Archive | Global Governance/World Government

New Paper on International Criminal Court’s Jurisdiction over Israeli Settlements

My paper, Israel/Palestine — The ICC’s Uncharted Territory, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state. In brief, the relevant conduct does not occur “in the territory” of Palestine as required by Art. 12 of the Court’s Statute. Abstract here.

The article also provides perhaps the most comprehensive analysis thus far of the ICC’s territorial jurisdiction, which has thus far not caused much controversy, but could have significant implications for American forces in Guantanamo Bay, border incidents in the Koreas and elsewhere in Asia, and numerous other contexts.

The timing is fortuitous: Nabil Shaath, a top Palestinian official and negotiator, last week reemphasized threats to attempt to bring Israel before the ICC after the current negotiation period ends this spring. OK, not that fortuitous, as such threats come with considerable regularity, and it does appear this is Abba’s next move.

A separate article will explain why such a case might not satisfy the ICC’s requirement of dealing only with the gravest of the world’s atrocities. (I say might, because it is anyone’s guess; though the gravity threshold is a key component of the Court’s jurisdiction, it remains entirely undefined.) Thinking about calling it “When Gravity Fails” but that might be too cute. [...]

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International Law Imperialism vs. Proceduralism

My op-ed on the African Union and the International Criminal Court at the Georgetown Journal of International Affairs (also a good takes at EJIL:Talk and Dov Jacobs):

Let us distinguish between the broad currents in international legal thought – what I would call international law “proceduralists” versus “imperialists.” International law has traditionally been procedural–what counts is following the rules. If the rules enjoy respect, international law is considered a success. From this perspective, it would not matter whether the thirty-four African members of the Court quit or stay in. The Rome Statute provides rules for both entry and withdrawal, and thus doing the latter is value-neutral.

Yet, the ICC is the product of a different intellectual current. More specifically, it is a product of international law imperialism. This approach wants to increase the scope, power and prestige of international law and its institutions. It promotes the creation of more treaties, universal membership for treaties, and more international legal bodies exercising powers that previously would have been exercised by sovereign authorities, irrespective of whether the rules and institutions might not work well at first. Unlike proceduralists, imperialists think international law is on the whole a good in itself, capable of making the world a better place. Supporters of this current therefore proudly count the number of member states in the ICC—122 member states as of now—to demonstrate the global acceptance of the institution.

This number may still be cited after Addis Ababa and could lead some to consider the outcome of the summit a success for international law. Thus, Addis Ababa shows where the proceduralist and imperialist visions diverge. Imperialists may be relieved by the outcome of the summit, but proceduralists may consider it a defeat.

The ICC’s membership roll represents an increasingly hollow statistic. For one, the Great Powers

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African States Not Quitting ICC, Just Undermining From Within

[This is en excerpt from an op-ed/short essay I've written on the AU action, which is available for publication...]
African Union leaders met in an extraordinary summit in Adas Ababa last week to discuss their strained relations with the International Criminal Court (ICC), as it begins trying its first sitting head of state, President Uhuru Kenyatta of Kenya. Supporters of the Court breathed a sigh of relief when the event ended, as I had predicted, without a much-anticipated African countries quitting the ICC en masse in protest of its Africa-focussed docket.

However, while less dramatic than a group defection from the ICC, the policies adopted by the special synod represent perhaps as profound a repudiation of The Hague-based Court. The African action exposes the weaknesses of the Court while further politicizing it.

The AU proclaimed that “no charges shall be commenced or continued before any international court… against any serving Head of State.” Their demand for immunity for leaders has one problem: it directly contradicts the Rome Statute, the treaty the serves as the ICC’s charter. Art. 27 provides a defendant’s leadership position is entirely “irrelevant,” and it notes this applies to heads of state “in particular.” Indeed, “ending impunity” for national leaders is the maxim of the Court. The AU leaders’ demand is not absurd – as they note, customary international law has traditionally provided head-of-state immunity. But the ICC is supposed to represent progress beyond such parochial and self-serving norms.

In short, the AU has endorsed violating the Court’s constitution while not quitting it. For the integrity of international law, this might be worse. When the United States quit the jurisdiction of the International Court of Justice, and when President Bush “unsigned” the Rome Statute, diplomats and international lawyers pointed out that this proves how seriously [...]

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The Multilateralist Blog Interview on How American Conservatives See the UN Today

David Bosco, who authors the outstanding “The Multilateralist” blog at Foreign Policy (where he is a contributing editor and who is also my American University colleague in the School of International Service), conducted an interview a few weeks ago with the Heritage Foundation’s Brett Schaefer and me on the United Nations.  The idea was to ask how American conservatives – Brett and me – view UN-US relations these days.  Brett is the editor of a fine book,ConUNdrum: The Limits of the United Nations and the Search for Alternatives; I am the author of a 2012 book, Living With the UN: American Responsibilities and International Order.  The Multilateralist piece is a transcript – outstandingly edited by Bosco – titled, “Can Conservatives Reconcile with the United Nations?”  (The link is at the Foreign Policy.com website; free registration to access. Volokh readers’ lives will not be complete without both Brett’s and my books; you can read a sample couple of chapters from my book here in pdf at SSRN.) [...]

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France’s Kiobel

I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967.

The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s decision in Kiobel, as it also deals with suits for extraterritorial conduct of multinational corporations (though without the universal jurisdiction twist of Kiobel). It illustrates how the efforts of some American courts to implement international law norms through civil damages remedies is in fact a rather parochial exercise detached from international practice.

1) Most significantly, the Court found that international law does not create liability for corporations. This accords with the view of the Second Circuit in Kiobel – corporate liability was the issue on which cert in Kiobel had been granted, though the case was ultimately decided on extraterritorially grounds. Many who favored corporate liability argued that on this issue, courts should apply not international law, but rather federal common law. In future ATS litigation against companies with some U.S. nexus, the PLO v. Alstom decision will not make plaintiffs’ work easier.

2) The Versailles court also seemed to take a narrow view of aiding-and-abetting liability. The issue is hard to separate from the corporate liability issue, but the Court basically found that even if Israel’s conduct violated international law, the corporation does not incur liability for its involvement.

3) Ironically, the best examples of corporate liability under international law came from ATS cases (where courts had upheld such liability after having been assured of its existence outside ATS cases). Yet the French court brushed off precedents under the ATS by noting that they were merely applications of a “domestic statute” and [...]

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Defining “High Seas Felonies” in Another Country

A district court recently ruled that Congress’s power to “Define and Punish… Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on [...]

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Except the Bill of Rights: The Selective-Strong Treaty Position

Generally, the entire Constitution is seen as having equal weight; there are not tiers of authority (unlike in the constitution’s of many other nations, which make certain provisions suspendable). Thus I have always been puzzled by the dominant view, well-articulated by Prof. Pildes, which manages to account for Missouri v. Holland and Reid v. Covert by saying that treaties can expand legislative powers but not infringe the Bill of Rights.

I do not see a strong basis to exempt just the Bill of Rights from the the general rule of treaties, whatever that rule may be, for several reasons. Mostly, I see no way to neatly sever the Bill of Rights from the rest of the Constitution.

1) There is no other area, to my knowledge, where one can override enumerated powers but not the Bill of Rights. If anything, the latter are at least waivable by individuals, while the former are not.

2) The 10th Amendment, reflecting the principle of Federalism, is of course part of the Bill of Rights. So the position must be “the Bill of Rights, except the last bit,” which seems even more selective.

3) Could a treaty override Bill of Rights protections against action by the states? If not, this means treaties can override everything except Amends. I-VII, (maybe XI, see below), and XIV, D.P. Clause. That sounds even more selective.

4) Individual rights protections are contained elsewhere besides the Amends. I-VIII. Take the jury trial provision of Art. III: can treaties override that? (It is not a hypothetical question, as this would be the effect of signing the Rome Statute of the International Criminal Court.) What about the President’s pardon power? We can imagine the creation of mixed courts for treaty crimes, with convicts made unpardonable.

5) Now lets turn back [...]

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France’s Mali War & International Law

France is fighting a rather serious war in Mali. What does international law say about this go-it-alone incursion into a foreign country? Given the controversy over recent interventions with mixed motives, such as the U.S. war in Iraq, it is worth consider the international legal basis for the assault and its conduct.

I. Security Council Resolution.
France has invoked the U.N. Security Council Res. 2085, passed on Dec. 20th, as the basis for their intervention. However, this is not so simple. Yes, the Council did use its Chapter VII authority to “authorize the deployment” of foreign forces to Mali – just not French force. Rather, the entire resolution is about green-lighting the African-led International Support Mission in Mali (AFISMA), a ECOWACS effort. France is not part of AFISMA, or of ECOWACS. Only AFISMA is authorized to “support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups.” (Par. 9b).

As for other U.N. member states, the resolution merely calls on them to provide logistic, training and other kinds of “support” to the ECOWACS mission (par. 14). France is not providing support, it is taking the lead role in direct combat operations. Indeed, it jumped in before AFISMA got there, because it judges the U.N. authorized African effort would be too little, too late.

Alas, an authorization by one group of countries to intervene is not a carte blanche to all interested parties, and we will have to look elsewhere for France’s authority. One should add that this aggressive reading of UN resolutions is a bit ironic given France’s criticism of US readings of resolution before the Iraq War.

II. Third-party defense: Mali’s invitation.
France’s use of force in Mali is a lot less troublesome because it was [...]

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The Offenses Clause & Universal Jurisdiction Over Terrorists

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law [...]

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Prisoner Offshoring, or Gaolbalization

Belgium and the Netherlands have an interesting arrangement, an example of economics and incentives working clearly in the public law field. Belgium has more convicts than it can accomodate in its prisons. Neighboring Netherlands has the opposite problem: not enough prisoners. Several years ago, it was facing having to shutter some facilities. But then the two countries made a deal: Belgium rents space for its inmates in Dutch jails, patrolled by Dutch corrections guards. (Perhaps the Flemish hope they can be “transferred” to Dutch custody as well, or at least out of Belgium.)

One would think this would spark some significant criticism on human rights grounds. So far, a delegation from the Council of Europe paid a site visit to the Dutch prison, and issued what seems a largely favorable report. There have been calls for emulation in Britain. Prime Minister Cameron has gone halfway, and come out in favor of sending foreign nationals back to their home countries to serve their time, though implementing this has been a bit of a bother.

There may be a trend here – call it Gaolbalization. Sending prisoners to the cheapest justice provider really went global in the past few years with Somali piracy. Dozens of nations have sent warships to catch the pirates. Piracy is a universal jurisdiction crime that can be tried by any country, and the Law of the Sea Treaty gives precedence to the capturing state. The problem is, piracy prosecution is time-consuming (at least in Western legal systems) and expensive, and leaves one with a permanent pirate population.

Thus European nations, the U.S., and other countries have worked out deals with Kenya and the Seychelles to transfer pirates caught by the former nations to be tried and imprisoned in the latter. There seems to be [...]

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Arms Trade Treaty conference ends without agreement

The weeks-long conference at the United Nations to produce an Arms Trade Treaty is ending without the creation of a treaty. None of the draft treaties which have circulated in the past several days came remotely close to finding consensus support.

The impossibility of achieving consensus involved a wide variety of issues and nations, far beyond the Second Amendment concerns that have been raised by many American citizens.

The 2001 UN Programme of Action on Small Arms remains in effect. Over the last two decades, a large gun control infrastructure has grown up in the United Nations, not only in the headquarters building, but also within many of the UN various commissions and departments. Likewise, there are a significant number of NGOs which have a strong commitment to global gun control, and to using international law and the UN to solve what they consider to be the problem of excessive gun ownership in the United States. The NGOs and their UN allies have successfully used the 2001 PoA to sharply restrict gun ownership in some parts of the world, and they would have used the ATT  for the same purpose. That they did not succeed in creating an ATT may be very disappointing to them; they are not going to go away, or relent in the pursuit of their objectives.

But in their pursuit, they are not going to have the new weapon of an ATT. This is good news for human rights worldwide, especially for the fundamental human right of self-defense against violent criminals, and against violent criminal tyrannical governments. [...]

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ObamaCare and the ATS: Can the Feds Regulate the Whole World?

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

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

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

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, [...]

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Debate on Libya and the War Powers Act

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

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Obama Endorses India for Permanent Security Council Seat, and a Note on Disaggregation of the State and the Globalized New Class

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

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

Disaggregation is attractive to many Western intellectuals, I’d suggest, however, because our species-being, so to speak, has gradually come to be purely contractual free agency. We gave up on any kind of “fiduciary professional” model of the intellectual when we discovered that we could leverage our knowledge skills, at least until China and India caught up, across a needy global economy. It required freeing ourselves from the strictures of local communities; but the [...]

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Contracting Around the Security Council, and the International Criminal Court Review Conference

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

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

The primary issue on the table for the conference is the crime of aggression – an attempt to define it and incorporate it into the ICC statute.  This has seemed an entirely natural move to some.  (Nuremberg, after all, not only dealt with the crime of aggression, in its own architects’ views, it was the central matter, and the things for which Nuremberg is principally celebrated today – [...]

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