Tuesday, October 14, 2014
Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.
Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)
Thursday, September 25, 2014
Suboptimal Human Rights Decisionmaking
In a forthcoming paper, I explore ways in which human rights violations may result from suboptimal decisionmaking rather than utility-maximizing conduct by state leaders. Most strategies to influence the human rights practices of a country involve efforts to alter its expected utility calculation, either by introducing material incentives so that compliance is more attractive or by changing underlying preferences so that human rights concerns are seen as more intrinsically valuable. These are known in the literature as coercion and persuasion respectively. Drawing on social science research that demonstrates how individuals often fail to maximize their expected utility, my paper argues that at least some human rights violations likely result from such suboptimal decisionmaking. And if that is correct, then the human rights community may be missing out on opportunities to improve compliance that do not require altering a state’s expected utility calculation through coercion or persuasion, but instead work within a state’s existing incentive structure.
For this blog post, I thought I’d describe the three specific causes of suboptimal decisionmaking that I discuss in the paper and invite suggestions on other lines of research to explore. As I discuss in the paper, there are methodological obstacles to applying behavioral research, which is generally based on studies of individuals in laboratories, to real-world state conduct, which involves decisionmaking by groups consisting of experienced elites who might not make the same mistakes that participants in artificial experiments do. I chose the three causes of suboptimality that I did in part because there is a substantial international relations literature that has already attempted to make that translation, and in part because they seemed likely to contribute to the types of flawed decisions that would result in human rights violations. But of course the behavioral literature is quite vast, and I may have missed some other promising avenue.
The first cognitive bias I discuss is loss aversion, and in particular the prediction that people who are operating in the realm of losses will engage in risky behavior in the hopes of obtaining an unlikely gain. Many human rights violations arise from acts of desperation by state leaders who are under severe threat. For example, leaders of an authoritarian regime facing domestic uprisings may take bold steps to reassert their power, resulting in brutal crackdowns. Or a country that has recently experienced attacks by terrorists or rebel forces may take drastic measures to restore security, leading to widespread infringement upon individual liberties. Risk taking can also be a rational course of action, and it will often be difficult from the outside to figure out whether loss aversion is at work in a particular situation. But it is nonetheless valuable to recognize the possibility of loss aversion because it may call for different strategies for improving compliance.
The second bias I discuss is overconfidence, which is the tendency people have to make overly optimistic assessments of their abilities and prospects for success. Overconfidence could contribute to suboptimal human rights decisionmaking at various stages in the process. For example, at the planning stage, state leaders may consciously choose to violate a human rights norm, believing with overoptimism that the righteousness of their conduct will be recognized by the international community while failing to anticipate a costly backlash. Likewise, at the operational level or implementation stage, state leaders may be overconfident in their assessment of the resources needed to meet human rights standards and thus fail to comply even when they intended to do so.
Emotion-based reasoning, the third line of research I discuss, is not a bias per se, but it does produce distortions that undoubtedly lead to some suboptimal decisions. The research on the role of emotions in decisionmaking has many facets, but one specific idea discussed by political scientist Stephen Peter Rosen is that human beings view situations through the lens of particular patterns that were formed during emotionally resonant past experiences. This phenomenon may help to explain human rights violations that take place in the course of longstanding conflicts between religious or ethnic groups. Leaders of a regime that has had a history of clashes with a particular minority group will view new conflicts through the lens of that history, and thus be prone to adopt more repressive policies than a more rational assessment would produce.
That is a very abbreviated sketch, but I hope the basic connection between the various causes of suboptimality and human rights violations seems plausible. I do not argue in the paper that all or even most human rights violations result from suboptimal decisionmaking, but instead merely highlight the possibility as an alternative to exclusively rational explanations. The paper then goes on to explore strategies that the human rights community could adopt in response, with the goal of supplementing rather than replacing coercion and persuasion. In short, since coercion is costly and persuasion often takes a long time, there may be missed opportunities to make more immediate gains in compliance by addressing the causes of suboptimal decisionmaking and thereby clearing the way for states to comply when it is already in their interest to do so.
Thursday, September 18, 2014
Ratification of the Canada-China BIT
It was announced last week that Canada ratified its bilateral investment treaty (BIT) with China that was signed about two years ago. The treaty will take effect on October 1, 2014. At the time of the signing, a Canadian international investment law scholar named Gus Van Harten wrote an editorial warning of dire consequences if Canada ratified the BIT. In particular, he expressed concern that the BIT would impose constraints on Canada's sovereignty and put important policy questions in the hands of foreign arbitrators.
In an earlier phase of international investment, when capital flowed primarily from developed to developing nations, only the latter had to worry about constraints on their sovereignty. But as more capital has begun to travel in the opposite direction, established democracies like Canada will increasingly have to respond to claims brought against them by foreign investors. The Canada-China BIT, like other recent BITs that both Canada and the United States have entered into, adopts a narrower definition of fair and equitable treatment that should in theory avoid the most serious sovereignty concerns described in my prior posts. But as other commentators have observed, some tribunals have proceeded to apply the same broad standard used in arbitral precedent as if the limiting language were not there.
The United States has not yet signed a BIT with China, but the countries did agree recently to restart negotiations. It will be interesting to see whether the United States tries a different approach to fair and equitable treatment or otherwise departs from its model BIT in anticipation of the possibility that the protections of a China-U.S. BIT will be invoked as much by Chinese investors against the U.S. government as by U.S. investors against the Chinese government.
Saturday, September 13, 2014
Investor-State Regulatory Disputes (Part 2)
In my previous post, I described the sovereignty concerns raised by investor-state regulatory disputes, the viewpoint that currently predominates in the literature known as the public law approach, and my criticisms of that proposed framework. In this post, I explain why investment tribunals should instead adapt concepts or tools from contract law and theory and describe in further depth one such proposal.
The basic argument for a contractual approach is that tribunals could do more to approximate how the contracting states themselves would want to resolve these disputes. No one would disagree that, if states actually addressed the issue in their bilateral investment treaties (BITs), their express intent would govern. The problem is that the BITs do not define “fair and equitable treatment” or otherwise provide guidance on how that standard should be applied to regulatory disputes. In contract law, when an agreement has a gap or otherwise contains an ambiguity, courts do not simply abandon the inquiry into the parties’ intent but instead apply other tools to form the best possible estimate. I believe a few of these tools could be usefully adapted for the present context to fill this gap in the BITs.
I do not suggest that recourse to contract principles is mandated by the BITs themselves, but neither of course is the public law approach. Like proponents of the public law approach, I recognize that tribunals have been delegated some authority to develop the law in this area, but I believe a contractual approach is functionally superior to the public law alternative. I noted in my prior post that a public law approach suffers from concerns relating to expertise and legitimacy. A contractual approach would constitute an improvement in both of these respects.
With regard to expertise, a contractual approach would not require tribunals to make the inevitable policy judgments inherent in the public law approach’s balancing test. Instead, tribunals would engage in more traditional modes of legal analysis and thus be in position to develop a more principled jurisprudence. With regard to legitimacy, in addition to the benefits that come with more principled reasoning, a contractual approach would reduce concerns about interference with state sovereignty. That is because tribunals could avoid passing judgment on the substance of state policy and instead intervene only as part of an attempt to effectuate the intent of the contracting states themselves.
For the sake of brevity, I will focus here on one particular contract law principle; the paper from which this post is derived explores two others. The question of when a state should be permitted to revise its regulatory framework without implicating its fair and equitable treatment obligation could be understood as a problem of changed circumstances. In contract law, changed circumstances will sometimes permit a promisor to excuse nonperformance, either because having to perform would be so burdensome as to be impracticable or because the purpose of the contract has been so completely frustrated. One factor for analyzing when excuse is permitted is foreseeability: If the supervening event was sufficiently foreseeable, then nonperformance will not be excused. The rationale is that parties should be expected to have priced the risks of foreseeable supervening events into their agreement, but would want courts to find an implied condition on performance for risks that were outside their contemplation.
A foreseeability test could similarly be used to distinguish between regulatory changes that violate fair and equitable treatment and those that do not. The question would be whether the supervening event was sufficiently foreseeable that the host state should have priced in that risk at the time it ratified the investment treaty at issue. If so, then the state should be liable for losses suffered by investors relating to the regulatory changes at issue. If not, then the investor should have to bear its own losses. Here, as in the contract law context, foreseeability strikes a middle ground that reflects an intuitively plausible balance of the parties’ competing concerns: preserving the regulatory flexibility states need to respond to new developments on the one hand, and ensuring that legitimate investor expectations will not be too readily disrupted on the other.
Like any standard, foreseeability will not always yield definite answers. But in contrast to a proportionality test, a foreseeability approach falls more squarely within the core competence of tribunals and allows them to focus on the contracting states’ intent rather than more policy-oriented questions that they lack the legitimacy to decide.
Note: The draft paper from which this post and my prior one are adapted is not quite ready for SSRN, but I would be happy to share it upon request with anyone who is interested. And of course I welcome comments here as well. Thanks!
Wednesday, September 10, 2014
Investor-State Regulatory Disputes (Part 1)
The project I am currently working on looks for new approaches to the problem of investor-state regulatory disputes. The problem is well-known among international investment law scholars, and a variety of solutions have been proposed, but none in my view has been satisfying.
The basic problem arises when a foreign investor challenges a generally applicable regulation that was enacted by the host state as a good-faith attempt to promote the public interest. Although any effect on the foreign investor’s business would have been incidental, the investor has at least a viable claim under the fair and equitable treatment obligation contained in the bilateral investment treaty between the host state and the investor’s home state. Such claims do not need to show bad faith or other opportunistic conduct by the host state, as the fair and equitable treatment standard has been construed to require a degree of stability in the regulatory framework irrespective of the host state’s motives. To give one particularly controversial example of this increasingly common form of dispute, tobacco companies have challenged regulations on cigarette marketing in a few different countries as violating their rights as foreign investors, even though the regulations are clearly designed to promote public health and not to extract value from them.
The increasing prevalence of such claims is troubling to many because it puts international investment arbitral tribunals in the position of evaluating the policies of host states. In an earlier phase of international investment, when investors were more likely to challenge outright expropriations or other forms of bad-faith conduct, the availability of impartial tribunals was seen as a valuable check on host state abuse. But as investor-state disputes increasingly involve challenges to regulatory efforts that only incidentally affect foreign investment, the discussion has shifted to concerns about the potential for tribunals to interfere with host state sovereignty.
In response to such sovereignty concerns, commentators -- and increasingly the tribunals themselves -- have begun to converge around a view that analyzes regulatory disputes within a public law framework. That means proceeding with special concern for the needs of the sovereign state, recognizing that the parties to the dispute are not co-equal in status but stand in a vertical relationship. Commentators have drawn on analogies to constitutional and administrative law to propose a variety of doctrinal solutions, such as a balancing test that would weigh the host state’s regulatory concerns against the investor’s rights to determine whether the enacted measure is proportional to the burden imposed on the investor.
I am skeptical about the existing proposals and more generally about whether the public law analogy points us in the right direction. While it is true that we entrust domestic judges to employ balancing tests and the like when reviewing domestic legislation, international arbitrators lack the expertise and legitimacy to do the same. One concern is that most arbitrators do not have experience or training in public policy, as they typically come from commercial backgrounds. But the more fundamental problem is that foreign arbitrators are not part of the same political community that enacted the challenged measures and thus lack the expertise (and accompanying legitimacy) a domestic court would have to make the context-sensitive, value-laden judgments required. Others have made similar points, though they go on to propose a solution that, in my view, suffers from the same essential problem and creates additional concerns as well.
Having set up the basic issue and described my concerns about the prevailing ideas in the literature, I will turn in a follow-up post to the alternative path I propose.
Tuesday, June 24, 2014
A victory for the rule of law - apparently not
I had to edit this blog because literally as I posted it, the news changed. Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order. As I previously wrote, her imprisonment violated Sudanese law. Her release was a victory for the rule of law. International pressure influenced this outcome. But the victory was very short (less than 24 hours). The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.
Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way. There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention. Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim. Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.
Thursday, June 19, 2014
How to Prosecute Crimes Committed Abroad?
Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth. He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad. The Pepe case had been lingering for eight years. The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).
I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over. Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.If the U.S. criminally prosecutes a citizen for behavior abroad, when and to what extent should constitutional guarantees (like search and seizure) apply? It has been suggested that so long as U.S. government agencies train foreign officers, constitutional rights would be secure and the evidence would be admissible. That seems simplistic, and, indeed, case law is unclear. For example, under the "joint venture doctrine," a U.S. agency may be so involved with a foreign investigation that the foreign authorities would be deemed as "acting as agents for their American counterparts." At that point, the U.S. citizen has the right to constitutional protections. But, the circuits are split as to what level of involvement the U.S. agency has to have to give rise to a joint venture.
What about evidentiary issues? For example, in one PROTECT Act case, an NGO was helping U.S. and foreign authorities investigate a U.S. citizen traveling in Asia. When the foreign agents arrested the defendant, an individual from the NGO took the defendant's laptop home which created problematic chain of custody issues at the U.S. trial. From both practical and legal perspectives, securing witnesses and admissible evidence in the prosecution of extraterritorial crimes create extraordinary legal battles. Given how easy international travel has become, these issues will become more and more prominent.
Friday, June 13, 2014
The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old
As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention.
Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls. Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison. Their father is a U.S. citizen. Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith. Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family. The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.
There are clear human rights violations and violations of Sudanese law. Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law. Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process. Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan. Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.The pressure from the international community caused some movement, albeit ineffectual as it currently stands. A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later. This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur. What can be done? What should be done? Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children. More legal attention and monetary support should be put in place to uphold the rule of law.
Thursday, June 05, 2014
'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity
The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials. As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act. In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by. In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal.
Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice. No doubt, there is a rule of law problem.
Rule of law issues are complex. Developing countries do not have the funds to enforce laws. Citizens of developing countries are often unaware of their rights and protection under the law. Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges. The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front). The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily. Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law.
It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice. This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute. A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity. There are some potential problems with this analysis, though.
Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged? Many developing nations (including India and Pakistan) have not ratified the Rome Statute. However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court. In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member. With enough international pressure, perhaps the Security Council would act again. Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).
Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what? The ICC is struggling with number of issues, including the problem of enforcement. Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.
Thursday, May 01, 2014
UF Law's (and My) New MOOC: The Global Student's Introduction to US Law
I am now officially part of a MOOC, which went online today. It has been a learning experience (!!), with the biggest lesson being that it is nowhere as easy as you might think to put one of these courses together. I plan to blog about the experience at length when I get a chance. For now, though, you might be interested in viewing the University of Florida Law School's foray into the great MOOC experiment: The Global Student's Introduction to US Law.
The course description is as follows:
In this course, students will learn basic concepts and terminology about the U.S. legal system and about selected topics in the fields of constitutional law, criminal law, and contract law. A team of outstanding teachers and scholars from the University of Florida faculty introduces these subjects in an accessible and engaging format that incorporates examples from legal systems around the world, highlighting similarities to and differences from the U.S. system. Students seeking an advanced certificate study additional topics and complete assignments involving legal research that are optional for basic level students. The course may be of interest both to U.S. students contemplating law school and to global students considering further study of the U.S. legal system.
My Senior Associate Dean Alyson Flournoy spearheaded the project, and we had excellent technical assistance, which was crucial, by Billly Wildberger. My colleagues Pedro Malavet, Jeff Harrison, Claire Germain, Loren Turner, Jennifer Wondracek, and Sharon Rush all provided lectures, and our research assistant Christy Lopez is providing support with the discussion forums.
Wednesday, September 04, 2013
The Legal Case for Intervening in Syria (Anthony Colangelo Guesting)
An International Legal Case for Military Intervention in Syria
Does international law allow U.S. military intervention in Syria? The Obama Administration has advanced a number of possible justifications including self-defense, halting civilian deaths, and debilitating the Assad regime’s chemical weapons capabilities. None of these justify intervention on the current state of international law.
Yet that doesn’t mean international law would view a U.S. intervention as illegal in the long run. International law is a tricky sort of law, and the United States could make a strong legal argument that intervention would help change the law to allow interventions to halt mass human rights abuses. Going forward, this argument could retrospectively ratify U.S. intervention in Syria and give the United States a central role in formulating international legal criteria for future interventions.
Legal arguments against intervention are straightforward and rely principally on treaty law. Most prominently, the U.N. Charter prohibits the “use of force against the territorial integrity or political independence of any state.” There are only two ways intervention is permissible under the Charter: the Security Council authorizes it, which has not and will not happen, or the United States acts in self-defense. Even the very best international lawyers can’t stretch the doctrine of self-defense to cover a U.S. strike in these circumstances. Even if they could, that’s both an awful and an awfully expansive precedent.
The Administration has also seized upon the Assad regime’s evident use of chemical weapons as a violation of international law that justifies intervention. Yet here too, treaty law cuts the other way. Syria is not a party to recent treaties banning the use of such weapons. Because treaties bind only states that have agreed to be bound by them, Syria’s use of chemical weapons cannot violate the treaties. The only treaty banning the use of chemical weapons Syria is a party to addresses international, not internal, conflicts. And in any event, it doesn’t authorize states to attack other states that violate it. In sum, treaty law does not allow intervention in Syria.
There is, however, another type of international law that might allow intervention, called customary international law. Unlike treaty law, customary international law doesn’t derive from formal agreements among states. Instead, it arises from the practice of states accompanied by what international lawyers call opinio juris, or states’ intent that their practice carries legal significance.
States can usually treaty around custom much the same way private individuals can contract around the norms that govern our everyday behavior. But there are some rules of customary international law that cannot be contracted around and that override treaties inconsistent with their rules. These are called jus cogens, or peremptory norms of international law. Jus cogens contain prohibitions on serious international law violations like genocide, torture, slavery, and crimes against humanity. To illustrate, Hitler and Mussolini can agree by treaty to afford each other’s nations certain preferential trade treatment. But they cannot enter into a treaty legalizing genocide. Jus cogens would swoop in to invalidate that treaty as contrary to a peremptory norm of international law.
Where does this leave the international legal justification for intervention in Syria? Many favoring intervention have cited jus cogens prohibitions on mass human rights abuses as justification. But that argument is flawed because the jus cogens norm does not directly conflict with the U.N. Charter’s prohibition on the use of force. That is, the Charter doesn’t authorize human rights abuses—in fact, just the opposite: it seeks to “promot[e] and encourage[e] respect for human rights.” Thus even if one can safely classify the Assad regime’s abuses as violations of jus cogens, that only gets the argument halfway to intervention. To justify intervention, the jus cogens norm would need to encompass not only a prohibition on human rights abuses but also the capacity of other states to enforce that prohibition. This latter enforcement component is presently lacking under the law. Finally, the Charter’s prohibition on the use of force isn’t some run-of-the-mill international rule. It is a cornerstone of the postwar international legal system that outlaws aggressive war. For this reason, the prohibition on the use of force is itself considered a jus cogens norm.
Nonetheless, it may be time for a change. Because customary international law arises from state practice, as practices change so too does the law, including the law of jus cogens. One way customary international law changes is states break it to form new norms; breaches effectively plant the seeds from which new norms grow. Although a breach may violate international law when it occurs, the law may develop to ratify that breach as the early stage of a new norm’s development.
If the United States intervenes in Syria, it has an initial international legal choice to make: it can ignore international law or seek to justify intervention within it. The second option’s benefit is that if state practice develops to allow intervention the illegality of U.S. action will wilt as the new norm blossoms. Yet some may view this option as undesirable precisely because it may prompt other states to accept the legality of intervention. Reciprocity is also a cardinal rule of international law: if it’s legal for us, it’s legal for you.
The question then becomes whether it’s better to operate within the law or outside it. For other states also will face that same initial choice above, to which this first-order reciprocity norm also extends; that is, the initial choice to ignore law or to justify their actions within it. In this respect, the United States may actually derive two distinct benefits from choosing to justify its actions under international law: a retrospective ratification of U.S. intervention and the ability to formulate criteria for a budding international law of humanitarian intervention.
Friday, May 31, 2013
Non-State Law Beyond Enforcement II
With grading finally behind me, I wanted to post again about non-state law "beyond enforcement." The question I've been exploring is in what ways do various forms of non-state law (such as international law and religious law) function as law even when these forms of law lack the ability to enforce their legal rules?
In my last post, I mentioned a forthcoming book by Chaim Saiman, which conceptualizes Jewish Law as "studied law" as opposed to enforced law. In making this point, Saiman highlights some Jewish legal doctrines that the Talmud explicitly notes are not meant to be applied in the public square, but simply dissected in the study hall. In this way, Saiman disaggregates the very concept of Jewish law from the enforcement of Jewish law.
Now there is a tendency to think that religious law - as opposed to other forms of non-state law - is particularly susceptible to manifesting law-like characteristics outside the context of enforcement. Religious law, at its core, is intended to connect individuals to something outside of this world and so it is not surprising that certain facets of religious law might be directed not to practical this-world enforcement, but to achieving some other-worldly religious value.
While I think this sentiment is true, over-emphasizing the point would lead us to miss the ways in which other forms of non-state law exhibit law-like features even in the absence of enforcement. At the symposium I ran a few weeks back on "The Rise of Non-State Law," Harlan Cohen (Georgia) presented a great paper titled ""Precedent, Audience and Authority." The paper wrangled with the following question: why is it that, even though international law denies international precedent any doctrinal force, precedent is cited constantly as authority in any number of international law fields?
To answer the question, Cohen emphasizes the way in which law - and in particular international law - is a practice with its own (often unspoken) interpretive rules and norms. On this account, Cohen focuses on how precedent speaks to the members of the international law community - the ways in which using precedent generates legitimacy for international law in the eyes of those within the international law community.
One of the striking features of Cohen's analysis - at least striking to me - is the persistence of precedent in the eyes of consumers of law even absent an actual doctrinal basis. It is almost as if, at least in certain legal communities, that law struggles to separate itself from an interpretive method that discounts precedent. All of this struck me as a bit Dworkinian, capturing another important way in which non-state law can function as law outside the context of enforcement. Put differently, certain legal systems can be identified as being systems of law not simply based upon the extent to which the law is enforced, but based upon certain methods of interpretation endemic to law.
In this way, Cohen's notion of international law as a practice parallels Saiman's formulation of Jewish law as studied law. In both instances, we find important ways in which non-state law functions internally as law based upon the way in which the law is interpreted and analyzed. On this account, non-state law can function as law irrespective of whether it is enforced.
Friday, May 17, 2013
Non-State Law and Enforcement
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.
One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement. Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms. This hurdle has long figured into debates over whether one can properly conceptualize international law as law.
But the focus on enforcement is problematic for a couple of reasons. First of all, the challenge of enforcement for non-state law is in many ways overstated. For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement. Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.
There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post). But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law. In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.
Tuesday, May 07, 2013
Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy. The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law). But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?
When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law. Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project. But what is often missed is that lessons from international law are instructive for religious law - and vice versa.
This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week. To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law. In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium.
Thursday, May 02, 2013
Great to be back and greetings from Washington!
It's great to be back at Prawfs for another guest-blogging stint. I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.
My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.). To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law." The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.
I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate. For those who share the interest, here's the full schedule for the day:
8:30 a.m. Breakfast (Tillar House)
9:00 Panel 1—Global Legal Pluralism: Trends and Challenges
- Moderator: John Linarelli (Swansea)
11:00 Panel 2—Non-State Law and Non-State Institutions
- Moderator: Donald Earl Childress III (Pepperdine)
1:00 p.m. Lunch
2:00 Panel 3—The Role of Religion and Culture in Non-State Law
- Moderator: Mortimer Sellers (Baltimore)
4:00 Open Forum
5:00 Closing Comments
Wednesday, April 24, 2013
Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys
The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.
Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.
I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.
I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.
Tuesday, December 18, 2012
Foreign Travel by Members of Congress (Part III)
As I explained previously (here and here), I’ve been writing a piece that examines Congress's involvement in international diplomacy. One half of the article documents the nature and extent of the contemporary practice, while the other analyzes that practice from a separation-of-powers angle. As the data in the last post demonstrated, legislative diplomacy in the form of CODEL travel is a major form of engagement between the United States and foreign countries. Now I want to discuss some of the reasons why the numbers from the last post are significant.
First, the findings at least partially contradict the common perception that CODEL travel is nothing more than a series of taxpayer-funded boondoggles for profligate legislators. With places such as Afghanistan, Iraq, and Pakistan among the most common destinations, and with members of congressional committees such as Foreign Affairs and Armed Services traveling more than their counterparts on other committees, it is apparent that something other than vacationing is going on. Wikileaks confirms as much—an overwhelming majority of the State Department cables show legislators using foreign travel to gather information about economic, political, and social conditions in host countries. The idea, it seems, is that legislators can educate themselves by meeting with foreign officials and personally observing foreign conditions, and in turn use their knowledge to develop more effective legislative solutions to foreign policy problems. Wikileaks shows that another rationale for CODEL travel is lobbying; legislators often use their meetings with foreign officials to press foreign governments to act in ways that promote U.S. interests or, less frequently, the interests of specific constituents. One might fairly question whether CODELs are an effective means of pursuing these goals, but it’s clear that the goals generally are not sightseeing and leisure. The intermittent public debate on CODEL expenditures needs to acknowledge that.
Second, the results show that the conduct of foreign relations is, from an institutional perspective, more complicated than commonly assumed. In practice, diplomacy is not an executive prerogative; it’s a crowded field occupied by the President, State Department, and other executive actors, plus both chambers of Congress. And in practice, the Senate is not necessarily more involved in foreign relations than the House. As I explained before, House members participated in CODELs even more frequently than their Senate counterparts in 2009, both in aggregate and on a per-legislator basis.
Finally, I think the results are significant because they call for some new thinking about the separation of powers in the context of foreign affairs. A few aspects of the doctrine should be pretty straightforward: Legislative diplomacy generally cannot intrude upon diplomatic functions—such as negotiating treaties—that Article II assigns to the President, and communications carried out for the purpose of fact-finding are constitutional as an exercise of Congress’s implied power to investigate in furtherance of enumerated Article I powers. But beyond that, formalist analysis is probably unable adequately to account for the contemporary practice. For example, as a textual matter is it unclear why CODELs can lobby foreign governments, and why Senator Kerry could undertake missions to Pakistan and Afghanistan on President Obama’s behalf. The alternative is to adopt a functionalist analysis that renders legislative diplomacy constitutional as a form of constitutional custom, or as the product of an executive delegation of Article II diplomacy power, but doing so results in a series of additional complications. Functionalism, for example, typically isn’t used for converse analyses of these kinds; the more common inquiry—such as in Youngstown—is whether custom or legislative delegation supports a gloss on executive power. Moreover, the possibility of executive delegation would operate in tension with the principle of the unitary executive. In working through these issues, I hope to develop a few insights for con law folks and those involved in legislative diplomacy, and also to illustrate one way in which Congress exerts more influence in foreign affairs than is often assumed. I’ll share a draft soon on SSRN.
Thursday, December 13, 2012
Foreign Travel by Members of Congress (Part II)
As I mentioned in my previous post, I’ve been writing an article on the subject of international diplomacy by members of Congress, with an emphasis on congressional delegations (“CODELs”) to foreign countries. Information about CODEL practice has been pretty limited, so one of my purposes has been simply to provide a more complete account of how frequently CODELs travel overseas, who is participating, where they go, and what they do when they get there. To do so, I collected information from the State Department cables that Wikileaks released to the public in 2010-11, many of which provide detailed accounts of meetings between members of Congress and foreign governments. I also collected information from official reports on publicly and privately financed congressional travel. Some of the reports were published in the Congressional Record pursuant to federal statute; others were published in accordance with House and Senate ethics rules. The data is quite voluminous, so I focused only on travel that happened in 2009—the most recent year for which the available information is the most complete. Counting each country visit by each legislator as one trip, and adding the data from the various sources, I came up with the following.
A total of 420 federal legislators, or approximately 79% of the combined membership of the House and Senate, completed slightly more than 2000 trips abroad in 2009. Members of the House were responsible for 84.5% of this travel, for an average of 4.0 trips per member, while members of the Senate were responsible for 15.5%, for an individual average of 3.2 trips. Legislators from both parties participated in comparable measure: Democrats averaged 4.09 trips per legislator, while Republicans averaged 3.56.
Legislators engaged in diplomacy unevenly. While some never went abroad even once, fifty-four legislators made at least 10 foreign trips during the year; the most frequent fliers were Eni Faleomavaega (24 trips) (D-AS), Jim McDermott (21) (D-WA), Adam Smith (17) (D-WA), Gabrielle Giffords (16) (D-AZ), Sheila Jackson-Lee (16) (D-TX), Lindsey Graham (15) (R-SC), Gregory Meeks (15) (D-NY), Jeff Miller (15) (R-FL), Solomon Ortiz (15) (D-TX), Dana Rohrabacher (15) (R-CA), and Joe Wilson (15) (R-SC). By comparison, Secretary Clinton made 51 trips to foreign countries over the same period.
Legislators traveled widely. CODELs visited at least 117 countries in 2009. The most frequent destinations were Afghanistan (139 trips), Israel (134), Kuwait (119), United Arab Emirates (86), Germany (73), Iraq (72), Pakistan (53), Jordan (49), Belgium (47), and Italy (47). An overwhelming majority of this travel was publicly funded.
Finally, members of congressional committees with jurisdiction over foreign affairs and related matters were more likely to participate in CODELs than other legislators. The tables below contain information for the committees with the highest and lowest member-trip averages.
Table 1 – House Committee Travel (2009)
Total Member Trips
Trips Per Member
Standards of Official Conduct
Education and Labor
. . .
. . .
. . .
Table 2 – Senate Committee Travel (2009)
Total Member Trips
Trips Per Member
Agriculture, Nutrition & Forestry
. . .
. . .
. . .
In my next post, I’ll offer a few observations about why I think these results are significant, and why they raise some interesting separation of powers questions.
Monday, December 10, 2012
Foreign Travel by Members of Congress (Part I)
The Constitution allocates power over the conduct of foreign relations primarily to the executive, but diplomacy by Congress is common. Members of the House and Senate frequently travel overseas as part of congressional delegations—or “CODELs”—to meet with foreign officials, and foreign officials often make stops on Capitol Hill to discuss legislation. In recent years, visiting heads of state such as Benjamin Netanyahu and Lee Myung-bak have even issued formal addresses to Congress. Moreover, these practices are nothing new; federal legislators and foreign officials have been communicating with each other ever since the First Congress convened in 1789.
I think these practices are fascinating for a couple of reasons. First, no one really has a sense for how frequently they occur, where legislators are traveling, or why they go there. News media rarely mention foreign lobbying of Congress. Some media outlets have called attention to expenses incurred by Nancy Pelosi and others during various trips abroad, but there are no complete reports on the nature and extent of contacts between federal legislators and foreign governments. Yet these contacts constitute a significant mode of engagement between the United States and the rest of the world, and have a real impact on the way in which other nations perceive U.S. policy.
Second, I think the diplomatic contacts are fascinating because they challenge the prevailing understanding that diplomacy is a prerogative of the executive branch. Most analyses don’t seem to acknowledge that legislative diplomacy occurs, much less address the extent of its constitutionality. One resulting problem is theoretical: the gap between theory and practice means either that Congress systematically violates the separation of powers, or that the prevailing understanding of executive power is at least incomplete, and possibly incorrect. A second problem is practical: lacking a theoretical foundation, legislative diplomacy occurs in a constitutional void that imposes no principled limits on the conduct of members of the House and Senate, and offers no guidance on the extent to which planned communications are permissible.
I’m currently writing an article—entitled “Legislative Diplomacy”—that addresses these issues. One purpose is empirical. I use evidence from Wikileaks and a variety of public reports on congressional travel to provide an extensive account of the nature and volume of contemporary diplomacy by Congress. This evidence shows that legislative diplomacy is surprisingly frequent, widespread, and longstanding. The other purpose of the article is to offer a constitutional analysis of the contemporary practice. In my next post, I’ll share some of the data I collected.
Monday, December 03, 2012
The Arms Trade Treaty: A Response to the Second Amendment Critique
Shortly after the election, the Obama Administration announced its support for U.N. efforts to develop a new treaty regulating international trade in conventional arms. The terms are still far from settled, but draft provisions from a U.N. conference last summer provide a rough guide on how the treaty might work. I'd like to highlight some of the key provisions and then address a Second Amendment objection that I’ve heard from some treaty critics.
The latest draft suggests that the treaty would have several basic features. First, it would establish a limited number of categorically prohibited international transfers. These include transfers in violation of a measure adopted by the U.N. Security Council pursuant to the Council’s peacekeeping authority; transfers in violation of other international obligations; and transfers made for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes. Second, the treaty would limit the power of states to export conventional arms by requiring assessments on whether proposed exports would contribute to or undermine peace and security. Mandatory considerations would include whether the arms could be used to commit a serious violation of international humanitarian law, human rights law, or an offense under international treaties relating to terrorism. In the event of an “overriding risk” of one of these consequences, the treaty would prohibit the exporting state from authorizing the transfer. The treaty would also require exporting states to “consider taking feasible measures” to make sure that the arms are not diverted to the illicit market, used to commit gender-based violence, or used by transnational organized crime. Third, the treaty would impose obligations on arms-importing states. These parties would be obligated to provide information to help their exporting counterparts complete the required risk assessments. Importing states would also have to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” Other provisions impose restrictions on brokering and mandate record-keeping and reporting.
Some U.S. critics of the draft treaty have argued that it would violate the Second Amendment, but I think this objection has some major weaknesses. First, most of the restrictions would simply have no effect on the right to keep and bear arms. Here’s the proposed list of regulated items: battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and “small arms and light weapons.” As Heller explained, the Second Amendment’s reference to “arms” applies only “to weapons . . . not specifically designed for military use and . . . not employed in a military capacity.” The result is that all but the last items on the list—“small arms and light weapons”—plainly fall outside of constitutional protection. Moreover, even to the extent that the treaty applies to arms covered by the Second Amendment, significant portions of the treaty would not interfere with the right to “keep and bear” those arms. For example, provisions that would restrict exportation—in a sense the very opposite of “keep[ing]” and “bear[ing]”—from the United States surely raise no constitutional problem. And as a practical matter, it’s hard to see how the prohibitions on transfers in violation of Security Council measures or for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes would interfere with the right of U.S. citizens to keep and bear arms.
The only non-frivolous argument against the treaty focuses on its import restrictions. As explained above, the treaty would require states to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” The opponents’ argument seems to be that these provisions would require the United States to adopt restrictive measures that would themselves infringe upon the right to bear arms. But several observations undercut that argument. First, it’s actually not clear that the provisions would require the United States to adopt any new restrictions. Federal law currently imposes permit and registration requirements on arms importers, bars some imports based on country of origin, mandates broker registration, and authorizes criminal penalties against violators. There is no textual basis for concluding that these measures are anything short of “adequate” and “appropriate.” As long as that’s the case, no new import restrictions would be necessary in the United States, and the treaty would violate the Second Amendment only if the existing federal restrictions do. Treaty opponents seem unwilling to challenge longstanding federal law in this way.
Second, even if the treaty were to require something more restrictive than current federal law, it’s still not clear that the additional restrictions would be unconstitutional. Post-Heller, lower courts have held that the level of scrutiny applied to a regulation depends on the degree to which the law burdens the right and the nature of the conduct being regulated. Where a regulation does not impose a severe burden or does not implicate the right’s core—i.e., “defense of hearth and home” by “law-abiding, responsible citizens”—courts have applied intermediate scrutiny. In doing so, they have upheld restrictions such as registration requirements and licensing fees. Critics of the ATT would have to establish that the contemplated minimum import restrictions would fail under this framework even while a variety of other regulations have survived. I have not encountered a persuasive argument about why that would be the case, particularly given the important national interests in favor of controlling transnational arms flows.
Finally, even assuming the contemplated import restrictions are constitutionally suspect, the United States could simply join the treaty subject to a reservation ensuring that the restrictions raise no constitutional problem. We did something similar with respect to the Genocide Convention and, more recently, entered a Constitution-based reservation to the Torture Convention. The reservation here would have to comport with the object and purpose of the ATT, but a Second Amendment-based reservation could meet that requirement, as several parts of the treaty draft reflect a purpose of respecting national laws.
The treaty text is far from finalized, so it’s possible that the drafting process will generate Second Amendment problems that are currently absent. But I think the real barrier to U.S. ratification won’t be the Constitution; it will be political: Practically speaking, fierce opposition from U.S. arms manufacturers is guaranteed. In 2011, U.S. arms-export agreements with developing nations amounted to $66.3 billion, or an astounding 78.7% of the total global market share. It is hard to believe that the Senate will be able to withstand the likely tidal wave of pro-export lobbying.
Monday, April 09, 2012
The Self-Defense Argument for Intervention in Syria
News media are reporting today that the combat in Syria has, for the first time, spilled across international borders, with Syrian government forces firing into Turkey last night, killing two people and injuring three others, and also firing into Lebanon. The New York Times suggests that a “large number of reinforcements for the government troops, backed by tanks and helicopters,” may have arrived “close to Turkish territory.” And of course Turkey is already sheltering a large number of refugees from the conflict—over 24,000, by the Turkish government’s estimate.
All of which raises the question of what, if anything, can be done. For the past year, the answer has been very little: Russia and China blocked effective measures in the Security Council; the legitimacy of humanitarian intervention on the basis of the responsibility-to-protect (“R2P”) principle has been contested; and neighboring states seemed to lack a persuasive argument for intervention on the basis of self-defense. But yesterday’s events suggest that the self-defense argument is strengthening. Article 51 of the UN Charter recognizes an “inherent right of individual or collective self-defense if an armed attack occurs against” a member state, “until the Security Council takes measures necessary to maintain international peace and security.” There is at least a reasonable argument that by firing bullets across the border, amassing troops nearby, and forcing Turkey to cope with a significant influx of refugees, Syria is violating Turkey’s territorial integrity and creating justification for an armed intervention on the basis of a Turkish right of self-defense.
To be clear, I’m not necessarily advocating the legality of intervention on the ground of self-defense; I’m saying simply that the argument for a self-defense-based intervention is getting stronger. And, of course, whether intervention makes sense as a practical matter is another issue altogether.
Thursday, March 22, 2012
Wired, and ThreatenedI have a short op-ed on how technology provides both power and peril for journalists over at JURIST. Here's the lede:
Journalists have never been more empowered, or more threatened. Information technology offers journalists potent tools to gather, report and disseminate information — from satellite phones to pocket video cameras to social networks. Technological advances have democratized reporting... Technology creates risks along with capabilities however... [and] The arms race of information technology is not one-sided.
Monday, March 12, 2012
Social Media and the Kony 2012 Campaign
By now, you all (likely) will have come across the Kony 2012 campaign. Sponsored by a US-based charity group, Invisible Children, this campaign aims to raise public awareness about the Lord’s Resistance Army (LRA) and its leader, Joseph Kony, through a 30 minute video that has gone viral – receiving upwards of 60 million hits (and growing fast). This documentary video has caught the attention of a star-studded cast, including Justin Bieber, George Clooney, and Lady Gaga. Kony remains at large, despite having been indicted by the International Criminal Court (ICC) in 2005 and notwithstanding the weakening of the LRA. (A rebel group, the LRA has inflicted mass atrocities in Northern Uganda, but for several years now has fled the country). Kony is charged with an array of war crimes and crimes against humanity. The Kony 2012 campaign encourages his capture and supports the intervention of Ugandan
government armed forces (assisted by American special-ops). Ever mobile, Kony is no longer in Uganda, but likely in the Central African Republic. The brutal entanglement of children in the LRA, as combatants, sex slaves, and domestic helpers, has been central to the reach of the Kony 2012 campaign and its attendant calls for support.
This campaign demonstrates the power of social media to mobilize and raise awareness. But this campaign also demonstrates the ability of social media to essentialize, sensationalize, and reductively simplify. For starters, in addition to the horrors inflicted by the LRA, the government of Uganda has also been responsible for human rights abuses in the country, including massive displacement of the local population, and also outside the country. Second, in calling for armed action, the video exhorts the very militarization that, in turn, has plagued Northern Uganda and Southern Sudan for decades already. The process of peace and justice in Northern Uganda is painstakingly complex – at the national level amnesties have played a key role – and criminal prosecutions are far from a self-evident solution, especially at the ICC. The problem of child soldiering is much more complex than the video portrays. The saving grace of international humanitarianism can only go so far – the vast majority of LRA child soldiers, after all, exited the LRA not by humanitarian rescue but, instead, by escaping or abandoning the group. Reintegration, moreover, needs to occur locally. Criminal prosecutions of a handful of recruiters are not a cure-all. To be sure, the LRA has relied on brutal abduction of children. World-wide, however, and including elsewhere in Africa, a majority of child soldiers demonstrate some initiative in coming forward and enlisting in fighting forces. Child soldiering is a global phenomenon, not just an African phenomenon – the majority of child soldiers in fact are not on the African continent. Nor are the majority of child soldiers young children – most are adolescents, often older adolescents; approximately 40% are girls; some child soldiers are implicated in grievous acts of atrocity, at times against other children.
The best way to prevent child soldiering is to understand it as a composite of practices, not as a singular practice to be generalized from the LRA. A better way to reintegrate former child soldiers, and attend to restorative needs, is to humanize former child soldiers, not present them passively as devastated mindless victims or deranged cold-blooded automatons programmed to kill. Oxford University Press recently published my book, Reimagining Child Soldiers in International Law and Policy, which I wrote to advance a nuanced conversation so as to meaningfully improve preventative and rehabilitative efforts (youtube summary here). But nuanced conversations tend to lack catchy sound-bites. Does Invisible Children, then, have it right – put a simple image forward, boldly through #StopKony, and then follow up, as it does, with some texture in responsive, albeit at times defensive, posts
that parry criticism, concern, and commentary?
Friday, February 10, 2012
Bargaining Your Way Out of War CrimesWriting book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?
Posted by Mark Drumbl on February 10, 2012 at 11:33 AM in Constitutional thoughts, Criminal Law, International Law, Judicial Process, Law and Politics, Privilege or Punish | Permalink | Comments (0) | TrackBack
Tuesday, February 07, 2012
Restating, stating, shuffling, or changing?
I’m really glad to have a chance to rejoin the Prawfs community for this month. Sorry for the somewhat belated start, but the past couple of days have been a flurry. I was just out in sunny California for a fascinating international humanitarian law conference at Santa Clara Law School. As Ken Anderson, one of the participants, notes in his opinio juris blog post on the conference, topics covered included the applicability of classic criminal responsibility theories to robots that are used in warfare; the intersections between gender, justice, and conflict; and the right to counsel in military proceedings. I had a chance to present on my new book on child soldiers, several aspects of which I hope to blog about here this month as well.
Yesterday the Transnational Law Institute at my law school hosted George A. Bermann from Columbia Law School, who delivered a fantastic public lecture entitled "American Exceptionalism in International Commercial Arbitration". We are fortunate at Washington and Lee to have Susan Franck as a colleague, in that her work situates at the cutting-edge of scholarship in this field -- and our Moot Court Room was packed and engaged. Although the notion of "American Exceptionalism" often applies in human rights law areas (such as constitutional interpretation, war crimes trials, and terrorism), Prof. Bermann explored how aspects of the US legal system interface with the quest, through international convention, for uniform enforcement of international arbitration awards in commercial law matters. In particular, Bermann identified a number of factors, which may not always be anticipated in contract negotiation, including federalism (for example, how the public policy of one of the US states may interface with the recognized ability for an award to be denied enforcement if it infringes public policy), inadequacies in the domestic Federal Arbitration Act, and procedural features of the US legal system. In this regard, clearly, I would answer Trey Childress' earlier question on this blog with a clear yes – international law matters and domestic legal structures ought to be mindful of it.
Bermann serves as Chief Reporter of the American Law Institute Restatement (Third) of the U.S. Law of International Commercial Arbitration. At the end of his talk, a student in the audience raised what I thought to be an important reminder – namely, what are the obligations and duties of Restatement authors? Is it to photograph the law, prod it along, or reengineer it? Do different obligations arise in different areas of law? For example, in areas of law thick with case-law and statute, is photography preferable? In areas of law lolling in ambiguity, grappling with change, or redolent with awkwardness, is something more required? What is the proper place for normativity? For international law junkies out there: are the obligations of the Restatement drafters similar to or different from those of the members of the International Law Commission (ILC), who are called upon to promote the progressive development of international law and its codification – recognized by convenience in art. 15 of the ILC's statute as two separate tasks?
Tuesday, December 13, 2011
A Few Thoughts on Kiobel
I'd like to share some brief thoughts on Kiobel v. Royal Dutch Petroleum Co., the case in which the Supreme Court will likely decide whether the Alien Tort Statute confers federal jurisdiction over claims alleging corporate violations of customary international law.
Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from "general and consistent practice that states follow from a sense of legal obligation." According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms--i.e., those that are "accepted by the civilized world" and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases--such as those involving prohibitions against piracy, offenses against ambassadors, and torture--the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a norm has the requisite levels of state acceptance and definitional precision.
The circuit split underlying the decision to grant cert in Kiobel suggests that the norm of corporate liability falls into the latter category. After canvassing selected treaties, precedent from international tribunals, and scholarship, the Second Circuit concluded that corporations have never been prosecuted for violating customary international law, and that a custom of liability therefore does not exist. But upon completing the very same inquiry, the Seventh Circuit reached precisely the opposite conclusion in Flomo v. Firestone National Rubber Co. Notably, Flomo found that the Second Circuit had simply overlooked an important example of corporate liability--that of the German company I.G. Farben after WWII.
Assuming the Seventh Circuit was correct, the Second Circuit's failure to recognize the I.G. Farben precedent seems significant. But from the standpoint of judicial process, the failure was also understandable, for federal courts lack the resources to systematically identify all relevant international practice for the purpose of resolving 12(b) motions. A thorough inquiry would seem to require reviewing even the mundane, day-to-day behaviors of the entire "civilized world"--to use Sosa's words--over a course of years, perhaps decades. And yet, there is no database of such practice, no analogue to the essentially complete and well-organized federal and state case reports on Westlaw and Lexis. Thus, standard legal research techniques won't necessarily generate reliable answers. Courts can take shortcuts by focusing their research on salient indicia of state practice in the form of treaties and important decisions from international tribunals, but those examples usually seem to tell only part of the story.
One conclusion to draw from this observation is that the disagreement between the Second and Seventh Circuits does not necessarily itself show that the norm of corporate liability lacks the acceptance and precision that Sosa demands. Instead, the split may simply reflect the difficulties inherent in federal judicial identification of international custom. Perhaps the Seventh Circuit was right, and the Second Circuit simply overlooked relevant precedent. Perhaps both circuits did. Absent a rigorous historical inquiry, it's hard to say with certainty. Either way, to conclude that it is difficult to accurately identify whether any given customary norm enjoys the acceptance and clarity necessary to create ATS jurisdiction is not to say that the norm lacks such characteristics.
Another possible conclusion to draw is that federal courts should look for ways to supplement their capacity to ascertain international custom. One potential solution lies in Rule 53 of the Federal Rules of Civil Procedure, which permits courts to appoint special masters "to address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district." If the problems of research method that I have described prevent courts from "effectively and timely" identifying customary international law, then the Rule would seem to permit them to use special masters to supplement their efforts. Chosen special masters would ideally be international legal experts or historians with expertise in the relevant area of custom, and would thus have a more comprehensive and nuanced understanding of state practice than the court could possibly obtain through standard legal research techniques. Briefly looking at the Federal Reporter, I did not come across any examples of courts using special masters in this way, but perhaps it's a step worth considering.
Monday, December 05, 2011
Circumvention Tourism: Traveling for Abortion, Assisted Suicide, Reproductive Technology, Female Genital Cutting, Stem Cell Treatments, and More...
This past week I was in lovely Hermance, Switzerland, as a guest of the Brocher Foundation and the International Society for Stem Cell Research's Ethics and Policy Commitee to talk to them about stem cell tourism -- travel abroad to receive treatment or be part of a clinical trial using stem cells not authorized in the patient's home country. This is often a sub-type of what I call "circumvention medical tourism" -- medical tourism for services that are illegal in the patient's home country but legal in the destination country to which they travel.
I have just posted on SSRN a draft of my new article, Circumvention Tourism, 97 Cornell L. Rev. _ (forthcoming, 2012), which uses the real world examples of medical tourism for abortion, assisted suicide, reproductive technology (especially surrogacy), and female genital cutting to build a bigger legal and ethical theory of circumvention tourism.
I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?
Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.
I then use this analysis as scaffolding to build towards a larger theory of circumvention tourism that includes examples outside of the medical context (such as prostitution, drug use, honor killings, and others)
I don't normally post drafts on SSRN until they are in page proofs (this draft is before the editors have had a chance to improve it) but am doing so early in this case because the topic is developing and I want my views to be part of the conversation. Still, it is a work-in-progress, so if you have any feedback you want to give me I always value it; though I think it makes more sense just to email me comments on the paper directly rather than post it on here so as not to clog the blog...but happy for more editorial/conversational comments to be added on here.
PS: I've already benefitted greatly from workshops of this paper at HLS, UT Austin, and by the NYU/Brooklyn Crim Law Theory Group that Dan Markel coordinates. I love workshopping papers, so if you are interested in having me present this or another paper feel free to get into contact.
Tuesday, November 15, 2011
Online Symposium: Shapiro and Hathaway on Outcasting
Opinio Juris is coducting an online symposium addressing Oona Hathaway and Scott Shapiro's recent article in the Yale Law Journal titled Outcasting. Both the article and the symposium are great contributions to recent discussions on non-state governance (one of my other favorites is the Utah Law Review's 2010 symposium on non-state governance). I've contributed my own thoughts in a post to the online symposium here.
Friday, November 11, 2011
Greetings from D.C.
I'm spending a wonderful day in D.C. presenting a paper at the annual symposium for the American Society of International Law's International Legal Therory Interest Group addressing Hart's Legacy on International Law. The papers have brought together some amazing work on legal theory, international relations, international law and non-state governance presented by Trey Childress, Mark Herlihy, John Linarelli (see here for one of his related papers), Tim Meyer (related to his forthcoming article in the Penn. L. Rev. Codifying Custom), John Mikhail, Liam Murphy, and Dan Priel (another related paper here). These papers will appear down the road in Cambridge U. Press's ASIL Studies in International Legal Theory.
I must say that given my experiences today, I'm even more bullish about writing in multiple scholarly areas. Many thanks to Mark Herlihy for organizing this fantastic event!
Thursday, November 10, 2011
Cyber-Terror: Still Nothing to See Here
Cybersecurity is a hot policy / legal topic at the moment: the SEC recently issued guidance on cybersecurity reporting, defense contractors suffered a spear-phishing attack, the Office of the National Counterintelligence Executive issued a report on cyber-espionage, and Brazilian ISPs fell victim to DNS poisoning. (The last highlights a problem with E-PARASITE and PROTECT IP: if they inadvertently encourage Americans to use foreign DNS providers, they may worsen cybersecurity problems.) Cybersecurity is a moniker that covers a host of problems, from identity theft to denial of service attacks to theft of trade secrets. The challenges are real, and there are many of them. That's why it is disheartening to see otherwise knowledgeable experts focusing on chimerical targets.
For example, Eugene Kaspersky stated at the London Cyber Conference that "we are close, very close, to cyber terrorism. Perhaps already the criminals have sold their skills to the terrorists - and then...oh, God." FBI executive assistant director Shawn Henry said that attacks could "paralyze cities" and that "ultimately, people could die." Do these claims hold up? What, exactly, is it that cyber-terrorists are going to do? Engage in identity theft? Steal U.S. intellectual property? Those are somewhat worrisome, but where is the "terror" part? Terrorists support malevolent activities with all sorts of crimes. But that's "support," not "terror." Hysterics like Richard Clarke spout nonsense about shutting down air traffic control systems or blowing up power plants, but there is precisely zero evidence that even nation-states can do this sort of thing, let alone small, non-state actors. The "oh, God" part of Kaspersky's comment is a standard rhetorical trope in the apocalyptic discussions of cybersecurity. (I knock these down in Conundrum, coming out shortly in Minnesota Law Review.) And paralyzing a city isn't too hard: snowstorms do it routinely. The question is how likely such threats are to materialize, and whether the proposed answers (Henry thinks we should build a new, more secure Internet) make any sense.
There are at least two plausible reasons why otherwise rational people spout lurid doomsday scenarios instead of focusing on the mundane, technical, and challenging problems of networked information stores. First, and most cynically, they can make money from doing so. Kaspersky runs an Internet security company; Clarke is a cybersecurity consultant; former NSA director Mike McConnell works for a law firm that sells cybersecurity services to the government. I think there's something to this, but I'm not ready to accuse these people of being venal. I think a more likely explanation flows from Paul Ohm's Myth of the Superuser: many of these experts have seen what truly talented hackers can do, given sufficient time, resources, and information. They then extrapolate to a world where such skills are commonplace, and unrestrained by ethics, social pressures, or sheer rational actor deterrence. Combine that with the chance to peddle one's own wares, or books, to address the problems, and you get the sum of all fears. Cognitive bias matters.
The sky, though, is not falling. Melodrama won't help - in fact, it distracts us from the things we need to do: to create redundancy, to test recovery scenarios, to deploy more secure software, and to encourage a culture of testing (the classic "hacking"). We are not going to deploy a new Internet. We are not going to force everyone to get an Internet driver's license. Most cybersecurity improvements are going to be gradual and unremarkable, rather than involving Bruce Willis and an F-35. Or, to quote Frank Drebin, "Nothing to see here, please disperse!" Cross-posted at Info/Law.
Monday, November 07, 2011
Global Justice and Medical Tourism
Over the last few years, when I have not been working on bioethical issues relating to reproduction and reproductive technologies, I have been working on a different project relating to medical tourism – the travel of patients from one country (the “home country”) to a foreign country (the “destination country”) for the primary purpose of getting health care. I have done three major law review articles on the subject (and a few other bioethics and medical journal articles). The first law review article focued on quality of care and medical malpractice recovery. The third, which is forthcoming in the Cornell L. Rev, focuses on circumvention tourism -- patients who travel abroad for the purpose of circumventing a home country restriction on access, such as in the case of abortion, assisted suicide, female genital cutting, and reproductive technology use in some contexts. The second law review article is coming out this week in print, but I have already posted it online here. This piece of the project, I hope, will be useful beyond medical tourism to those interested in globalization and global justice theory more generally.
A good way to frame my subject of inquiry is by way of a recent New York Times article by Somini Sengupta, entitled “Royal Care for Some of India’s Patients, Neglect for Others,” which captures a particular global justice critique well: She begins by describing the care given at Wockhardt Hospital in India to “Mr. Steeles, 60, a car dealer from Daphne, Ala., [who] had flown halfway around the world last month to save his heart [through a mitral valve repair] at a price he could pay.” The article describes in great detail the dietician who selects Mr. Steele’s meals, the dermatologist who comes as soon as he mentions an itch, and Mr. Steeles’s “Royal Suite” with “cable TV, a computer, [and] a mini-refrigerator, where an attendant that afternoon stashed some ice cream, for when he felt hungry later.” This treatment contrasts with the care given to a group of “day laborers who laid bricks and mixed cement for Bangalore’s construction boom,” many of whom “fell ill after drinking illegally brewed whisky; 150 died that day.” “Not for them [was] the care of India’s best private hospitals,” writes the article’s author; “[t]hey had been wheeled in by wives and brothers to the overstretched government-run Bowring Hospital, on the other side of town,” a hospital with “no intensive care unit, no ventilators, no dialysis machine,” where “[d]inner was a stack of white bread, on which a healthy cockroach crawled.”
There is also a more academic or policy strain of critiques among those who write about global health and/or globalization.
The goal of this paper is to examine this kind of critique. Here is my take...
As I argue in the paper these kinds of critiques should be understood as raising there kinds of questions: (1) An empirical question: Does medical tourism have negative effects on health care access for the poor in the destination country? (2) The normative question: If so, do home countries or international bodies face obligations to prevent or correct those negative effects, and under what circumstances? (3) The regulatory question: If so, how might they do so?
I discuss some of the development economics and health system design pertaining to the first question and regulatory options as to the third question, but most of the paper is focused on the second normative question. This gives me an opportunity to engage ongoing debates in normative and applied ethics between theories of global justice, cosmopolitan, statist, and intermediate. I discuss the ways in which these theories suggest we may owe different things to those inside versus outside the nation state, or the ways in which the obligations may be activated under different circumstances depending whether those who suffer are our fellow nationals or foreign. While my focus is on medical tourism, I also show how some of the ideas I develop are applicable to other instances of the globalization of health care such as medical migration (the brain drain). The goal (you, dear reader, can judge if it is successful) is to have a dialogue between these theories and the concrete medical tourism cases, to see ways in which the theories speak to the cases but also the ways in which the cases identify gaps, ambiguities, and possible divergeny ways of filling the blanks.
I am currently editing a book for Oxford on legal and ethical issues in health care globalization and starting a new book project on medical tourism specifically. While I have found the global justice literature useful as to these project, I actually think it has many more applications to the work done by law prawfs – for example in immigration law and labor and employment law, among other areas. Since this law review article represents a part of an ongoing project, I am definitely eager for your thoughts.
Wednesday, October 26, 2011
How Baseball Made Me a PirateMajor League Baseball has made me a pirate, with no regrets. Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake. Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number. My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud. Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not. So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.Cross-posted at Info/Law.
Posted by Derek Bambauer on October 26, 2011 at 07:48 PM in Criminal Law, Culture, Information and Technology, Intellectual Property, International Law, Music, Odd World, Sports, Television, Web/Tech | Permalink | Comments (34) | TrackBack
Monday, October 17, 2011
The Myth of Cyberterror
UPI's article on cyberterrorism helpfully states the obvious: there's no such thing. This is in sharp contrast to the rhetoric in cybersecurity discussions, which highlights purported threats from terrorists to the power grid, the transportation system, and even the ability to play Space Invaders using the lights of skyscrapers. It's all quite entertaining, except for 2 problems: 1) perception frequently drives policy, and 2) all of these risks are chimerical. Yes, non-state actors are capable of defacing Web sites and even launching denial of service attacks, but that's a far cry from train bombings or shootings in hotels.
The response from some quarters is that, while terrorists do not currently have the capability to execute devastating cyberattacks, they will at some point, and so we should act now. I find this unsatisfying. Law rarely imposes large current costs, such as changing how the Internet's core protocols run, to address remote risks of uncertain (but low) incidence and uncertain magnitude. In 2009, nearly 31,000 people died in highway car crashes, but we don't require people to drive tanks. (And, few people choose to do so, except for Hummer employees.)
Why, then, the continued focus on cyberterror? I think there are four reasons. First, terror is the policy issue of the moment: connecting to it both focuses people's attention and draws funding. Second, we're in an age of rapid and constant technological change, which always produces some level of associated fear. Few of us understand how BGP works, or why its lack of built-in authentication creates risk, and we are afraid of the unknown. Third, terror attacks are like shark attacks. We are afraid of dying in highly gory or horrific fashion, rather than basing our worries on actual incidence of harm (compare our fear of terrorists versus our fear of bad drivers, and then look at the underlying number of fatalities in each category). Lastly, cybersecurity is a battleground not merely for machines but for money. Federal agencies, defense contractors, and software companies all hold a stake in concentrating attention on cyber-risks and offering their wares as a means of remediating them.
So what should we do at this point? For cyberterror, the answer is "nothing," or at least nothing that we wouldn't do anyway. Preventing cyberattacks by terrorists, nation states, and spies all involve the same things, as I argue in Conundrum. But: this approach gets called "naive" with some regularity, so I'd be interested in your take...
Posted by Derek Bambauer on October 17, 2011 at 04:43 PM in Criminal Law, Current Affairs, Information and Technology, International Law, Law and Politics, Science, Web/Tech | Permalink | Comments (7) | TrackBack
Monday, October 10, 2011
Spying, Skynet, and Cybersecurity
The drones used by the U.S. Air Force have been infected by malware - reportedly, a program that logs the commands transmitted from the pilots' computers at a base in Nevada to the drones flying over Iraq and Afghanistan. This has led to comparisons to Skynet, particularly since the Terminators' network was supposed to become self-aware in April. While I think we don't yet need to stock up on robot-sniffing dogs, the malware situation is worrisome, for three reasons.
First, the military is aware of the virus's presence, but is reportedly unable to prevent it from re-installing itself even after they clean off the computers' drives. Wired reports that re-building the computers is time-consuming. That's undoubtedly true, but cyber-threats are an increasing part of warfare, and they'll soon be ubiquitous. I've argued that resilience is a critical component of cybersecurity. The Department of Defense needs to assume that their systems will be compromised - because they will - and to plan for recovery. Prevention is impossible; remediation is vital.
Second, the malware took hold despite the air gap between the drones' network and the public Internet. The idea of separate, isolated networks is a very attractive one in security, but it's false comfort. In a world where flash drives are ubiquitous, where iPods can store files, and where one can download sensitive data onto a Lady Gaga CD, information will inevitably cross the gap. Separation may be sensible as one security measure, but it is not a panacea.
Lastly, the Air Force is the branch of the armed forces currently in the lead in terms of cyberspace and cybersecurity initiatives. If they can't solve this problem, do we want them taking the lead on this new dimension of the battlefield?
It's not clear how seriously the drones' network has been compromised - security breaches have occurred before. But cybersecurity is difficult. We saw the first true cyberweapon in Stuxnet, which damaged Iran's nuclear centrifuges and set back its uranium enrichment program. That program too looked benign, on first inspection. Let's hope the program here is closer to Kyle Reese than a T-1000.
Wednesday, June 22, 2011
Certain Expenses Concerning U.S. Military Operations Against Libya
In its canonical Certain Expenses advisory opinion of 1962, the International Court of Justice made clear that military activity carried out by member states in the context of peace keeping operations in the Congo and along the Suez authorized by the General Assembly amounted to United Nations activities, which were therefore to be treated as expenses of the United Nations, funded from member contributions. France and the Soviet Union objected to U.N. involvement in peacekeeping in the Middle East and Congo, but they could not legally withhold their required contributions to the United Nations on account of those objections. United Nations skeptics might retort that even though the I.C.J. is the judicial arm of the United Nations, the U.N. has no concrete power to enforce an advisory opinion, and even I.C.J. judgments cannot be enforced against a recalcitrant state absent a Security Council Resolution authorizing sanctions against that non-complying state. And yet both France and the Soviet Union eventually paid the money they had withheld from the U.N. in protest against U.N. action in the Suez and Congo, much as the United States finally paid its assessed contributions after much protest against U.N. policies in the late 1970s, the 1980s, 1990s and 2000s.
Since member states are obligated to fund United Nations activities including peacekeeping by member states authorized by the General Assembly even though the text of the U.N. Charter does not plainly convey the power to authorize peacekeeping on the General Assembly, it seems to me that United Nations enforcement actions authorized by the Security Council pursuant to its unambiguous authority under Chapter VII of the Charter are, a fortiori, expenses of the United Nations to be funded by member states. This would make the military activity of certain U.N. member states, including the United States, against the government of the Libyan Arab Jamahiriya authorized in Security Council Resolution 1973 of March 17, 2011 United Nations activity to be funded as United Nations expenses from member contributions. Unless I am missing something, the United States should be able to seek reimbursement from the U.N. for its military activity against the Libyan government. The U.S. share of the United Nations budget is now approximately 22%, so approximately 78% of the costs of U.S. operations in Libya should be funded from the contributions of other member states. Of course, ultimately the U.S. should have to contribute U.N. funds totaling 22% of the costs borne by other U.N. member states in the U.N. authorized operations against the Libyan government. Perhaps the U.S. “refund” and the U.S. contributions to other member states’ operating costs will even out. But I am mystified as to why public discussion of the costs of the operations against Libya does not (as far as I know) make any reference to the Certain Expenses case and the character of the operations against the Libyan government as United Nations activities. Am I missing something obvious? If not, it strikes me as worth public notice that one material difference between U.S. participation in illegal wars of aggression violating Article 2(4) of the U.N. Charter and U.S. participation in United Nations authorized enforcement actions pursuant to Chapter VII of the Charter is that the U.S. will be required to bear the full costs on its own respecting the former, while in the case of the latter, U.S. military action comes at a 78% discount.
Monday, June 06, 2011
Kansas and the Mexican Question
In my last Prawfsblawg entry titled Feral Pigs, Communist Pigs, and Incitement to Genocide, I stressed the point that vocabulary matters enormously in the context of explaining and attempting to justify violence against human beings. In a marginally well adjusted society, one might hope, it should be more or less axiomatic to most people that killing fellow humans cannot be justified by likening persons or groups to animals, and that killing explained by no more convincing rationale than the victim classes’ alleged pig-like or cockroach-like attributes is morally repugnant. Yet international and inter-ethnic conflict and oppression today appear as closely intertwined with the false science of dehumanization as were their antecedents in the medieval and ancient worlds. The rhetoric of extermination deployed in Rwanda or Nazi Germany seems as little touched by the sensibilities of the Age of Enlightenment as were the primitive impulses of hate and fear that shaped the deontological opposition of Muslims and Christians in the Middle Ages. Barbaric sensibilities might be cabined or controlled in modern culture, but they awaken all too quickly in all too many people when summoned to support inhuman projects by evil or unthinking speakers.
Kansas state representative Virgil Peck, who Wikipedia lists as Chairman of the Republican Majority Caucus, recently suggested machine gunning illegal immigrants from helicopters as a useful public policy option, given the reported successes in thinning the state’s feral pig population by similar means. A decade before champions and opponents of slavery’s expansion into Kansas fought the infamous prelude to the American Civil War known as Bleeding Kansas, the slaveholding United States fought free Mexico in a two year war leading to the annexation of one third of Mexico’s territory into the United States. Some cultural imperialists justified the War principally by invocations of Manifest Destiny and articulated arguments that allegedly stronger races were destined to conquer allegedly weaker ones. But for President James K. Polk and then Congressman Abraham Lincoln, at least as a matter of public discussion, the war’s justice or injustice hinged not on the politics of race, but on decidedly U.N. Charter-era considerations that today would be cast in terms of illegal aggression and lawful self-defense. In his speech in the United States House of Representatives on January 12, 1848, Lincoln characterized his dispute with Polk as follows: "The President [Polk], in his first war message of May, 1846, declares that the soil was ours on which hostilities were commenced by Mexico, and he repeats that declaration almost in the same language in each successive annual message, thus showing that he deems that point a highly essential one. In the importance of that point I entirely agree with the President. To my judgment it is the very point upon which he should be justified, or condemned.”
Lincoln and other war skeptics took it for granted that only self-defense could justify collective violence.Alleged animal attributes or racial inferiority did not figure in his calculus. Looking back on the Mexican War in his post-presidential Memoirs in 1885, Ulysses Grant offered a similar assessment. By the standard that aggression was illegal and that only self-defense could justify violence, Grant measured the U.S. decision to wage war against Mexico in the balance, and found it wanting: “[T]o this day [I] regard the war . . . as one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory. . . . The occupation, separation and annexation were, from the inception of the movement to its final consummation, a conspiracy to acquire territory out of which slave states might be formed for the American Union."
The first generations of G.O.P. leaders had a far sounder understanding of basic principles underlying the illegality of collective and individual killing than the leader of the Kansas Republican Caucus does today. Lincoln and Grant’s Whig forbear Daniel Webster spelled out these fundamental principles memorably in the context of the Caroline Dispute from 1838-42, and Webster’s insistence that defensive force was justified only when necessary and proportionate to repulse an existing or imminent attack accurately represents both municipal and international law to this day. Virgil Peck would have done well to internalize the basic maxims understood so clearly by Grant, Lincoln, and Webster and to disown forever the politics of racist incitement. The fact that Peck has so far not resigned his position and his seat is troubling, for it signals to the world that a man willing to endorse profound evil can ascend to high office in the United States. From this writer’s perspective, the fact that the people of Kansas and of the United States have not been adamant in demanding his resignation is more troubling still.
Thursday, June 02, 2011
Of Feral Pigs, Communist Pigs, and Incitement to Genocide
Yesterday’s Lawrence (Kansas) Journal World featured a front page spread commemorating ten noteworthy and/or outrageous developments in the just concluded Kansas legislative session. Coming in near the top of the list were remarks made by state representative Virgil Peck, who suggested back in March that shooting feral hogs might serve as a useful model for addressing a perceived problem of illegal immigration to the state. Peck’s comments are disturbing on any number of levels, not least because their surreality and shock value; nonetheless, they have generated little national reflection about the central role of animal metaphors (particularly pig-centered metaphors) in propaganda and incitement to genocide. In context, Peck’s remarks are stranger still, as the program he endorsed as a suitable model for immigration culls involved the Palinesque prospect of machine gunning feral hogs from helicopters.
Peck’s precise language -- “It looks to me that if shooting these immigrating feral hogs works maybe we have found a problem to our illegal immigration problem” -- becomes truly gut-wrenching when one realizes that he obviously meant to use the freighted term “solution” in place of his first invocation of “problem.” Wrestling seriously with genocide, crimes against humanity, and incitement as offenses that have been and can be perpetrated by Americans as well as alien peoples may not particularly burden the national attention span, but shooting feral pigs on grounds of racial purity has, it seems, become a minor obsession in a least some quarters of the country. A few weeks ago I stumbled across a documentary (mockumentary?) on the Discovery Channel titled something like “Pig Bomb” and “Russian Boars” exploring the alleged explosion of the wild hog population in the Southeast. The thesis of the show was that American farm pigs and their feral prodigy are well meaning and seldom uppity, but that in recent decades giant immigrant wild pigs from Russia and Ukraine have infested the native American population and made it dangerous by cross-breeding. I suspect the show was meant to be taken seriously, but it might as well have been a Canadian or European spoof of overblown American xenophobia and anti-communism.
Peck’s remarks tap into a long vein of nationalist discourse about the dangers of foreign pigs and commie pigs. A half-hearted apology issued under pressure a day later does not dispel my sense that Peck is no mere unconscious racist (to borrow Charles Lawrence’s phrase). When challenged on the obvious racist valance of his remarks, Peck was hardly in a position to feign outrage as Newt Gingrich recently did when called to account for labeling Barack Obama the Food Stamp President. Peck’s approach is naked, direct, and dehumanizing. It is the approach of Joseph Goebbels and Radio Mille Collines. It is incitement to genocide. The Rome Statute treats incitement purely as a modality of genocide, a means of attributing liability after the crime of genocide is completed. The Genocide Convention, more soundly in my view, treats incitement as an independent offense that can be completed absent any actual killing. Peck’s commentary goes well beyond group libel. It is criminal and should be of grave concern to thinking citizens of the United States and the world.
Friday, February 25, 2011
The Leo Strauss Tapes
I've blogged here before about my book project on Leo Strauss's ideas on war, peace, and law. One of the steps forward in this project came when the literary executor of Strauss provided me with a transcript of Strauss's course on Hugo Grotius's Rights of War and Peace. Strauss's lectures confirmed my view, based especially on a reading of his Thucydides essay, that he took international law very seriously.
Now many of Strauss's courses and seminars are being made available on the website of the Leo Strauss Center at the University of Chicago. A common misunderstanding of Strauss, based upon an inadequate reading of his idea of esoteric/exoteric teaching is that Strauss reserved the blunt expression of the inner meaning of his thought for oral instruction of disciples (often suspected to be a militantly anti-liberal ubermensch type philosophy). In my first published work on Strauss, "Between the Lines," which appeared in Philosophy and Rhetoric over a decade ago, I sought to correct this misunderstanding through an interpretation of Strauss's introductory essay in Persecution and the Art of Writing, arguing that for Strauss writings are more authoritative articulations of philosophical truth than oral teachings.
Well, now it is possible to listen to a wide variety of Strauss's classes, and while I've only started to mine the tapes, those seeking to present Strauss as teacher of would-be tyrants (or at least Wolfowitzs) will have a lot to answer for.Strauss's manner of teaching is modest, straightforward, preoccupied by trying to understand for himself, and communicate his understanding to the students. He is frequently tentative, often corrects himself, and allows himself to be corrected and improved by comments of the students. He is probing and provocative in his confrontations with the texts he analyses but he is never preachy or polemical. To borrow from Marx's famous line, one comes away from listening to these classes with the clear impression that Strauss was teaching students to interpret the world, not to change it (except perhaps only very indirectly, through thinking and arguing about the basic problems of the human condition).
This isn't surprising to me, however, given Strauss's own written account of his ideal of pedagogy: "Always assume there is one silent student in your class who is by far superior to you in head and in heart....[D]o not have too high an opinion of your importance, and have the highest opinion of your duty, your responsibility." These are words that I've tried to have in my head every time I've entered the class room for the last 20 years.
The tapes can be found here. I know that there are some conspiracy theorists who will not be satisfied-maybe Strauss was prepping the neocons in midnight seances with the tape recorder shut off, or in office hours? Also, those who hope that listening to these classes is a shortcut to grappling with the immense complexity of Strauss's written engagements with thinkers such as Machiavelli and Maimonides will probably be disappointed. But there is much here of genuine philosophical value. And all but the most close-minded will come away with a clearer portrait of the kind of teacher and human being that Strauss was.
Finally, the Strauss Center is running a conference on April 22 and 23 to celebrate this project, focusing on Strauss as a teacher. The link, with registration information is here.
Wednesday, July 14, 2010
The Rule of Law Trampled on the Red Carpet
Director Roman Polanski in France on the set of the 1979 film Tess, following his arrest and flight from U.S. authorities. (Promotional photo from Columbia Pictures)
Roman Polanski has just been freed by Swiss authorities who were detaining him under house arrest. Switzerland decided against extraditing Polanski to California, where the Oscar-winning film director has been wanted since 1978 after he drugged, raped, and sodomized a 13-year-old girl.
Several pundits and a slew of Hollywood glitterati who are friends or wannabe-friends of Polanski have decried his arrest and continuing status as a fugitive.
They point out mitigating circumstances: Polanski lived through the Holocaust, with his father surviving Mauthausen and his mother perishing in Auschwitz. Then in 1969, Polanski's pregnant wife, Sharon Tate, was murdered by Charles Manson's followers.
Does Polanski's tragedy-filled life mean we should show him leniency? I don't think so. I think he should spend the rest of his life in prison. But that's not my point here. What saddens me is the contemptuous regard for the rule of law that's been put on display by this debacle.
Arguing for clemency for Polanski is, in my opinion, deeply wrongheaded. But such a position is not beyond all bounds of decency. What is outrageous – actually morally bankrupt – is for people to defend Polanski yet not speak up on behalf of other sexual predators.
It is common that violent and sexual offenders have suffered abuse in their pasts. Many offenders endured lives of utter horror and ceaseless despair before committing the crimes that put them behind bars. If Polanski deserves empathy, why not them? Where are the throngs of adoring celebrities – who gave the absent Polanski a standing ovation at the 2003 Academy Awards – to advocate for pedophile rapists who are poor, unsuccessful, and bereft of artistic talent or handsome charm?
Our courthouse statuary upholds blind justice as the ultimate virtue. But oh-so many people do not. For the blithe cowards stumping for Polanski, it is natural and right-feeling to balance the scales of justice with eyes wide open. And that's a deep shame.
Monday, July 05, 2010
History of U.S. Executive Policy Since WWII
My first post focused on the most recent Nazi-looted art appeal in the United States, which was filed in the United States Court of Appeals for the Second Circuit. To put this appeal into context, an analysis of federal court cases adjudicating Nazi-looted art claims since 2004 demonstrates a de facto presumption against the legitimacy of these claims. I will lay out a summary of the other cases in question in my next (third) post.
This post will focus on the history of U.S. executive policy. Dismissing such claims without reference to the complex historical factors delaying assertion of owners’ claims violates foreign policy goals pursued by the United States and the Allies during and immediately after World War II, and in recent diplomatic breakthroughs in 1998, 2000, and 2009. This executive policy is the subject of this post. Historical context dating back to 1933 will be provided in my fourth post.
In the normal course of judicial administration touching on foreign policy, federal judges typically defer to determinations of policy matters by the executive branch. For example, in 1949 this Court ruled inadmissible the statements of a Jewish victim of Nazi persecution describing his brutal imprisonment by the Nazis that led him to “transfer” major assets under duress, on the ground that to do so would denigrate a foreign country. Bernstein v. N. V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d Cir. 1949). In 1952, however, as will be familiar to any international law professor, Jack B. Tate, Acting Legal Advisor in the Department of State, clarified:
[The U.S.] Government’s opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls . . . [and] the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.
26 Dept. St. Bull. 984-85 (1952) (the “Tate letter”). Once the Second Court was fully informed of the government’s views of coerced “transactions” during the Nazi era in Germany, it promptly reversed its previous ruling in the same case. Bernstein v. N.V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375, 376 (2d Cir. 1954).
U.S. diplomats led efforts to warn other countries against looting in the landmark London Declaration of January 5, 1943, 8 Dept. St. Bull. 21 (1952), which “declare[d] invalid any [coerced] transfers of, or dealings with, property . . . whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.” Immediately after the war, the Nuremberg Tribunal evaluated detailed evidence of coerced sales, and the plunder of art was declared a war crime and is so recognized today. At Nuremberg, it was perfectly clear to the fact finders who had done what and to whom. For example, Alfred Rosenberg, head of infamous Einsatzstab Reichsleiter Rosenberg (“ERR”) art looting unit, was convicted and sentenced to death by hanging.
Shortly thereafter in Bonn and Vienna it was equally clear that, in order to rejoin the human family, Germany and Austria had to repudiate all spurious “transactions” of the entire Nazi era, including art “deals” that were really seizures. E.g., Restitution of Identifiable Property; Law No. 59, 12 Fed. Reg. 7983 (Nov. 29, 1947) (Military Government Law 59). Thus, the model chosen was a restitution model for individual claims, and these claims were not subsumed in reparations paid after the war, which were limited as we made room for the Marshall Plan.
Current foreign policy requires deference like this Court gave to the Tate letter. Diplomats from the State Department, particularly Ambassador Stuart Eizenstat, played a leading role in securing public commitment by the forty-four nations that adopted the Washington Conference Principles on Nazi-Confiscated Art and the Terezín Declaration, which emerged from the international conference hosted by the Czech Republic in June 2009. These declarations call for effective, fact-based resolution of Nazi-looted art claims. Principle eleven of the Washington Principles encourages nations “to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.” The Terezín Declaration states in its principles under the heading “Nazi-Confiscated and Looted Art”:
3. . . . [W]e urge all stakeholders to ensure that their legal systems or alternative processes . . . facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law. (Emphasis added)
To give credit when due, this development in foreign policy was sparked in no small measure by Guidelines issued by the Association of American Museum Directors (“AAMD”) in June 1998. Thus, it is quite shocking that U.S. museums are asserting statute of limitations and laches defenses, often as plaintiffs, and distorting the historical record and law in the process.
My next post will lay out the progression of cases since the 2004 Altmann victory in the United States Supreme Court and subsequent restitution of the Gustav Klimt Adele Bloch-Buaer II, a portrait of a relative of the claimant formerly known as Austria’s Mona Lisa. This progression shows that federal courts do not seem to be giving Nazi-looted art cases the fair assessment they deserve.
Wednesday, May 26, 2010
Civil Law and the Law School Curriculum
Last week, I attended a meeting of Pacific McGeorge's International Board of Advisors. This group includes a number of judges and lawyers based outside the U.S. During one of the meetings, the discussion turned to the degree to which U.S. law schools provide students with exposure to Civil Law legal systems. It occurred to me that, unless a students registers for an international or comparative law course, that grounding might not occur.
After the meeting, I looked around for some short, well-written resources geared for those familiar with the common law. I found this resource, A Primer on the Civil Law System, by James G. Apple and Robert P. Deyling, on the Federal Judicial Center's website. It's an interesting read. I particularly like the material in the Appendices, which provide a nice contrast between the French and German Civil Law systems.
Thursday, March 18, 2010
The Geographic Reach of Federal Law...
Last week, I blogged about an amicus brief that Max Huffman and I are about to file. The amicus brief involves the issue of how courts should approach questions of legislative jurisdiction and the extraterritorial reach of federal laws (post here). I thought I would continue the conversation about extraterritoriality and note three excellent articles that were recently posted on SSRN. Jeff Meyer of Quinnipiac wrote the first article. Chimene Keitner at UC Hastings wrote the second. Anthony Colangelo of SMU wrote the third.
The issue of when U.S. laws reach conduct outside U.S. borders and the role territoriality should play in law remains a hot topic. The question of extraterritoriality has arisen in a number of recent high-profile cases. In December, the U.S. Supreme Court accepted certiorari in a "foreign-cubed" securities class action. Foreign-cubed securities actions are lawsuitsa key point of discussion in terrorism casesIntLawGrrls interesting posts
With this backdrop, three excellent articles were recently posted on SSRN. If you're interested in the topic of extraterritoriality, they are well worth reading....
The first article is by Jeffrey Meyer of Quinnipiac. His article -- Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law -- was posted last Friday on SSRN here. The article is well-written and nicely sets out the debates on how to interpret the geographic reach of U.S. law. Here's the abstract:
Scores of federal criminal and civil statutes are “geoambiguous” - they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly recites a “presumption against extraterritoriality” but just as often overlooks it and opts to apply geoambiguous law abroad. The Court’s inconsistency bespeaks a deep divide among scholars. Judicial unilateralists favor liberally imposing U.S. law abroad to respond to unwanted effects from foreign conduct. Judicial territorialists favor restraint and a return to traditional territoriality to avoid international conflict. And judicial interests-balancers favor multi-factored, case-by-case consideration of whether it is “reasonable” to apply geoambiguous law abroad.
This Article advances a new approach - a proposed rule of “dual illegality” to govern how courts apply geoambiguous laws. Under a dual illegality rule, U.S. courts should decline to apply geoambiguous laws to penalize or regulate conduct that occurs in the territory of a foreign state unless the same conduct is also illegal or similarly regulated by the law of the foreign territorial state. A similar rule of dual illegality has worked for many decades as a limitation in countless criminal extradition treaties. A dual illegality rule would revitalize traditional territoriality values as a limiting principle on U.S. assertion of its law abroad, while also allowing extraterritoriality when there is the least likelihood of provoking political dispute. The response to greater globalization should be less jurisdictional contestability and more reliance on rules that do not invite judges - as the rules wrongly do now - to engage in policy-like assessments of the needs or interests of the United States in having its law applied to activity abroad. Courts should apply a dual illegality rule to decide the scope of geoambiguous law.
John Knox of Wake Forest has a recent article in a similar vein, which is likewise excellent. The article -- Extraterritoriality and Its Discontents: Limiting the Reach of U.S. Law - can be found here.
The second article -- Rights Beyond Borders -- was written by Chimene Keitner from UC Hastings. Although originally posted a year ago, a new revised version was posted on SSRN just last week and can be found here. Chimene's article focuses on the when constitutional rights apply in the context of detention and interrogation of terrorism suspects. Here's the abstract:
Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights provisions, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s action outside the national territory, even vis-à-vis its own citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her citizenship and/or presence within the national territory. Conscience-based reasoning focuses on the government’s limited mandate to act solely in accordance with a prescribed set of national values in all locations and circumstances. Part II examines the evolving jurisprudence of extraterritorial rights in three common law jurisdictions in light of these models: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. These three categories (country, compact, and conscience) provide a vocabulary for describing how domestic courts reason about the extraterritorial application of domestic rights in particular circumstances. They can also help us think more systematically about how courts and other actors should reason about rights beyond borders, as governments bring their coercive power to bear on individuals in a variety of extraterritorial circumstances.
The last article -- The Foreign Commerce Clause -- was written by Anthony Colangelo and will soon appear in the Virginia Law Review. Here's the abstract:
This Article is the first major scholarly work to comprehensively address Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s power. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and offers a doctrinally and conceptually sound approach to the Clause based on the text, structure and history of the Constitution. It also engages broader legal and policy questions triggered by the Clause. As I show, the Clause is crucial to how Congress constitutionally may project U.S. law around the world.
The Article advances two key limits on Congress’s foreign commerce power and reformats the Supreme Court’s three-category commerce framework for the Clause in light of these limits. The first is the nexus requirement, which derives from the Constitution’s grant of power only to regulate commerce “with foreign Nations,” not a general, global power to regulate commerce “among foreign Nations.” Foreign commerce that is the subject of federal regulation therefore not only must be “with” foreign nations, but also “with” the United States. That is, there must be a U.S. nexus. The second limit I refer to as the foreign sovereignty concern. It holds that Congress has no more power and, in some contexts, has less power to regulate inside foreign nations under the Foreign Commerce Clause than it has inside the several U.S. states under the Interstate Commerce Clause. For example, Congress cannot create comprehensive global regulatory schemes over international markets or prevent races to the bottom among the world’s nations the same way it can create comprehensive national regulatory schemes over domestic markets and prevent races to the bottom among the states. Because Congress lacks primary authority to create such global schemes, it cannot claim a derivative authority to reach local foreign conduct that threatens to undercut those schemes the same way it can reach local intrastate conduct in order to effectuate regulation “among the several States.”
Saturday, March 06, 2010
Amicus Brief - Cert Petition: Legislative Jurisdiction/Extraterritoriality
First, thanks to Dan for inviting me back to Prawfs. This is my third stint, and it's good to be back. I wanted to begin by reaching out to law professors who might be interesting in signing on to a amicus brief in support of a petition for writ of certiorari. Max Huffman (Indiana) and I are writing an amicus brief in the case British American Tobacco v. United States. The cert. petition is part of a massive case brought by the U.S. against the tobacco companies. Various cert. petitions have been filed, including a government petition seeking recovery of a $280 billion disgorgement award. Details about the underlying case can be found on SCOTUSblog.
The amicus brief that we are writing is on a narrow issue focused on how a court should interpret the geographic reach of federal law (the extraterritoriality question). The brief is being submitted to encourage the Court to grant certiorari and review the decision of the D.C. Circuit. The brief clarifies the history and application of the effects test and shows how that history bears upon the proper interpretation of whether Congress intended a statute to reach extraterritorial conduct. The brief does not take a position on the underlying merits: the federal government's use of RICO to prevent and restrain an alleged scheme to deceive American consumers about the health risks of smoking.
If you are a law professor who would consider signing on to the amicus brief, please email me at email@example.com, and I can send you a draft. A draft will be completed Monday, and we hope to finalize within the next week or so (it's on a tight filing deadline). Because the effects test applies in a number of contexts (antitrust, securities, trademark, labor law, environmental law, criminal law etc.), the D.C. Circuit's decision, if left to stand, could have far-reaching implications. Legal commentators have also lamented the doctrinal incoherence in how courts approach legislative jurisdiction. This would be a good opportunity for the Court to clarify what is now a confused area of law. More information about the case and the amicus brief is included below.
The petitioner's cert petition implicates the question of whether RICO applies to the overseas conduct of foreign corporations. The D.C. Circuit did not directly address whether Congress intended RICO to apply extraterritorially -- an issue on which the lower courts are divided. Instead, it found: (1) that when domestic effects are felt in the United States, regulation of foreign conduct of a foreign corporation does not implicate extraterritorial jurisdiction; and (2) that it need not decide whether RICO applies extraterritorially so long as the foreign conduct has substantial effects in the United States. Because the D.C. Circuit found a domestic effect, it presumed that Congress intended RICO to regulate abroad. The case raises interesting questions about the role of the presumption against extraterritoriality and the effects test. It implicates at least a three-way circuit split on how the courts determine legislative (prescriptive jurisdiction).
The amicus brief attempts to show how the D.C. Circuit's opinion has added confusion to the existing circuit split. It also suggests that the D.C. Circuit erred by disregarding the presumption against extraterritoriality. The brief argues that the effects test sets the outer limits, under international law, of Congress's legislative jurisdiction, but does not serve as a canon of construction that overrides the presumption against extraterritoriality. The brief highlights how assuming legislation applies extraterritoriality can cause harm and undermine the meaningful development of international law.
Max Huffman and I have previously written about these issues. Max's excellent article on the Foreign Trade Antitrust Improvements Act can be found here. I have written two pieces on international law, the effects test, and extraterroriality. They can be found here and here.
Tuesday, October 20, 2009
The Supreme Court of the United KingdomThis 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.)
Wednesday, September 30, 2009
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.
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.
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.
Saturday, September 26, 2009
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.
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)).
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.
Friday, September 18, 2009
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.
Tuesday, September 15, 2009
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.
Friday, September 11, 2009
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.
Thursday, September 10, 2009
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.