The Volokh Conspiracy

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 thus not really international law. There goes global judicial dialogue – or perhaps they heard that the ATS was just federal common law!

4) The Court was pretty dismissive of “soft law” – international guidelines, best practices statements, and so forth, in creating or defining customary norms.

5) I argued recently that the U.S. is particularly attractive to human rights plaintiffs for the same reasons it is attractive to all other plaintiffs, and this cases illustrates this well. Because Alstom was the prevailing party, the Court required Palestinian plaintiffs to cover 60,000 Euros of the defendants’ costs. You don’t get that in a dismissed ATS case.

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 the particular voyage, and it need not be arrested there.)

The Court’s reasoning simply restates the substantive theory of conspiracy liability. It does not explain why conspiracy principles can be used to expand the jurisdictional bounds of a constitutional provision. That is, what gives Congress the power to project federal conspiracy law past the high seas and into the foreign territory to conduct without a U.S. nexus.

Federal criminal law’s broad notion of conspiracy cannot necessarily be read back into the Constitution. This is particularly true when the constitutional provision has a specific jurisdictional provision – “the high seas.” The Framers surely understood that a piratical or felonious act on the high seas could be planned abroad, but chose to define jurisdiction by the locus of the defendant’s conduct.

Put differently, Congress’s ability to “Define” felonies is limited to those on the “high seas.” If Congress can define felonies on land as being connected to the high seas by conspiracy principles, it can presumably go even further – since conspiracy has no special constitutional status. Thus could it define conduct in a foreign country, with no U.S. nexus, that has some effect on the high seas (perhaps affects shipping) as a crime under the clause?

The Carvajal opinion does address my work on the Define and Punish Clause, which it declines to follow because while it “reflects extensive research, it ultimately simply reflects an “opinion of what the law ought to be, not what it is.” Given that my analytic approach the Clause is primarily originalist, I am not sure what this means. Certainly the 11th Circuit has not followed the broader implications of the understanding I develop, though it did accept the narrower ones regarding territorial waters. But the 11th Circuit already had a lot of water under the bow on application of the MDLEA to vessels on the high seas, which it could not easily disregard. Carvajal, however, is a case of first impression, and not in the 11th Circuit.

Indeed, Carvajal is in serious tension with another recent case in the D.C. District, U.S. v. Ali, 885 F.Supp.2d 17 (July 13, 2012), where another judge reached the opposite conclusion recently as to whether land-based conspiracy could be prosecuted as a high seas piracy. That case turned principally on the definition of piracy in international law, but also explicitly invoked constitutional avoidance principles, suggesting that federal conspiracy principles do not get read into the “Piracy on the High Seas” power. The Court in Ali also relied heavily on the Charming Betsy cannon, finding that it would violate international law to apply U.S. law to such conduct. It would equally violate international law principles of jurisdiction to apply U.S. law to a drug conspiracy in a foreign country – but the MDLEA explicitly rules out international law as a defense.

It is a neat coincidence that such cases of first impression concerning conspiracy and the High Seas crimes would arise within a few months of each other. And of course, all these extraterritorial issues are being decided in the shadow of Kiobel, where the distinction between the high seas and foreign territory has been argued quite sharply.

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 to amendments: why stop at the first eight? What about a treaty changing voting rights? Abrogating state sovereign immunity? (See Carlos Vasquez’s 2000 article arguing against abrogation.)

6) Another challenge for the theory is whether treaties can just the doctrine of enumerated powers, or all structural constitutional limits, including separation of powers. Many of the questions about the scope of the Treaty Power were previewed during the debate in the early 19th century over the constitutionality of joining international courts for the trial of the slave trade, about which I have written at length in The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals. In those debates, Quincy Adams and others argued successfully that treaties could not vest judicial power in a court independent of the “Supreme” court. Note that this also means that the treaty could not expand Congress’s power to create “inferior” tribunals by authorizing parallel or co-equal tribunals. This is a limitation on Congress’s Art. I powers.

7) I understand the notion that when we deal with the outside world, our internal arrangements do not matter. But the question of legislative power is not about dealing with the outside world, but enforcing that deal domestically. If the idea is that the fulfillment of our external promises cannot be hostage to our particular federal arrangements, why should it be hostage to our particular domestic rights?

8) The “not the Bill of Rights” view may be based on the notion that individual rights are special. But limited government and federalism is designed in part as a protection for individual rights.

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 done at the invitation of the government of Mali. Every nation has the inherent right of self-defense, recognized by Art. 51 of the U.N. Charter; the charter also allows states to come to the defense of others. This kind of thing should raise no eyebrows.

There are two wrinkles in the current situation worth mentioning. First, the Malian leadership was, at least until France’s invasion, not recognized by the international community, or France for that matter, as the country’s constitutional government. Last March, a group of soldiers lead by junior officers overthrew the democratically elected government. The action met with broad international condemnation. France, for example, proclaimed that it “condemns this forceful overthrow of the constitutional order in the strongest possible terms. It calls for the restoration of the constitution and institutions.” The military junta agreed to put in a puppet prime minister for to head an interim government pending elections, easing some international concerns. But then the army sacked the new interim prime minister in December, in what I would call a “re-coup.”

Indeed, the ECOWACS forces were first being sent to Mali to topple the government they are now coming to assist. The dubiousness of the government may be way France makes its weak Security Council resolution claim.

France is of course free to recognize anyone it wants as the legitimate government of Mali, and one does not need to be to “legit” to be a legitimate government. I do not know the status of EU, French or US relations with the government. But it is at least not fully satisfying if the invasion of Mali, and bombardment of its cities at the risk of innocent casualties, is authorized by a new half-baked junta. We wouldn’t want that to become a rule, to put it mildly.

There is a further wrinkle: France is helping Mali against an internal threat. The International Court of Justice, however, ruled that “self defense” within the meaning of the UN Charter only applies to foreign invasion. Now of course it said that in an advisory opinion which in no way binds France, or any other country. Moreover, it was the opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, so the reasoning was probably of a very sui generis kind (and was criticized as such by Judges Buergenthal and Higgins).

III. Self-defense.
France has also described the action as one of its own self-defense. The defense minister has said that they were acting quickly to prevent the creation of “a terrorist state at the doorstep of France and Europe.” Of course, this would expand the concept of anticipatory self-defense beyond any broad contours suggested for it, and should probably not be understood as a legal justification, rather than an explanation of why it choose to intervene in this former colonial conflict, and not, say, the much bloodier one in its former colony of Syria.

IV. Conclusion.
Whatever reservations one might have about the legitimacy of the Malian military-run government, they do appear to be the de fact authority in the country to the extent there is one. Certainly in the absence of protest by any other claimants to official authority, French action does not seem to violate international law in any formal way. However, its invocations of Security Council resolutions and self-defense are as spurious as superflous.

NEXT WEEK: Hopefully some discussion of France’s use of force, especially given it is conducting operations against ununiformed combatants in civilian population centers. I would like to know more about the extent of civilian casualties, but doubt there will be an international inquiry.

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 of nations. Congress cannot “define” something as a universal offense when the law of nations has not done so – not because of any superiority or comity of international law, but because that is the limit place by the Define and Punish Clause.

I have elaborated this theory of the Define and Punish Clause and its implications in a series of recent papers.

More importantly, recently several federal courts have adopted this position.
Thus in U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (2012), the 11th Circuit held unconstitutional a universal jurisdiction prosecution of drug trafficking in a foreign country. It held that drug trafficking had not been recognized as a “offense against the law of nations,” and thus cannot be reached by Congress under the Offenses Clause. One of the judges added in concurrence that because drug trafficking is not universally cognizable in international law, it cannot be punished universally through the Offenses power.

Similarly, in U.S. v. Ali, the a D.C. federal district court threw out charges of piracy and conspiracy to commit piracy because universal jurisdiction for such acts only ran on the high seas. And the Fourth Circuit in U.S. v. Dire
680 F.3d 446 (2012) agreed in dicta. (And of course, in Kiobel the Supreme Court is reconsidering whether universal jurisdiction exists under the Alien Tort Act.)

Material support for terrorism is a particularly weak case for the Offenses Clause, as the D.C. Circuit had ruled in Hamdan that it was not a war crime (though this does not rule out its being another type of international offense), and terrorism itself does not violate international law, as the Second Circuit has held in Yousef.

Indeed, I know of know other case in the world of material support for terrorism being prosecuted through universal jurisdiction. In prosecutions under the Define and Punish Clause, courts have increasingly (and properly) required actual evidence of past state practice to establish an international norm, as I’ve discussed here before.

The policy behind the material support statute, when applied without a U.S. nexus, is to punish actors whose political actors whose goals and methods the U.S. disapproves of. Al Shabab is a pernicious and destabilizing force, but that does not give the U.S. Congress Art. I power to criminally punish entirely foreign conduct simply because it runs counter to U.S. foreign policy.

There are other ways the U.S. can, consistent with the Constitution, engage and repress Al Shabab and other purely foreign terror groups. It can help local governments that are fighting them. It can even use military force itself. It the beef with Al Shabab is that it is an ally of other forces actively hostile to the U.S., it members (but perhaps not supporters) could perhaps even be detained militarily as co-belligerents.

(Thanks to Jon Bellish for the pointer.)

UPDATE: The defendants seem to be among the folks discussed in today’s Washington Post renditions story:

The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti. . . . U.S. agents accused the men — two of them Swedes, the other a longtime resident of Britain — of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.

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 implicit compensation in these deals, with donor countries and the United Nations Office of Drugs and Crime modernizing the prisons and courts of receiving countries, getting them new “kit,” grants and other foreign aid. The stories of these dealings, often done on a case-by-case basis, would be fine reading in itself.

In the latest twist, the receiving country, the Seychelles, has found new efficiency: transferring the pirates it convicts back to breakaway regions of the Seychelles, which the capturing states were loath to do for human rights reasons. Again, under international law, piracy is as much, if not more, within the jurisdiction of the capturing state as the receiving state. Now we will have triple-transfered pirates. (One group of pirates captured by Germany and transferred to Kenya have apparently sued in a German administrative tribunal and won some kind of judgment, though I have not managed to get much on the details.)

Prisoner offshoring is now well outside the mainstream in the U.S. It would raise many constitutional difficulties. There would be questions about whether the circumstances in the foreign prisons violated particular constitutional provisions or rights of prisoners; access to counsel would seem inherently difficult. (The agreements discussed above stipulate that the receiving country will ensure adherence to relevant human rights standards, and generally provide some monitoring). One might also think that having to serve time abroad, away from kith and kin, for offenses committed here would be an Eighth Amendment violation in itself. And I’m sure there are lots of other problems.

On the other hand, if the Dutch/Belgium deal, or the Somali system, inspires other Western states, some might suggest that the Eighth Amendment is the kind of general constitutional stuff that has to be interpreted in light of changing international standards, in a global constitutional dialogue with other Western nations. Fortunately, “Decent Respect for the Opinions of Mankind” does not require following those opinions (or maybe even listening to them).

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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