Category: International & Comparative Law

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ECHR on Diplomatic Assurances

Belated greetings to the CoOp community and thanks to Sarah Waldeck for enabling this opportunity to blog for what is left of January. I had hoped to post initially from Jordan, where I was visiting in January as a consultant for the American Bar Association’s Rule of Law Initiative (ABA ROLI), but the ABA’s regulations do not permit me to blog about the specific people or organizations that I met with during my visit.  I am still seeking clarification on the boundaries between specific information and general impressions, so for the moment I will keep my comments to the public record.  The following reflects my personal judgment only and is not based in any way on information disclosed in meetings held in my recent trip.

For my initial post, I want to set down some thoughts about the decision last week by the European Court of Human Rights in the case of Othman (Abu Qatada) v. United Kingdom, a decision effectively prohibiting the U.K. from deporting to Jordan a Islamist cleric who is currently being held in England without charge (and at least in part on the basis of secret evidence) and who has previously been convicted in absentia on terrorism charges in Jordan.

Though Jordan originally requested Othman’s extradition, it appears that the current litigation arises from the U. K.’s desire to deport him from England on national security grounds, rather than try him on terrorism charges.

The ECHR’s decision involved two main holdings:  first, that diplomatic assurances transmitted via a memorandum of understanding (MOU) between the United Kingdom and Jordan are sufficient to overcome the likelihood (based on Jordan’s human rights record) that Othman would be tortured if he were returned to Jordan to face trial on terrorism charges; second, that the U.K. would be violate Othman’s human rights nonetheless if it deported him to Jordan because evidence derived from torture would likely be used against in any trial.  My comments here focus mainly on the assurances part of the holding.

It should first be noted that the ECHR has firmly established the principle of judicial review of diplomatic assurances.   This in itself puts the European system far ahead of the United States, in which diplomatic assurances are regarded as the province solely of the executive.   See Report by Columbia Law School Human Rights Institute, Promises to Keep:  Diplomatic Assurances in U.S. Terrorism Transfers (Dec. 2010).  The ECHR initially began reviewing diplomatic assurances in cases involving the death penalty.  Its review of diplomatic assurances in terrorism cases began in the wake of revelations in 2004-2005 that, despite assurances to the contrary, Egypt had tortured two terrorism suspects transferred by Sweden, with assistance from the U.S., after rejecting their requests for asylum.  Human rights NGO’s and UN bodies have generally opposed the use of diplomatic assurances, but political consensus within Europe has split over the question whether assurances can be meaningfully regulated, or whether their use should be rejected outright.

Human rights’ NGO’s Amnesty International’s counterterrorism expert Julia Hall called the diplomatic assurances part of the Othman holding “an alarming setback for human rights” and said the decision as a whole was “a case of one step forward, two steps back.”

This I think overstates the extent to which the decision represents something qualitatively new in terms of the Court’s jurisprudence.  As a general matter, the standard used in Othman was set out in an earlier case, Saadi v. Italy (2008), in which the Court rejected assurances from Tunisia that terrorism suspects convicted in abstensia would not be tortured if returned to Tunisia, on the grounds that the assurances given by Tunisia were brief and formulaic and lacked any post-return monitoring system. The Court found that it had the obligation to review the “practical application” of the assurances and outlined a case-by-case approach in which the weight given to the diplomatic assurances depends “on the circumstances obtaining at the material time.” Saadi, para. 148. Subsequent decisions by the ECHR (more than a dozen) have identified particular factors to be considered, such as the national security profile of the individual involved, the availability of post-transfer monitoring, the specificity of the assurances in prohibiting torture, and the receiving country’s general human rights record with respect to torture.  The Court sets out these factors in Othman (para. 189), without indicating any relative weighting among them.  (For an overview of the case law, see Note (Alice Izumo), Diplomatic Assurances Against Torture and Ill-Treatment: European Court of Human Rights Jurisprudence, 42 Colum. Hum. Rgts. L. Rev. 233, 256-273 (2010)).  In at least one earlier case – Gasayev v. Spain (2009)– the court appears to have  found that diplomatic assurances from a country with a poor human rights record on torture (Russia) mitigated the risk involved in transfer, when the assurances specifically stated that international standards would be met and that diplomats from the transferring state would be able to monitor the post-transfer treatment of the detainee. (For some reason, I cannot pull up this case in the ECHR database of cases, but the Court cites it several times in setting out the factors to be considered in evaluating assurances.  Othman, para. 189 (vi), (viii), (xi)). Significantly, Othman, represented by Gareth Peirce, did not stake out a position that diplomatic assurances could in no case be adequate to mitigate the risk of torture, but he did argue that satisfactory standards would be met only in cases where 1) systemic torture had been brought under control and 2) if isolated acts of torture continue, there is an independent monitoring body with proven effectiveness and criminal sanctions against torture.  Othman, para. 168.

What seems to be emerging in the ECHR’s jurisprudence on diplomatic assurances is the requirement that, where a receiving state has a record of systematic torture, assurances must include a monitoring system. Jordan’s dismal record on torture has been the subject of numerous NGO and UN body reports, and the Court agreed with the parties that, “without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan.”  Othman, para. 192. Several factors convinced the Court that the MOU would, in effect, rebut the presumption that Othman would be tortured if returned to Jordan.  The Court found the MOU in the Othman case to be particularly strong.  Indeed, the Court stated that the Jordan-U.K. MOU is “superior in both its detail and its formality to any assurances which the Court has previously examined.”  Othman, para. 194.  More importantly, the MOU provided for a monitoring system, and the Court also examined its terms of reference.  The Othman decision also makes much of the strength of the diplomatic ties between Jordan and the U.K. and the apparent political will in Jordan to fulfill the conditions in the MOU.

In my next post, I will look at the details of the monitoring agreement in more detail and evaluate whether the general and specific objections of human rights NGO’s have been persuasively addressed by the Court.

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Stanford Law Review Online: The Iraq War, the Next War, and the Future of the Fat Man

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.

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Stanford Law Review Online: Don’t Break the Internet

Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

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Post-Soviet Russia: Just Like 15th Century England?

Yesterday I noted that I would blog a bit this month about the rule of law in Russia.  Today’s Wall Street Journal carries a front-page feature article by Guy Chazan that offers a rare look into the world of Russia’s oligarchs.  I’m interested in the fate of Mikhail Khodorkovsky, once Russia’s richest man, now its most famous prisoner.  Chazan’s story focuses on two more oligarchs: Boris Berezovsky and Roman Abramovich.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, they relied on its weakness to amass their wealth.

Now that those empires need protecting, however, it is to law that the oligarchs turn.  Berezovsky, once the éminence grise behind Boris Yeltsin, now lives in luxurious self-imposed exile in London.  The WSJ reports that he is worth about $750 million.  Abramovich owns the Chelsea Football Club and the world’s largest yacht; his worth is estimated at about $16.5 billion.  Berezovsky has sued Abramovich for $6 billion, alleging that the latter violated oral agreements about various oil and metal companies in Russia.  Berezovsky claims he left his stake in them in Abramovich’s hands after he fled to London to escape the wrath of then President Vladimir Putin.

According to Abramovich’s attorney, Jonathan Sumption, there is nothing to this claim.  The dispute arose, he says, in a “society without law,” and the deal the two men made was itself “corrupt.”  That might seem like a strange legal defense but, as Sumption continued, “the reality was that that was how business was done in Russia at the time.” 

The case is being heard at London’s High Court.  To help the judge understand the millieu in which the oligarchs did business, Sumption told the court: “In our own national experience, we have to go back to the 15th century to find anything remotely comparable.” 

Maybe.  But the average Russian citizen observing this legal squabble might note that 15th century England had something that 21st century Russia lacks: Robin Hood.

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The Importance of Sustained Dialogue

In an important post on the UK based blog “Insight on Conflict,” former US Ambassador to the UN and former New Mexico Governor Bill Richardson, together with two leaders in peacebuilding NGOs (Melanie Greenberg, President and CEO of the Alliance for Peacebuilding and Derek Brown, Executive Director of the Peace Appeal Foundation) highlight the importance of genuine, sustained and supported dialogue to peacebuilding efforts globally.  While the blog celebrates the three distinguished recipients of Friday’s Nobel Peace prize, it also calls attention to the difficulties to current legal contraints to this work in the US, which last year’s decision of the Supreme Court’s in Holder vs. Humanitarian Law Project made all the more cumbersome in creating obstacles for individuals and institutions involved in peace building work. This is an important issue that should get more attention.

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Our Exceptional Constitution

Scholars have long debated the extent to which the U.S. Constitution has influenced constitution-making and constitutional interpretation abroad.  David Law (Washington University) and Mila Versteeg (Virginia) have recently posted an interesting empirical study of the extraterritorial influence of the U.S. Constitution, entitled “The Declining Influence of the United States Constitution.”   I recommend it to anyone interested in comparative constitutionalism and formal constitutional modeling.  

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global mainstream, both in the sense that it contains provisions not found in most constitutions (i.e., a right to bear arms, a formal separation of church and state) and in the sense that its Bill of Rights does not contain what the authors refer to as a developing “generic component” of constitutional rights (the existence of which casts some doubt on the notion that constitutions are strongly expressive instruments).  Lack of formal modeling is only one datum concerning the declining influence of the Bill of Rights.  Many commentators have argued that the Supreme Court’s reluctance to cite or rely upon foreign legal and constitutional sources may be diminishing the global influence and appeal of American constitutional jurisprudence and norms.  

Insofar as countries still look to the U.S. as an example, Law and Versteeg conclude that it is likely not to imitate but rather to avoid the Constitution’s perceived flaws.  Although there is no emergent global model, the authors conclude that at least with respect to nations sharing an Anglo-American legal tradition, Canada’s constitution has become far more influential than the U.S. Constitution.  The causes for the decline of U.S. constitutionalism are varied.  The authors point to several possible factors, including the rise of a superior model, a “general decline of American hegemony,” “judicial parochialism,” the “obsolescence” of the U.S. Constitution, and America’s exceptionalist creed.   

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The PRC Celebrates Its 62nd Birthday

Seeing as I spend a great deal of time thinking, talking, and writing about China, it seems fitting that my first day guest blogging coincides with the National Day of the People’s Republic of China. The celebration got off to an early start with the launch of China’s first space lab module, called Heavenly Palace No. 1 (discussed here on New Yorker correspondent Evan Osnos’s excellent blog). Today, the festivities turned to Beijing where the leaders of the Communist Party of China (CPC) are celebrating 62 years of uninterrupted rule. As election season heats up here in the United States, the DNC and RNC understandably could be envious at the prospect of not having to deal with a multi-party system.

Although CPC rule has been consistent over six decades, the experience of the individual leaders in Zhongnanhai (the headquarters near Tiananmen Square in Beijing) has been much more complicated as they jockey for power behind the scenes. The public face is one of orderly transition on a periodic basis, as seen in the handing of power from the third-generation leaders (led by Jiang Zemin) to fourth-generation leaders in the early 2000s (led by Hu Jintao) and, as currently playing out, to the fifth-generation leaders. As was on display today, in public, the top guys (and they are all still guys) wear the same suits and even have near identical haircuts and hair-dye. Yet much speculation is afoot about the future composition of and hierarchy within the Politburo and, at the pinnacle of power, the Politburo Standing Committee.

Xi Jinping is the overwhelming frontrunner for the top post, with Li Keqiang looking to be in the number two spot. Interestingly, Li was one of the first students to study law at Peking University after schools reopened following the end of the Cultural Revolution. Li was never a practicing lawyer, but even having studied law sets him apart as unusual in China’s leadership. There’s been little indication that Li will be a champion of legal reforms once the leadership transition is complete. Nonetheless, his ascent raises questions whether people with legal backgrounds are poised to take a more conspicuous role in the Party/government.

 

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Super on Egypt and the Need for the U.S. to Use its Leverage to Secure Democracy

In a follow up to earlier commentary, Professor David Super has an insightful and important editorial in the Los Angeles Times entitled Time for the U.S. to Use its Leverage with Egypt.  As Super explains, the Egyptian revolution is not a one-act play–indeed, its fate is uncertain and the U.S. can and must play a crucial role in securing democracy by telling the new ruling generals that further crackdowns on peaceful demonstrators will bring an immediate interruption in all aid.  See the editorial below the fold. Read More

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What is a treaty? Is that the right question?

(Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here.  (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.) Read More

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Critical Jewish Studies?

The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn’t an accident — I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming — could it get any more cliched?) — it was a virtual dead-end. Even Professor Feldman’s work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

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