The Volokh Conspiracy

Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

This series of posts, also cross-posted on OpinioJuris, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there a some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever UJ power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The next few posts draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles in these posts.

Featuring British NGO representative Leslie Vinjamuri (pro-intervention, sees no legal problem), American peace activist Robert Naiman (anti-intervention, considers the intervention unconstitutional), and me (pro-intervention, but opposed to Obama doing it in violation of the Constitution and the War Powers Act). On the RT (formerly, “Russia Today”) television program “Crosstalk.” 27 minutes.

News services report that President Obama, speaking to the Indian Parliament, has endorsed India receiving a permanent seat on the UN Security Council. The AP story adds that this was the biggest applause line in the speech, fully consonant with the rise of Indian nationalism within India, and its rapidly increasing sense of importance in the broader world. What of this nationalism? And the rise of national pride of place among the newly rising great powers, not just India?

I continue to find mystifying the Western academic international law world’s infatuation with the ideals of the diminishing importance of states and membership in states. Particularly when that mostly seems to refer not to a universal aspiration, but only to the inability of the leading Western-states-in-decline to persuade themselves to exercise the coherence that makes states socially useful – and that largely through the cultural and class predilections of the elite political classes of those societies. When are we going to see proper analytic attention to the Globalized New Class as a phenomenon? In any event, the rising new powers understand that states are about coherence, and that the constant struggle of most states, most of the time, is to remain coherent and prevent “disaggregation” of the state into internal groups of power and “public choice” struggles for primacy and the resources of politics to economic ends.

Disaggregation is attractive to many Western intellectuals, I’d suggest, however, because our species-being, so to speak, has gradually come to be purely contractual free agency. We gave up on any kind of “fiduciary professional” model of the intellectual when we discovered that we could leverage our knowledge skills, at least until China and India caught up, across a needy global economy. It required freeing ourselves from the strictures of local communities; but the opportunities for globally marketizing our professional expertise being very large, we have moved a long, long way from RH Tawney’s post-war British model of the professional as community leader through expertise.

That’s not how we academics pronounce the disaggregation of the state. Our favored trope is to declare disaggregation of the state as an enabler of individual freedom. We mean by that, of course, particularly market freedom of the academic free agency market (best of both worlds: free agent competition as academics and tenure). The coherence of states is seen by us as an inhibition to individual freedom in some cosmopolitan, fully-marketized, free-agent status for every individual in the world.

Disaggregation, in corporate law terms, represents a peculiar kind of management-led leveraged buyout of the state by its leading expert elites, who then see the opportunity to break up its cohering power centers, in order to free up the value of political power in their hands, and for their benefit. To the polity as a whole, the whole of an ordered state power in service to ordered liberty is greater than the sum of the parts; to Globalized New Class elites, break-up frees up value for them in parts – for a while. Until the commons are over-fished and the available political power dissipated and monetized. Christopher Lasch had it right when he called it the “revolt of the elites.”

Thus a better way to understand disaggregation of the state is as the mechanism by which those able to take advantage of globalized economic activities free themselves of obligations to the specific states and polities that, through their coherence as expressed through governance and the rule of law, enabled those activities in the first place. What emerges from this free form disaggregation is a class of free global agents who, in classic public choice mechanisms, manage the terms of political disaggregation because, while their affiliations in an economic sense are global, they also manage the political commons. Disaggregation of the state becomes a crucial mechanism by which the Global New Class becomes the oligopoly that results from the “public choice” leveraging of global economic benefit by disaggregating state power. The result, however, is a tragedy of the commons in which the Global New Class internalizes benefits from the dissipating power of the Western states, and externalizes the costs on those who, so to speak, do not live in the blessed jet stream but have to deal with life on earth, within states that are less and less able to provide effective governance.

One might actually define geopolitical decline as being the disaggregation of the state; and geopolitical rise as achieving governance coherence. That’s too extreme, but there is an important element of truth in it. China has coherence of an ugly kind; India, of a largely attractive kind. Thus leaving the question, what does this mean for liberal democracy? Coherence and disaggregation do not track authoritarianism and freedom; far from it. A better way to understand governance and coherence is, instead, to use a framework that Francis Fukuyama discusses in one of the books a few years ago on governance and development. It consists of a two axis model – strong and weak governance, on the one hand, and broad versus narrow, on the other.

Authoritarian states are those which feature strong governance on a broad range of matters, including those that foreclose individual rights and liberty. Ungoverned states are those have weak governance on broad matters. Liberal democracy works best when it is strong governance, but within a relatively narrow range; within the areas that it governs, it is clearly supreme and coherent, but that range of things is both limited – and, importantly, revisable through democratic means. Interestingly, Fukuyama points out, China’s authoritarianism is of a particularly unstable kind – an attempt to have strong governance over a wide range of things, but failing; and yet, with respect to the outside world, and largely through cultural mechanisms, able to operate with authoritarian coherence.

Disaggregation is not that to which India aspires internally or externally. On the contrary, its constant struggle has been to maintain internal coherence and avoid disaggregation, and to make membership count for something. Its external goal is to act coherently in the world and so ratchet up its effective power. This is true of all the rising great powers, for obvious reasons. I tracked the Indian English language press during the 2005 UN reform debates. The fantastic importance attached to it in Indian public opinion was not surprising to those who see India as a strong force in the rise of the New Westphalianism of rising great powers and jostling, competitive multipolarity – states with external coherence in their ambitions joining the club of declining Western states that are disaggregating, and mostly going in for an apparently permanent global nap. Thus, Security Council status was the only issue of any importance within India related to the UN and UN reform. This was also true of other contenders to permanent places on a reformed council – so much so that a worried Kofi Annan had to plead with states to back away from so much focus on the actually-quite-unlikely prospect of Security Council reform (in any deep way) in order not to lose what might be achieved in more realistic matters.

The Obama endorsement is less than meets the eye. It is an endorsement in the context of a larger Security Council reform settlement in which, to start with, permanent membership would likely mean something different from what it means for the P5 now – which is to say, most of the (quasi-) plausible proposals for SC reform, in one version, envision a new group of permanent members who are permanent but lack the veto. That proposal is the most likely to actually work its way through UN reform. But the US is already on the record as favoring a deal that would have included India in that in any case. Among the most likely contenders, there is always the problem that existing members do not want to dilute their club. There is also the problem that every new contender has some reasonably powerful state or group of states that would oppose its elevation: India by Pakistan, the Islamic Conference, and perhaps China; Japan by China; Brazil perhaps less than others, but perhaps not; Germany by, well, everyone contemplating another EU seat on the Council. The US – which, ironically, is so obviously a member as the (still) hegemon that it can actually function in this as a kind of good faith referee among the mob – is primarily concerned about the dilution of effectiveness of the Council, rather than a dilution of its own power and status.

But what might push the Council finally to allow reform to the extent of allowing an additional tier of veto-less permanent members? Well, a perception that the Council might become sufficiently irrelevant in the future, as states essentially “contract around” it through other mechanisms, that it would be prudent to allow certain reforms to forestall greater irrelevance. That seems to me the most likely reason why some form of Council reform would actually take place.

The United States did not join the International Criminal Court, despite Bill Clinton’s 11th hour signature (followed by the Bush administration’s controversial 1st hour “de-signing”).  The ICC now reaches the moment, as is usual in treaties of this kind, to convene a ten year review conference, with an eye to making changes and seeing how things have gone until now.  The US under the Obama administration has indicated that although, as Secretary of State Clinton said in a recent speech, that it would be a long time before the US joined the ICC, there were ways in which it could get closer to it.

These ways apparently include attending the ICC review conference as an “observer” (a status that in this kind of diplomatic conferences, would give the US the ability to make statements and diplomatic interventions).   As we get closer to the review conference on the ICC, many international law experts have been watching and sometimes commenting on, ways in which the US might or might not “engage” with the conference and, more broadly, “engage” with the ICC.  Brookings scholar (and now ambassador to Poland) Lee Feinstein and the Hoover Institution’s Tod Lindberg recently came out with a well-regarded Brookings Press book on the subject, and the American Society of International Law has done a report; others, such as the Council on Foreign Relations, are poised to weigh in.

The primary issue on the table for the conference is the crime of aggression – an attempt to define it and incorporate it into the ICC statute.  This has seemed an entirely natural move to some.  (Nuremberg, after all, not only dealt with the crime of aggression, in its own architects’ views, it was the central matter, and the things for which Nuremberg is principally celebrated today – war crimes, crimes against humanity, genocide – were seen by the Americans particularly as lesser issues, left to the primary national victims of these crimes to prosecute at Nuremberg.)

Others have found the link-up altogether unnatural.  These objections can come from an awareness of the profound moral and legal gulf traditionally maintained between the lawfulness of the resort to war and the lawfulness of how a war, lawful or not, is conducted by each party’s forces.  Objections can also come from an awareness that these matters cannot be de-politicized and judicialized.  Paul Kennedy’s history of the United Nations, The Parliament of Man (upon which, true, I have heaped many criticisms), is persuasive that the most important achievement of the 1945 UN over the League of Nations was the recognition that the League had been far too idealistic, and that like it or not, the Great Powers needed their own chamber.  Questions of the use of force would be determined by political decision and it was crucial, even at the risk of nasty realpolitik, that they be kept inside the tent rather than without.

My own view lies with the skeptics, on both counts, and so I see this whole effort both to define aggression as an act and a crime as a mistake.  In this regard, I yield pride of place to Tufts professor Michael Glennon, who  lays out the argument against in his fine new Yale International Law Journal article, The Blank Prose Crime of Aggression.

(Update:  Over at OJ, where I have posted a version of this, we will be holding in March an online symposium with YJIL, including Professor Glennon and several guest commenters on this article, which has aroused some comment and criticism, in the comments below and over at OJ – I am going to hold off making further comments on the Blank Prose article until the March symposium.  But I don’t think any of that affects my basic point, which is about the different idea of “contracting around” the Security Council, in this case by actors purporting to be an exercise in “private ordering,” but which are really looking to bmake a bid for a new public “regulatory ordering.”  Extra note to the extra alert.  What do we call it when a private order seeks to replace a public regulatory order …?) Continue reading ‘Contracting Around the Security Council, and the International Criminal Court Review Conference’ »

My Opinio Juris co-blogger Peter Spiro raises an important question about what the US obligations should be in a crisis like Haiti’s.  Should the US government put its priority on evacuating its own citizens first?

There are an estimated 45,000 US citizens in Haiti, and there’s an assumption that they should be first in line to receive US assistance.  As Hillary Clinton said yesterday, “They are our principal responsibility, to make sure that they’re safe, to evacuate those who need medical care.” …

Should these individuals get priority for US help?  …  But as between a healthy US citizen who lives in Haiti (and who wants to get out because it is not a nice place to be now) and an injured non-US citizen who may die if not taken to a hospital ship or Miami or someplace where there are functioning medical facilities, the choice is not so obvious.  Evacuation capacities are finite.  Putting US citizens at the front of the line means putting others at the back.

I disagree with Peter on many related broader issues – his general cosmopolitanism as a basis for political order, dual citizenship, responsibilities that governments have to their own citizens, the moral defensibility of the category of national citizenship and the concept of the nation-state … but in the extreme circumstance of immediate humanitarian emergency, my first take is that Peter is right, and that the welfare advantages of “membership” in a political community (the United States, as defined by citizenship) are outweighed by overall consequences.  In any case, in my estimation, Peter is the leading legal scholar on transnational citizenship issues, and you might want to read Peter’s book, Beyond Citizenship.

The recent Copenhagen Conference on global warming has led to renewed claims that we cannot effectively combat global warming without “global governance,” or perhaps even a full-fledged world government. UN Secretary General Ban Ki-Moon recently claimed that “A [climate change] deal must include an equitable global governance structure” and many other political leaders and environmental activists have expressed similar views. Political scientist Campbell Craig summarized the standard argument for global governance to address climate change in this 2008 article:

[O]ne of the most evident failures of the nation-state system in recent years has been its inability to deal successfully with problems that endanger much or most of the world’s population. As the world has become more globalized—economically integrated and culturally interconnected—individual countries have become increasingly averse to dealing with international problems that are not caused by any single state and cannot be fixed even by the focused efforts of individual governments. Political scientists refer to this quandary as the “collective action problem,” by which they mean the dilemma that emerges when several actors have an interest in eradicating a problem that harms all of them, but when each would prefer that someone else do the dirty work of solving it. If everyone benefits more or less equally from the problem’s solution, but only the actor that addresses it pays the costs, then all are likely to want to “free ride” on the other’s efforts. The result is that no one tackles the problem, and everyone suffers.

Several such collective action problems dominate much of international politics today, and scholars of course debate their importance and relevance to world government. Nevertheless, a few obvious ones stand out, notably the imminent danger of climate change….

Essentially, the argument is that global warming is a collective action problem that only an international entity will have incentives to solve. If not a world government, it will have to be a “global governance” structure that is to a large degree independent of individual governments and has the power to compel them to take necessary measures, such as reducing carbon dioxide emissions.

In my view, such global governance is neither necessary nor sufficient to prevent global warming. As co-blogger Eric Posner points out, an effective climate change deal requires the agreement of only about 20 or so major emitting nations, such as the US, China, India, Russia, and several major European states. Obviously, most of these states would suffer serious harm if catastrophic global warming scenarios turn out to be true. They therefore have strong incentives to reach a deal. Collective action problems are not a serious danger when a solution only requires the cooperation of a few major actors, each of whom knows that their participation is essential to the success of the overall project. There is little incentive to free-ride if the potential “free-rider” knows that the problem can’t be solved without his participation. I have spelled this logic and its application to global problems in more detail here. For a more extended treatment, see Todd Sandler’s book Global Collective Action, which, among other things, shows how cooperation between a few big powers was enough to address the problem of ozone layer deterioration in the 1980s.

Of course, big power cooperation isn’t guaranteed to solve the global warming problem. It has several potential flaws. In each case, however, global governance has similar or even worse weaknesses.

One potential problem is that national governments aren’t always representative of the interests of their people and therefore won’t take full account of the dangers that global warming poses to them. However, any global governance structure is likely to be even less democratic and less representative than national governments are, especially those of liberal democracies such as the US. As John McGinnis and explain here and here, the existing international institutions that influence the content of international law are highly undemocratic, and any new global governance structure is likely to be the same. The personnel of any such entity will be chosen either by relatively unaccountable international elites, or by national governments (with a hefty dose of influence by authoritarian states).

A second danger is that one or more important governments will decide that the benefits of preventing global warming aren’t worth the costs. For example, China and India might decide that severe emissions restrictions pose too great a risk to their economies, and Western nations might be unwilling to make large enough payments to them to get them to change their minds. Obviously however, a world government or global governance agency could also decide that the costs of preventing warming outweigh the benefits. Any such structure would have to take Chinese and Indian interests into account. Moreover, we wouldn’t want to foreclose the possibility of such a decision. The costs of greatly reducing emissions are substantial, potentially even catastrophic. Even to those who, like me, believe that global warming is a genuine danger, it’s not obvious that those costs are necessarily worth paying.

Finally, national governments could underestimate the dangers of climate change; for example by buying into flawed scientific analyses. Here too, a global governance structure could make similar mistakes. Moreover, this risk has to be balanced against the danger that either national governments or the global governance decision-makers could err in the opposite direction: buying into an overly pessimistic view of global warming, and therefore enacting costly measures that turn out to be excessive. Overall, I think analytical error is less likely if we allow different nation-states to reach independent conclusions and make a compromise than if the decision is left up to a single global entity that is more likely to fall prey to groupthink. The recent Climategate scandal underlines the dangers of like-minded small groups falsifying evidence and excluding opposing views. A system of global governance over climate change issues would make this danger more severe, not less. If, at the end of the day, governments continue to disagree over the severity of the global warming danger, those with more pessimistic views could potentially offer side payments to convince the doubters to take more aggressive preventive measures.

The movement to institute global governance as a response to climate change wouldn’t be problematic if such governance did not pose any risks of its own. In fact, however, global governance itself would create potentially grave longterm threats to the future of humanity. These risks might be acceptable if there was no other way to prevent worldwide catastrophe. In fact, however, we don’t need global governance to combat global warming.