress were to legislate, it could apply a clear statute of limitations for ATS claims and provide precise definitions of authorized causes of action—again, much like the TVPA. A statute of limitations would prevent courts from resurrecting very old controversies that the foreign state has long since put to rest. (Indeed, several courts of appeals have already imported the TVPA’s 10-year statute of limitations into the ATS, and state-law limitations periods are also sometimes borrowed for federal causes of action.) Defining causes of action legislatively would lend certainty and accountability to the litigation—judges would no longer be left to divine causes of action in the unfamiliar materials of international law—and such definitions would embody the judgment of Congress and the President as to the content of international law.
Another meaningful step might be to prohibit class actions. If Congress were to act, however, it should also proceed cautiously, because of the great potential for suits in U.S. courts regarding conduct in foreign countries to interfere with the Nation’s foreign policy.
Beyond the ATS, however, we also need to focus on the many other tools the U.S. government, and in particular the State Department, can use to prevent and redress human rights abuses. Some of these are tools of persuasion – for example, the State Department’s annual human rights reports, which review countries’ human rights practices and focus attention on reported abuses. The State Department also conducts quiet and public diplomacy, in bilateral and multilateral fora, and administers a variety of programs intended to foster development of the rule of law in other countries – a critical aspect of preventing and redressing human rights abuses. We also support voluntary multi-stakeholder initiatives to promote corporate codes of conduct in the developing world, such as the Voluntary Principles in the Extractive Industries.
At the same time, the United States continues to support holding foreign government officials, and other persons, criminally accountable when they commit torture or other serious human rights abuses. In the cases of Rwanda and the former Yugoslavia, the United States has supported special international tribunals to try and punish the guilty. In addition, the domestic criminal law and jurisdiction of the United States is available to punish torture and genocide. For example, the federal government is currently prosecuting Chucky Taylor, the son of the former Liberian leader Charles Taylor, on charges of torture stemming from abuses perpetrated in July 2002 in Monrovia, Liberia.
We need to continue to foster these and other approaches to enforcing human rights. The problem that human rights enforcement must ultimately address – and for which the ATS is of little avail – is the failure of foreign countries’ own domestic rule-of-law institutions to prevent and provide redress for abuses. These failures cannot be fixed by any single policy program or lawsuit, and certainly not by making U.S. courts ad hoc claims tribunals. Rather, inculcating a respect for law and human rights takes a sustained and careful effort focused on strengthening legal institutions in foreign States, not necessarily expanding the reach of our own.
Bellinger: The United States and the International Criminal Court: Where We’ve Been and Where We’re Going
I’d like to thank Dean Weissenberger, Professor Bassiouni, and DePaul University for the invitation to address this conference. The 10th anniversary of the Rome Statute provides a useful occasion to assess developments related to the International Criminal Court (ICC), and I’m happy to have the opportunity to share my thoughts on the views and policy of the United States toward the ICC.
Now it may strike some as a bit ironic that a senior U.S. Government official would speak at a conference “celebrating” the tenth anniversary of the International Criminal Court, given that the U.S. Government’s concerns about the Court are so well known. But I welcome this opportunity to appear to share the U.S. Government’s views. Indeed, I will tell you up front that one of my main themes is that even if we disagree over the means chosen by the Rome Statute – and I believe that this is a disagreement that is likely to continue under future U.S. Administrations unless U.S. concerns are addressed – nevertheless we do not disagree over the Statute’s end goals, and we are prepared to work with those who support the Court in appropriate circumstances.
I don’t plan to use my remarks to attempt to assess the activities or performance of the ICC as an institution to date. In my view it’s too early to draw many meaningful conclusions in this regard. The ICC’s first prosecutor has been in office for less than five years. The court has yet to hold its first trial or to execute its first sentence, though it has opened investigations in four separate cases and issued 10 public indictments. We believe that the Court acted appropriately and responsibly in dismissing requests that it investigate issues arising from the Iraq war, and expect that it will do the same in connection with other politically motivated petitions it receives. All this said, the ICC most substantial efforts to date have focused on building the institution itself, hiring a staff, and beginning to assemble its judicial and investigative capabilities. All parties need to give the ICC more of an opportunity to perform in a judicial role before attempting to make significant assessments of the ICC as a judicial institution.
Instead, I’d like to make some observations about the views of the U.S. government toward the ICC during the past decade, and offer some thoughts about issues that will likely affect U.S. policy toward the ICC over the next decade. In a nutshell, I will argue that the United States’ fundamental concerns about the ICC have been remarkably consistent across successive Administrations and Congresses controlled by both Democrats and Republicans. And in the absence of significant changes to the Rome Statute to address these concerns, it is unlikely that the United States will become a party to the Rome Statute any time in the foreseeable future. Accordingly, the future of the relationship between the United States and the ICC will be defined mainly by the extent to which the United States and ICC supporters can agree to disagree about the Rome Statute and find constructive and practical ways to work together to advance our shared interest in promoting international criminal justice.
Ten years ago, U.S. negotiators from the Clinton Administration went to Rome with the goal of achieving agreement on a statute for the International Criminal Court that would advance the cause of international criminal justice and that the United States could join. The United States had long been a proponent of the idea of a permanent international criminal court, just as it had played a lead role in the Security Council’s establishment of ad hoc criminal tribunals to address large scale crimes committed in the former Yugoslavia and in Rwanda. The United States viewed the Rome Conference as presenting a historic opportunity to build an institution that in symbol and in substance would embody the international community’s commitment to ensuring accountability for those responsible for crimes of international concern.
In the period leading up to Rome, however, the United States stressed that establishing an international criminal court was not an end in itself. The ability of such a court to make effective contributions to justice and to peace, and to win the support of the United States, would depend on the powers given to the Court and the ways in which those powers were integrated into the existing international system for maintaining peace and security. In addition, it was important that the Court’s arrangements provide appropriate protections for the interests of states who would be called on to cooperate with the Court, as well as for the rights of those who might be investigated or prosecuted by the Court.
As early as 1990, the U.S. Congress passed legislation stating that the United States should “explore the need for the establishment of an International Criminal Court”. The Congress emphasized, however, that such a Court “should not derogate from established standards of due process, the rights of the accused to a fair trial and” – I want to emphasize this – “the sovereignty of individual nations.” The U.S. Senate passed similar legislation in 1994 supporting the establishment of an international criminal court, but emphasizing that the U.S. Senate would not consent to ratification of a treaty establishing such a court unless, among other things, the treaty ensured that rights of American citizens under the U.S. Constitution would be protected.
At Rome, U.S. representatives stressed that the ICC must operate in coordination, not in conflict, with the UN Security Council. They opposed proposals to give the court’s prosecutor the authority to commence investigations on his own initiative, without a referral from the Security Council or the government of a state that was a party to the Court. They emphasized that the United States and other governments participate together in military alliances and peacekeeping operations around the world, and that the soldiers undertaking these important tasks needed to be able to do their jobs without exposure to politicized prosecutions from the court. They also expressed concerns with proposals to have the court exercise jurisdiction over crimes, such as a crime of aggression, which had not already been clearly established and defined in international law.
U.S. negotiators worked hard at Rome to secure agreement on a treaty that would meet these objectives. They tried to persuade delegations of the wisdom of an approach to the ICC that would have allowed the United States to join and that likely could have commanded wider support from the international community as a whole. This approach was rejected in favor of a narrower approach embraced by a smaller group of like minded nations. Some among this group objected to what they viewed as assertions of “exceptionalism” in the positions taken by the United States, and the consensus at Rome appears to have been that engaging with the United States and accommodating our concerns was too high a price to pay. The result is a court that on paper makes more expansive claims of power, but that enjoys a narrower base of political and material support, and that may be less able to effectively investigate crimes, apprehend suspects, bring cases to trial, and execute sentences. It remains to be seen how well this decision will serve the interests of the ICC and of international criminal justice.
From the U.S. perspective, while the result at Rome achieved some U.S. objectives, it failed to produce acceptable terms in a number of areas that the Clinton Administration considered critical. Shortly after the conference, Ambassador David Scheffer, the head of the U.S. delegation to the Rome Conference, outlined these areas in a hearing before the U.S. Senate Committee on Foreign Relations. He said the United States opposed the proposal to give the ICC prosecutor authority to initiate investigations and prosecutions without a referral by the Security Council or by a government that is party to the Rome Statute, which he said risked “embroil[ing] the court in controversy, political decision-making, and confusion.” Scheffer also expressed concern about the Rome Statute’s treatment of the crime of aggression, in particular its failure to guarantee that any future rules require that ICC jurisdiction in particular cases be linked directly to a prior UN Security Council decision that a state had committed aggression. In addition, he objected to the Rome Statute’s claim of jurisdiction over nationals of countries that are not parties to the statute. This, he said, could inhibit the ability of the United States to engage in multinational military operations, including humanitarian interventions.
These concerns were the core of the position President Clinton took when he announced in December 2000 that the United States would sign the Rome Statute, but would not submit it to the U.S. Senate for ratification. President Clinton stated: “I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” President Clinton emphasized that signing the Rome Statute would allow the United States to remain “in a position to influence the evolution of the Court”, and would “enhance our ability to further protect U.S. officials from unfounded charges.”
It is not my purpose in reciting this history to reopen old debates about the Rome Statute. Rather, what I want to emphasize is that the concerns about the Rome Statute expressed by our negotiators at Rome and by President Clinton remain the core of U.S. policy toward the ICC. To be sure, there have been differences – sometimes sharp ones – in the tone and means by which these concerns have been advanced at different points and by different U.S. officials. But the substance of U.S. views about the Rome Statute and the ICC has been essentially unchanged.
In 2002, Under Secretary of State Marc Grossman, on behalf of the Bush Administration, announced that the United States was writing to the UN Secretary-General to express formally that we did not intend to become a party to the Rome Statute. Some have misunderstood this action, believing that it was done to express in aggressive or confrontational terms U.S. rejection of the ICC. In fact, its central motivation was to avoid any confusion whether, as a matter of treaty law, the United States had residual legal obligations arising from its signature of the Rome Statute not to take steps inconsistent with the treaty’s “object and purpose”. Since the scope of any such obligations was not fully clear, and since it was important to the United States to take appropriate steps to prevent assertions of jurisdiction over U.S. persons by the ICC, the United States took this step to clarify its legal status in relation to the Rome Statute.
Under Secretary Grossman’s explanation of this action, and the Bush Administration’s policy toward the ICC, reflects the same basic concerns expressed by the Clinton Administration. Under Secretary Grossman’s remarks emphasized concern about the potential for politicized prosecutions by the ICC against members of the U.S. military, and the impact this risk would have on the unique role and responsibility of the United States to help preserve international peace and security. He expressed concern about aspects of the Rome Statute that diluted or usurped the authority of the UN Security Council. He also cited the inadequacy of external oversight of the functions of the ICC Prosecutor.
Under Secretary Grossman also emphasized a principle that remains central to our approach to the ICC: “the United States respects the decision of those nations who have chosen to join the ICC; but they in turn must respect our decision not to join the ICC or place our citizens under the jurisdiction of the court.” Consistent with this approach, we have engaged with other states to promote acceptance of our decision to stay outside the Rome Statute regime, including by concluding bilateral agreements recognized under Article 98 of the Rome Statute to ensure that U.S. persons are not surrendered to the ICC without our consent. In taking this approach, we have not foreclosed the possibility of practical forms of cooperation with the ICC and ICC supporters, consistent with U.S. law, to advance our common goals, and I’ll have more to say about this later in my remarks. But the starting point for such cooperation is recognition of the firmly held and consistent concerns of the United States about the ICC and our decision not to become a party to the Rome Statute.
To summarize the discussion to this point, a relatively straight line runs from the positions on the ICC taken by our Congress in 1990, to those of U.S. negotiators in Rome, to President Clinton’s decision not to seek Senate ratification of the Rome Statute and to recommend the same to his successor, and to the current position of the Bush Administration. I’d like now to offer some thoughts about what the next decade is likely to hold for the relationship between the United States and the ICC, and to suggest some ways in which parties and non-parties to the Rome Statute can best advance their shared interests in promoting international criminal justice.
A principal conclusion suggested by this history is that, regardless of the outcome of the 2008 election, the next U.S. administration – even if it wanted to support the ICC – is likely to share the same basic concerns about the Rome Statute that its predecessors expressed. These core U.S. concerns are not partisan in nature, and the basis for them is not ephemeral. They reflect the unique role and interests of the United States as a global military power and as a permanent member of the Security Council, as well as our historically rooted suspicions of institutions with unchecked powers. The increased scrutiny of, and legal challenges to, the actions of U.S. and other military forces in recent years is likely only to deepen concerns about the impact the ICC could have on U.S. interests.
It is, of course, possible that the views of Rome Statute parties about these U.S. concerns could evolve over time. As the ICC is now finding, political, financial, intelligence, military, and other resources are essential to an effectively functioning court, and in many cases these are resources that the United States is uniquely able to provide. Practical experience may lead Rome Statute parties to reassess the decision they made at Rome that the interests of international justice were best advanced by establishment of a permanent international criminal court that did not take into account significant concerns expressed by the United States and others. But absent changes to address fundamental U.S. concerns, it is highly unlikely that the United States will become a party to the Rome Statute anytime in the foreseeable future.
Even if a future President were to advocate U.S. accession to the Rome Statute, he or she could very well face a skeptical reaction in the U.S. Senate. It’s worth bearing in mind that the American Servicemembers’ Protection Act – legislation that was not sought by the Bush Administration and that includes a range of restrictions on U.S. support for the ICC – passed the Senate in 2002 by a vote of 75-19, including the affirmative votes of Senators Clinton and McCain, as well as those of the current Senate Majority and Minority Leaders, Senators Reid and McConnell.
A reasonable supposition, then, is that for the foreseeable future the United States will remain outside the Rome Statute. ICC supporters may find this to be an uncomfortable reality to accept. It is inconsistent with the fervent hope of some that if the ICC stays on its best behavior long enough and if its supporters pressure the United States hard enough, some (in their view) more enlightened future U.S. administration will eventually be converted to the ICC cause. It goes against the policy of the Assembly of States Parties to the Rome Statute to pursue universal accession to the Rome Statute and against their aspirations that the ICC embody the united efforts and will of the entire international community. It also means that the ICC will enter the next crucial phase of its efforts to build an effective judicial institution without a realistic claim on the support and resources of the United States to help achieve this objective.
But it is counterproductive for ICC supporters to deny this reality. It leads them to waste energy and effort trying to persuade the United States to accede to the Rome Statute. It suggests that ICC supporters consider support for the ICC to be the only way for states to demonstrate their commitment to advancing international criminal justice. It diverts attention from more productive efforts to identify areas where the United States and ICC supporters can agree and find practical ways to work together. And it alienates many in the United States who are committed to advancing international criminal justice but have honest and good faith objections to the Rome Statute regime.
To be sure, there are also realities about the ICC that the United States must accept. Any who thought that the ICC could or should be prevented from coming to existence must acknowledge that the ICC is a reality and will remain so for the foreseeable future. Similarly, the United States must acknowledge that the ICC enjoys a large body of international support, and that many countries will look to the ICC as the preferred mechanism for addressing serious crimes that cannot be addressed at the national level. In addition, the United States must also recognize that, in some cases such as Darfur, the ICC’s success in investigating and prosecuting serious crimes may advance goals we share, and that in such cases we may have an interest in facilitating the ICC’s work.
My key point is that ICC supporters and the United States have more to gain by focusing on our shared values and commitment to advancing the cause of international justice than by trying to persuade each other to change our views about the ICC. The sooner both sides respectfully agree to disagree about the ICC as an institution, the sooner we will be able to focus on finding practical and constructive ways to cooperate in advancing our common goals.
I believe the United States has made genuine efforts to address these issues in recent years. As I noted earlier, we’ve emphasized as a core principle of our policy our respect for the decisions of other states to join the ICC. Moreover, the Administration has acknowledged that the Court has a valuable role to play in certain cases. In 2005, in one of the first major policy decisions of Secretary Rice’s tenure at the State Department, the United States accepted the decision of the UN Security Council to refer the Darfur situation to the ICC. We have said that we want to see the ICC’s Darfur work succeed and that if the ICC were to make a request for appropriate assistance from the United States in connection with the Darfur matter, we would be prepared to consider it consistent with applicable U.S. law. We have also waived restrictions under U.S. law on assistance to a number of countries that have not signed Article 98 agreements with the United States and we’ve made clear that we do not seek to prevent other countries from deciding to become parties to the Rome Statute.
These efforts led the Wall Street Journal several years ago to print an article entitled “U.S. Warms to Hague Tribunal.” While I think this overstates the case, it is true that we have expressed our sincere desire to develop a practical approach on ICC issues. We agree in this regard with Javier Solana, the European Union’s High Representative for Foreign and Security Policy, who has spoken of the need for a “modus vivendi” on ICC issues between Europe and the United States. Such an approach, in our view, must start with each side accepting practical realities.
We’ve been surprised that ICC supporters have so far been unwilling to take this critical first step toward a more constructive relationship. As an example, for three years we have urged ICC supporters to include language in the annual UN General Assembly resolution on the ICC acknowledging the decisions of some states not to become parties to the Rome Statute. Each time, our proposals have been rejected. This makes it appear to us that ICC supporters are more interested in fighting ideological battles than they are in finding common ground.
We also find this approach counterproductive. ICC supporters clearly recognize that it is in the interest of the ICC as an institution to develop a constructive relationship with the United States. But at the same time ICC supporters refuse to accept our position, they are actively urging the United States to engage with and support the ICC. But such a relationship cannot develop in a climate where the United States is consistently chastised for not joining the ICC. To use an old expression that I suspect translates into all languages, “one catches more flies with honey than with vinegar.” ICC supporters will ultimately have to decide which they value more: hewing to an idealistic commitment to universality or pursing practical efforts to build an effective court.
It is important that we put aside our differences on these issues because the next decade poses challenges that will require our collective efforts as well as pitfalls that risk further inflaming tensions over ICC issues. Let me now discuss a few issues that I think will shape the relationship between the United States and the ICC in the coming years.
A first area relates to the response to large scale and horrific crimes in Darfur. Absent a decision by the ICC to pursue an investigation or prosecution against a U.S. person, the outcome of the ICC’s Darfur work is likely to do more than any other factor in the near term to shape U.S. perceptions of the role and impact of the ICC. There is deep concern not only within the U.S. Government, but among the American people at large about the tragedy in Darfur, and a desire to find effective responses.
Now that the United States accepted the decision of the UN Security Council to refer the Darfur situation to the ICC, we want to see the ICC’s work succeed. We have said that we would be prepared to consider an appropriate request from the ICC for assistance in its Darfur work consistent with applicable U.S. law. This is not to say that responding to such a request would be straightforward or easy. There are restrictions in U.S. law on assistance to the ICC, including under the American Servicemembers’ Protection Act. Caution would also be necessary given that the ICC’s procedures for cooperation and the protections they provide for the interests of cooperating states are new and untested. But Darfur is nonetheless a good example of an area where, with respect and goodwill on all sides, there may be opportunities for constructive cooperation.
Darfur also provides a useful illustration that, even in cases where it has an important role to play, the ICC cannot be the sole answer to addressing large scale crimes. Even under the best of circumstances, the ICC will pursue only a handful of prosecutions in Darfur for crimes that have resulted in more than 200,000 deaths and the displacement of more than two million people. Its policy of pursuing cases only against those it deems “most responsible” for crimes under the Rome Statute, while based on understandable practical considerations, inevitably means that many who bear responsibility for horrific crimes will not face accountability through the ICC’s processes. Thus, even where the ICC process works as intended, there will remain a need to address accountability for those who fall beneath the ICC’s radar. Meeting this challenge presents an important opportunity outside the ICC context where both parties and non-parties to the Rome Statute need to be able to cooperate to advance our common goals.
A second more general area that will shape U.S. views and policy toward the ICC in the coming years will be the impact of the ICC’s work on the UN Security Council. As I noted earlier, preserving the role and authority of the UN Security Council has been a consistent and central concern of the United States from the earliest days of discussions about an international criminal court. Now that the ICC is a reality, it will be important to the United States to ensure that the work of the ICC complements the work of the Council to maintain international peace and security.
These issues may arise in a variety of contexts. One reason the United States opposed giving the ICC Prosecutor the authority to initiate cases without a request by the UN Security Council was our view that, where serious crimes occur in connection with large scale armed conflict, decisions about the role and timing of accountability measures should not be made in isolation from decisions about how to resolve the conflict as a whole. The UN Charter vests the Security Council with primary responsibility for maintaining international peace and security, and these decisions should be taken by the Council. As the ICC proceeds to investigate and prosecute cases under the Rome Statute, the Security Council must be prepared to act if and when necessary to ensure harmony between the ICC’s work and the Council’s broader efforts.
The interests of the Council will also be implicated by suggestions that the Council should lend its authority and resources to assist the ICC in its work. Some have suggested a role for the Council with respect to the so-called “enforcement pillar” of the Rome Statute, including the arrest and surrender of suspects and the protection of victims and witnesses. The Council will need to be cautious in the face of such suggestions. Where proposals involve roles for UN peacekeeping forces, the Council will need to consider carefully the impact of such roles on the core missions of peacekeepers and on their ability to act as neutral and trusted parties in the countries where they operate. If UN peacekeepers are viewed as policemen with a mandate to arrest government officials and deliver them to The Hague, they are less likely to be accepted and may actually be in greater personal danger. In any case, what role, if any, the Council should play in facilitating the work of the ICC must turn on the consistency of such a role with the Council’s efforts to maintain international peace and security.
A final area that will shape U.S. views and policy toward the ICC is the outcome of the upcoming Rome Statute review conference, now scheduled for 2010. If Rome Statute parties were interested in trying to address the core U.S. concerns about the ICC, the Review Conference could provide an opportunity to do so. These issues aside, a principal focus of work of the conference will likely relate to proposals to define a crime of aggression over which the ICC could exercise jurisdiction.
At Rome, U.S. representatives expressed a number of concerns about efforts to create a crime of aggression over which the ICC would exercise jurisdiction. They noted that the UN Charter gives the Security Council the responsibility to determine when an act of aggression has occurred, and stressed that ICC jurisdiction over any case of aggression must be directly linked to a prior Security Council determination to this effect. They also noted that any definition of aggression for Rome Statute purposes must be consistent and coextensive with existing customary international law, and clear and specific enough to meet basic principles of legality and due process.
These principles are as important today as they were a decade ago. Achieving a definition that satisfies them is a difficult, and possibly insurmountable task, and one that the current proposals under consideration by the Assembly of States Parties do not come close to fulfilling. Judgments about whether a particular use of force amounts to an act of aggression are particularly susceptible to political considerations. This makes it especially critical that there be effective safeguards beyond those currently contained in the Rome Statute to prevent politically motivated investigations and prosecutions for aggression. ICC parties should consider these issues carefully as their discussions proceed. A poorly conceived regime for aggression would be far more damaging to the ICC as an institution than the adoption of no regime at all.
Efforts to design an aggression regime for the ICC will also need to address the regime’s applicability to countries that are not parties to the Rome Statute. As I have noted, a core principle of our ICC policy is that, as we acknowledge the decisions of other states to join the Rome Statute and to submit to its jurisdiction, we ask that other states accept our decision not to do so. In this context, should Rome Statute parties seek to make an aggression regime they adopt applicable to non-parties, they will almost certainly provoke a serious new crisis in the ICC’s relationship with a new U.S. Administration. Article 121(5) of the Rome Statute provides that the ICC shall not exercise jurisdiction over nationals of states parties to the Rome Statute that have not accepted amendments such as those that would establish the definition of aggression. It would be entirely illegitimate for the ICC to claim jurisdiction over nationals of countries that were not parties to the Rome Statute, while permitting Rome Statute parties to shield their nationals from such jurisdiction.
The issue of the treatment of non-parties to the Rome Statute returns me to the central theme of my remarks. The core concerns of the United States about the Rome Statute have not been resolved during the past decade, and are unlikely to be resolved in the next decade, unless the Statute is changed. Accordingly, as we look forward, the United States will very likely remain outside the Rome Statute regime. This is a reality that ICC supporters should accept. Agreeing to disagree about the ICC is the essential first step toward developing a more mature and productive relationship that can effectively advance our shared goal of promoting international criminal justice. This will involve seizing opportunities for cooperative efforts where they exist and avoiding pitfalls that risk reigniting past tensions. We should be guided in our efforts by the premise that the ends we seek are far more important than the means by which we seek them. The United States and ICC supporters can do more to prevent impunity for serious crimes by working together than either can achieve on their own, and it is in our mutual interest to develop a relationship that recognizes this.
Thursday, May 1, 2008
WTO Appellate Body Report: United States - Final Anti-dumping Measures on Stainless Steel from Mexico
Buchanan: Human Rights and the Legitimacy of the International Order
The international legal order is beginning to take human rights seriously, yet sound justifications for claims about human rights are conspicuously absent. Philosophers have begun to respond to this “justification deficit” by developing theories of human rights. Although a philosophical conception of human rights is needed, it would not be sufficient. The justification of human rights is a dynamic process in which a provisional philosophical conception of human rights both guides and is fleshed out by public processes of practical reasoning structured by legal institutions. Whether the “justification deficit” can be remedied depends not only upon the content of human rights norms as set out in the major conventions and the arguments philosophers can marshal to justify them but also upon the epistemic virtues of the institutions through which the norms are specified, contested, and revised over time.
Grewal: Network Power: The Social Dynamics of Globalization
For all the attention globalization has received in recent years, little consensus has emerged concerning how best to understand it. For some, it is the happy product of free and rational choices; for others, it is the unfortunate outcome of impersonal forces beyond our control. It is in turn celebrated for the opportunities it affords and criticized for the inequalities in wealth and power it generates.
David Singh Grewal’s remarkable and ambitious book draws on several centuries of political and social thought to show how globalization is best understood in terms of a power inherent in social relations, which he calls network power. Using this framework, he demonstrates how our standards of social coordination both gain in value the more they are used and undermine the viability of alternative forms of cooperation. A wide range of examples are discussed, from the spread of English and the gold standard to the success of Microsoft and the operation of the World Trade Organization, to illustrate how global standards arise and falter. The idea of network power supplies a coherent set of terms and concepts—applicable to individuals, businesses, and countries alike—through which we can describe the processes of globalization as both free and forced. The result is a sophisticated and novel account of how globalization, and politics, work.
Marks: International Law on the Left: Re-examining Marxist Legacies
- Martti Koskenniemi, What should international lawyers learn from Karl Marx?
- B.S. Chimni, An outline of a Marxist course on public international law
- China Miéville, The commodity-form theory of international law: an introduction
- Bill Bowring, Positivism versus self-determination: the contradictions of Soviet international law
- Tony Carty, Marxism and international law: perspectives for the American (twenty-first) century?
- A. Claire Cutler, Toward a radical political economy critique of transnational economic law
- Brad Roth, Marxian insights for the Human Rights Project
- Obiora Okafor, Marxian embraces (and de-couplings) in Upendra Baxi’s Human Rights scholarship: a case study
- Susan Marks, Exploitation as an international legal concept
Wednesday, April 30, 2008
Franck: Empiricism and International Law: Insights for Investment Treaty Dispute Resolution
While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for "trade time outs" by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve their goals, and at what cost. Given the implications for public policy, international relations, and allocation of domestic financial resources, empirical assessment of international investment law is not misplaced. This Essay considers the efficacy of using empirical methodologies to gain insights about the resolution of investment treaty disputes and international investment law. Part I considers the historical tensions between international law and empiricism and moves towards reintegration. Part II explores what form empiricism might take and argues for a broad understanding of empiricism. Part III analyzes how to develop an empirical approach in light of the costs and benefits and proposes five steps to facilitate the creation of an empirical research agenda for international investment treaty dispute resolution. While recognizing that empiricism is not a panacea, the Essay suggests that the benefits of making empiricism part of the methodological landscape of investment treaty dispute resolution scholarship are worth the costs. Empiricism offers a chance to obtain accurate information about investment disputes, correct misperceptions about existing dispute resolution processes, permits considered analysis of legal issues affecting the public, and facilitates informed decisions about the negotiation and revision of investment treaties.
Nowak & McArthur: The United Nations Convention Against Torture: A Commentary
The prohibition of torture - the right to physical and mental integrity - is guaranteed in the strongest terms under international law. It is protected as an absolute right, non-derogable even in times of war or public emergency under many human rights treaties and is also generally accepted as a part of customary international law and even ius cogens.
The problem of torture resurfaced in the second half of the 20th century, and more recently in the contexts of the war in Iraq, the situation of detainees in Guantanamo Bay, and of attempts to extradite persons considered to be 'threats to national security' to States where they may be at risk of torture.
The main instrument to combat torture within the framework of the United Nations is the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). It is one of the few human rights treaties which makes explicit use of the criminal law in order to prevent and eradicate violations - the main obligation of Sates parties to the CAT is to ensure that all acts of torture are offences under domestic criminal law and that punishments are appropriate to the grave nature of such crimes. The CAT even goes beyond the traditional principles of territorial and personal jurisdiction and for the first time applies the principle of universal jurisdiction under a human rights treaty.
This volume explores the problematic definition of torture in the Convention, the substantive obligations of States parties, the principle of 'non-refoulement', provisions for international monitoring, and also the concept of preventative visits to all places of detention as contained in the Optional Protocol to the CAT. It also covers issues including the distinction between torture and cruel inhuman or degrading treatment and the principle of non-admissibility of evidence extracted under torture. Full article by article commentary on the Convention also provides historical context and thorough analysis of case-law and practice from international and regional courts and monitoring bodies. Relevant case-law from domestic courts (such as that of the House of Lords in the Pinochet case) and the practices of domestic prison inspection panels are also discussed.
Brand & Herrup: The 2005 Hague Convention on Choice of Court Agreements: Commentary and Documents
The Hague Convention on Choice of Court Agreements was concluded on June 30, 2005, and promises to become an important instrument in judicial relations throughout the world, making choice of forum clauses both more likely to be honored and more likely to lead to judgments that will be recognized and enforced around the globe. The convention, and the proposed treatise, will serve as an indispensable source for both transactions lawyers drafting the transnational commercial contracts of the future and for litigators involved in the resolution of disputes between parties to important transnational commercial transactions.
Conference: Third Annual Conference on International Arbitration and Mediation
The conference will bring together leading international arbitrators, mediators, practitioners, and scholars to discuss contemporary issues in international arbitration and mediation. Arbitration topics will include Recent Significant Domestic Judicial Decisions Involving International Arbitration, including cases from the U.S., England, France, Germany, Austria and Switzerland; Investor/State Arbitration, including new generation BITs, interim measures, non-disputing state party intervention, and the eclipse of expropriation; Class Actions and Consolidation in International Arbitration, including overcoming obstacles to consolidating international arbitrations, whether courts should enforce no-class action arbitration clauses, and the feasibility and desirability of class arbitration; Intellectual Property and Information Technology Issues, including choice of law in intellectual property disputes, how an arbitration panel decides on the validity of intellectual property, using information technology effectively, and e-discovery. The international mediation topics will address Issues, Solutions and Expanding Applications, including mediator confidentiality, enforcement of mediation settlement agreements, global competency standards, and using mediation techniques to improve M & A outcomes; and Developments in Mediation Around the World, including mediation in China and the Far East, the EU directive on mediation, mediation trends in Australia, and pledges to use ADR techniques.
Workshop: Hafner-Burton, Moreno Lax
Violeta Moreno Lax (Univ. of Louvain - Law) will give a talk today at the University of Oxford Refugee Studies Centre on "Physical Access to Protection Under the Geneva Convention: Three Legal Arguments Against Policies of 'Non-Entrée.'"
Tuesday, April 29, 2008
New Issue: Criminal Law Forum
- William A. Schabas, Carsten Stahn, & Mohamed M. El Zeidy, The International Criminal Court and Complementarity: Five Years On
- William A. Schabas, "Complementarity in practice": some uncomplimentary thoughts
- Mohamed M. El Zeidy, The Gravity Threshold under the Statute of the International Criminal Court
- William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice
- Carsten Stahn, Complementarity: A Tale of Two Notions
- Joanna Kyriakakis, Corporations and the International Criminal Court: the Complementarity Objection Stripped Bare
- Cedric Ryngaert, Applying The Rome Statutes Complementarity Principle: Drawing Lessons From The Prosecution of Core Crimes by States Acting Under the Universality Principle
- Kai Ambos & Ignaz Stegmiller, German Research on International Criminal Law, With a special focus on the implementation of the ICC Statute in national jurisdictions
Benvenisti: The Conception of International Law as a Legal System
Perhaps the most distinctive aspect of the German approach to public law in general and to public international law in particular is the systemic vision: the effort to envision the various legal norms as arranged within a hierarchy, composing together a coherent, logical order. This essay highlights what I believe to be the contribution of this systemic vision to international law and politics. This approach has contributed significantly to the emergent conception of international law as a legal system. The system of norms constitutes a map that guides lawyers in their search for applicable norms, and empowers judges to fill lacunas, interpret treaties, manage the interface between different treaties, and in general develop and further solidify the system. Probably the most significant political outcome of the vision of international law as a legal system is the empowerment of courts to develop international law beyond the intention of governments, and the equalizing effect of a coherent and consistent interpretation and application of the law. The essay also mentions a few contemporary challenges to this vision, in particular the fragmentation of the law and the turn to informal arrangements.
Briggs: Agreements on Jurisdiction and Choice of Law
In this book, the author analyses the law and practice relating to the classification, drafting, validity and enforcement of contracts relating to jurisdiction and choice of law. The focus is on English law, EU law and common law measures, but there is also some comparative material built in. The book will be useful in particular to practising lawyers seeking to draft, interpret or enforce the types of contract discussed, but the in-depth discussion will also be valuable to academic lawyers specialising in private international law.
Written by an academic who is also a practising barrister, this book gives in-depth coverage of how the instruments and principles of private international law can be used for the resolution of cross-border or multi-jurisdictional disputes. It examines the operation and application of the Brussels Regulation, the Rome Convention and the Hague Convention on Exclusive Choice of Court Agreements in such disputes, but also discusses the judgments and decisions of the courts in significant cases such as Turner v Grovit, Union Discount v Zoller, and De Wolf v Cox.
Much of the book is given over to practical evaluation of how agreements on jurisdiction and choice of law should be put together, with guidance on, amongst other things, drafting of the agreements (including some sample clauses), severability of agreements, consent, and the resolution of disputes by arbitration.