Monday, December 27, 2004

Conservative Change of Heart over Kyoto?

The Becker-Posner blog has recently been discussing environmental policy and it should be noted that they are espousing some beliefs that are becoming more and more prominent in the conservative world. More specifically, both Posner and Becker argue that there is enough evidence that global warming is proceeding that governments need to take preemptive measures. They diverge in their opinion as to what these measures should be (Posner specifically endorsing the Kyoto Protocol).

I think this is a common change of heart that has not been recognized either by the Bush Administration or conservatives more generally. Essentially the thought process seems to be one that argues that the risks of global catastrophes tied to global warming are too severe to ignore, despite the fact that the probablity of their occurrence is difficult to gauge.

Now maybe the debate can shift to where I believe it should've been for quite Kyoto and other international environmental treaties can be made more effective and efficient.

Friday, December 17, 2004

The reform of the Italian judicial sytem

The reform of the judicial system, as suggested by Berlusconi's govenment, has failed. The bill, which was approved by the parliament few weeks ago, was rejected by the President of the Republic, Carlo Azeglio Ciampi. This is a great news for all the liberals that did not want the increase of the excutive control over the judiciary. Now, the parliament will have to undergo a long procedure of amendment before it could vote again.

Thursday, December 16, 2004

Human Rights and Terrorism in the UK

The House of Lords, in a recent decision, renews its age old committment to the freedom from arbitrary arrest and detention, which goes back to the Habeas Corpus. This is already widely considered as one of the most important decisions since the recent enactment of the Human Rights Act 1998.

UPDATE: Just to add to Lorenzo's post above [this is Scott], clearly this Lords decision has the potential to impact the Guantanamo cases here...especially if more articles touting Belmarsh as "Britain's Guantanamo".

It strikes me that the actual detentions have not upset international opinion as much as the allegations and insinuations of torture present in the "Britain's Guantanmo" article from the BBCabove as well as U.S. detainees like Hicks. The best evidence of this may be the lack of furor over French "detainees" (assuming detainee only means "someone detained") that a Washington Post article in November uncovered. According to the article:
In many countries of Europe, former inmates of the U.S. military prison at Guantanamo Bay, Cuba, have been relishing their freedom. In Spain, Denmark and Britain, recently released detainees have railed in public about their treatment at Guantanamo, winning sympathy from local politicians and newspapers. In Sweden, the government has agreed to help one Guantanamo veteran sue his American captors for damages.

Not so in France, where four prisoners from the U.S. naval base were arrested as soon as they arrived home in July, and haven't been heard from since. Under French law, they could remain locked up for as long as three years while authorities decide whether to put them on trial -- a legal limbo that their attorneys charge is not much different than what they faced at Guantanamo.

Armed with some of the strictest anti-terrorism laws and policies in Europe, the French government has aggressively targeted Islamic radicals and other people deemed a potential terrorist threat. While other Western countries debate the proper balance between security and individual rights, France has experienced scant public dissent over tactics that would be controversial, if not illegal, in the United States and some other countries.

Wednesday, December 15, 2004

Are human rights groups like having "the one-legged kid at school" being your grade school soccer team star?

The infamous Glenn Reynolds (aka InstaPundit) has struck again. Is he InstaIgnorance (as Brian Leiter insists) or does he have a point? Here's a shortened version of a reaction to Reynolds' Fox News article on international law and whether international law is being harmed by obtuse rhetoric or is an all purpose tool of Anti-Americanism in 2002. Sadly, my correspondent wishes to remain anonymous. So for our purposes, we will call him Anonyman. To save space, some messages are combined.

The Fox piece] is half-baked ignorance.

Well...he's not an international law guy...and honestly, don't you think he just articulated what a LOT of people are thinking but not saying?

As a constitutional lawyer he should appreciate that law should not follow the whim of the most powerful, that it's a restraint of power etc. I admit that Amnesty and Mary Robinson (most boring woman i've ever seen) are annoying, and diverting, and it's like having the one-legged kid at school being your football squad star, but it's a pretty big leap from 'international law may be weakened because it's got an image crisis becasue of advocates who don't know what they're talking about', to 'international law is a body of rules that serve the interests of civilized nations, and you're trying to turn it into an all-purpose tool of anti-Americanism'. Point one: international law is not there to 'serve the interests of civilized nations'. (Civilized nations, are you joking!? That's colonial talk, which international law jettisoned half a century ago!
The ICJ statute referral to general principles recognised by civilised nations is a curiosity of its time, and longer effective.)

I see your point, but I think that your tirade is aimed at the uninteresting portion of the piece. Civilized nations, uncivilized nations...I agree with you. But I think the interesting (and as of yet unaddressed point) is this: "the overuse of international-law rhetoric may be damaging international law itself." Since international law is, by nature, a bit amorphous, when organizations and nations speak on international law and say doltish things, they can't help but weaken the body of law itself. As far as it being a tool of anti-Americanism, I agree only in the sense that it is natural and observed historically over and over, that those that benefit most from international law (and its principles) use it most (a la the U.S. in the late 18th century and early 19th century), while those constrained by it use it least.

Tuesday, December 14, 2004

European Intelligence

Reading about the US attempt to reform its intelligence, made me think that the first thing that Europe would need in order to be a serious counter power in international politics is precisely a common intelligence. This comes before the very idea of a European foreign affairs policy.

Monday, December 13, 2004

Complete Geek Synergy: Lord of the Rings and EU Security

More than a customary cup of coffee, a column by Victor Davis Hansen, a fellow at the Hoover Institution, comparing modern Europe and the Ents (of Lord of the Rings fame) jolted me out of my morning lethargy (tip to Jim Lindgren at the Conspiracy). Beyond the innately interesting analogy, if you take out the negative connotations associated with the idea that Europe is excessively insulated from outside threat it seems to remind us of an obvious idea. Europe has the means to wield extraordinary military just currently lacks the will. Would a single terrorist attack akin to 9/11 create such will? I'm not certain, but my guess is no. First, no EU nation (with the possible exception of the UK) has enough military power to effectively project that power over great distances. Second, would Europe (or a single European nation) be able to utilize a substantial, efficient military complex? A single nation would be forced to expend much political will against other European powers to deploy its national military with any great effect, and the EU is far from possessing any singular foreign policy that would be enable it to move with any efficiency against a non-state threat.

Anyway...judge for yourself. An exerpt below:

One of the many wondrous peoples that poured forth from the rich imagination of the late J. R. R. Tolkien were the Ents. These tree-like creatures, agonizingly slow and covered with mossy bark, nursed themselves on tales of past glory while their numbers dwindled in their isolation. Unable to reproduce themselves or to fathom the evil outside their peaceful forest — and careful to keep to themselves and avoid reacting to provocation of the tree-cutters and forest burners — they assumed they would be given a pass from the upheavals of Middle Earth. But with the sudden arrival of two volatile hobbits, the nearby evils of timber-cutting, industrial devilry, and mass murder became too much for the Ents to stomach. They finally "wake up" (literally). Then they go on the offensive — and are amazed at the power they still wield in destroying Saruman's empire. . . .

More specifically, does the Ents analogy work for present-day Europe? Before you laugh at the silly comparison, remember that the Western military tradition is European. Today the continent is unarmed and weak, but deep within its collective mind and spirit still reside the ability to field technologically sophisticated and highly disciplined forces--if it were ever to really feel threatened. One murder began to arouse the Dutch; what would 3,000 dead and a toppled Eiffel Tower do to the French? Or how would the Italians take to a plane stuck into the dome of St. Peter? We are nursed now on the spectacle of Iranian mullahs, with their bought weapons and foreign-produced oil wealth, humiliating a convoy of European delegates begging and cajoling them not to make bombs--or at least to point what bombs they make at Israel and not at Berlin or Paris. But it was not always the case, and may not always be. The Netherlands was a litmus test for Europe. Unlike Spain or Greece, which had historical grievances against Islam, the Dutch were the avatars of the new liberal Europe, without historical baggage. They were eager to unshackle Europe from the Church, from its class and gender constraints, and from any whiff of its racist or colonialist past. True, for a variety of reasons, Amsterdam may be a case study of how wrong Rousseau was about natural man, but for a Muslim immigrant the country was about as hospitable a foreign host as one can imagine. Thus, it was far safer for radical Islamic fascists to damn the West openly from a mosque in Rotterdam than for a moderate Christian to quietly worship in a church in Saudi Arabia, Iran, or Algeria. And yet we learn not just that the Netherlands has fostered a radical sect of Muslims who will kill and bomb, but, far more importantly, that they will do so after years of residency among, and indeed in utter contempt of, their Western hosts. . . .

So will the old Ents awaken, or will they slumber on, muttering nonsense to themselves, lost in past grandeur and utterly clueless about the dangers on their borders?

Art note of the month...

New York is brimming with art and artists. But if I may say so (and I may...she's my wife) I'm rather partial to the work of Margot Herster, whose work is in the Nan Goldin / Elinor Carrucci / Laura Letinsky genre.

Friday, December 10, 2004

More tea leaves on U.S. court recognition of international law

The Supreme Court of the United States (SCOTUS) has agreed to hear another Vienna international law death penalty case. The astonishing thing to me about this is why they've agreed to hear essentially the same case they heard in LeGrand and Breard. SCOTUS is not known for wanting to decide the same issues over and over again...or in some cases, AVOIDING the same issue over and over again.

I'm not an avid follower of the Court, but I think the grant of certiorari here is an indicator that the more liberal wing of the court is angling for more formalized recognition of international law in their decision making. If this is their motive, they almost can't lose. Either the Court says the that U.S. does NOT have to follow the rulings of the ICJ and international law (which would mean, among other things, a change in procedural rules) or it does. It is unlikely the court will render a holding that can avoids these and the implied customary international law issues. There would be no point in granting cert. In the context of the Court's recent use of international law citations, even a full discussion of the customary international law issues will be seen as a victory for its advocates, even if the ultimate outcome is not to their liking.

Expect a vicious Scalia dissent outlining his resistance to ANY use of international law citations as well. Should be good, clean law fun.

Thursday, December 09, 2004

When does the EU get (lose?) a seat on the UN Security Council?

The EU has struggled mightily to try and get its member states to get in line behind a coherent, "single foreign policy". Obviously, we are a long way from seeing a EU where the member states do not have substantial policy differences, but I think the more moderate goal of having a singular foreign policy on MAJOR issues at least is much closer.

The proposed EU Constitution strengthens the notion that the EU desires to speak with one voice in major foreign affairs issues. The proposed EU Constitution seeks to strengthen the EU Foreign Affairs minister and provide accountability of that position to the European Parliament. Under the proposed constitution the foreign minister would be appointed by the European Council and approved by the Commission President.

Assuming the EU is successful in creating foreign policy coherence amongst its members, the question to the rest of the world (and obviously the U.S.) is when (not if) the French and British seats are merged into a single EU seat on the UN Security Council. What degree of foreign policy coherence is needed, and would one less Security Council seat be an obstacle in creating such foreign policy coherence. Obviously, the British and French would be opposed to this, but it is likely that the other member states (especially in Eastern Europe) would be interested in having an EU rep to the Security Council.

Wednesday, December 08, 2004

We all have addictions...right?

Neil McDonald has alerted me to this startling account of one parent trying to break his child from a fruitless addiction to the U.S. Supreme Court.

Article V Tribunals

The administration's entire premise of denying detainees an Article V tribunal under the Geneva Conventions rests on a presidential determination that there is no "doubt" as to their status as enemy combatants rather than POWs. The legal cohesiveness of this position rests on whether the president has the power to categorically strip the "doubt" from a detainee's capture. Under now AG Alberto Gonzalez's view, the president has the power to interpret treaties (true), but does this interpretive power enable him to to effectively become a fact-finder in place of a properly constituted tribunal? This seems unlikely.

The categorization proposed by Gonzalez is that whomever is an Al Qaida or Taliban soldier is not a POW. A problem with this formulation is that whether an individual is an Al Qaida or Taliban soldier is by its very nature question of fact, not law. As such, we fall back into Article V's sticky "doubt" language. (Which, I imagine in the view of the treaty framers, is not by accident.)

In fact, during the 1991 Persian Gulf War, the Army Army conducted over 1,200 (p. 578 of the linked report, p. 663 of the pdf) Article V tribunals!! An Army Manual even provides a transcript (Appendix F of link) for a convened tribunal to follow. Why are such tribunals (a way the administration could easily add at least procedural legitimacy) continuing to be tossed aside?

Tuesday, December 07, 2004

Welcome to the TransAtlantic Assembly

Today marks the beginning of the work of the TransAtlantic Assembly Blog! The mission of this blog is to participate in blogger pooling of knowledge in a new way...a TransAtlantic way. By pooling the thoughts and resources of U.S. and European (to this date, Italian and a Scot, with more to follow) legal academics and practicioners, we hope to facilitate the communication of legal ideas and perspectives on current events and foreign affairs. In the process, I know that my co-bloggers will provide our readers with exceptional imaginative thought, insight, and humor.

We also intend to act as a clearinghouse for other interesting legal blogging activity. As such, we will provide a daily link to many of the headline posts of leading legal blogs like Instapundit, How Appealing, the Volokh Conspiracy and others (who knows, maybe even the Becker-Posner blog, but first they gotta prove themselves!).

As is the case in most blogs, each co-blogger is responsible for his own content and is free to write about whatever they like. (And in the case of the British to substitute "sed" for "zed" in words such as "realized").

The talk is over...let's begin!