Next Semester

Classes in International Law I have already Taken or am currently taking:

International Law Foundations

International Human Rights

Immigration and Refugee Law

International Human Rights Legal Clinic

International Criminal Law

Classes I will take next semester:

International Environmental Law

International Business Transactions

Oklahoma International Law Society

I am very excited about OILS this year. We had 44 interested members this year at the 1L orientation, which means if most if them come to our first meeting it will be a packed house! I hope to make the organization one of the best organized and most recognized at the law school. Hosting guest speakers, forums, and traveling to conferences.

Perhaps for the first time OU will send a delegation to the annual Jessup Moot Court Competition. That would be a stellar accomplishment for kickstarting the semester.

The Death of a Customary International Law

Roger Alford, over at Opinio Juris, has written an interesting blog post about customary international law. We know what creates such a law, at least pretty well:

1. The practice in question must be relatively uniform and consistent among the states.

2. States generally believe the practice is legally compelled. (Which is actually called Opinio Juris!)

3. Look to the history of various treaties and UN General Assembly resolutions.

But Alford raises the question of how we determine whether a customary intenational law is no longer a law? This is a pretty tricky question indeed. His first suggestion is that it could be superceded by a treaty. But have we ever seen this actually happen? Since when has something recognized as customary internationl law ever been superceded by a treaty? Alford recognizes that a customary international law may simply fall out of favor, but notes its exceedingly difficult to find any examples of such a development.

I would contend, actually, that it is the very nature of our international jurisprudence, that the body of customary international law can only grow, and almost never shrink.

Regardless of the Opinio Juris changing, or state practice changing on a wide scale…Shouldn’t the real question be whether it is even possible for something that has been previously recognized as customary international law to simply no longer exist as law? Wouldn’t that position mean that each time a Customary Internatinal Law is challenged in court that the court must totally re-analyze the conduct of states and the opinio juris instead of just being able to cite precedent? Wouldn’t that be hugely time consuming for courts?I kind of think the only way it could no longer be a Customary International Law, is through being superceded by a treaty provision.

Rhyme and Reason

I have been looking a the shadow reports of various NGO's to the UN Human Rights Council, and studying up on the procedure. Its disappointing mostly. It looks like the average number of stakeholder shadow reports submitted for each country is around 9 or 10. Each report is limited to five pages. As if that limitation were not enough, they are all summarized by the Office of the High Commissioner of Human Rights into a ten page document. In other words, our semesters worth of work might result in getting a paragraph's worth of input into the mid 2010 review of Guyana's human rights record.

I understand the need for this procedure. But I can't help but think it needs to be opened up a little. The summary of the reports should be longer. Maybe 20 or 30 pages instead of only 10. Or perhaps the summary's length should depend upon the number of shadow reports submitted in some type of ratio. But the current policy is almost loony.

Shadow Reports

Just to get an idea of what we are doing in the International Human Rights Clinic, here are a few "Shadow Reports" that other groups have written. We will be working on one all semester for Guyana.

Amnesty International's review of Afghanistan.

The European Centre for Law and Justice's review of Yemen.

Human Rights Watch's review of Vietnam.

These reviews are very professionally done, they have a respectful tone, and they are well researched. Each report is limited to five pages, although an appendix of research materials is allowed.

Ted Kennedy and Foreign Policy

He was certainly more well known for his work in domestic policy, but Edward M. Kennedy had a significant impact in foreign policy as well.

He ended up opposing the Vietnam War, which of course his own kin had started. In 1973 it was Kennedy who sponsored the resolution that dried up spending for the war. He also played a key role in the anti-apartheid movement in the United States, sponsoring the Comprehensive Anti-Apartheid Act, which placed significant sanctions on the South African government. Reagan vetoed the act, but Kennedy doubled-down and rallied public sentiment to his side and for the first time in the 20th Century a Presidential veto on foreign policy legislation was overturned by the legislature.

Kennedy was one of the most outspoken critics of Augusto Pinochet's dictatorial regime in Chile in 1986, and even brought strong words to the Chilean government on their own turf in a risky and stirring speech in Santiago - though he was protected by diplomatic security personnel, his motorcade was egged. Ever since the Chilean people took their country back they have lauded Kennedy as one of the key players in Chilean liberation.

When Ireland was fighting for independence during the 90's, Kennedy had the gall to wear a green tie each time Margaret Thatcher was in his presence. The Kennedy family is of course Irish-Catholic in heritage, and although Kennedy was a fierce critic of the tactics of the IRA, he supported the cause of Irish independence.

But finally, nobody can forget his moment of courage in a time when many legislators quickly became lapdogs for the hawkish Bush administration. Unlike many national figures such as Senator Hillary Clinton and Senator John Edwards, Kennedy voted against the authorization to use force in Iraq. He was rightfully proud of his foresight, saying it was "the best vote I've cast in my 44 years in the United States Senate."

Thinking of the S.S. Lotus

As I mentioned before, the Lotus case is a central starting point in each International Law class I have taken. I was thinking today about the difference between the positions of France and Turkey. Who has the burden in arguments of jurisdiction? Should the state claiming jurisdiction show the law that allows such jurisdictional reach, or should the opposing state be required to prove why the other DOESN'T have jurisdiction. Keep in mind, the vote was 6-6 in the Lotus case. Although the current thinking is that a state asserting jurisdiction has the burden - couldn't this view shift as international law becomes more established?

Guyana!

Until Monday I had no idea where Guyana even was. Now I have to become an expert in a week. The South African nation will be the focus of the OU International Human Rights Clinic this year. Our task is to write a "shadow" report to the UN Human Rights Council for the Universal Periodic Review that takes place for each UN member state every 4 years. Guyana is up in mid 2010, and our report will be used to challenge the government of Guyana on their human rights record regarding indigenous peoples.

No New Posts Until The Semester Begins

I'm not keeping up with stuff until the Semester Starts, at that point I should have tons of fun things to say about International Criminal Law and International Human Rights.

Happy Birthday Obama

Antigua just renamed a mountain after him.

Recommended Reading

Sorry for not posting in a while. I recently picked up the New Internationalist World Guide, 11th Edition. It has facts on every country in the world with a particular focus on things other fact books neglect, such as human rights data, environmental data, and history.

Its Dejavu All Over Again

I just got my casebook for International Criminal Law for the fall semester, and the first case is the S.S. Lotus case between France and Turkey in the Permanent Court of International Justice. The Lotus case has been discussed in every single International Law class I have had so far. I'm finally getting the idea that it must be pretty important.

Troubling Children of World Leaders

Interesting article from Foreign Policy on the problem kids of powerful leaders.

Here is their first example:

SHEIKH ISSA BIN ZAYED AL-NAYHAN
Dad: The late former ruler of Abu Dhabi and former president of the United Arab Emirates (UAE), Zayed bin Sultan al-Nahyan
Age: Unknown
Bad behavior: Although he has no formal government position, Sheikh Issa, whose brother Khalifa is the current ruler of Abu Dhabi, is one of the emirate’s most prominent real estate developers. He was previously best known for building the Al Hakema tower, a massive complex in honor of his late father. But thanks to one night in the desert and an ill-advised videotape, Sheikh Issa’s name is now synonymous with sadism and abuse of power.
A video obtained by ABC News shows a group of men, including the sheikh, torturing an Afghan grain merchant who he accuses of cheating him. In the video, which was allegedly shot on his desert ranch at night, Issa fires an automatic weapon around the man, stuffs sand in his mouth, sodomizes him with an electric cattle prod, lights him on fire, and pours salt on his bleeding wounds.
The video was given to ABC by one of Issa’s former business associates, who is suing over various business deals. The man claims to have evidence of 25 other cases of torture by Issa. The UAE’s interior minister -- who happens to also be Issa’s brother -- acknowledged that the man on the tape was him. Issa has been put under house arrest pending investigation, which is extremely rare for a member of the royal family. It will take a lot more than a skyscraper to erase this stain from the family’s reputation.

Rankings of Blogs by Law Professors

OpinioJuris has listed a ranking of blogs by Law Professors on the basis of "average visit length." Paul Caron at TaxProf has also done a ranking based on the overall number of site visitors. One of my professors, Michael Scaperlanda, has a blog called Mirror of Justice, which is ranked sixth in the length of visits, but ranked 26th in the number of visits and page views.

Obama To Sign Disabilities Treaty

Today the President will be signing the UN Convention on the Rights of Persons With Disabilities, in the East Room of the White House. The treaty was open for signatures in 2007, and it entered into force on May 3rd 2008. There is an optional protocol to the treaty that the U.S. will not be signing onto, which allows individuals and groups to petition an international Committee if their rights under the treaty are not being protected (Similar to the CEDAW). In the image below parties are in dark green, signed but not ratified are in light green, and non members are in grey.

Sotomayor on International Law

In April, Sonia Sotomayor made a speech to the Puerto Rican chapter of the ACLU, in which her focus was International Law. Here are her views:

I always find it strange when people ask me, “How do Americans’ courts use
foreign and international decisions — law in making their decisions?” And I
pause and say, “We don’t use foreign or international law. We consider the ideas
that are suggested by international and foreign law.” That’s a very different
concept, and it’s a concept that is misunderstood by many. And it’s what creates
the controversy that surround — in America, especially — that surrounds the
question of whether American judges should listen to foreign or international
law. And I always stop and say, “How can you ask a person to close their ears?”
Ideas have no boundaries. Ideas are what set our creative juices flowing. They
permit us to think, and to suggest to anyone that you can outlaw the use of
foreign or international law is a sentiment that’s based on a fundamental
misunderstanding. What you would be asking American judges to do is to close
their minds to good ideas — to some good ideas. There are some ideas we may
disagree with for any number of reasons, but ideas are ideas, and whatever their
source — whether they come from foreign law, or international law, or a trial
judge in Alabama, or a circuit court in California, or any other place — if the
idea has validity, if it persuades you — si te comprense — then you are going to
adopt its reasoning. If it doesn’t fit, then you won’t use it, and that’s really
the message that I want you to leave with here today. I’m going to try first to
understand the way that American law is structured against the use of foreign
and international law, because American analytical principles do not permit us
to use that law to decide our cases. But nothing in the American legal system
stops us from considering the ideas that that law can give us.

The Ten Commandments of U.S. Foreign Policy

If you aspire to running for political office, or working as a U.S. Diplomat or anything of the sort, then Stephen Walt has a list of commandments for you to follow. Apparantly violating any of the them will bring you embarassment, ridicule, and possibly ruin your career.

Senator Inhofe - Joining Senate Foreign Relations Committee

Conservative Oklahoma Senator James Inhofe has announced today that he will be filling the vacant seat on the SFRC that had been held open for Norm Coleman by the Republican Leadership. Now that COleman has officially lost his re-election bid in Minnisota to Democrat Al Franken, the seat had to be filled. His press release states:

"I look forward to doing all I can to support our allies and further democracy around the world, especially among the East Asian countries," Inhofe said in the release. "I will also put my personal knowledge of diplomatic efforts on the African continent, a very strategic continent to the future of the United States, to use in this new committee position."

Inhofe does have experience in foreign policy matters, having supported a free trade agreement between the U.S. and Taiwan. His selection is a bit od a surprise however, as most people associate Inhofe with his work on the Environment and Public Works Committee, where he is the ranking Republican member and the most prominent climate change skeptic in the legislature.

Recommended Reading

A long time ago I started reading Samantha Power's Chasing the Flame, about Sergio Vieria de Mello, a career UN diplomat who was killed in Iraq in 2003. I recently saw the book under a pile of papers on my desk and realized I had only read half of it. I'm finishing it now, and its a spectacular look into the inner workings of the UN, and the difficulties of peacekeeping missions in volatile areas of the globe. The author is on Obama's National Security Council, and has previously won the Pulitzer Prize for a seperate book entitled A Problem From Hell.

Boring Day - So Here is Some Filler

Foreign Policy profiles the most powerful spies in the world.

IHT covers U.S. Involvement in Africa.

Europe is uniting in a chorus of pressure on Israel to stop settlements.

Obama still struggles to close Guantanamo.

Sec. Gates increases size of U.S. Military by 20,000

And finally, here are some outstanding old photos of the Apollo Era.

We Live in a Beautiful World

The ICTY has convicted two Bosnian Serbs with the "burning alive" of 119 civilian muslims. Milan Lukic and Sredoje Lukic have been sentenced to Life in prison and 30 years in prison respectively.

...Milan Lukic was the ringleader in both incidents, helping herd
victims into the houses, setting the fires and shooting those who tried to flee
the flames. The judgment said his cousin Sredoje Lukic aided and abetted in one
of the blazes.
Witnesses "vividly remembered the terrible screams of the
people in the house," Robinson said, adding that Milan Lukic used the butt of
his rifle to herd people into the house, and said, "come on, let's get as many
people inside as possible." Milan Lukic shook his head but looked unmoved as Robinson pronounced sentence.

Sredoje Lukic leaned back in his chair, his face blank. Even Robinson, a veteran judge at the tribunal that has been
prosecuting Balkan war crimes for 15 years, sounded stunned by the Visegrad
atrocities.
"The perpetration by Milan Lukic and Sredoje Lukic of crimes in
this case is characterized by a callous and vicious disregard for human life,"
he said. "In the all-too-long, sad and wretched history of man's inhumanity
to man, the Pionirska street and Bikavac fires must rank high," the judge
added.

Adding Insult to Injury

Mourners of Natalya Estimerova have been dispersed after only making it 200 yards in a peaceful funeral procession. They were told they needed a permit to march, regardless of the passivity of their actions.

This is Just Sad

One of the top human rights advocates for Chechnya has been murdured.

From Human Rights Watch:

Natalia Estemirova, a top human rights activist in the troubled Russian
republic of Chechnya and a close colleague of Human Rights Watch, was abducted
near her home in Grozny on the morning of July 15, 2009, carried off in a car as
people on a nearby balcony heard her call for help. Her body was found later
that day in the neighboring republic of Ingushetia...In Chechnya, where decades
of armed conflict have made violence and abuse a daily reality, human rights
defenders like Estemirova are rare. She was known for her fearlessness in
exposing human rights violations and for demanding that perpetrators be held
accountable. At her urging, victims and witnesses of Chechnya's
brutalities broke their silence to denounce their abusers, some even testifying
in court cases brought by Memorial and others in an attempt to see the
perpetrators held to account.

The U.S. Should Ratify the Rome Statute

July 17, 1998 was a milestone in the history of International Law. It was the day 120 states voted to adopt the Rome Statute, the treaty that created the International Criminal Court. At the conference in Rome where the statute was created, only seven states voted against it and 21 abstained from voting. The United States was among the seven states that voted against adoption, joining the company of states such as Yemen, Iraq, China, and Lybia.

According to Article 126 of the statute, the statute would enter into force 60 days after the 60th state ratified the treaty and deposited their ratification with the Secretary General of the UN. On April 11th 2002 ten countries ratified at the same time, and the treaty went into effect three months later. Article 11 of the Rome Statute provided that the court only had jurisdiction over crimes committed after the statute entered into force.

Today 109 countries have ratified the treaty. At one point the Clinton Administration signed the treaty, a move which indicates a state’s intent to pursue ratification in good faith. The Bush Administration, represented by UN Ambassador John Bolton reneged on the signing and effectively “unsigned” the treaty, removing any U.S. obligation to pursue ratification. Congress has been fairly hostile to the ICC. The American Service-Members Protection Act, authored by U.S. Senator Jesse Helms passed in August 2002 only a few days after the Rome Statute went into effect. This legislation serves to “protect” American military from prosecution by the ICC. It also authorizes the President to use “all means necessary” to recover any military serviceman detained by the court. Perhaps most surprisingly, it also prohibits any U.S. Foreign Aid to countries that are parties to the Rome Statute, with a lengthy list of exceptions.

Why all the worry about the existence of an International Criminal Court? The court has jurisdiction over four areas of international Criminal Law, War Crimes, Genocide, Crimes Against Humanity, and Aggression. The definitions of all four areas are still developing and the definition of Aggression is still so poorly developed that it has never been prosecuted by the court. The reach of its jurisdiction goes to individuals who are citizens of a state that has ratified the treaty, individuals who commit their alleged crime on the territory of a state party, and when a case is referred to the ICC by a demand of the UN Security Council. So, theoretically, if a U.S. Citizen, such as a member of the U.S. Military were accused of having committed a war crime in the territory of a member state, say Brazil, or Germany, they could be prosecuted by the ICC. During the debate in which the jurisdiction of the court was being defined, the United States ardently opposed Universal Jurisdiction, and they got their way.

My take:

Barack Obama might just take us full circle on the U.S. stance toward the ICC. He has indicated in the past that he is open to joining the ICC, but the chances are that the Senate still would not ratify. I have no delusion that the U.S. will really significantly change its position, especially anytime soon. But I take issue with the rationale, even if it is entrenched.

First: The ICC handles the biggest of crimes. We’re talking massacres of the largest scale. War Crimes, Genocide, and Crimes Against Humanity. What are we afraid of? Shouldn’t we be held accountable if anyone DID commit those crimes? Shouldn’t we have an interest in others being held accountable for the same crimes? Does American exceptionalism extend to such major crimes? Are our heads that big? If the concern is more about whether the U.S. would be a target of prosecution, then the worriers certainly have some merit to their argument. Many claims have been made against the U.S. invasion of Iraq, and the ICC Prosecutor has said that one of the main reasons he hasn’t brought acted on those claims is that he believes the jurisdictional issue is too messy as neither Iraq nor the U.S. are parties to the treaty. We could very well be prosecuted if we later became a member state. But what would the result of the prosecution be? Wouldn’t it be a great place to finally make our case that the invasion was legal, and therefore rebuild some legitimacy for our actions? With the possible exception of the home invasions and killings in Haditha, there aren’t many sound claims that the U.S. has committed war crimes. And the U.S. already admits its failure in Haditha.

Second: We need a comprehensive body of law for these new crimes. The ICC provides a mechanism for creating and developing our definitions of the crimes that spawned from Nuremburg. The U.S. has sat idly by and watched as genocide took place in Darfur and Rwanda. The UN peacekeeping missions in the Bosnian Conflict were not a great success. The U.S. mission on Somalia was a disaster. The U.S. invasion of Iraq was a dismal failure. We have entered an age where nobody, not even the United States, can effectively play the world’s policeman. A court, however, might play a better and more legitimate role. Imagine how much more effective it would have been to simply try and convict Saddam Hussein for Crimes Against Humanity than it would have been to invade Iraq and quell an insurgency. We set up criminal tribunals for Yugoslavia, and for Rwanda, and they have worked. The whole idea of the ICC was so that we could avoid setting up ad-hoc tribunals all over the place and just have one place where they could all be tried. It’s elegantly simple, its cleaner and easier than war, and it appeals to our highest ideals as a civilized society.

Third: The U.S. can no longer assert its will around the world through the threat of force, and thus our influence is declining. We need to shift out of the “carrot and stick” foreign policy mentality, into something more akin to what Secretary of State Hillary Clinton calls “smart power.” If we play nice, and subject ourselves to the same rules, treaties, and obligations as the rest of the modern international community there will be less of a stigma attached to our international dealings. The vote on the Rome Statute was 120 to 7, and we were one of the seven. We also failed to join the Convention on the Rights of the Child. Guess who the only other state who failed to join was: Somalia. I for one am sick and tired of being in the company of states like Somalia.

Sotomayor

I hope you all are watching the Sotomayor hearings. Some of the questions have had international law implications, including one about the relationship between protection of state sovereignty and the use of international law in domestic judicial opinions.

I am back in Norman, and catching up with some piled -up stuff at work. I will get my post on the ICC up when I can, but it probably won't be tonight.