by Kenneth Anderson
Over at the Los Angeles Times opinion page today, Sunday, February 21, 2010, Marjorie Miller has lined up various folks to opine on targeted killing and the presumed Mossad hit in Dubai. The offerings are very short — a hundred or so words each — but I had no idea when approached I would be in such exalted company, including Philip Alston, Amos Guiora, David Kaye, Vicki Divoll, and Michael Walzer.
by Kenneth Anderson
Julian mentioned, in his first post on Sarah Cleveland’s UVA talk below, that Harold Koh, legal adviser to State, held an informal public discussion with his predecessor from the Bush administration, John Bellinger. This was an ASIL event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins, also of Arnold & Porter. CSPAN covered it, and the video is now available: The Obama Administration and International Law, February 17, 2010. (If I can find a youtube version from ASIL, I’ll see if I can embed it.)
I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event. My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments – and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public. While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance here at OJ that was very well received. Harold Koh has also been doing some out of the box engagements, and this kind of unscripted, informal discussion is an outstanding example of that.
(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on. So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully – but less informatively – phrased. So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion. To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)
The conversation ranged across a wide variety of issues, including something that Julian flagged below with respect to Sarah Cleveland’s UVA speech – the pace of treaty exchanges. John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (90!) than at any point in American history. On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed. But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy.
Dean Koh was asked about targeted killing, including a specific question about targeted killing aimed at American citizens. The exchange takes place at approximately minutes 58-65 in the tape. The context is a question from someone – I believe, but couldn’t quite hear the feed, from an NGO – unhappy with targeted killings of American citizens, and wanting to know, among other things, whether an American citizen would have the right to contest the evidence against him in a court. I raise this because Dean Koh’s response was being directed to someone who had strong views, apparently, that the practice, particularly against Americans (who, in the view of the US government, had made themselves liable to attack by joining with groups in hostilities with the United States), was unlawful. The nuance, in other words, might have been different had it been someone, wanting to know why the State Department wasn’t out in front defending targeted killing as a practice.
Dean Koh’s response was interesting, in that he noted that he had served in both Republican and Democratic administrations, and as a human rights lawyer had sued both Republican and Democratic administrations. He added that he already a permanent job, and so in effect (I paraphrase) he wasn’t beholden to anyone in formulating his legal views. He went on to say that he would leave the government if he concluded that targeted killing was illegal. He did not say that he had concluded that it was legal, but instead that he would leave if he concluded that it was illegal and, (my) presumably, if that conclusion were not accepted by the administration. Having said that, however, he added that he was still there.
This is a good place at which to caution against over-interpreting an impromptu discussion. I would like to conclude that the upshot here is that not having left is not a reason to conclude that Dean Koh has concluded that the practice is affirmatively legal. All he said was that if he were to conclude that the practice was illegal (and presumably that conclusion not accepted), he would leave office. It would appear either that he has concluded the practice is legal or that he has not drawn a conclusion as yet. (And of course, targeted killing is too broad a description; under what circumstances and what exactly is meant?) But I do not think it is fair in this setting to draw firm conclusions.
On the other hand, I do think the question important enough that the legal adviser does need to draw some formal conclusions and put them out there, preferably in testimony. What was said here suggests that the legal adviser to State might still draw the conclusion that targeted killing is unlawful. If I were the administration, ever more committed by the President, the Vice-President, and down the chain of policy and command, to targeted killing especially via drone aircraft – embracing it as a strategy and publicly endorsing it – I’d be concerned that my chief international lawyer had so far reserved judgment on the question. I have written in various places that I think Republicans in Congress need to press the State Department for its formal views on this – actually, I think the people who have the most reason to be concerned should be the administration itself.
That would include, I should think, particularly officials and officers in the CIA and civilian intelligence agencies responsible for parts of the drone program outside of the uniformed military – while it would be unfair to say what Dean Koh’s view of their actions would be in the future, surely a senior CIA official would have some concern that after a year, the DOS had not affirmatively embraced in public the lawfulness of the practice or produced a public legal rationale for its lawfulness. I am no fan of the ACLU on these matters, and I agree with the US government, under both Obama and Bush, that the UN special rapporteur exceeds his mandate to call upon the US government to respond – but as to the substance, I think the ACLU and Philip Alston are both quite right in saying that, yes, the US government needs to state the basis on which it thinks its several varieties of targeted killing programs (those in AfPak, those elsewhere, for example) are lawful. I think it needs to say so and assert it as formal opinio juris of the United States. The failure to do so and the increasingly conspicuous absence of the administration’s most senior, and most widely admired, lawyer on public international law and human rights to defend the practice cannot be a good thing. At what point does the State Department legal department have to express a view, stand with its clients or, as Dean Koh says, stand down?
Again, while it is wrong to over-interpret here, were I a senior CIA or NSC official with operational responsibilities for Predator attacks, I would wonder what exactly to make of the failure of the State Department’s lawyers to step up and defend what I’m doing – and instead to raise the possibility that no conclusion had actually been reached. Would I think my personal legal risks had just been increased – risks of investigation or prosecution five years from now, ten years from now, in some European court? Or by a future Holderesque Justice Department?
Far fetched? Maybe. But I think I would be saying to myself, hmm … my colleagues and I are out there killing people, and causing some number of collateral deaths, and the President says approvingly in speech after speech, we’re taking the fight to the enemy wherever they are. And the Vice-President, well, it’s as though he’s beaming with pride over his flock of Predator gooselings … meanwhile, however, the administration’s lawyer whose public approval, in that world of combined law-diplomacy-global elite opinion matters most to the personal legal protection of the officials tasked with carrying out the President’s policies … does not seem to have drawn a conclusion. At least not one he’s willing to share with the rest of us, and with Baltasar Garzon or Luis Moreno Ocampo. So my own conclusion is – you can’t extract a firm conclusion as to Dean Koh’s views one way or the other. But there are compelling reasons why it shouldn’t – can’t – go on forever that the State Department expresses no view in public, and gets behind that view in public legal-diplomacy. If I were the general counsel to the CIA, DNI, DOD, the White House counsel, etc., I think I would have some concerns – and that would be so even if private assurances had been given.
But Dean Koh also made some references as to the legal basis for global counter terror operations generally – and referred to them in the context of the domestic authorization to use force from Congress, the AUMF, and then the international law of armed conflict. I have argued in various contexts, and will argue some more, that as a matter of international law, targeted killing – to the extent and in the places and against the targets that the administration has undertaken, has committed itself to undertaking, and is likely to be forced by circumstance to contemplate over two terms in office, nearly a decade – cannot really be justified as armed conflict with a non-state actor on a global basis, governed by the laws of war alone. I don’t think that’s true as a matter of jus ad bellum or jus in bello.
I will be arguing (in a new paper soon) that unless the Obama administration plans to backtrack and adopt the Bush administration’s “global” war on terror as a basis for asserting the laws of armed conflict however and wherever it uses force – all of which I consider to be several bridges too far and the one area where I agree with Mary Ellen O’Connell – it’s not really talking about armed conflict. Not in a legal sense. Not seven years from now, when it sends a miniaturized Predator missile to take out three terrorists who are in some compound in, say, a remote part of, oh, Nigeria in which the central government, caught in civil war, no longer has sway – part of a group that swears allegiance to jihad but has no command or control link to Osama bin Laden. The legal doctrine the US wants, in that case, is not armed conflict, but the more general category of international law of self-defense. I am somewhat concerned that the Legal Adviser made no reference to legal rationales for the use of force beyond the narrowest armed conflict law – law which might serve the administration for the next couple of years, but seems more and more like a purely formal, purely notional reference to armed conflict or, for that matter, Al Qaeda or 9-11, as the years roll by. It seems to me that the law at issue here is the more general category of international law of self-defense, and that the US government does itself no good and much harm in the long term by not asserting the legal category that most accurately describes the uses of force that, over the next decade, it contemplates actually undertaking.
That’s my own legal view, of course, and it will be important to watch as the State Department expresses its positions on these and other issues. The discussion covered many other aspects of the Obama administration’s approach to international law, although I have focused closely on this one aspect. It was an outstanding event, and my thanks and congratulations to the organizers and participants – I wish I could have been there. I hope many people will take time to view the video.
(I have over at my almost-entirely dormant home blog a much more aggressive – too incendiary for Opinio Juris, I concluded – discussion of this, posted up prior to the ASIL discussion. Instapundit picked it up, so it has circulated pretty widely, so I thought I should reference it here. In large part, though, it is a highly critical comparison of the administration’s “on offense” and “on defense” approaches to counterterrorism.)
by Kenneth Anderson
Not everyone in international law is quite so fascinated as I with CDS spreads on Greek sovereign debt. However, the issues raised by the Greek debt difficulties and the urgent discussions in the Eurozone over a possible bailout, attendant moral hazard, and the like are far more than merely fiscal or monetary questions. Rather, this crisis is one of those instances in which the deep economic and financial problems directly reflect the questions of founding political design. Political economy in its purest sense. Regardless of what one thinks the right policy for the EU, Germany, Greece, and others, is at this moment, economist Otmar Issing’s Financial Times comment today (Tuesday, February 16, 2010) lays out a lucid statement of the foundational political issue of monetary union without political (or fiscal) union:
It seems that quite a number of observers have forgotten what Emu is, and what it is not. The monetary union is based on two pillars. One is the stability of the euro, guaranteed by an independent central bank with a clear mandate to maintain price stability. The other is fiscal solidity, which has to be delivered by individual member states. Member countries are still sovereign. Emu does not represent a state; it is an institutional arrangement unique in history.
In the 1990s, many economists – I was among them – warned that starting monetary union without having established a political union was putting the cart before the horse. Now the question is whether monetary union can survive without such a political union. The current crisis must be handled in such a way as to produce a positive answer. The viability of the whole framework – nothing less – is at stake.
By joining Emu, a country accepts its rules. Greece, moreover, also knew that adopting a stable currency that was not controlled by its own central bank implied a total break with the past. Devaluation of the national currency and an inflationary monetary policy were no longer options. A single monetary policy is implemented by the European Central Bank and it is the responsibility of each country to adjust its economic policies so that this one size fits all.
The fundamental political problem is a collective action problem – the “responsibility of each country” to adjust its fiscal policies to comport with a single monetary policy. The collective benefits, including those enjoyed by Greece, of a single monetary union with a currency widely trusted are enormous, starting with a lowering of borrowing costs – lower costs of which, however, could have been used either to lower public debts to put/keep Greece in line with the levels of fiscal policy of the monetary union, or leverage the savings to borrow ever more. Greece promised the former and went for the latter:
The benefits of joining a stable economic area are greatest for countries that were unable to deliver such conditions before. Thanks to the euro, Greece has enjoyed long-term interest rates at a record low. But instead of delivering on its commitment at the time of entry to reduce public debt levels, the country has wasted potential savings in a spending frenzy. The crisis with which it is now confronted is not the result of an “external shock” such as an earthquake, but the result of bad policies pursued over many years.
I myself believe that the sanitized language of economists on display here hid, below a veneer of sense, a much more palpable ’sensibility’ of “spend” that went with joining the monetary union. It isn’t just that Greece and its public saw an opportunity to free-ride on the euro. I’d say (from experience in Spain and other poorer countries of the “old” EU) that joining monetary union was seen as joining the lifestyle of the richest countries in the EU. It was a powerful behavioral signal toward living like northern Europe, not toward seeing virtues in lowering the borrowing costs of the public fisc. My strong impression of what many Spaniards in traditionally poorer parts of Spain thought the EU meant, when I lived there on sabbatical in the mid 2000s was that to “be European” mean to have a “European” lifestyle, based on a Euro income. And, moreover, that the reason why the EU showered particular regions of Spain with money for so many years was not simply in order to promote economic development or political stability – both of which it did – or to purchase regional loyalty to the EU even over national solidarity – it did that, too – but, from the inhabitants’ view, to make them “European,” which meant, ultimately, to consume like Europeans were supposed to, and did, even if it was financed on debt-fuel. This is another of those instances in which the sensibility – even though hard to document and measure – is hugely important and perhaps as important as the economic sense.
The EU is, from the standpoint of this sensibility, about equality, and it is unjust that there should be rich regions and poor regions. Again, from the standpoint of this essentially EU citizenship=consumer sensibility, if you didn’t intend that the EU should be gradually moving not so much closer to political union as egalite, then why on earth did you create a euro, the point of which, from a consumer standpoint, is to put everyone on an equalized playing field? I realize this sounds strange from the standpoint of economic sense, but that’s not what I’m talking about. The great sociologist Zygmunt Bauman once remarked, in an essay in Telos in the late 1980s, that the fundamental condition of poverty in our age is not that it is a class as such. It is that to be poor is to be a “flawed consumer.”
The euro, understood from this sensibility, took poor people who were poor because their countries were poor – a status that described whole national societies – and made them poor people within a unified social environment in which their poverty was no longer the condition of the country, but rather them as individuals who, within Europe, were now “flawed consumers.” Small wonder, as a matter of sensibility if not sense, that they concluded that the point of the euro was to make them … not poor. Small wonder that their governments responded in kind. Which is why the conclusion of this FT article, so economically sensible, lucid and compelling – it gets my complete agreement as a matter of policy – misses the fundamental point from the standpoint of euro-sensibility.
This moment is a turning point for Emu, and for the future of Europe. Most observers point to the high risks – which cannot be denied. However, any crisis also presents an opportunity. This is a big chance – probably the last for Greece, and others – to adapt fully to a regime of stable money and solid public finances.
For Emu, the crisis represents a final test of whether such an institutional arrangement – a monetary union without a political union – is viable for an extended period of time. Lax monitoring and compromises when it comes to observing implementation of rules have to stop. Emu is a club of states with firm rules accepted by entrants. These rules must not be changed ex-post. Governments should not forget what they promised their citizens when they gave up their national currencies.
From the point of view of the sensibility of citizens who define themselves as citizens of the EU – at the Union’s own urging – as consumers, identifying “with” the European Union on the basis of the solidarity of consumption, Greece has not forgotten in the least what it promised its citizens in joining the euro. It promised to deliver them from the condition of merely “flawed consumers” among the wealthy of northern Europe.
by Kenneth Anderson
Last Thursday, February 4, the Lieber Society of the ASIL (the laws of war interest section) sponsored a program at ASIL’s Tillar House in DC to discuss the draft model manual on air and missile warfare that has been slowly evolving through the “Alabama process” and the International Humanitarian Law Research Initiative based at Harvard University. Claude Bruderlein, director of the project (Yoram Dinstein serves as project advisor), came down to DC from Cambridge to present the current version of the Manual and to discuss where the project is going with respect to the Commentary. Dick Jackson moderated, and DOD’s Jane Dalton and I commented.
It was an excellent discussion – Admiral Dalton had participated in the Alabama process and so had been fully involved in the development of the rules. I was in the position, alas, of not having done any of the heavy lifting on the project itself – but then freely kibbitzing on the result. Claude was his usual excellent and admirably clear self, with a good audience. Congratulations to Dick Jackson and ASIL Lieber for organizing it. (I am the outgoing Lieber Society Treasurer, by the way, and if you are not a member of ASIL and Lieber, let me recommend that you join.) For anyone interested, here is the video from ASIL-YouTube.
(I would embed the video, but can’t figure out how to do it here – apologies!)
by Kenneth Anderson
A note to our readers: I inadvertently jumped the gun a bit in my earlier post about the Security Council and raised Professor Michael Glennon’s YJIL article, The Blank Prose Crime of Aggression, on which Kevin has also commented. We imagine that some readers will also want to weigh in. It turns out that in March, we will be discussing the article as part of the regular symposium with YJIL, including Professor Glennon and several outside commenters. So I am going to propose that we treat the posts below as a teaser for the March symposium which, clearly, promises to be very lively, and hold off on saying more until we reach March.
by Kenneth Anderson
As we get closer to the review conference on the ICC, many of us have been watching, and perhaps commenting on, ways in which the US might or might not take part as an observer. It seems certain that the US will be an observer at the review conference, and the primary issue on the table for the conference is the crime of aggression. My own view of this is that the whole effort is a mistake – essentially for the reasons that Michael Glennon lays out in his fine new Yale International Law Journal article, The Blank Prose Crime of Aggression. However, as I remark at the end of this post, whatever one’s prescriptive views, descriptively the effort appears to raise questions about “contracting around” the Security Council in a changing world but un-amendable UN.I am no fan of the ICC, of course, a student but not an enthusiast of the UN, and only a luke-warm fan of the Security Council. On the other hand, occasionally someone not part of the church can see problems not visible to believers, and it sure looks to me that even from the standpoint of those convinced about these institutions, this is the kind of bridge too far that, in my estimation, is likely to do damage to both the ICC and the Security Council.
That is approximately Mike’s conclusion though he is as ever much more measured than I, and I recommend his article strongly, particularly to US diplomats trying to figure out what to do. My view is simple. Given that aggression is the primary review conference item, and further given that there is no way the US could actually go along with the ICC as a venue for making such determinations, irrespective of Security Council triggers and all that, this is one of those areas in which the Obama administration’s “always-engage” UN diplomacy is a mistake. The US cannot really “negotiate” even as an “observer” because at the end of the day it will not go along. Yet showing up to “negotiate” even under the rubric of “observation” is as though to say it can. Things predictably end, if not in this case in tears, then at least irritation, and accusation – not undeserved – of US bad faith, on the quite reasonable view that the US showed up for the PR benefits even though it couldn’t do anything real and knew in advance that it couldn’t do anything real.
So, in my estimation, everyone would be better off if the US expressed its views on why this, even if attempting to judicialize an inherently political process were a good idea, is in any case a bridge too far – in a polite, detailed, serious letter to the review conference and left it at that. That, in my purely speculative estimation, is the private view of leading states at the ICC review conference and, I would also speculatively guess, human rights NGOs who recognize that, although they have lashed themselves to the ICC-mast of the internationalist ship and have publicly committed themselves to IO human rights processes no matter what, somewhere deep in their hearts they would actually prefer not to go down with the ship and carry important parts of the substantive human rights agenda with it, as these various international organs perhaps head into serious, institution-weakening conflicts of legitimacy and jurisdiction.
Let me go beyond prescription to a descriptive point, however. One of the questions raised by the crime of aggression discussions among a group of states formed as a treaty-club is whether, and to what extent, the whole effort is a mechanism for “contracting around” the Security Council. Or, more precisely, contracting around the legitimacy of the Security Council. Ostensibly an exercise in private voluntary ordering … but simultaneously presenting a serious challenge, at least potentially, to the public regulatory ordering of the Security Council and its authority. As speculation, I’d suggest that this kind of private ordering challenge represents one of several emerging efforts by which real conditions in the world, such as the rise of the BRICs and the inability of the UN generally, and the Security Council in particular, to reform itself internally to adjust to a changing world. The public order of the Security Council seems both outdated but also unamendable; new private forms contract around it in venues such as the ICC.
It is all more complicated than that, of course, because the ICC purports to carefully interlink with the Security Council in important ways. But when it comes to defining aggression, then the private ordering process that was in an important way always seeking to alter the public process looks headed for many more conflicts of interest. That is, of course, unless it confines itself to a particular subclass of civil wars in geopolitically not so important places in Africa where, frankly, no one much cares outside the region.
Partly this might be accounted for by the rise of a multipolar world, but that is not all of it. When we say a multipolar world, at this point, after all, what we mean at bottom is the rise of China, and China is already a member of the Platinum Club of the P5. China is perhaps not opposed to a reform of the Security Council that left it untouched but perhaps incorporated some of the BRICS – Brazil, for example – although why it would want some special status for India on the Council is not evident from a geopolitical standpoint. In some ways, China is served by a Security Council P5 dominated by European states on the way down in the world. But the contracting around question is not just a matter of geopolitics – general legitimacy issues that go to the UN, and things not captured necessarily by narrow declarations of state interest matter too. (David Pilling has a very good piece in the FT, Thursday, January 28, 2009, “China will not be the world’s deputy sheriff,” on the question of how China sees its role in international order and the provision of public goods in international order, behind sub wall.)
by Kenneth Anderson
Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim, The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking. (I’ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro.)
No matter what your particular legal viewpoint about detention and Guantanamo, I believe this report will be required reading because of the sheer breadth and depth of its analysis — running to all the extant cases. Ben Wittes is a leading scholar at Brookings in this area and UTexas’s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obama administration on detention policy. Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.
I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below (cross posted to Volokh):
Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:
President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects. Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.
Boumediene was interesting and important as much for what it did not do as for what it did. For example, though the issue was briefed, the Court chose not to weigh in on the precise nature and scope of the detention power being exercised at Guantanamo. Did it apply only to some subset of the members of al Qaeda, the Taliban, or their co-belligerents? To all members? What does membership mean in that context anyway? What about important but independent supporters? What is the best reading of IHL on these matters, and does IHL actually enter in to the calculus? What role might the direct participation in hostilities standard play?
And perhaps most important, though the Court had a few things to say about the required procedural features of habeas review, it explicitly left it to the lower courts to sketch the details regarding most of the pertinent evidentiary and procedural rules. There were some initial calls for legislation to address these questions, but as we saw in 2009 there proved to be little appetite for this on either end of Pennsylvania Avenue. And so these questions have indeed been left to the courts to answer. Over the past year, the judges of the district court in DC have been doing just that, producing a number of merits decisions to this point (often favoring the detainee).
Those merits decisions obviously are quite important, but Ben, Rabea, and I are interested just as much if not more so in the substantive and procedural rules that the courts are creating (or at least trying to create) along the way. Absent legislation, these are the rules of the road for GTMO detention (including for the many detainees whom the Post reports today will continue to be held under color of the AUMF), as well as for any detainees in other locations as to which the federal courts similarly extend habeas jurisdiction (whether and to what extent such jurisdiction applies to our detention operations in Afghanistan, for example, is a question currently pending in the D.C. Circuit).
Indeed, some decisions the judges are making—particularly their views regarding just who comes within the scope of the AUMF—have direct implications for activities other than GTMO detention, such as targeting decisions. Quite a lot turns on them, and yet there was relatively little coverage of the growing body of caselaw aside from the ultimate merits determinations. We set out to develop a descriptive account of what the emerging detention jurisprudence actually entails so far.
Among other things, we found a lot of disagreement among the judges. That observation is not original with us; in fact, more than one of the judges involved in these cases has lamented this fact publicly (see, e.g., the quotes from Judge Lamberth in Ari Shapiro’s story about our report on NPR this morning). But we think we make an important contribution by documenting the details and nuances of these disagreements—as well as the points of agreement among the judges—and discussing the problems that may follow from them.
by Kenneth Anderson
If you are in the DC area on Monday, January 25, you might want to check out this event at ASIL Tillar House, 2:30-5:00 pm. This looks to be a terrific discussion with great people on the program. ”Mind the Gap: International Human Rights Law and the Law of Armed Conflict,” with Gabriella Blum and Geoffrey Corn as discussants, and Harvey Rishikof and Jamie Williamson as commentators. Event is free, but space is limited in Tillar House, so register with an email to Patty Davila at [email protected]. Here is the brochure description:
Professors Blum and Corn have both recently published provocative articles that stake out quite different positions over the legal uncertainties posed by the applicability of human rights standards to situations where the law of war is applied. To what extent are human rights standards applicable in armed conflicts and in how far is the jurisprudence of regional human rights courts pertinent? For example, does human rights law preclude combatants in war from killing each other’s soldiers, regardless of their role, function, or degree of threat? This is just one point on which the discussants are likely to disagree. It is a hot topic and will be a featured subject at several international and national law conferences in 2010.
by Kenneth Anderson
(I put this as a comment below, but have decided to move it up as a post, with a question for Professor Klabbers.)
What a fascinating post – thanks for being with us on OJ! I have two reactions that seem, on the surface, perhaps contradictory – but perhaps they are not.
On the one hand, the idea of gradations of sovereignty makes a lot of sense to me, in part to deal with what, in the dim past, might have been trust territories, or situations like Kosovo. On the other hand, and unlike many professors of international law, I am skeptical of efforts to reduce, dissolve, or otherwise de-sovereignize sovereignty – both descriptively and normatively.
Descriptively, it seems to me that one of the lessons of the rise of China for the developing world, as they see it, is that ‘hard’ sovereignty is an excellent plan, and anyway, as David Rieff points out, a multipolar world is a more competitive world, not a more cooperative one. So I don’t think the world is headed in the direction of less importance attached to sovereignty (and I don’t see you as suggesting that, either, instead that even a world that is more focused on the privileges of sovereignty would do better to have a graduated gateway, particularly if sovereignty means more, rather than less).
Normatively … when I look at Haiti, or failed states around the world, and the disordered areas of the world, I think … sovereignty is actually a major achievement, and seeking to dismantle or delegitimize it a bad idea. The problem of China is that it offers an example of sovereignty as its own justification, for its own sake – rather than seeking to make the condition of legitimate sovereignty premised on some set of basic substantive human rights and democratic values. But again, I don’t see that as running against the idea of graduated sovereignty in places like Kosovo.
So let me put this as a question. I don’t read your post as calling, as international law professors often do, for a weakening of sovereignty through the device of gradations of sovereignty. It seems to me just as well an argument, and a good one, for gradations of sovereignty precisely because sovereignty means so very much (and more in a competitive world of sovereigns modeled on China’s quasi-mercantilism and assertively self-interested, “don’t squawk to us about values,” foreign policy) that we need a way of treating some states as part of the full club and some as something less? Or am I re-writing Professor Klabbers as … Professor Anderson?