The Volokh Conspiracy

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling — one of the few virtues of traveling for me these days — is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). Continue reading ‘Reading While Traveling, Hard Copy and No Internet’ »

UN HRC Ceiling Mural ... at $23 million

The New York Times reports on budget season at the UN and various battles hotting up.  It’s a good piece by Neil MacFarquhar, dated November 7, 2009.  As the article says, that fact that

it costs the United Nations an average of $2,473 per page to create every single document in its six official languages, while outside contractors complete the same work for around $450, prompts diplomats to accuse the organization of running amok during a global financial crisis.

It goes on to discuss the practicalities of the negotiations among the diplomats — the multiple sources of conflicts.  It is well sourced — as the article says, anonymous sourcing, understandable under the conditions — from many diplomats and explains the process by which the budget is reached.  The conflicts?  They include the perennial fight between the large majority of states that don’t pay and the minority that do; the amount that BRICs (Brazil, Russia, India, China) pay in relation to wealthy but smaller GDP states such as Canada; objections to UN Secretariat add-ons; there are others.

My view has long been that the US interest is to starve the General Assembly and most of its direct appendages of funds, while giving voluntary funding to those parts of the UN that work passably well and serve US interests and ideals (yes, there are parts of the UN that the US should financially support strongly, such as the World Food Program).  In effect, undertake a buyout of the parts of the UN that work, and seek budgetarily to contain the parts that don’t or are repositories of anti-US activism (the Human Rights Council, for example).

In any case, whatever one’s view, I’m always surprised by how many experts and partisans of the United Nations are uninterested in its internal budget and money issues.  Paul Kennedy wrote an entire book in praise of the UN, but preferred to stay either in the diplomatic histories of 1945 or up in the clouds of The Parliament of Man — he did not manage to devote even a page to money and budget issues.  That is my experience with most academic UN observers; there are important exceptions, usually people like John Ruggie who have been UN officials, but it mostly holds true; academics tend not to be interested in the accounting and financing.  The basic rule, follow the money, does not seem to apply to the UN — meaning, follow-the-money as a fundamental, obvious way of explaining the UN.  So much for historical materialism?

The reasons are complicated, but include a combination of the distaste of those who follow public law and organizations for accounting combined with a sense that what matters is not the money but the grand ideals of the institution.  ‘UN platonism’, as Michael Glennon once memorably called it.

Indeed, when one raises even a handful of the many, many scandals surrounding the UN and money, the reaction among international law observers tends to be, in my experience, not shock and a resolution that the organization needs to be better held to account, but a general sense that those who dwell on the sordid details are somehow demeaning the institution.

(Who among international law academics, for example, followed the saga of the $23 million (!) ceiling mural in the chambers of the Human Rights Council in Geneva - unveiled in 2007?

I’m in favor of public art and spending money on it, even at the UN.  Then there’s the kind of extravagance one might hope would cause, say, special rapporteurs and the US delegation and the NGOs that pressed for the embarrassment of the Council to replace the Commission in 2005 to stare up at the ceiling during meetings and think about what $20 million of that $23 million would do for World Peace or Human Rights or something.  The UN’s Climate Adaptation Fund, for example, which started in 2008 to help poor nations with climate change issues currently $18 million — not enough to pay for the current round of Copenhagen talks.

I mentioned it at a couple of academic meetings offhand, and the audience comments were that I was either mistaken or merely expressing hostility, because the only people who had talked about this (in English, anyway) were FoxNews and UNWatch, or that it was unworthy to dwell on such minor things.  If you looked at these kinds of issues, you were mistaking the forest for the trees.)

Whereas I would have said that after a certain point, these apparently minor details tell you about the nature of the organization, especially when it is an organization that has so little capacity to address even questions of embezzlement, fraud, or similar crimes.  So when it just comes to spending 23 million dollars on a mural — that is, “mere” mismanagement of financial resources — yes, I think it tells you something about the nature of rent-seeking and organizational priorities.  Particularly when it turns out that Spain — it was a Spanish artist doing the HRC ceiling — apparently raided its international development budget to help pay for “the Sistine Chapel of the 21st century.”  I think it does tell you something about incentives, motivations, public choice, institutional capture, and many other things that give a far better understanding of the organization than one gets by reading the UN Charter or the academic literature.

These are big questions, after all.  The reason why the organization can’t address corruption has largely to do with the protection that member states offer to their citizens, for example, which tells you something about the way in which states view the organization and themselves.  The reason why, for example, international development NGOs or even, come to it, human rights NGOs, did not make an immense ruckus over 23 million dollars that could have been spent on some Jeff Sachs development project tells you something about the relationship of the NGOs to the UN, and the other way around.  Or possibly how the “actually existing UN” actually feels about Professor Sachs’ MDGs, when it comes to the organization’s own budget priorities.  Why it is that the Secretary General couldn’t actually fire anyone even if he wanted, or why so many of the senior staff make well in excess of, for example, what the US Secretary of State makes, well, all of that is not a matter of minor details — why sweat the small stuff, we’re told, when the organization is about the glories of global governance? — but instead tells you crucial information about agency failure, institutional capture, public choice, rent-seeking, and the internal dynamics that those who focus on The Parliament of Man never quite want to know about.

(Update:  Thanks Glenn for the Instalanche!  I should add that I am finishing a book on this subject, Returning to Earth: When and How the United States Should Engage, and Not Engage, with the United Nations.  My editors have shown the patience of saints, but I am finally finishing the darn thing.  Meanwhile, part of it is an this SSRN paper on the parallel global security systems provided by the US and the UN, as well as the one linked above on The Parliament of Man.  And then there is this discussion of legitimacy, global civil society, and the United Nations, which will be appearing as a book chapter soon, but here is a working version at SSRN.  I’ve also added the photo of the HRC mural — it seemed to be in the public domain.)

If you are going to be around Palo Alto next Thursday evening, you might consider attending a panel discussion on robotics and law at Stanford Law School.  I’ll be on a panel alongside some very interesting and knowledgeable folks taking up varied aspects of robotics (my particular interest is robotics and war, but the panel will be considering many areas of robotics).  The particulars are below the fold.

(Update:)  Here’s the assigned topic for comments, following up on Laura’s opening comment ... should the panel discuss the Three Laws?  Are they a useful ethical/legal frame for dealing with robots in various aspects of human life?  Did Asimov lead us all astray by proposing them?  Should we instead avoid discussing them altogether?  What would you propose would be a better set of principles/laws/guidelines for robot-human interactions?

(I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict. And thanks Glenn for the Instalanche!)

Continue reading ‘Law and Robotics Panel at Stanford Law School’ »

Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition.  The AP story is unusually detailed for a wire story and bears reading.  I am in the middle of something and can’t stop to comment  on the substance.

However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.”  It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.

Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.  Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters — given the relatively little interest that Republican members of Congress show.  Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.

My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian prosecutions, threatened Spanish actions, and other places to sum up policy) but instead simply an inability to travel abroad.  On reason I believe this is what key players in the Obama administration think is simply because I’ve heard it so often over the last three or four years.  I have heard it said in many conversations among international law academics, advocates, NGO activists, and so on, that this is a good way both to appropriately punish, for example, John Yoo — and to deter future government lawyers or actors, many of whom do contemplate active professional and personal lives outside of government that might involve travel abroad.  I don’t doubt that this is a reasonably widely held view, for example, among professional and academic readers of the international law blog Opinio Juris, where I also blog.  Heck, it wouldn’t surprise me if it had been urged as its own policy in some paper somewhere on SSRN, although I haven’t actually seen anything like this.  It’s not an accusation of bad faith; it’s just a fairly pedestrian trope in this particular community.

But whether the psychological motivations are as I believe they are or not — whether I’m right or wrong about what the increasingly ‘visible and noisy college of international law’ thinks is a pretty appealing backdoor way of punishing Yoo, et al. — the biggest reason I think this is the wave of the future is the strategic logic of the situation.  Filling out what I said above, it seems to me likely that these prosecutions, threatened or actual, will target Republicans over time and not Democrats, even when the behavior is quite obviously the same.  Targeted killing using Predators seems to me very, very likely — just as soon as there is a Republican in the White House.  Meanwhile, nothing actually happens, but the legal and soft-law groundwork is put in place so that upon a change of administration, somehow things change, at least as far as the legal characterizations and then later how prosecutors like Spain’s Baltasar Garzon see them.

Why one party and not the other, if based on anything other than claimed psychological affinities?  If the advocates, NGOs, activists, European prosecutors, UN folks, etc., were to go after both Democrats and Republicans — for, after all, the same behavior — then Democrats targeted from the Obama administration would hang together with Republicans of President Ummm.  A threat against American behavior as such, behavior undertaken by both administrations, would force the Americans to hang together as Americans.  So if you are the international law community, and even if you would in principle like to go equally after everyone engaging in the same behavior, you get 0%.  That’s so whether or not you have the same appetite for going after people in any administration.

If, on the other hand, you go only after Republicans, you can reasonably count on Democrats, if they know they are not going to be targeted, to hang with you in going after Republicans.  So you don’t get 100%, but you don’t automatically get zero, either, and you might get 50%.  That seems to me a reasonably rational strategic argument, at least from the foreign standpoint.  (There’s a further question about why Democrats would go along with this ‘international law community’ rather than siding with their fellow Americans that does involve extra-strategic preferences.)

I also predict that the behaviors at issue in targeted killing with Predators will suddenly turn out to have mysterious, hithertofor unidentified legal characteristics that make it one kind of thing when it is the Obama administration, and something else — and suddenly legally liable — when it is the next Republican administration.  And that some of those arguing that it was one thing under Obama and another under the next administration will be the current administration’s transnationalist lawyers, out of office and back in the academy or think tanks or NGOs.

I happen to think it is a good thing, however, if Americans hang together as Americans when it comes to successive presidential administrations — national politics and the water’s edge, in that apparently old-fashioned and out-of-fashion and un-cosmopolitan formulation.  So unsurprisingly I think it would be a good thing if Republicans and, even better, some Democrats would take account of this emerging path of international soft-law, and perhaps start taking steps to stop it.  I’m not holding my breath.

(After a couple of annoying/uncivil emails on this, I decided to delete and close the thread as well.  Apologies to any non-abusive commenters whose comments I deleted.)

My Opinio Juris colleague Julian Ku comments on the dismissal of the Maher Arar rendition case by the Second Circuit in an en banc decision, 7–4.  (Arar is the case of the Canadian who was detained by the US and subjected to extraordinary rendition to Syria.)  Like Julian, and perhaps more strongly, I think the Second Circuit made the right call in deciding not to allow a so-called “Bivens action” for alleged constitutional violations by US officials to go forward, for reasons rooted in the conduct of foreign policy.  Read Julian’s brief comment at the link, but he has an earlier analysis in the links to earlier OJ posts.  (If you want to comment, please do so at OJ.)  (Update:  Another OJ colleague, Kevin Jon Heller, citing to Scott Horton, dissents from Julian and me, citing Judge Calabresi’s dissent.)

Reversing the position of the Bush administration, the Obama administration recently announced support for the global Arms Trade Treaty (ATT), which is currently being drafted by the United Nations. The leading voices for the ATT are the International Action Network on Small Arms (IANSA, funded by George Soros, and run by the Open Society’s former gun control executive, Rebecca Peters) and the IANSA spin-off  “Control Arms.” Proponents of the ATT promise that it will impose effective arms on embargos on human rights violators. In a forthcoming article in the Penn State Law Review,  The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, Paul Gallant, Joanne Eisen and I examine the issue. Our article shows that if the ATT were to be implemented as its proponents promise (to proactively embargo arms where there are serious risks of instability), there would have to be dozens of new embargos. Because small arms manufacture is already widespread, and is not technologically complex, most targets of new embargos would be able to manufacture firearms domestically. 

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe’s principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa’s own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, impsed by the Security Council. But the embargo has been violated by smuggling conducted by most of the nations which border the DRC, and even by UN “peacekeepers” in the DRC. Thus, the ATT might, at most, lead to more nominal embargos of arms; but nothing in an ATT can have greater force in international law than a Security Council order already does. Accordingly, the ATT will be of little or no use in achieving its purported objective. To the contrary, the ATT may be positively harmful, since it will probably declare a “right” of governments to acquire arms. This “right” could be used to claim that arms embargos outside the ATT system (e.g., unilateral embargos by the US, or the EU) are violations of international law.

The United States has agreed to recognize the results of this month’s election.  Ousted President Zelaya will be allowed to return to Honduras, and the legislature will vote on whether to allow him to serve out the remaining three months of his term, albeit without control over the military.

Meanwhile, it seems some members of the U.S. Senate objected to a Law Library of Congress report that largely supported the legality of Zelaya’s ouster.  According to this report, Senator John Kerry (D-MA) and Representative Howard Berman (D-CA) asked the Library of Congress to retract the report because it ““contains factual errors and is based on a flawed legal analysis that has been refuted by experts from the United States, the Organization of American States and Honduras” and “has contributed to the political crisis” in Honduras.  The Library of Congress stands by the report, however, and is preparing a response to Senator Kerry and Representative Berman.

If the two lawmakers belive the Law Library of Congress report is flawed, there are better responses than seeking a retraction.  For one, they could demonstrate the report’s failings, perhaps by pointing to alternative analyses that are more persuasive.  Perhaps, they could even encourage the State Department to release the memorandum written by Harold Koh supporting the U.S. government’s position that the removal of President Zelaya constituted an illegal coup.

Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Professor Alston (a friend of mine and well known to many VC professor-readers as an NYU law professor) is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.

Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.

Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.

“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.

“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.

As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, Obama administrations to state plainly the legal basis on which they believe it operates is a serious legal policy mistake.  What the administration needs to do is instruct Legal Adviser Harold Koh to give a speech that re-affirms the views taken by the US in the 1989 speech by then-Legal Adviser Abraham Sofaer.

It is a bad idea for the USG to do what it appears inclined to do (not just the Obama administration, but the Bush and Clinton administrations, too) and assert that the Predators are targeting combatants in an armed conflict, end of discussion.  From conversations I’ve had with various officials and ex-officials, and what little one can glean from the (foolishly, very foolishly) practically non-existent US opinio juris, the view seems to have been, and continues to be, that this is the narrowest and therefore most careful grounds on which to assert the legality of the actions.

Alas, no.  For the critics of targeted killing, for one to assert the right to target combatants, there must be a cognizable armed conflict under IHL — and it is not clear to many of the critics that Pakistan, rather than Afghanistan, counts.  And for the critics, Yemen or Somalia will definitely not count.  USG officials and ex-officials also seem to assume that because Congress authorized the AUMF, that act of jus ad bellum is sufficient to create an armed conflict with a non-state actor as a matter of jus in bello; critics will dispute that the former creates the latter and that it can run geographically wherever a “combatant” AQ operative happens to be, rather than a zone of substantial fighting.

Assuming arguendo that is so, then, according to the critics, you flunk having an armed conflict.  If you flunk having an armed conflict, then status as a combatant is irrelevant.  Any killing would then have to satisfy international human rights laws — also assuming, arguendo, for example, that the ICCPR were regarded as applying extraterritorially, as the critics do.  In the US view up to now, it does not — but it is very far from clear that the Obama administration will stick by that, though one hopes it has figured out the consequences for its Predator program if it does not.

The only real way for the administration to maintain what, in my view is a legally defensible, strategically vital, and indeed humanitarian measure — the alternative, note, is not “no fighting,” it is the Pakistani army fighting via artillery barrage, not a Hellfire missile — is to re-affirm the Sofaer position, which so far as I know the US has never formally dropped in any case, and assert self-defense irrespective of a state of IHL armed conflict.

According to the Reuter’s account, the US responded by telling the

Human Rights Council in June that it has an extensive legal framework to respond to unlawful killings. It also objected to Alston’s criticism, saying the U.N. investigator did not have the mandate to cover military and intelligence.

Alston wants to know the legal basis on which the United States is operating the drones, precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and what mechanisms are in place to review the use of the weapons.

“The response of the United States is simply untenable,” Alston said.

“And that (U.S. response) is that the Human Rights Council, and the General Assembly by definition, have no role in relation to killings that take place in relation to an armed conflict,” he said. “That would remove a great majority of issues that come before (the United Nations) right now.”

I don’t agree that the US position is untenable, nor do I think that the HRC or General Assembly has a role to play in killings “in relation to an armed conflict.”  Yes, the General Assembly or, for that matter, the Human Rights Council can opine on whatever they like — as they already do — and I understand if that is what was meant.

But the other possible meaning here is that the US has some legal obligation either to engage with that process or provide it with information or cooperate with it in some way with respect to killing in relation to an armed conflict.  In that regard, I see no obligation on the part of the US to take part, and think the Obama administration quite within its plain legal prerogatives.  There is, rather, an entire body of treaties of the laws of war and its conduct, none of which involves the General Assembly or the Human Rights Council, that regulate killing in relation to an armed conflict.

But note, as well, that the US Department of State’s response that the special rapporteur’s mandate does not extend to these matters is, so far as one can tell from public information, identical to the position taken by the Bush administration.

If I were to sit down and sketch out in a single sentence or two each the current approaches (”theories” is way too strong for what I mean here) arguing for corporate liability in the Alien Tort Statute, what would they be?  I give it a shot as bullet points below; I welcome any additions, if you were trying to give a short but reasonably comprehensive list of litigation approaches in favor of finding corporate liability.

One thing I’ve taken away from recent informal discussions of the issue with both academics and litigators, is that the question is not settled in US courts.  Sosa left it open in footnote 20, and although I would earlier have described the leading circuit cases as having accepted the idea, I came away from these various discussions with a sense that it is more open to a change in direction than I thought — and that, even absent a new Supreme Court ruling on the matter.  My sense after the latest Talisman was that US courts had more or less accepted corporate liability under the ATS, signing on to an accumulation of precedents without signing onto a theory of why.  Reining in ATS liability, insofar as they were inclined to do it, would come either as limits on what substantive acts would count or else, as in the 2nd Circuit’s latest Talisman ruling, as limits on secondary liability.  But I came away from recent discussions with a fairly inchoate sense — not a clear set of reasons — that the corporate liability issue itself was not so settled as I might have thought.

Whether that is so or not, it made me think that having some bullet point list in my head of the main lines of argument in favor of corporate liability was a useful exercise.  Feel free to add any more you like in the comments.  The reason I stress here arguments in favor is that, as someone who thinks this is not the case, it is harder for me to think of the arguments for corporate liability.  The arguments against corporate liability seem to be mostly variants of saying, the ATS requires as a threshold matter that there be a violation of international law.  Corporations are not things that are capable of violating international law, and there can’t be a violation without a violator upon which law imposes liability; hence no violation of international law and no US action in tort.

The principal way of complicating this as an argument against corporate liability is to say, in addition:  There are two hurdles to finding an international law violation — two axes, if you like:

• You have to make the move from individual to corporate liability.
• Separate and independently, you have to make the move from criminal law to civil law.

Neither one of these, continues the argument, is well founded in international law, and you have to satisfy each in order to show an international law violation.  (Represented as a diagram, the two axes produce four quadrants and it’s fun to frame it that way, but I’ve not managed to figure out how to do graphs like that on Wordpress.)

One might disagree with those axes, of course, but they are what I think I see in defense arguments (including, full disclosure, my own expert declaration in the Agent Orange case) and defense-side expert statements, at least disaggregating a bit.  There is then a long debate over what to take as constituting “international law” and evidence thereof, but leave that aside.  That said as the basis of anti-corporate liability arguments, what’s the summary list of pro-corporate liability arguments?

• One. Determine that international law allows for corporate liability “straight up” (Steve Ratner, Jordan Paust, and Ralph Steinhardt, et al. are right; Christopher Greenwood and James Crawford (in their politely skeptical Talisman defense-side affidavits) are wrong).
• Two.  Find corporate liability but only for a certain “threshold” set of really bad things — the Edwards approach early on in ATS litigation, which I understand to be now overtaken by holdings and newer theories.
• Three.  Determine that international law allows corporate liability because there is some amount of private liability in international law, and if there is for private individuals, then entity liability can be inferred for private actors (Talisman lower court approach). This approach depends somewhat on a further assumption that if  corporate liability is not affirmatively ruled out, then it is okay for a court to read it in if it finds it reasonable, a little bit like a gap filler argument.
• Four.  Determine that whether international law allows for corporate liability or not, the fact that US tort law allows for corporate liability is enough for an ATS case.  Once you have the international law violation, the fact of the acts is enough to satisfy the international law prong of the ATS, and then everything else, including who or what is liable, becomes a matter of US domestic civil law (with several variations, looking to federal common law or something else, but leaving aside those complications).  This makes corporate liability the “hinge” that “swings” between the international law prong of the ATS and the US domestic law prong in tort.  The objection is what I already noted above, the “acts” are only a “violation of international law” insofar as they are committed by something or someone legally capable of violating international law.  (This is roughly the approach of Judge Weinstein in Agent Orange; yes, he acknowledged, there is doubt under international law as to whether there is corporate liability, but for purposes of ATS litigation, it doesn’t matter.  It exists under US law and this is US litigation and it would be inconceivable not to have entity liability, as Judge Weinstein bluntly put it.)
• Five.  Determine that US precedents have already answered the question affirmatively, rightly or wrongly, so enough already, let’s get on with it (approximately Judge Schwartz’s approach in lower Talisman, saying that no one had pointed to any US precedent ruling out corporate liability, so on with things, or the 2nd Circuit’s latest Talisman latest opinion, ‘we here assume corporate liability’, on to aiding and abetting).  (I paraphrase in all these characterizations.)
• Six.  Inferring corporate liability backwards from aiding and abetting secondary liability.  This is an approach I do not think I have yet seen in the cases — possibly because I missed it or possibly because it seems too far-fetched — is to get to corporate liability from secondary liability.  The usual order is to say, you have to get corporate liability in order to identify something that can aid and abet; it is logically prior.  But you could reverse it, and instead argue that if secondary liability is an accepted premise, then whatever aided and abetted must, by tacit premise, be capable of being liable, hence, liability for corporations.  This is subject to the objection raised above that in order to have a “violation” and not just bad acts, there must be a violator in virtue of being something legally capable of violating — and this presumably would be no less true of aiding and abetting.  But if you accept the idea of inferring to fill a gap in liability, then I suppose you could argue that whatever aids and abets is presumed to be capable of being a violator and hence corporate liability.

If you would propose other lines arguing for corporate liability, feel free to enter them in the comments.  I’m less interested in this post in the counter-arguments to the anti-corporate liability position; I’m trying to get a handle in short form on the affirmative arguments for.  (Plus, I’m in an affirmative, highly positive state of mind! I’m writing off the top of my head, sitting in the bright sunshine outdoors at HLS this morning, hanging out before going back to DC; I could easily have left lots out of this discussion.  LIstening to bass viol suites by Sainte-Colombe.  Drinking super-expensive coffee and eating chocolate.  Yeah, I’m burning out brain cells as I type.  If Cambridge were like this every day, it would be … Palo Alto.  What a beautiful bright fall day here, after a day of rain!)

(Update:  Thanks to SCOTUSblog for the link, and yes, as has been pointed out, the sun in Cambridge addled my brain — I’ve corrected the count from five to six.)

My Opinio Juris colleague Chris Borgen has a post up commenting on a new paper by Richard Bilder on SSRN on legal issues involved in mining for Helium 3 on the Moon. The paper, which I’ve just read while on a plane, is fascinating, and Chris provides an excellent introduction to it (go there if you’d like to comment):

In addition to the idea of using helium-3  for [nuclear fusion] power on earth, it is also one of the most commonly posited potential fuel sources for crewed spacecraft to the asteroid belt and outer planets. This would open the belt up to the possibility of asteroid mining (if that turns out to be economically feasible) as well as crewed scientific exploration of the outer solar system. Bilder sets out various options including ratifying the present Moon Agreement, establishing an international lunar resource regime outside of the framework of the Moon Agreement, and setting up either an international organization or some other enterprise for mining lunar helium-3.

Underlying this is his argument that significant public or private investment in helium-3 mining would be predicated on a stable legal regime concerning the property and ownership issues of mined lunar resources. Thus, he argues, it is in the U.S.’s interest to take part in the construction of a lunar resource regime (be it treaty, international organization, or other policy option) sooner, rather than later.

I wrote yesterday that “I wonder how long certain liberal bloggers who have been reflexive defenders of HRW without bothering to seriously investigate the bill of particulars against it (e.g.) can continue to repeat things like ‘the idea that HRW is some kind of Israel-bashing organization is nonsense’ now that the founder and former longtime director [Robert Bernstein] has said just that.”  My link singled out, as an example, Matthew Yglesias.

The answer is, apparently, “at least somewhat longer.”  Consider how Yglesias starts his piece yesterday on R. Bernstein: “It’s certainly news that Human Rights Watch’s critics were able to get a former HRW chairman to slam the organization for having the temerity to hold Israel to the same standards of international humanitarian law to which it holds every other country.”

Yglesias provides no evidence that HRW’s critics “got” R. Bernstein to do anything.  HRW’s harshest and most persistent critics are a motley collection of bloggers and tiny NGOs like CAMERA and NGO Monitor, who are in no position to influence a person of R. Bernstein’s stature in any way, except of course through the force of their critiques.  It seems beyond Yglesias to acknowledge that R. Bernstein is simply a long-time human rights activist who is sincerely troubled by the sharp left-wing, anti-Israel turn HRW has taken.

And while R. Bernstein’s argument is muddled in a few places (I’m told by an informed source that the Times’ editorial staff mushed it up a bit), the basic complaint of HRW’s critics, including R. Bernstein, is precisely that HRW fails to treat Israel in anything remotely approaching an objective manner.  Recall, for example, the speech by HRW Middle East Director Sarah Leah Whitson on human rights problem in the Middle East, covered previously on this blog, in which she spent a huge chunk of her time denouncing “Israel’s [recent] wars”, and a total of twelve seconds incoherently mentioning Hezbollah and Hamas.  The lack of attention to the latter groups is stunning, given that they have violated international humanitarian law in their conflict with Israel about as blatantly as possible.  Whitson hardly “holds Israel to the same standards of international humanitarian law” as everyone else,” but to a different, higher, and impossible [if national suicide isn’t an option] standard, and this is exactly the mentality she brings to HRW’s reports involving Israel.

I suggest that if Yglesias and similarly-situated bloggers want to address the root causes of R. Bernstein’s obviously painful decision to denounce the organization he founded and nurtured, they read this comprehensive report by NGO Monitor.  If Yglesias and other HRW defenders haven’t read it, they are in no position to claim that criticism of HRW as anti-Israel is “nonsense.”  But I won’t hold my breath because Yglesias, at least, still seems to have no interest in seriously examining why HRW has been on the receiving end of so  much obloquy.

UPDATE: Meryl Yourish has much more about Yglesias (and his commenters).

Henry Farrell and I discuss my book on bloggingheads.  We briefly touched on the topic whether the EU could be a model for international law (Henry-yes, me-no).  It is interesting in this connection to read the following passage from one of the Economist blogs.

Chinese intellectual curiosity in the EU seemed to peak a few years ago, when in Beijing and Shanghai think tanks grew moderately excited about the idea that Europe was about to adopt a constitution and equip itself with a permanent president and foreign minister. Such European swagger fed into China’s (only natural) desire to see a more multipolar world develop, to replace the post Berlin Wall era of American hegemony.

Then came 2005, and French and Dutch referendums that rejected the draft EU constitution, tipping the union into four years of institutional squabbling that has still not ended. In the meantime, the forces of globalisation, accelerated by the global economic crisis, left the relative decline of Europe as a trading power even more cruelly exposed.

The EU is also exceedingly bad at dealing with Beijing. The 27 member countries undercut and compete among each other for commercial advantage, while the central EU bureaucracy has allowed itself to be bogged down by process (there are scores of EU-China structural dialogues now).

Now, a common Chinese view of Europe amounts to:
-   Europe is in decline but has not come to terms with it.
-   Yet Europe still wants to impose its values on China.
-   There are structural problems in dealing with the EU because of the difficulty in distinguishing EU from member-nation interests.

Robert Bernstein (no relation), the founder of  Human Rights Watch, has issued a stinging condemnation of the organization he led from 1978 to 1998.  Here’s a taste:

I must do something that I never anticipated: I must publicly join the group’s critics....

When I stepped aside in 1998, Human Rights Watch was active in 70 countries, most of them closed societies. Now the organization, with increasing frequency, casts aside its important distinction between open and closed societies.

Nowhere is this more evident than in its work in the Middle East. The region is populated by authoritarian regimes with appalling human rights records. Yet in recent years Human Rights Watch has written far more condemnations of Israel for violations of international law than of any other country in the region....

Meanwhile, the Arab and Iranian regimes rule over some 350 million people, and most remain brutal, closed and autocratic, permitting little or no internal dissent. The plight of their citizens who would most benefit from the kind of attention a large and well-financed international human rights organization can provide is being ignored as Human Rights Watch’s Middle East division prepares report after report on Israel.

Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields....

Leaders of Human Rights Watch know that Hamas and Hezbollah chose to wage war from densely populated areas, deliberately transforming neighborhoods into battlefields. They know that more and better arms are flowing into both Gaza and Lebanon and are poised to strike again. And they know that this militancy continues to deprive Palestinians of any chance for the peaceful and productive life they deserve. Yet Israel, the repeated victim of aggression, faces the brunt of Human Rights Watch’s criticism.

At what point does the MSM stop treating HRW as a neutral source on human rights in the Middle East, and start treating it like the left-wing, anti-Israel, anti-Western organization it has openly become?  And at what point do HRW’s liberal, human-rights oriented American donors become tired to enabling this?  Maybe the growing dismay of long-time HRW supporters like Bernstein explains why Middle East Director Sarah Leah Whitson decided to expand HRW’s donor base to Saudi elites?  Better to take raise money from Saudi princes than to worry about how your growing loss of  credibility among even your natural supporters will affect your fundraising.

Comments are open, but HRW sock puppets are not welcome.

UPDATE: I wonder how long certain liberal bloggers who have been reflexive defenders of HRW without bothering to seriously investigate the bill of particulars against it (e.g.) can continue to repeat things like “the idea that HRW is some kind of Israel-bashing organization is nonsense” now that the founder and former longtime director has said just that.

And see my response to criticism by Kevin Jon Heller.  Heller also claims that be referencing “Saudi princes” I was subtly trying to imply that HRW takes money from the Saudi government.  I’m glad Heller has such faith in his mind-reading skills, but allow me to state categorically that I don’t believe that HRW would knowingly ask for, or accept, money from Saudi Arabia or any other government.  As I’ve explained in detail before, the danger is that if an organization like HRW gets dependent on funds from prviate individuals in an authoritarian regime, the organization will have strong incentives not to upset that regime, lest the regime cut off its private sources, as authoritarian regimes (unlike liberal regimes) have the power to do.

Heller is correct, though, that my original post misleadingly suggested that I knew for a fact that HRW has taken money from Saudi princes, rather than has expressed its desire to raise money from Saudi elites, presumably including Saudi princes who don’t hold government positions.  I’ve amended the post accordingly.

Human rights advocates are unhappy with the Obama administration’s foreign policy, citing three developments: (1) the failure to back the Goldstone Report; (2) the failure to pressure Sri Lanka to improve its treatment of Tamils; and (3) the willingness to deal with Sudan’s President Bashir, who was recently indicted by the International Criminal Court.  It turns out that Sudan is a useful ally in fighting terrorism and Sri Lanka is, well, complicated, and Israel is Israel.  As Julian Ku notes, coddling Bashir is hardly a way to support the ICC, which is already reeling from the decision of members of the African Union not to extradite him to The Hague if he enters their countries, in violation of their legal obligations (most of them belong to the ICC; a few have since backpedaled).  Meanwhile, the Obama administration has apparently succeeded in pressuring Spain to water down its universal jurisdiction statute, the one that the Spaniards were supposed to use to prosecute Donald Rumsfeld, Dick Cheney, and David Addington.  Well, good for the Obama administration: it has implicitly repudiated campaign rhetoric that endorsed global legalism, and it didn’t take it as long as one might have thought.

The only real break from the Bush administration on the human rights front, rhetoric aside, was the decision to join the comically named Human Rights Council, which is dominated by human-rights abusing countries and almost never condemns anyone (except Israel) for violating human rights.  The Human Rights Council replaced the Human Rights Commission, which was disbanded because it was dominated by human-rights abusing countries and almost never condemned anyone (except Israel) for violating human rights.  Aside from rubber stamping anodyne periodic reviews of countries (which make for fun reading*) and condemning Israel, the Council issues resolutions promoting the values of the developing world, whose members outnumber and hence outvote the members from the developed world.  These values include: redistribution from north to south (which, if history is any guide, means redistribution to regimes, not to people); weakening property rights, especially intellectual property rights, which southern countries would like to appropriate; protecting religious and “traditional” values, which, it turns out, have little to do with what westerners normally think of as human rights, and mainly involve the subordination of women and opposition to secularism; and asserting the “right to development,” which both underlies the south’s claims for aid and excuses developing countries from complying with obligations of any sort—including obligations to respect the other human rights—that might retard economic growth.

If the Human Rights Council has any real-world effect, it is to advance these anti-western values.  This is inevitable in international legal forums which respect the principle of one-state-one vote, for the simple reason that most states reject western values and can outvote those that endorse them.  Consider this excerpt from the article linked to above:

The administration continues to assert that “the United States is not going to preach its values and not going to impose its values,” said Kenneth Roth, executive director of Human Rights Watch. “The problem is they are not American values — they are international values.”

The problem is that people like Roth continue to think (or to say they think) that international human rights are (1) universal values that (2) happen to be the same as those that have evolved in western countries since the Enlightenment—the standard list of political and civil rights plus some foggy positive rights to work, education, health care, and social security.  This is not true.  Many non-western countries are working to shift the meaning of “human rights,” which has become an essentially contested concept, so that they advance the interests and non-western values of those countries.  Sooner or later, western countries will have to repudiate the Council, just as they did in the case of the Commission.

The Goldstone report, Sri Lanka, Sudan, Spain, the Council—they all reflect the same thing: Obama has chosen multilateralism—more precisely, a kind of cautious and pragmatic realpolitik—over human rights.

*E.g.:

27. Cuba stressed that despite limited resources, Yemen has demonstrated a clear will to improve the daily life of its citizens, particularly in the areas of education, health care, food and combating poverty. Cuba welcomed measures taken in the field of health care to expand coverage and improve the quality of services. It referred to the national report containing information on measures taken to promote the rights of women and voluntary commitments.

From here.  The Council as a body does not express its views in these reports, so they are just a long list of statements from the various member states, along with responses by the state under review, and with no factual detail or documentation of human rights abuses whatsoever, nor any sort of final conclusion about the country’s human rights practices.

Patrick Cronin over at Facebook points to a new review essay from Edward Luttwak in the latest Times Literary Supplement, but unfortunately not up online.  (I subscribe but apparently Patrick gets this stuff a lot faster than I do.)  However, Patrick posted a couple of paragraphs.  Luttwak reviews David Kilcullen’s widely noticed book among several others, and apparently argues (from the bits I’ve seen) that counter-insurgency warfare (clear and hold, etc.) in Afghanistan is a mistake, and argues instead for raiding strategies using small teams of Special Forces, special ops, Predators and drones, and so on.  I will post a link to the full article if the TLS puts it up.  However, here is a bit taken from Patrick’s note on FB:

“Obama will soon learn how even small wars can drain all the oxygen from a presidency.”... “For there is is a far superior alternative to the occupation of worthless places at very great cost in policy attention as well as in dead soldiers and money: surveillance to detect gathering threats...followed by ground, air or naval raids to destroy them. Raiding is far more economical than counter-insurgency, if only because it requires intermittent action, and is eminently suitable for Afghanistan....”

I don’t take a position here regarding whether strategy in Afghanistan should shift from counterinsurgency to counterterrorism in the sense that Luttwak means it above.  That’s a big discussion, particularly without reading the whole Luttwak piece first.  There are several complicated possibilities, especially when Afghanistan and Pakistan are each considered:  among them are surge and counterinsurgency on the Iraq model, or using a raiding strategy as Luttwak describes above, or a combination (which is one way of looking at this current move by the Pakistani army, as well as the Swat Valley operations; massive artillery lead assaults against whole regions that also had the effect of making various AQ and Taliban targets more susceptible to Predator strikes). 

Whichever of these strategies one might favor, however, all of them feature increased use and reliance upon targeted killing, via Predator, via special ops, etc.  If you propose to do counterinsurgency on the surge model, you will use clear and hold in combination with raiding strategies as enemy leadership is flushed out.  If you are backing away from counterinsurgency, and following Luttwak’s strategy above, you are also looking primarily to these raiding methods.  Even without taking a view on the correct strategy, targeted killing is a featured and growing part of any of them.

Continue reading ‘Raiding Strategies with Predators’ »

Harvard Law School is hosting in a couple of weeks what is certain to be a very interesting small conference on the Alien Tort Statute.  I was lucky enough to be one of the invitees, addressing the issue of corporate liability under the ATS.  I address the issue of corporate liability under the ATS, but am actually interested in it from a broader perspective, the “jurisprudential” perspective on the distinct and sharply divided “communities of interpretive authority” over such issues in the ATS as the status of corporate liability.  I have written elsewhere recently (in the European Journal of International Law; I think a link directly to the paper in this post here) of the “fragmentation of communities of interpretation and authority” in international law.  The ATS seems to me to offer a striking example of that.

Corporate liability can be thought of as a “hinge” issue in ATS jurisprudence — a “hinge” that under (an amalgamated reading of) current holdings serves to link “international law” to “domestic law,” as required by the two parts of the ATS.  I don’t think it is at all a correct reading of either international law or domestic law, but it seems to me an (arguably) accurate reading (there are always variations and cross-currents) of current cases and their holdings on corporate liability, including, for example, the latest Talisman ruling from the Second Circuit.

In addition to that, however, I conclude the paper (this is still in first draft, believe me) with a speculation about whether the case law developing around corporate liability in the ATS will remain stable in a world in which the US chooses decline and allows the emergence of a genuinely multipolar world, a world in which China is a much, much bigger player, as in creditor and debtor:

I do not think, however, that the final chapter has been written on corporate liability under the ATS.  In the real world, I do not think that the pushback has begun to be felt in the US or in US courts.  At that point, I suspect that some will wonder whether (from the standpoint of the ‘progressive integrity’ of international law, the perspective I am freely (and perhaps overly-imaginatively) attributing to a Professor Greenwood or Crawford on the basis of their Talisman declarations, not from a vastly more skeptical position such as my own) the jurisprudence of the ATS has not actually undermined a systematic development of international law norms with respect to civil liability, tort liability, corporate liability, and specific bodies of norms such as labor or the environment.  The future historian of international law might well conclude that the era of ATS jurisprudence, far from advancing broadly shared norms, actually undermined the possibility of firmly enacting them, in what turned out to be a final gasp of US legal hegemony, before the Era of US Indebtedness, ‘Choosing Decline’, and Multipolarity set in.

What happens, for example, when ATS suits start to be brought against Chinese corporations, for actions having no connection to the US save for the ATS itself?  For very, very serious, uncontestable even abuses of labor, land, environment and other things in, say, Africa.  The strictly legal questions would have been long settled under the jurisprudence of the ATS in lawsuits against MNCs based out of the US itself, Europe, Canada, or elsewhere in the industrialized democratic world (and whether those countries liked it or not).  What happens then?  The US government has taken a remarkably hands off attitude toward such litigation, under presidents of both parties – offering statements of interest on occasion, but not typically seeking, on some principled basis, simply to nip such litigation in the bud, rigorously and in every case in which there is no greater traditional jurisdictional base of the United States apart from the ATS itself, as contrary to the foreign policy interests or prerogatives of the political branches.

Were China to weigh in, down the road, in a world of a debtor US, would the rules being made today remain stable?  I have my doubts.  I raise China as the most obvious real-politik example of a party that might have both the means and the inclination to make its displeasure known by rattling, even just a bit, the debtor’s chains in the global market of Treasury debt.  What the might the US government, for example, say in a statement of interest to a court, in response to a court following well-established ATS precedents of corporate and secondary liability, but this time in a case against a Chinese corporation, in the world as newly defined by Secretary of State Clinton in one of her early statements – declining in particular to get too worked up about human rights as central to the US relationship with China?

The rules currently being evolved by US courts, departing from norms as understood by much of the rest of the world, seem to me rules of corporate liability made for a world in which the “universal” and the “international” can be imagined to be enacted through the ATS – mostly, however, because there is still an American hegemony.  One can call that hegemony “universal” and “international,” I suppose – provided, however, that one cloisters oneself as strictly as possible within those particular communities of authoritative legal interpretation in which ‘universal’ and ‘hegemonic’ categories do not brush up against each other and catch each other out.  Ironies and antinomies of the ATS, yet again.

(Cross-posted to Opinio Juris.)

I’m pleased to note that Glenn Reynolds and I have a new short opinion piece up at Forbes.com,“Bombing the Moon.”  It takes the hook of the LCROSS mission last week to shift gears from explosions on the Moon to … orbital war on satellites.

We applaud an Obama administration initiative to try and get ahead of the issue, but also point out the rogue state-shooting-at-space problem with diplomatic initiatives.  Here’s a short bit:

The LCROSS mission is an important and expensive scientific experiment. Nonetheless, comments on Web sites such as Scientific American and Nature indicate that quite a few people thought the whole venture to be some sort of outer-space vandalism. Some even wondered whether NASA might have acted illegally or violated an international law or treaty by setting out to “bomb the Moon” … The answer is no.

[T]oday the leading threat is to global communications and control of instruments crucial to economic and social systems, by means of weapons aimed against satellites. Nor does the threat necessarily require any specially designed weapon; satellites are horribly delicate and unprotected against kinetic force, and essentially anything with an engine and some maneuverability, including other satellites present for otherwise ordinary and nonthreatening uses, can create a threat to them. Think IEDs (improvised explosive devices) in space.

James Kirchik, writing in a recent issue of The New Republic, ponders the Administration continued insistence that there was a “coup” in Honduras.  He concludes:

In the immediate wake of Honduras’s constitutional crisis, it was understandable that the administration, caught by surprise, might jump the gun in its denunciation of the military action as a “coup.” Now, three months later and with legal repudiation from within its own government, U.S. policy has become a mistake in search of a rationale.

Among other things, Kirchik notes the Law Library of Congress analysis (noted here):

according to a recently released and widely overlooked report drafted by the Library of Congress, the actions the Honduran government took in removing Zelaya were consistent with that country’s constitutional procedures. Although the constitution does not contain specific information as to how a president can be impeached, the report did find that the Honduran Congress “used several other constitutional powers to remove President Zelaya from office.” Furthermore, the report also found that the country’s “Supreme Court, based on its constitutional powers, heard the case against Zelaya and applied the appropriate procedure mandated by the Code of Criminal Procedure.” In conclusion, the report, which was prepared by the Congressional Research Service’s Senior Foreign Law Specialist, determines “that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.”

In other words, far from fitting the administration’s description as a “coup d’état,” the report paints Zelaya’s removal as remarkably orderly and legalistic, especially in a region where the rule of law is so tenuous. The Obama administration’s position, predicated on its hasty conclusion that Zelaya’s removal was illegal, now appears squarely contradicted by the only known official analysis of the constitutional issues involved.

This last bit may need to be revised, as there appears to be another “official analysis” of the relevant legal issues, albeit one that has yet to be released.  According to an op-ed by Senator Jim DeMint, who just returned from a trip to Honduras, there is a State Department report authored by State Department legal advisor Harold Koh.

In a day packed with meetings, we met only one person in Honduras who opposed Mr. Zelaya’s ouster, who wishes his return, and who mystifyingly rejects the legitimacy of the November elections: U.S. Ambassador Hugo Llorens.

When I asked Ambassador Llorens why the U.S. government insists on labeling what appears to the entire country to be the constitutional removal of Mr. Zelaya a “coup,” he urged me to read the legal opinion drafted by the State Department’s top lawyer, Harold Koh. As it happens, I have asked to see Mr. Koh’s report before and since my trip, but all requests to publicly disclose it have been denied.

If this report is indeed the basis for the Administration’s insistence that there was a “coup” in Honduras, and its decision not to recognize the pending November elections in which Zelaya could not be a candidate even were he to be reinstated, it should be released to Congress and the public.  In the unlikely event that the legal analysis depends upon sensitive classified information, such material could easily be redacted.

The Honduran government has made numerous missteps, from forcibly removing Zelaya from the country to restricting press freedoms, but I have yet to see a legal analysis to plausibly explain how Zelaya’s removal from office (as opposed to his forced exile) was illegal or unconstitutional, and I have seen no analysis, legal or otherwise, that explains why the already scheduled November elections should not proceed as planned.   Yet Harold Koh is quite smart — and I readily admit he knows far more about this subject than I ever will.  So if he has an analysis that would support the Administration’s otherwise-implausible position, let’s see it.  If not, then the U.S. government should let Honduras determine the course of their own affairs.

UPDATE: For a legal analysis that supports the Administration’s position, see this article by Douglass Cassel of the University of Notre Dame Law School.  Harold Koh’s memo may well make similar arguments, but we can’t know for sure unless and until the memo is released.

I’ve posted before about targeted killing, and written about it for publication, as well.  I’ll be on NPR’s All Things Considered today, in a story by correspondent Ari Shapiro, talking about targeted killings in relation to detention and interrogation.  (Now that I’ve seen the story, I see with pleasure that it also quotes Matthew Waxman, Vijay Padmanabhan, John Bellinger, and Monica Hakimi.  Cool lineup.)  My point is pretty straightforward — uncertainties in detention and interrogation policies, particularly for mid-level operatives in the CIA and intelligence agencies, partly created by the courts and partly created by other actors such as DOJ, have increased the incentives to kill rather than capture.  Not always by use of Predator missiles, as the Somalia raid using helicopters firing on a vehicle a few weeks ago pointed up, but an incentive to kill from a distance rather than seek to capture and interrogate for intelligence value.  I haven’t heard the story, which was pre-taped, but I have a high opinion of Ari Shapiro as a journalist, and I’m sure that apart from whatever little bit is my part of the story, there’s good stuff there.  But anyway there’s a link to it and a snippet at the NPR blog.  (Cross-posted to OJ and CTLab.)

Deborah Pearlstein has an important response to Ben Wittes’s Washington Post op-ed on the Obama administration and detention policy, cross posted at Opinio Juris and Balkinization.  I continue to hold Ben’s views on this, but Deborah offers an incisive next move in the debate and it is important reading for those following this crucial topic.

Over at Opinio Juris, my co-blogger Roger Alford notes the issuance today of the Second Circuit’s “long-awaited decision of Presbyterian Church of Sudan v. Talisman Energy.”  Remarks Roger:

My initial impression of the opinion is that it creates an intent hurdle that will be extraordinarily difficult for plaintiffs to overcome. Plaintiffs must show that a corporation had the intent to assist in the violation of human rights. The Court went further and held that while “there may well be an ATS case in which a genuine issue of fact as to a defendant’s intent to aid and abet the principal could be inferred; but in this case, there were insufficient facts or circumstances suggesting that Talisman acted with the purpose to advance violations of international humanitarian law.”

If this case stands, it will be the death knell for most corporate liability claims under the Alien Tort Statute.

I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later.  Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts.  (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)

This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning.  Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.

Even to “engage” in the process, as a consequence, leads to tears no matter where it goes.  A compromise on the issue will inevitably mean that the first amendment is weakened in its substantive American understanding.  If the US engages in the process, however, but then does not accept the result, then it is understandably accused of negotiating in bad faith.

But that’s the consequence of a policy of “always, or nearly always, engage” with the UN or with international institutions.  There are certain institutions in which the US should always engage; the Security Council is one of them.  There are certain institutions or processes with which it should never engage and actively seek to undermine; Durban I and II come to mind.  The HRC is another institution with which engagement is a mistake, and an obvious one.  The decision to engage or not engage is one that by itself is an exercise in political capital.  I admit to finding unpersuasive the position of some (HRW made these arguments around Durban, but it is a fairly common trope) that

• (a) the US should always engage with UN institutions because engagement is an important symbolic act that shows US commitment to international institutions and
• (b) the US should not be concerned about always engaging with institutions or processes at the UN, because these are “merely” symbolic processes and one can always walk out, because as a realist matter no one can “make” the US do anything it doesn’t want.

This is looking to have it both ways.  Which is it to be?  Does symbolic engagement matter or doesn’t it? Continue reading ‘Globally Managing American Speech?’ »

That’s what it looks like, with this Joint U.S./Egypt draft U.N. Human Rights Council resolution (dated Sept. 2009). The resolution generally seems to be an attempt to urge more protection for free speech throughout the world, and some praise it for that; moreover, it lacks the exception for “defamation of religion” that some Muslim countries have urged. It may therefore be a step forward for Egypt, and an attempt to urge a step forward for some other countries.

But I’m worried that it might be a step backward for our own constitutional rights, because of what seems to be the U.S. endorsement of the suppression of “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” and possibly of “negative stereotyping of religions and racial groups.” I say “seems to be” because some of the language in the resolution is pretty slippery, and of course it’s always possible that I’m misunderstanding it. (It’s also possible that past U.S. Administrations have taken similar views before, which I would condemn as well.) Here, though, is my thinking (all emphases added by me):

1. Paragraph 4 of the draft resolution “expresses ... concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative stereotyping of religions and racial groups continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their international human rights obligations, to address and combat such incidents.”

2. Paragraph 6 likewise “[s]tresses that condemning and addressing, in accordance with international human rights obligations, including those regarding equal protection of the law, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is an important safeguard to ensure the enjoyment of human rights and fundamental freedoms of all, particularly minorities.”

3. I suppose it’s possible that the “effective measures” might simply include denunciation or other counterspeech, but that seems unlikely. The resolution quotes favorably the International Covenant on Civil and Political Rights and Human Rights Council Resolution 7/36. And article 20 of the Covenant (which in turn is favorably cited by resolution 7/36) expressly commands that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” This suggests that the urgings in paragraphs 4 and 6 (possibly limited to the “incitement to discrimination, hostility or violence” language but possibly even including the “incidents ... of negative stereotyping” language”) are urgings that such speech “be prohibited by law.”

4. Nor does this call for narrow prohibitions that would fit under the U.S. Supreme Court’s narrow exception for “incitement.” My understanding is that international definitions of “incitement” are considerably broader than the Court’s definition in Brandenburg v. Ohio. First, I don’t think “incitement” in such international documents is generally seen as limited to intentional incitement to imminently likely conduct (our First Amendment rule). Second, advocacy of mere hostility — for instance advocacy that people should hate and be hostile to radical strains of Islam (and its adherents), or to Scientology, or to Catholicism, or to fundamentalist Christianity, or for that matter to religion generally — is clearly constitutionally protected here in the U.S.; but the resolution seems to call for its prohibition.

5. Paragraph 10 also “expresses regret at the promotion by certain media of false images and negative stereotypes of vulnerable individuals or groups of individuals, and at the use of information and communication technologies such as the Internet for purposes contrary to respect for human rights, in particular the perpetration of violence against and exploitation and abuse of women and children, and disseminating racist and xenophobic discourse or content.” That might indeed be just condemnation — and, depending on what it means, might be perfectly sound condemnation — and not a call for coercive action. But note that the language of “express[ing] regret” is softer than the earlier paragraphs’ calls for “addressing” and “taking effective measures ... to address and combat.” And the presence of this softer “express[ing] regret” language here reinforces my view that the more insistent language in the other paragraphs calls for coercive measures.

6. But why the fuss, some might ask, if we’re protected by the First Amendment? First, if the U.S. backs a resolution that urges the suppression of some speech, presumably we are taking the view that all countries — including the U.S. — should adhere to this resolution. If we are constitutionally barred from adhering to it by our domestic constitution, then we’re implicitly criticizing that constitution, and committing ourselves to do what we can to change it. 

So to be consistent with our position here, the Administration would presumably have to take what steps it can to ensure that supposed “hate speech” that incites hostility will indeed be punished. It would presumably be committed to filing amicus briefs supporting changes in First Amendment law to allow such punishment, and in principle perhaps the appointment of Justices who would endorse such changes (or even the proposal of express constitutional amendments that would work such changes).

To be sure, I think it’s quite unlikely that the Administration would indeed work to enact a specific Anti-Hate-Speech Amendment, or make support of article 20 of the International Covenant on Civil and Political Rights into a litmus test for Supreme Court appointees. But it seems to me that the Administration’s and the Nation’s international representatives’ calling for the suppression of “hate speech” throughout the world would have some significance. At least it would let other countries fault us for inconsistency when American law fails to punish such speech. 

7. And beyond that, I’m worried that the Executive Branch’s endorsement of speech-restrictive “international human rights” norms will affect how the courts interpret the First Amendment, so that over time, “an international norm against hate speech ... [would] supply a basis for prohibiting [hate speech], the First Amendment notwithstanding.” And that worry stems not just from my fevered imagination, but from the views of Prof. Peter Spiro, a noted legal academic who is a supporter of this tendency. That’s not fearmongering on his part, but hope (hopemongering?) and prediction. So anything that an Administration does to endorse international speech-restrictive norms might well have an effect on our own constitutional rights as well.

8. Finally, I’ve considered whether our reservation to the International Covenant, specifically saying that “Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States,” provides us with a loophole: The theory would be that the proposal only commits states to “take effective measures, consistent with their international human rights obligations,” and our reservation means that suppressing supposed hate speech isn’t one of our “international human rights obligations.” 

But I don’t think that’s a fair reading of the joint U.S./Egypt proposal, or at least the reading that fair third parties would take of our position. It seems to me that the proposals calls on everyone to act consistently with what the U.N. Human Rights Council and similar bodies see as everyone’s “international human rights obligations” — which unfortunately includes an obligation to ban supposed hate speech — and not just what each country has expressly promised by the treaties they signed, subject to the reservations they attached.

In any case, that’s my tentative thinking; please let me know what you think.

It’s almost reassuring to see that the various controversies surrounding Human Rights Watch’s reporting on Israel–Middle East director Sarah Leah Whitson’s fundraising trip to Saudi Arabia, deputy director Joe Stork’s long history of anti-Israel activism, military analyst Marc Garlasco’s fetish for Nazi memorabilia–hasn’t led Whitson to even pretend she and HRW will treat Israel fairly in the future.  Indeed, the controversy seems to have made her madder, and even more impolitic.

Check out Whitson’s latest quote: ’”The Obama administration cannot demand accountability for serious violations in places like Sudan and Congo but let allies like Israel go free.”  Apparently, she can’t, or won’t, distinguish between what’s been going on in Sudan and Congo from what happened in Gaza last Winter.

A reasonable person could have phrased things this way: a U.N.-appointed panel has found that Israel engaged in war crimes in Gaza.  The report is controversial, and the U.N. Human Rights Council’s record is far from ideal.  Nevertheless, we find at least some elements of the report credible, and would urge the U.S. to insist on follow-through.  Thoroughly investigating even relatively minor, and contested, violations of the rules of war by an ally would give the U.S. that much more credibility when pursuing horrific, blatant human rights abuses that take hundreds of thousands of lives in places like Congo and Sudan. But a reasonable person would not have thought to analogize Israel’s action in Gaza to the wars in Congo and Sudan to begin with.