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 […]
Archive | International Law
Raiding Strategies with Predators
By Kenneth Anderson on October 18, 2009 1:43 pm in Counter-Terrorism Policy, International Law, Israel
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 […]
Speculating on the Future of the Alien Tort Statute in a Multipolar World
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 […]
Satellite War and Bombing the Moon
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 […]
Release the Koh Memorandum on Honduras
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 […]
Incentives for Targeted Killing
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, […]
Deborah Pearlstein Responds to Ben Wittes on Detention
By Kenneth Anderson on October 3, 2009 9:17 am in Congress, Counter-Terrorism Policy, International Law, Supreme Court
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.
Talisman ATS 2nd Circuit Holding Issued
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 […]
Globally Managing American Speech?
By Kenneth Anderson on October 2, 2009 10:19 am in Constitutional Theory, Freedom of Speech, International Law, Politics, Religion and the Law
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. 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.
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?
Is the Obama Administration Supporting Calls to Outlaw Supposed Hate 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 […]
Congo, Sudan, and Israel
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 […]