PrawfsBlawg

The Supreme Court of the United Kingdom

This month marks a historic moment in the history of the Anglo legal tradition. As of October 1, 2009, the United Kingdom did away with the judicial function of the House of Lords and opened a new court, the Supreme Court of the United Kingdom, to be the highest judicial authority in the country. 

This is no small break with tradition. Remember, this is a country where lawyers still wear wigs in the courtroom. Until this month, the House of Lords had been the tribunal of last resort for most cases since 1399, which was when the House of Commons stopped hearing petitions for reversal from lower courts. In 1876, the judicial authority of the House of Lords was modernized when professional judges were appointed as Lords of Appeal in Ordinary to carry out the judicial functions of the House of Lords. But these law lords maintained a legislative role by having the power to vote in parliament – though they rarely did so.

All that has changed. As of this month, the law lords are now “justices.” And although the current justices retain their title of “lord,” the Supreme Court members are now disqualified to vote in the House of Lords. Moreover, as absences occur on the new Supreme Court, seats will be filled by judges who may not bear the title of “lord” at all.

For American lawyers and law professors, the creation of the new U.K. Supreme Court provides some cause for reflection: Our American legal tradition evolved from the U.K.’s. Our common law tradition, our courts, and our ideals of jurisprudence all come in large part from the Mother Country. It strikes me as a tremendous compliment to the USA that, in the 21st Century, traditions appear to be flowing back across the Atlantic. The U.K. has followed the American exemplar not only in concept, aiming for a strictly independent judiciary, but in in name as well, using the appellations “Supreme Court” and “justices.” 

Now, let me admit that I am not a scholar of British law. Thus, I cannot say how much of the new U.K. court structure is directly modeled on the U.S. example. (If anyone can chime in on to what SCOTUK and the Constitutional Reform Act of 2005 owes to SCOTUS and the U.S. Constitution, I’d be grateful to hear it.) But I, for one, take it as a sure sign of Ameriphile sentiment that Britain chose to call their new high court by the same name as ours – especially since the U.K. has such a tradition of super cool names for judicial tribunals: “Privy Council,” “Exchequer of Pleas,” and “Court of the Queen’s Bench” to name just a few.

A couple of interesting trivia bits to point out: 

• The crest for the new court is built around a Greek omega – a reference to the institution’s status as the court of last resort. 
• The court has been given spectacular new digs at a renovated courthouse, Middlesex Guildhall, which is next to the Houses of Parliament and Westminster Abbey. 
• The U.K. Supreme Court has colorful pdf-based forms for aspiring litigants, such as a very friendly looking fill-in-the-box cert petition (called an “application for permission to appeal”) with instructions on where the completed form can be e-mailed. (Anyone who has dealt with the PACER system or the elaborate document formatting rules for U.S. appeals courts might find the British approach highly refreshing.)

ABOVE: The home of the new Supreme Court of the United Kingdom, Middlesex Guildhall.

Trade in Services, Trade in Technology, and Labor Mobility

It is hard to believe that the month of September is almost over. In blogging, as in academia in general, there are so many things we want to research and write about, and only a certain amount of time. It’s like the old joke about law practice: there are only 24 hours in a day, and you can only bill 36 of them.

In the area of international trade regulation, I am interested, among other subjects, in the connections and gaps between trade control regimes concerning (a) trade in technology, (b) trade in services, and (c) labor mobility. In some respects these three types of regimes overlap in complementary fashion; in other respects they are in tension with one another; and in other respects there are gaps between the regimes. What are the implications of these overlaps and gaps? What do they suggest about the nature and direction of transnational economic activity and the movement of persons? And perhaps most interesting of all, what does it suggest about how trade might be more effectively regulated or deregulated, or liberalized or restricted?

These are large questions, and they suggest (accurately) that my views and thoughts on the subject are still developing. That makes the subject a perfect one for a post, since it gives me the opportunity to set forth my thoughts for others to comment upon (or not) as they see fit. I will endeavor to keep this post to a reasonable length, which means that the discussion will be at a high level of generality.

The Regimes

Let me begin by reviewing the overlaps in outbound trade controls, trade in services regimes, and labor mobility regimes. First, as I discussed in a previous post, a substantial portion of what at least the U.S. and other industrialized countries regulate as exports actually covers non-physical activity – namely, the provision of technology or assistance to parties abroad. That is, technology for the development, production or use of a particular good or software is itself subject to the export laws of the United States. (Many of the U.S.'s industrialized trading partners also employ a similar regulatory scheme, such that there is rule harmonization in this regard). Moreover, the technology in question is subject to these export control regimes regardless of whether the technology accompanies the goods or software to which it pertains, and regardless of whether a business transaction is involved. The upshot is that a lot of non-physical or non-goods activity is considered export activity.  (For readers interested in how the U.S. export controls in question technically operate, see 15 C.F.R. Part 732, which contains a fairly user-friendly, step-by-step explanation of U.S. export controls.)

It is also important to bear in mind that under U.S. export controls and other national export control regimes like it, the provision of assistance (that is, of a service, such as through a service call) can be considered the provision of technology. That means that any liberalization of trade in services of necessity overlaps with, and interacts with, export control regimes. Some efforts to liberalize trade in services are contained in regional trade agreements or other bilateral agreements between countries, but the larger effort to liberalize trade in services is of course the WTO’s General Agreement on Trade in Services. GATS lists four modes of supply, namely:

   1. Cross border supply

   2. Consumption abroad

   3. Maintenance of a commercial presence abroad

   4. Movement of natural persons

Cross border services, commercial presence abroad and the movement of natural persons all provide opportunities for persons engaged in those service activities to provide an export of “technology” that is separately controlled by a national export control regime such as that of the U.S.

Finally, labor mobility implicates both export controls and trade in services because (a) persons who travel to another country might engage in actions there that constitute the provision of services, or an export of technology, or both. And even more interesting, and perhaps surprising, is that at least under U.S. export controls, the provision of technology to a non-permanent foreign national in the U.S. is deemed to be an export to the foreign national’s "home country" (the so-called “deemed export” rule). Thus, the provision of technology to a Chinese national in the U.S. (such as in the form of training or assistance) is considered by the U.S. to be an export to China, unless the Chinese national is a permanent U.S. resident.  It is a rule observed in the breach, perhaps, but it is a rule, and there are companies (especially in industries with a significant amount of sensitive technology) that spend a great deal of time and money complying with the rule.  There are also individuals whose employment and residency prospects are affected by the rule.  Other countries, however, generally do not have the same sort of “deemed export” rule.

The Implications

This is all very interesting from a technical or operational perspective, but what is far more interesting is what questions the overlaps raise regarding international trade policy at the national, regional and multilateral levels. For example, how is trade encouraged, discouraged or diverted by the interplay of these regimes? For example, does the deemed export rule discourage lawful immigration, and if so, is that a desirable result? Do immigration restrictions avoid or reduce the perceived need for such a rule?

Also, to what extent are trade in technology, trade in services, and labor mobility actually substitutes? To what extent are they complements? International trade and foreign direct investment generally are more complementary than substitutionary, even on an intra-industry basis (which was a subject of my masters dissertation in international economics); does the same hold true for trade in technology, trade in services, and labor mobility? If the rules of the three types of regimes differ – for example, labor mobility rules are more restrictive than trade in technology rules, and trade in services liberalizations are inconsistent across the four GATS modes of supply, among countries and across economic sectors – what does that do to the overall level of global (or regional) trade?

Moreover, how might the overlaps be used to promote what one might call desirable or “fair” trade – which I define here (in quasi-Pareto-efficient fashion) as trade that creates jobs and wealth in one country without causing significant, or at least immediate and rapid, dislocating or structural adjustments in another country? Given the Obama administration's stated interest in "free but fair" trade, that is a question that is perhaps more relevant now than previously.

Finally, such pluralism of regulatory regimes is common, and in some cases even desirable. Paul Schiff Berman, for example, has written about this in his article “Global Legal Pluralism.” Is that the case in this area, however? If plurality of regimes for outbound trade control, trade in services, and labor mobility leads to reduced international trade, could that be desirable (for example, by preventing rapid changes in terms of trade) or undesirable (as traditionally has been generally supposed)? If the result of pluralism in this context is undesirable, does that suggest that greater harmonization (and perhaps even unification) of these three different types of regimes is the only means to achieve the benefits of greater and more liberalized trade?

Again, I currently have more questions than answers, but I pose them nonetheless in the spirit of intellectual discourse. My own current views are, firstly, that greater harmonization of these regimes is desirable, and that pluralism is not. (It perhaps might be that this area of trade regulation, with its concerns regarding efficiency, transparency and security, is the exception that proves the rule with respect to the benefits of legal pluralism in trade, but I have not made my mind up on that score.) Secondly, it is my view that national export control regimes should be more multilateral in their approach (as discussed in my previous post) , and thirdly, I believe that greater efforts should be made to link trade in services regimes to international or regional labor mobility regimes. Too often (in the U.S. at least), the immigration debate centers on security issues that have little to do with trade and economic prosperity. Linking labor movement/immigration laws to economic activity and economic growth might help to shift the debate to more constructive ground, especially if embedded in the discussions is the possibility of greater work opportunities abroad for U.S. nationals.

Extraterritoriality in Export Controls

For more than sixty years, U.S. export controls have been a key U.S. national security tool for preventing undesirable exports of goods and technology. Although the overall structure of these controls has changed relatively little since the enactment of the Export Administration Act of 1979 (“EAA of 1979”), the United States’ interpretation and application of its export control laws is in some ways radically different than upon the act’s passage. This is particularly true with respect to claims of extraterritorial U.S. jurisdiction, which have been difficult to justify under international law principles of prescriptive jurisdiction.

I have been thinking about this subject for some time (it is a bit of a pet project of mine); I think it is fascinating and important, even if a little arcane. I also think it is quite relevant to current events, namely the efforts by the United States to impede or prevent any Iranian nuclear program, and I believe it offers important insights into how states can and should (and cannot and should not) try to achieve foreign policy and national security goals through the regulation of trade.  Accordingly, in this post I want to (a) recap the history and evolution of the extraterritorial features of U.S. export control laws, (b) discuss the legally problematic nature of these features under international law, and (c) discuss their legal justifiability from a perspective that has not previously been actively explored. 

The post is quite long, but I have decided to err on the side of over-description, so as to provide a fuller context for my comments.

Background

In the early 1980s, the United States radically expanded the extraterritorial application of its export control regime and set off an international furor over what many viewed as excessive U.S. reach. These claims were first made by the United States in an attempt to thwart the construction of a Soviet trans-Siberian pipeline to Europe, by prohibiting certain European firms from using certain U.S. technology in their possession in furtherance of the project.

Specifically, the type of extraterritoriality asserted by the United States in the Soviet pipeline dispute was based on the national origin of the technology involved--as opposed to the technology’s physical location or the nationality of the parties. Under this “item-based” approach, the United States claimed jurisdiction over some U.S. origin technology, regardless of the fact that it was already outside the United States and possessed by non-U.S. parties, and regardless of the fact that the restricted uses were not prohibited or restricted at the time the technology was first exported from the United States. In other words, national origin was the sole basis for U.S. prescriptive jurisdiction over this technology.

The United States backed down in that particular controversy when it rescinded the prohibitions on use of that technology--but it did not waive its claim of jurisdiction. The extraterritorial jurisdiction first asserted by the United States in that dispute remains a hallmark feature of U.S. export control laws: the United States continues to assert extraterritorial jurisdiction over U.S. goods and technology located outside the United States, based solely on the fact that these items are of U.S. origin or contain significant U.S. content.  (For those interested, Andreas Lowenfeld provided a very nice, concise summary of the 1981-1982 pipeline dispute in "Trade Controls for Political Ends:  Four Perspectives," 4 Chi. J. Int'l Law 355 (2003)).

Analysis

The validity of item-based prescriptive extraterritorial jurisdiction was debated at length by scholars in the 1980s and early 1990s, and at the time a general scholarly consensus was reached that item-based extraterritorial jurisdiction was difficult to justify at best, and unjustifiable at worst. Yet even as this extraterritoriality remained in place attention to this subject waned, perhaps due to the lack of another galvanizing, headline-grabbing event such as the trans-Siberian pipeline controversy. Still, I think the subject of extraterritorial, item-based U.S. export controls remains an important one that is worth revisiting from a more contemporary perspective. The current dispute with Iran regarding Iranian nuclear activities suggests to me that the timing is right for a revisit of the issue. Even if no dispute arises now over U.S. extraterritoriality in U.S. efforts to restrict Iranian activities, it will be useful to consider why that is the case (i.e., is it because of consensus? More on this below.).

My thinking on the subject has led me to conclude that changes in global trade patterns and U.S. national security concerns since the early 1980s can and do provide stronger justifications in 2009 than in 1982 for item-based extraterritorial export jurisdiction. Briefly stated, export control concerns now are based far less on an item or technology’s destination and far more on how it will be used after export or reexport, and by whom. Perhaps, then, prescriptive jurisdiction based on end use concerns (such as nonproliferation or prevention of terrorism) are more justified.

In other words, while the Objective Territorial and Nationality Principles of international prescriptive jurisdiction remain insufficient legal grounds for an assertion of jurisdiction over such U.S. items/technology abroad (just as they were insufficient in 1982), the changed nature of global trade suggests that jurisdiction might be more justifiable under the Protective Principle, and perhaps even under Universal Jurisdiction. While there may be concerns about overly broad jurisdictional reach under these principles, perhaps this broad reach can be considered a logical and not undesirable outcome, provided of course that there is some international consensus concerning the purposes being achieved--i.e., the prevention of terrorism or chemical, biological, or nuclear proliferation activities.

A Different Perspective

This is all well and good, and interesting too--yet “justifiable” does not mean “sufficient,” or perhaps even close to it. That is, item-based extraterritorial export controls may be more legally justifiable now than previously, but they are also strategically imperfect and highly suboptimal. If that is the case, a different sort of analysis is needed.

While during the Cold War “origin” could serve as a useful proxy for “items that raised national security concerns and therefore needed regulating,” this proxy relationship has broken down as global trade has expanded and grown more multilateral. The use of item origin as a jurisdictional filter (to control some transactions but not others)--or more accurately, as a jurisdictional long-arm mechanism--is thus ultimately of little practical importance or meaning. National and multilateral security concerns thus suggest that broader, non-origin-based controls are needed.

How, then, might the export control laws and regulations of the United States, and of other countries too, be reformulated to be both doctrinally satisfactory and strategically sufficient? In my view, a reconsideration of the primary national security goals of these controls suggests that their current antiterrorism and nonproliferation goals could be better served by a departure from item-based jurisdiction. Such a change might lead to greater multilateral cooperation in the area of export controls, since it would resolve an unresolved dispute--which in turn could lead to greater consensus and cooperation via harmonization and enforcement networks than currently exists through multilateral export control regimes such as the Wassenaar Arrangement, Australia Group, and Nuclear Suppliers Group. In the absence of full harmonization, greater progress could at least be made toward mutual recognition by states of their respective different (yet justifiable) export control schemes (including jurisdictional considerations), somewhat along the lines of the mutual recognition regime work by Kalypso Nikolaïdis and Gregory Shaffer.

What is particularly interesting about such a re-imagined conception of export controls is, firstly, that extraterritoriality is not justified on the problematic basis of item origin; and secondly, that because these approaches are based on consensus, they can comport entirely with traditional international law jurisdictional principles. As such, they are both more justifiable and more strategically appropriate than the current item-based approach.  What is also interesting, and indeed ironic, is that after nearly thirty years of problematic extraterritoriality the United States might finally win the legal argument. Sarah Cleveland’s work regarding unilateral trade sanctions as a means to spark international dialogue and push the development of new norms translates well to the export control context.  (See Sarah H. Cleveland, "Norm Internationalization and U.S. Economic Sanctions," 26 Yale J. Int'l L.1 (2001) and Sarah H. Cleveland, "Human Rights Sanctions and International Trade:  A Theory of Compatibility," 5 J. Int'l Econ. L. 133 (2002)).

That is, in recent years at least, the United States’ extraterritorial jurisdiction assertions have been justified largely on antiterrorist and nonproliferation bases--justifications with which U.S. trading partners generally can agree, at least to an extent. The United States thus may have facilitated or fostered transnational export control dialogue on these subjects, and international consensus may be achieved that such broad extraterritorial reach, or at least transnational coordination and cooperation, is justified. And as already noted, efforts to broker a unified multilateral response to Iran’s nuclear activities may provide the factual scenario for this to occur.

Trade Remedies in North America

Following up on my previous post on the U.S. safeguard action regarding Chinese tires, I would like to announce a forthcoming book, entitled Trade Remedies in North America, which will be published by Kluwer Law International and which I am co-authoring with Nick Covelli, David Gantz, and Ihn Ho Uhm.  Nick is Counsel for the Government of Canada; David (as many of you know) is a chaired professor, Director of the International Trade Law Program and Associate Director of the National Law Center for Inter-American Free Trade at the University of Arizona James E. Rogers College of Law; and Ihn is a former senior economist at the Canadian International Trade Tribunal (the Canadian counterpart to the U.S. International Trade Commission).  I myself am founding director of my school's International and Comparative Law Center, although I am currently visiting away for the academic year at West Virginia University College of Law.  The book is slated for publication in early 2010.

The purpose of the book is to provide a comprehensive and comparative treatment of the trade remedy laws (antidumping, countervailing duty, and safeguards laws) of Canada, Mexico and the United States at the bilateral, NAFTA and WTO levels, and of the economic and political underpinnings of these laws.  Also included will be case studies of recent trade remedy actions, namely, Softwood Lumber IV,  U.S. safeguards on Cement from Mexico, and Canadian steel safeguards.  We believe the book is well-positioned to fill a gap in the market, due to its comparative focus and scope of coverage.  If anyone would like more information concerning the book, please let me know.

What the Chinese Tire Safeguards Suggest about the Obama Administration's Trade Policies

On Friday, September 11, 2009, the Obama administration made an announcement that not only was a first for trade remedy law but also has become a fairly visible news media story:  for the first time, the United States will impose “market disruption” safeguards on imports from China.  The goods in question are passenger vehicle and light truck pneumatic tires.  The Obama administration's proclamation can be viewed here; New York Times and Wall Street Journal coverage can be linked to here and here. The result is that there will be increased duties on U.S. imports of these Chinese tires for three years.  I want to discuss some of the broader policy aspects and implications of this safeguard action, but in order to do so I will first give a brief synopsis of the law in question.

U.S. safeguards laws are intended to temporarily protect adversely affected U.S. industries from the dislocating effects of rapid increases in imports.  U.S. "global safeguards" are imposed against imports from all countries and are generally consistent with U.S. obligations under Article XIX of the General Agreement on Tariffs and Trade (GATT) and the WTO Safeguards Agreement.  U.S. country-specific or regional safeguard provisions also in place.  Most are pursuant to regional trade agreements, but the safeguard action in question here is being taken pursuant to section 421 of the Trade Act of 1974 (19 U.S.C. s. 2451), which permits safeguard actions against imports from China that are a "significant cause" of "material injury" or threat thereof to a U.S. industry.  Section 421 was enacted in 2000 in anticipation of China's accession to the WTO, and its protections were agreed to by China as part of its WTO accession package.  U.S. safeguard actions are imposed (or not imposed) at the president's discretion upon an affirmative determination of injury by the U.S. International Trade Commission, which means that safeguards are essentially a pure trade policy instrument, as opposed to antidumping and countervailing duty actions, which are intended to be corrective in nature.

All of this means that while there is general uproar in China about this particular safeguard action--China is in fact threatening to impose new import tariffs on U.S. chicken meat and automotive products in response--this safeguard action against Chinese tires is lawful both from a U.S. law and WTO perspective.  What is more interesting to consider, therefore, is what this safeguard action suggests about current and future U.S. trade policy.

First, this is a fairly rare example of the type of “free but fair trade” action mentioned by President Obama during the 2008 campaign. The Obama administration’s trade actions have not matched the Obama campaign’s trade rhetoric--there has no move to renegotiate NAFTA or its side agreements, for example. I also doubt there will be many, if any, additional China-specific safeguards imposed in the near future: a healthy trade relationship between the U.S. and China is simply too important to both countries.

Second, and for the same reason, I doubt the action will lead to a large-scale (or even mid-scale) trade war. There may be retaliatory tariffs imposed by China, but matters will not escalate too far beyond that.

Third, and perhaps most interestingly, I believe this safeguard action can and should be thought of as an example of the Obama administration’s greater interest (as compared to the prior administration's) in regulating markets to achieve particular outcomes thought by the administration to be more equitable than the market might otherwise achieve. Much attention, for example, has been paid to the Obama administration’s efforts to manage the financial crisis and reform health care--efforts, in other words, to regulate those important markets and achieve different outcomes. The imposition of U.S. safeguards on tire imports from China also regulates a U.S. market (and a large one at that) through the use of traditional (and overtly protectionist) tariffs. The desired outcome is to soften the blow of imports on the affected industry. Certainly it is true that this decision is also a nod to organized labor—and I would be remiss if I did not acknowledge that the tire safeguard investigation was in fact requested by the United Steelworkers. Still, the decision is consistent with a general increase in greater market regulation, and specifically in regulation that achieves outcomes that are perceived of as "fair" from some normative perspective other than efficiency.

More about the European Pharmaceutical Sector: Procedural Changes

Earlier, I described the European Commission’s recent examination of the pharmaceutical sector.  Part of the EC's inquiry focuses on procedural concerns. 

 

Perhaps the most pressing concern for the EC is the lack of any unified system of litigation. The EC’s pharmaceutical sector inquiry examined transaction costs needed to enforce rights across all member states and concluded that, “[t]he total cost of patent litigation in the EU relating to the 68 medicines on which litigation was reported for the period 2000 – 2007, is estimated to exceed € 420 million, of which a significant proportion could have been saved” if a cross-border litigation system could have been enacted.

 

A separate review of the European patent system by Prof. Dietmar Harhoff, Ph.D states:

 

The results obtained here suggest that currently, between 146 and 311 infringement cases are being duplicated in the Member States. By 2013, this number is likely to increase to between 202 and 431 cases. Total private savings in 2013 would span the interval between EUR 148 and 289 million.

 

Meanwhile, it appears that the EC is rapidly moving toward a unified litigation system for all types of patents. This raises a more profound question: to what degree is a uniform litigation system desirable?

The Harnoff study considers literature studying the U.S. Court of Appeals for the Federal Circuit, which has provided a unified system for patent litigation at the appellate level since 1982.  This includes Rethinking Patent Law's Uniformity Principle, a paper by Craig Nard and John Duffy, which, as Harnoff describes "questions the values of uniformity altogether."   In their paper, Nard and Duffy point out that "uniformity is not a proxy for quality," and propose a "polycentric decisionmaking structure that would allow for a diversity of peer appellate voices to be heard."  Certainly, Nard and Duffy's proposal has been subject to debate, including an article co-authored by Lynne E. Pettigrew and the Federal Circuit's Hon. S. Jay Plager, Rethinking Patent Law's Uniformity Principle:  A Response to Nard and Duffy, 101 Nw. U. L. Rev. 1735 (2007).  It will be fascinating to see whether the EC considers these issues when contemplating these large structural changes to its system.

Export Controls, Proliferation, and Choke Points

There was an article in the Times of India on Wednesday, reporting on assertions by Pakistani nuclear scientist A.Q. Khan that Pakistan had nuclear weapons capability as early as 1983. According to the article, Khan maintains that U.S. preoccupation with the Soviet invasion of Afghanistan gave him somewhat freer reign to pursue a nuclear program for Pakistan, which he was able to do in just six years. Of particular interest to me was Khan’s statement about the ineffectiveness of export controls: according to the article, Khan said, "They [presumably meaning the U.S. and other governments] could not outmanoeuvre us, as we remained a step ahead always" in obtaining equipment and materials. Khan explained that when supply sources in Europe dried up, purchases were made indirectly through intermediate countries such as the UAE and Singapore.

On the one hand, Khan's statements should not be surprising; he has been the target of export compliance investigations for years now.  On the other hand, Khan’s statements have a peculiar resonance, because they were made in the wake of President Obama’s call last month for a review and possible overhaul of U.S. export control laws. Current U.S. export control laws are indeed badly outdated, as most everyone who has considered the matter agrees. I have written about the need for reform of these laws elsewhere. Yet current indications suggest that any reform will not be terribly meaningful.

U.S. export control laws operate on the premise that preventing foreign access to U.S. goods, software and technology can be an effective way to prevent unwanted foreign activity (military activity, weapons proliferation, etc.). This premise in turn rests on the assumption that there is something critical to such projects that can only (or at least primarily) be provided by or through the United States (or its close trading partners that implement similar controls). In the years immediately following World War II this was an accurate assumption for many types of higher-end goods and technologies, but it is far less true now. In response, U.S. administrations since the 1970s have made three significant adjustments. First, U.S. export control laws have been interpreted and applied in a much more extraterritorial fashion, which at times has caused tensions with U.S. trading partners (e.g., the Soviet pipeline dispute of the 1980s).  Second, multilateral efforts at regulatory harmonization and compliance have continued, although in many respects these are extensions of the efforts of CoCom and are not necessarily terribly new or innovative.  These are both worthy subjects for discussion (and the subject of current research for me), but today I want to focus instead on the third change, which is adoption of a “choke point” approach to U.S. export controls.

Bill Reinsch, former Under Secretary for Export Administration at Commerce and now President of the National Foreign Trade Council in Washington, D.C., explained it thusly about a decade ago:

Missile technology, for example, takes a lot of sophistication, and it takes a lot of specialized material, it takes a lot of design work, it takes a lot of knowledge, and it takes a lot of systems integration. The key is to look at the problem as you would a puzzle . . . where you have to put together 250 pieces to make a picture, we are not stopping all 250 pieces, maybe we are only stopping 10 or 15 pieces. . . . But the puzzle isn't done unless you have all of them, and so that is the idea of choke points, maybe you can stop only one piece, but if it's the critical piece then you have done your job.

(Quoted in Bowman, E-Mails, Servers and Software:  U.S. Export Controls for the Modern Era, 35 Geo. J. Int'l L.J. 320, 362 (2004)). That is all well and good if it works, and it has had the advantage of requiring no change to the underlying laws (and few to the implementing regulations). The problem is that it does not work well, if at all. Khan’s reported statements yesterday (and other, previously reported statements by him) suggest that the approach is far less effective than U.S. export control officials would like to believe. If the approach did not prevent Pakistan’s development of nuclear weapons in the late 1970s and 1980s, when the world was far less interconnected than it is now, then I have trouble seeing how it would work effectively today, with far more supply nodes and supply vectors worldwide. Note, too, that Khan’s example involves the very type of scenario that the choke point approach is intended to prevent—that of nuclear or chemical/biological weapons, which are of the same level of concern as the missile technology referenced in the Reinsch quote, above.

Yet the choke point approach continues to be central to the current dialogue on U.S. export control reform. A spokesperson for the National Association of Manufacturers (NAM) stated just last month that the United States “need[s] an export control system that can keep genuinely sensitive technologies out of the hands of those who seek to harm the U.S.,” while at the same time not “harming our ability to compete economically.” In other words, NAM leaders believe U.S. export controls need to focus on those few choke point items that are critical to the foreign activities the United States wants to prevent. Similarly, a spokesperson for the American Association of Exporters and Importers (AAEI) noted that the association is “deeply concerned about the corrosive effect of complex and overly-broad export controls that hinder U.S. companies from competing in a dynamic global marketplace.” It should be noted for the record that NAM and AAEI are large trade association players; what they are saying is representative of general U.S. industry views.

So, what to do? I recommended a solution several years ago that is actually being implemented in limited form with respect to intra-company transfers and exports to (pre-)validated foreign end users in India and China--to shift the focus from regulating individual export transactions and instead consider certain activities by an exporter as comprising a multi-transactional “account.” (See link to article, above.) But the even larger question, as I sit and think about it now, is whether the entire export control licensing system should be scrapped. It uses large amounts of federal government resources, imposes significant compliance costs on the private sector, and provides, I suspect--although I do not have data to verify--somewhat marginal returns in terms of improved national security and achievement of U.S. foreign policy goals (which are the express policy goals of U.S. export control laws). Government resources thus might be more effectively used to prevent such unwanted activity in other ways, such as through increased intelligence-gathering and transnational cooperation with other countries’ law enforcement personnel. Might greater resources devoted to those activities have prevented or delayed Khan's activities? The approach would be similar in some respects to the “open border” changes to U.S. immigration law advocated by Kevin Johnson.  See Johnson, Opening the Floodgates: Why America Needs to Rethink its Borders and Immigrations Laws (NYU Press, 2007) and Johnson, Open Borders?, 51 UCLA L. Rev. (2003). Such an approach to export control reform may not be politically feasible, but it is a question worth asking.

This is an idea in progress, and I do have to think about it further. What I find intriguing is that it runs counter to the accepted wisdom in the trade community (private sector, government and academic) that an “informed compliance” approach to regulation--under which parties are required to self-regulate and maintain records, much as under U.S. tax law--is both more efficient and effective than other alternatives. Yet if the returns from informed compliance are minimal and the costs (both direct and indirect) are great, then perhaps the regulatory cost is not worth the compliance candle.

Staying Squarely within the Law, Part 2

Earlier today I started blogging about a teaching technique for a Public International Law course:  playing four square.  The problem:  student resistance to the idea that international law is law.  The solution: the game of four square as a classroom exercise.  Here's my summary of the game and how it could be used in class.

The Game

For those who have not played four square recently (which I suspect is most readers), four people play at a time, in a square area divided into equal quadrants. The basic idea is to bounce the ball from player to player. If the ball bounces into your quadrant, you have to hit it (not catch it) so that the ball’s next bounce is in another player’s quadrant. Play continues until someone misses.

When I was a kid we played for points -- first person to miss 10 balls was “out” -- and we played elimination-style until one player was left. My kids, however, play a quite different game. First, the quadrants are numbered #1 through #4. Player #1 is the “Monarch.” (My contribution to the game was to convince my kids to use a gender-neutral term instead of “King” or “Queen.”) The Monarch always starts play, and also can end play by catching the ball. That gives the Monarch a significant advantage, but not an absolute guarantee of staying in power. (Sort of like a powerful nation-state.) Whoever misses gets knocked down to the #4 position, and everyone below them moves up.

On the surface, the game thus played helps to illustrate how power is unequally allocated, just like it is in the world. A more important point, however, is that all players have agreed to abide by the same rules. There are no referees, and no overt enforcement mechanisms. Players only abide by the rules because they have agreed to.

So far, so good -- but things got really interesting when my kids started to elaborate on the basic rules, so that the system evolved as we played. First, someone needed a time out for a bathroom break. Everyone agreed (certainly mutual benefit came into play on that one). Then there were disputed calls, which usually were resolved using the time-honored solution of the “do over.” And then my daughter introduced two new rules: the “Black Magic” rule and the "School Bus" rule.  If the Monarch yelled “Black Magic!,” players were supposed to run to the center of the court ASAP, and the last one there would be demoted to the #4 quadrant. The "School Bus” rule was the same, except players were to run to the outside corner of their quadrants. I suggested that the #4 player be given the Black Magic and School Bus powers as a way to level the playing field somewhat, but that innovation was widely rejected. When I tried to do that anyway (I was player #4 at the time), no one followed suit, and my attempt at effecting a rule change (via violating the rules) ended right there. Eventually the kids grew tired, tempers flared, and the game broke down into fights and tears, so we went inside.

Implications for the Classroom

The game of four square thus offers some rich material for teaching Public International Law to a resistant student audience. It would be interesting, and I think quite useful, to actually have 4 students (or even better, 3 students plus the professor) play it in front of a class, and to introduce new rules and rule changes during play. Feints and cheating could be encouraged, to show how disputes might be resolved among the players. Following the game (which needn't be more than 5 minutes long or so), various questions could be discussed, including:

• Why does the game work on a horizontal basis? Does its horizontal nature mean that there are no rules, only power?
• If there are rules, does that mean power (in the form of threats or violent action) is irrelevant?
• Do rules always prevent cheating? Just because someone cheats and gets away with it does that make the rule not really a rule, but a nonbinding “guideline”?
• Can violating the rules be a way to effect a change in the rules?
• Why would players all agree as to who was Monarch? Why not just refuse to recognize a Monarch?
• Why do some rule innovations get adopted but not others?
• Are “time outs” and “do overs” akin to international law general principles, since they are features common to many playground games (just like notions of due process are common to the major legal systems of the world)?
• Who benefits when there is no cooperation?
• Did players (and spectators) defer to the professor as an “expert” in deciding what the rules were or should be? Why -- and what does that tell us about sources of international law?

All in all, I think this is a useful exercise, and I will consider using it next time I teach the course. If nothing else, it would mix things up in the classroom and keep it interesting -- but I also think it could get the point across rather well.  And if I were to win the game, then all the better.

Interesting Times in the Pharmaceutical Industry

With Pfizer's $2.3 billion payment last week to settle fraud charges for marketing practices relating to its drug Bextra, it must be an interesting time to be in the pharmaceutical industry.  On the international front, last summer the European Commission completed a study of competition in the pharmaceutical sector in Europe. Although the study is comprehensive in scope, one section focuses specifically on the relation between pharmaceutical companies engaged in research and development ("originator companies"), manufacturers of generic drugs and the patent system.  

The most dramatic price competition occurs between originator companies and generics, who seek to sell copies of those formulations at lower prices. Because of a number of mergers over the past several years, there are fewer and larger companies on both sides of the originator-generic equation worldwide. The patent system plays a significant role here too, of course.  Originator companies traditionally rely on patents to prevent generic manufacturers from copying the originator's formulations.  Where a patent bars copying, originators are the sole market supplier and can charge higher prices during the patent's term to recoup research and development expenses needed to discover and formulate a drug.  These terms run up to twenty years.

As the executive summary points out, in Europe "(e)nforcing patent rights in court is legitimate and a fundamental right guaranteed by the European Convention on Human Rights: it is an effective means of ensuring that patents are respected."  Nonetheless, the sector inquiry concludes that antitrust enforcement in this industry within the European Community is likely to apply with "increased scrutiny" because of various patenting strategies that appear to delay generic market entry.  These include create "thickets" of patents around various drug formulations and other filing strategies that create uncertainty, and therefore delay market entry, of generic competitors. In addition, the summary states:  

In approximately half of the settlements in question the generic company's ability to market its medicine was restricted. A significant proportion of these settlements contained – in addition to the restriction – a value transfer from the originator company to the generic company, either in the form of a direct payment or in the form of a licence, distribution agreement or a "side-deal".  

In response, the Commission will consider "focused monitoring" of patent settlements that delay generic manufacture and contain a "value transfer" from an originator to a generic.  Further, the Commission notes that the cumulative effect of mergers, patenting strategies and settlement may be impacting consumer drug prices in Europe. In later postings this week, I'll summarize some procedural options that the Commission is considering.

Staying Squarely within the Law

Although I am not teaching it this year, I have regularly taught Public International Law, which in my opinion is one of the most interesting and important courses in the law school curriculum. (Kudos to those law schools that require students to take at least one international or trans-national course in law school.) One of the challenges of teaching the subject is getting some of the more resistant students to buy into the idea that international law (and particularly customary international law) is “law.”

Every year, some students in class ask this question: “Isn’t this course just all about politics and power? How can this be about law?” Those students (not all, mind you) simply have trouble getting past the horizontality of the system -- in their minds, there cannot be “law” without meaningful top-down enforcement. No judges + no legislature + no police = no law. It does not matter how many times we read Article 38 of the ICJ Statute or the section 102 of the Restatement (Third) of Foreign Relations Law of the United States; they just seem to have a permanent mental block.

This is by no means a unique problem, but it has bothered me. How, I have wondered, can I convey the material to those students in a way they can truly grasp? How can I get those students to at least understand the concept of international law, if not agree with it?

The answer came to me the other night while I was playing a game of four square in my driveway with my young kids: why not play four square in class? I am sure others have looked to the playground for examples of horizontality, but at least as far as I can tell (and I have searched) no one has discussed using four square as a means of demonstrating and teaching about the sources of international law, and about international law being more than politics and power. Often a simple example is the best way to drive difficult points home by putting them in a more understandable context. In a post later today or tomorrow I will discuss the game of four square as my kids play it, and then consider how it could be used in a Public International Law course.

Globalization and Nationalism

Paul Krugman had an interesting Op-Ed piece in the New York Times -- The Great Illusion.  In it, he questions whether the international economic crisis might lead to the end of globalization.  He does this by reminding readers of a prior era when globalization existed only to be undone by nationalism (leading to WWI).  His conclusion is that "things can fall apart again."  It's an interesting article. Yesterday, Peter Spiro over at Opinio Juris commented on it.  Peter is skeptical of Krugman's conclusion, suggesting that globalization is "different this time around" and will not be a causalty of the economic crisis.  He ends saying that at least there's agreement that "the economy - and not terrorism - is now the biggest security threat."

While I  tend to think that de-globalization is unlikely, it certainly seems true that the economic crisis will impact world politics.  The more useful insight perhaps though is not whether this age of globalization is remarkably different or more resilient than earlier ages of globalization, but that earlier globalized times have existed.  It is common in legal scholarship to attribute many changes that have occurred in law and society to globalization, without any serious assessment as to whether the two have the assumed causal relationship.  

Spiro's post and Krugman's piece also raise another interesting question.  Having international law and politics focused on the territorially-defined nation state was a way to constrain rampant nationalism. Now that globalization means not just international trade and investment, but also greater interconnectedness among peoples, groups, networks etc., globalization is often described as undermining the territorial state itself.  It may well be that traditional nationalism then is much less a threat to global peace and economic prosperity than the rise of various non-state actors that through their interconnectedness have a greater chance, on the margins, of destabilizing the existing system. 

Sorry, no great insights here (or at least not in this short post).  But as more details of the economic recession unfolds, I suspect there will be renewed interest on the topic of globalization and nationalism.

Black Holes and the Law: This is the End

Let’s hope that CERN’s risk-assessment committee did a better job than their symbolism-approval committee. Top: CERN-campus statue of Hindu deity Shiva, “the destroyer of worlds,” doing his cosmic dance that ends the universe. Bottom: The ATLAS particle detector, namesake of the mythological figure depended upon to prevent the cosmic sphere from collapsing and crushing the Earth into its primordial form.

I want to thank everyone who gave such insightful and, in many cases, well-researched comments to my various posts (here, here, here, and here) about the legal dimension of the safety controversy regarding the Large Hadron Collider, the European super-sized particle smasher which detractors claim might spawn an Earth-ending black hole.

This is a case that poses a number of extremely interesting questions about the philosophy of law, legal epistemology, the intersection of the law and politics, the intersection of law and psychology, and other areas. Because I think the subject is so worthwhile, I plan on doing some additional posts on my own blog, Pixelization, about the matter, including responses to many of the comments I’ve received to the PrawfsBlawg posts.

Part 5 of

Black Holes
& the Law

[Part 1]

[Part 2]

[Part 3]

[Part 4]

[Part 5]

Additionally, I’ve created a webpage where I will post court documents, links, and any follow-up work I do on the matter. I think this case could be fertile ground for classroom discussion in various classes, including Remedies, International Law, Jurisprudence, Civil Procedure, and Evidence. To the extent there are written opinions or other documents that could make good teaching materials, I will try to track them down and make them available.

For this post, I’d like follow up on something I wrote in my first post. I noted then that this is “a case that highlights the trust modern civil society has vested in the institution of the law and courts.”

“A court of law,” I continued, “wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.”

Well, apparently not. As commenter “martined” noted, it turns out there was an action in a Swiss court aimed at delaying LHC operations. But the case was rejected because CERN – the intergovernmental organization operating the LHC facility – has immunity. (When I can obtain the court documents for these proceedings, I will post them on the resource webpage.)

The issue of CERN’s immunity is a whole other area of this case that is highly intriguing. From my brief review of what documents I’ve been able to find so far, the following appears to be the case: The treaties establishing CERN have vested it with legal personality. The host countries, Switzerland and France, have given CERN and its employees broad immunity and protection against interference by the courts and host country laws and regulations. That immunity is preventing plaintiffs, who argue their lives are at stake, from being able to use judicial process to mount any kind of challenge to CERN’s planned undertakings.1

Immunity for intergovernmental organizations may, in general, be benign. Applied to CERN, however, I find it troubling. Unlike most intergovernmental organizations, CERN is engaged in a category of activities – even putting black holes aside – that clearly qualifies as “abnormally dangerous” and “ultrahazardous” under American common-law doctrine. Governed by a council of delegates from its 20 member countries, power over the organization, and responsibility for it, is diffuse. When it comes to safety, CERN appears to be entirely autonomous, making its own rules and deciding whether or not those rules are being obeyed. Moreover, where the alleged harm is a planet-ending catastrophe, there is no prospect of after-the-fact remediation by CERN’s state sponsors.

This results in a situation in which CERN has many of the characteristics of a sovereign nation, but, unlike a normal state, CERN has no system of courts. CERN also lacks any constituency within its population beside scientists and their close associates. As such, CERN – and, perhaps, other intergovernmental organizations operating nuclear facilities – poses some interesting questions in the field of international law. CERN’s quasi-sovereign nature means that it may constitute a “scientocracy” in even a more palpable sense than I appreciated in my previous posts.

In view of CERN’s assertion of immunity from host-state courts, the failure of the European Court of Human Rights to deal with the case on its merits is even more unfortunate.

As a final note, to wrap up this series of PrawsBlawg posts, let me say that I do not want to stop the LHC. I have yet to be convinced of the experiment’s alleged hazards. In addition, I’m personally eager to see the theoretical advances in physics that the LHC promises to deliver. Nonetheless, I do think the LHC critics should get their day in court, and it should count. The case should be taken seriously, decided on the merits, and memorialized in a published opinion. Anything less would be very disappointing.

---

Notes
1Since CERN's immunity does not apply to contracting entities doing business with CERN, it would seem that suing for an injunction to stop CERN's contractors or suppliers might be a way to get the case into court. I do not know if the LHC critics' lawyers have explored such a strategy. I also wonder if it would be possible to get an injunction in some non-CERN signatory country against resident CERN personnel or even against CERN itself, if CERN has some business in the jurisdiction.

Copysquare

“Copysquare” is a copyright-licensing scheme I’ve proposed to empower DIY video producers, nano-budget filmmakers, and other citizen media creators by encouraging the sharing of the basic building blocks of media production. It’s the subject of a law-review article I’ve just published (here’s an extended abstract).

Here’s the pitch: Ordinary people now have the means of producing and distributing high-quality video content worldwide. But one shortcoming leaves the full potential of the citizen-powered media revolution unfulfilled: Creators lack ready access to stock footage, sound effects, soundtrack music, and still photography. By fostering a regime of sharing these media workparts, copysquare aims to provide desktop creators with the means to take on increasingly ambitious projects and to attain new levels of production quality.

Copysquare follows in the tradition of, and borrows much of its values from, the free-software/open-source movement and the Creative Commons effort. As with both of these endeavors, copysquare leverages copyright law and standardized licenses to construct a voluntary sharing regime that is insulated from outsiders who would undermine the project by taking unfair advantage of the participants’ generosity. Unlike these prior endeavors, however, copysquare uses certain unique licensing mechanics that are specifically designed to overcome problems associated with the sharing of media workparts. Copysquare’s three basic license provisions are: (1) a requirement of notification, (2) a right to reject, and (3) “favored nations” treatment. The copysquare license says, in short, “You can use my creative work – film footage, picture, sound effect, etc. – in your creative work, but you must notify me that you are doing so (the notification provision), give me a chance to opt out (the right to reject), and you need not pay me or credit me, but if you pay or provide credit to others for the same kind of contribution, you must pay me and credit me on an equal basis (the favored-nations provision).”

Having finished laying the groundwork, my next task is to draft the license itself and make choices about the details of how the scheme will work. (Here’s the project website.) If you would be interested in chipping in your two cents or possibly looking at license drafts, I would be extremely grateful – you can e-mail me at ejohnson@law.und.edu.

Could Bad Judging Cause the Earth to Be Sucked Into a Black Hole? Maybe.

Top: A black hole. Bottom: A judge.

Last month, courts on two continents were asked to grant injunctions to stop the Earth from being sucked into a black hole. Really.

Complainants claimed that the just-completed Large Hadron Collider, a ground-breaking particle smasher built beneath the border of Switzerland and France, could create microscopic black holes that would eventually grow in size to swallow the Earth. Plaintiffs sued to stop the European Center for Nuclear Research (“CERN”) from turning on the multi-billion-dollar machine.

Part 1 of

Black Holes
& the Law

[Part 1]

[Part 2]

[Part 3]

[Part 4]

[Part 5]

The case is absolutely fascinating on a number of levels. In fact, it has all the makings of a law-school classic. At this point, however, we lack a thorough written judicial opinion on the merits to inspect. One lawsuit, filed pro se in federal court in Hawaii, was dismissed, as you might expect, on jurisdictional grounds. The other lawsuit, filed in the European Court of Human Rights, has not produced any written opinion that I can find. News reports indicate the ECHR rejected a request for interim measures, indicating that the case may take years to reach the most interesting questions. So far as I can tell, there is no legal action being pursued in the Swiss or French courts. It may be that the case has simply not been teed up such that we will be able to see a judicial review on the merits. If so, that would be a shame.

But even without that, I find the controversy to be, from a legal academic perspective, highly intriguing.

To begin with, it is a case that highlights the trust modern civil society has vested in the institution of the law and courts. A court of law, unarmed and employing only a tiny staff, wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.

At the same time, if we take the case seriously at first face, as I think fairness requires, then literally the fate of the entire world rests, potentially, upon the decision of a judge.

That is food for thought.

The lawsuits have been ridiculed by CERN supporters as absurd. I understand why they would take that stance. But it would be a shame for judges and academics to shrug off these claims as silly before looking at the merits. Lawyers and judges have always been arbiters of life and liberty. And that heady responsibility only increases as humanity’s destructive capacity mounts. If this case does not put a judge in the position of saving the world, another soon might. In a technological age of human-induced climate change, genetic engineering, and nuclear chain-reactions, the prospect of the courts confronting a real doomsday scenario is decidedly non-trivial.

If and when the titans of science and industry find themselves at odds with bystanders about what constitutes acceptable risk to the environment and the human species, lawyers and judges are the citizens’ bulwark. That’s a sobering responsibility – one that might rightfully lead to some deep reflection about the education of lawyers and the nature of the legal profession.

There’s a lot to unpack here. I’ll follow up soon with a post discussing the hypothetical preliminary-injunction issues.

Parallel (Foreign) Proceedings

In recent years, the number of transnational cases (those involving parties or claims that cross national borders) have increased dramatically. Transnational law is recognized by many law schools as a separate field, and transnational litigation is now almost commonplace. In the news, hearing about cross-border disputes is certainly routine (China transboundary pollution is an interesting example that has received significant press in recent years). And parties are not afraid to attempt to litigate remotely (for a recent high-profile example, think of the dismissed "end of the world" lawsuit filed in Hawaii to attempt to prevent the operation of Switzerland's giant particle collider). The increase is often attributed to globalization, the relaxation of jurisdictional rules, and the embrace of American-style litigation.

In this context, a key issue is how to deal with concurrent, foreign, parallel proceedings. Should a U.S. court stay its hand if an action involving the same dispute and parties is already pending in a foreign country? Although potentially important for many litigants, a dearth of scholarship currently exists (with some notable exceptions) and the issues seem largely undertheorized.

For some U.S. courts, parallel foreign proceedings do not require staying or dismissing a later-filed U.S. proceeding. Federal courts, it is argued, have an "unflagging" obligation to exercise jurisdiction given to them. Only in exceptional circumstances should a U.S. court stay the foreign proceeding. Although there are at least three different approaches, generally U.S. federal courts are hesitant to stay a local action in favor of a foreign action. For some, staying a U.S. action in light of a pending foreign parallel proceeding runs the risk of subordinating local values. Often the issue is misportrayed as pitting international comity against national interest.

Although the U.S. Supreme Court has not had the opportunity to recently address the issues raised by parallel proceedings, a seminal case is pending before the Supreme Court of Canada. The case, which will be heard by the court in November -- Lloyd's Underwriters v. Cominco -- has the potential to say important things about judgment enforcement and recognition in Canada. In reaching its decision, the Canadian Court may also look to U.S. precedent for guidance (looking at forum non conveniens, lis pendens, and abstention cases). The case is of note because until January when the U.S. Supreme Court denied certiorari, a related case was pending before the U.S. Supreme Court.

To my mind, the issue is not really one of comity, but self-interest. There seems to exist few reasons to permit domestic proceedings to continue in the face of duplicative foreign litigation, so long as the foreign court has jurisdiction under domestic jurisdictional standards and so long as any eventual judgment would have the potential to be enforced in the U.S.. The problems associated with duplicative, parallel proceedings (waste of resources, inefficiency, potential conflicting judgments, the race to judgment) all strongly militate again parallel proceedings, absent exceptional circumstances. The argument that the federal courts have a so-called unflagging obligation to exercise jurisdiction seems problematic given just how many situations federal courts are willing to decline jurisdiction (e.g., justiciability, abstention, forum non conveniens, exceptions to jurisdictional doctrines, etc.).

I have written a short article on the Lloyd's case that will appear in the Canadian Business Law Journal. The article explores some of these issues in greater detail (from a Canadian law perspective) and embraces a first-to-file rule. The article was written in response to a nice piece by Vaughan Black and John Swan that takes a different view. I would be interested in hearing others thoughts.

Arctic Sovereignty, Climate Change, and the Inuit Tapirit Kanatami

Thanks again to Dan for the opportunity to return to PrawfsBlawg as a guest blogger. During this month, I hope to make a series of posts related to transnational and international issues – my scholarly area of focus. I thought I would start off with a post about Arctic Sovereignty. I had blogged on this topic during my last PrawfsBlawg stint. The topic hopefully is one of general interest, but this post might be particularly useful to law students, many who are madly searching for appropriate note topics.

The issues surrounding Arctic Sovereignty are fresh in mind: On Friday, with a generous grant from the Canadian government, Southwestern’s Journal of International Law hosted a conference on the topic. It was the first comprehensive treatment by a U.S. law school on the recent legal issues related to the Arctic and Northwest Passage that have arisen because of the melting ice and the anticipated increase in Arctic shipping and economic activity. I was fortunate to be able to hear from leading Law of the Sea experts (people like John Norton Moore and Ted McDorman), government officials (J. Ashley Roach, U.S. State Department), interest groups (Rosemary Cooper, ITK), leading scientists (Larry Mayer and Vincent Gallucci), as well as many rising stars in legal academia (e.g., Suzanne Lalonde, Michael Robinson-Dorn, Noah Hall, Rebecca Bratspies, Sarah Krakoff, Sophie Theriault).

Much is potentially at stake. For Canada, climate change, runaway oil prices, environmental degradation, and various other issues have vaulted the issue of Arctic sovereignty to the top of Canada’s economic, defense, and diplomatic concerns. News articles are published on a daily basis in Canada on the issue, and it is a point of contention in Canada’s upcoming election. The issue, however, is also important in the U.S. -- although it receives much less coverage in the media (see, e.g., NY Times Op-ed by John Bellinger, legal adviser to Secretary of State Condoleezza Rice) and among legal academics. My take is that the legal issues related to the Arctic may well spur a renewed interest for the U.S. to ratify the Law of the Sea Convention.

I wanted to quickly highlight one issue raised in the Arctic Sovereignty debate -- an issue that seems under-treated in the U.S., and presumably something that would make for a great student note topic. Rosemary Cooper spoke from the Inuit Tapiriit Kanatami about the challenges facing the Inuit with climate change and the "race to the Arctic." The Inuit Tapiriit Kanatami is an organization that represents and promotes the interests of the Inuit. The challenges related to housing conditions, education, infant mortality, suicide rates, and life expectancy in Inuit communities is stunning. Although much is at stake for the Inuit (and Alaskan natives) with recent environmental changes, little has been written in the U.S. law reviews on this important topic. The issues raised are fascinating, and bring together concepts in human rights, indigenous rights, and environmental law.

The national attention is understandably drawn elsewhere to more immediately pressing matters (the financial crisis, the election etc.). I suspect in the next few years, however, we'll be hearing much more about the Arctic Sovereignty debate.

A Long Time Coming

This morning, the Cambodian genocide tribunal began to conduct its first formal hearing. This tribunal is unusual in that the defendants, former members of the Khmer Rouge, are being tried for crimes that occurred about 30 years ago (1975-79). The first defendant to appear, Kaing Guek Eay, has been charged with several crimes associated with his tenure as commandant of the notorious interrogation center Tuol Sleng.

For a great introduction to the history of the Cambodian genocide, you may want to check out Yale's Cambodian Genocide Program (http://www.yale.edu/cgp/) which has been instrumental in documenting the atrocities. You can also check out a  nice  discussion of the reparation issues particular to the cambodian tribunal and the need for an acommpanying truth and healing process in  Jaya Ramji-Nogales's piece  A Collective Response to Mass Violence: Reparations and Healing in Cambodia, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts .

In looking back, though, it is important to remember to use these lessons in looking forward. While the situation has greatly improved, all is not well in Cambodia. Although the current leader Mr. Hun Sen was recently re-elected, serious concerns remain about what Human Rights Watch describes as a "near-monopoly on broadcast media for the ruling party, bias within the electoral apparatus; and harassment, intimidation, and coerced defections of opposition party members." http://www.nytimes.com/2008/07/28/world/asia/28cambo.html?_r=1&oref=slogin. Under his reign, the government has forcibly evicted thousands of families in order to use the land for public projects or to provide to private companies. It has also "threatened, attacked, and arrested villagers opposed to land confiscation, logging and concessions, or prohibited them from airing grievances in public." http://hrw.org/englishwr2k7/docs/2007/01/11/cambod14866.htm. While these activities and others like them certainly do not approach the atrocities committed by the Khmer Rouge, the world should keep a close eye on Mr. Hun Sen and his regime.

Two Conceptions of Proportionality

George Fletcher and Jens David Ohlin have co-authored a new book arguing that the international law regulating the use of force by states should be informed by domestic criminal law regulating the use of force by individuals.  Their central argument is that the U.N. Charter should be read to incorporate the French criminal law doctrine of “legitimate defense”, which encompasses both self-defense and defense of others, in part because such a reading permits the defense of other states as well as national groups within other states without Security Council authorization.  They also argue that international law should follow the MPC and allow the use of force if “immediately necessary on the present occasion” to eliminate a threat that is inevitable but not imminent.  These positions are debatable but I want to focus on one area regarding which I think the authors misapply domestic criminal law concepts to the international context. 

Fletcher and Ohlin observe that in domestic criminal law self-defense and necessity involve two very different conceptions of proportionality.  The permissive conception of proportionality which derives from the law of self-defense allows one to inflict a greater harm on an attacker to avoid a lesser harm to a victim so long as the two harms do not differ too much in relative seriousness (for instance, we may kill to prevent a rape).  The restrictive conception of proportionality which derives from the law of necessity requires an impartial balancing of the wrong to an innocent person that one proposes to commit against the harm to others that one would thereby prevent.  Fletcher and Ohlin argue that the more permissive conception of proportionality should govern the killing of civilians (p.100) as necessary side-effects of direct attacks on legitimate military targets.  But this seems badly wrong since the permissive conception was designed to govern the use of defensive force against attackers while the more restrictive conception was designed to govern the infringement of the rights of the innocent. 

The authors write that “the action should be regarded as privileged because of the legitimacy of the dominant purpose” but it is hard to know what this could mean.  A soldier’s actions are privileged in the sense of being immune from prosecution if and only if they are legal, so this conception of privilege can’t be used to establish the legality of an action.  If the authors mean that the attack on the military target is privileged in the sense of being presumptively legal then this may be true, but only as true as saying that the use of defensive force against a wrongful aggressor is presumptively legal.  By contrast, damage to civilians is presumptively illegal and in need of further justification just as infringements of the domestic law rights of the innocent are presumptively illegal and in need of further justification.  The strange parallel the authors wish to draw, between criminal aggressors and innocent civilians, simply does not materialize. 

The authors also suggest that their position fits the Rome Statute’s description of “clearly excessive” damage to civilian persons and objects but this seems wrong as well.  “Excessive” and “disproportionate” are synonyms and “clearly” is an epistemic concept not a moral concept like, say, “grossly.”  The Rome Statute can’t possibly mean that it’s okay to kill an excessive number of civilians just as long as the excessiveness isn’t “clear”.  It seems pretty obvious to me that this is a conduct rule prohibiting excessive damage to civilians mashed together with a decision rule directing courts to convict only where the excessiveness is “clear”.  The reason is that if the excessiveness of the damage is clear then the order to cause that damage is “manifestly illegal” and soldiers have a duty to refuse.  If the legality of the order is arguable then soldiers should be protected if they obey.  The wording of the Statute is conceptually confused (non-clearly excessive damage is not permitted but merely excused), but that’s no reason to advocate treating innocent civilians as if they were wrongful aggressors. 

Incidentally, the authors may have missed an opportunity to make a genuinely interesting and morally defensible point, which is that the permissive conception of proportionality applicable to criminal aggressors should be applied to enemy soldiers, giving them far more protection than they currently enjoy.  My own view is that the killing of enemy soldiers is impermissible unless doing so is a necessary means to achieving a military objective whose value is proportionate to their deaths.  This contrasts with civilians, who can only be killed as a necessary side-effect of achieving such an objective.  I used to think that there was only one difference between soldiers and civilians, namely the appropriate causal relationship between their deaths and military objectives (means versus side-effects).  I now see that there is an additional difference, namely that the killing of soldiers should be evaluated using a more permissive proportionality standard and the killing of civilians should be evaluated using a more restrictive standard. 

Laws of War and Norm Entrepreneurs

Hello out there and thanks to my colleague Dan for inviting me for another guest stint on Prawfs Blawg.

This past Thursday,  Lieutenant Colonel Stuart Couch, a prosecutor at the Office of Military Commissions, was kind enough to speak at FSU Law School as part of a Human Rights and National Security Series hosted by the FSU Center for the Advancement of Human Rights.  In particular, Lt. Col. Couch focused his talk on his decision to refuse to prosecute Mohamedou Ould Slahi, a detainee at Guantanamo Bay suspected of having ties to the Hamburg cell of Al-Qaeda. Based on his belief that Slahi had been subject to torture, he decided that the evidence acquired after such enhanced interrogation techniques was unreliable.

A few things about Lt Col Couch's speech stuck out to me. The first was that his reliance on faith to describe his moral compass in this situation sounded very similar to the more secular perspective on human rights I teach in my laws of war class. His belief in the inherent dignity of man came at least partly from a religious perspective, but was also couched in the language and framework of international law and international norms.  I thought his behavior and his speech was valuable evidence of the way in which international law and norms are both shaped by and in turn shape domestic actors.  While many in the audience seemed to come from a different starting point, such language and ideas seemed to provide common ground.

Second, while Lt Col Couch made no mention of any overt pressure to prosecute and secure convictions in the Slahi case, it seems likely such pressure existed. Yet he felt the larger international (and domestic norms) dictated his behavior. He said, "It's a violation of our domestic law, it is a violation of our values as Americans, and a violation of international norms and laws. The debatable thing now is whether the cruel, inhumane or degrading treatment of a particular detainee falls under the same category. (...) Some of this stuff gets to the point where it really tears at the fabric of what we are as Americans and our American values." I thought this quotation was nice evidence of the sort of norm internalization that internationalists are hoping to promote in the human rights area.

Finally, I wanted to throw out a quick question to the readers.  When I originally listened to Couch's speech, I was envisioning him as a norm entrepreneur. But the more I think about it,  the more I think that he might be more of a norm abider- as he would characterize his choices as dictated by existing norms and laws. I try to teach my laws of war class with an eye toward norm entrepreneurs such as Henri Dunant (the author of A History of Solferino) and Jody Williams (proponent of the landmine ban). Any nominations for norm entrepreneurs in reference to the War on Terror?