Category: International & Comparative Law


The Pitfalls of Punishment

Thank you for the opportunity to join Concurring Opinions as a guest blogger for this month.

At the risk of repetition, I would like to continue the conversation begun by Dan and Deven about the recent execution of Saddam Hussein.

Dan has described his discomfort with his reaction to the imposition of the death penalty on Saddam. Indeed, as the New York Times has noted, the death penalty has been a sticking point for potential supporters of the tribunal, both in other countries and in international organizations. The cold shoulder given to the Iraqi court by much of the world has undermined the tribunal’s status as an exemplar of the increasing turn toward legal accountability for mass crimes.

Nevertheless, the furor over the imposition of the death penalty in the Iraqi case masks a greater systemic problem with international criminal law. While the applicable law and procedure of the field have been greatly clarified in the past decade, the appropriate punishment for transgressions of its norms remains an incoherent morass.

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Sadaam Executed. Should We Care?

I think a lot about capital punishment, but I still haven’t figured out what to think about the (apparently completed) execution of Sadaam Hussein. Although I am deeply troubled by the use of capital punishment in the United States, and have questions whether any system can consistently offer the assurances of fairness and accuracy commensurate with the sanction, I do not oppose the death penalty categorically. If the death penalty is appropriate, it seems to me that one must feel confident that the target is actually guilty, that he received a fair trial, and that he is culpable at the highest moral and practical level for the most serious crimes. When it comes to Sadaam, there is little doubt (as far as I can tell) that he is guilty of facilitiating mass killings. I don’t know whether he received a fair trial and I don’t know enough about him personally to know whether he is morally culpable on an individual level – although he doesn’t appear to have much claim to most of the mitigators surfacing in a typical U.S. capital sentencing. At the end of the day, I don’t have much sympathy for the guy.

So should I care if he is executed? Perhaps I should not only care, but be pleased. On some level, this sentence – which unlike most death sentences in the U.S., will actually be noticed both by the people we hope to reassure and those we hope to deter – communicates a fair amount about society’s view of his conduct. In that sense, this outcome is probably better than having troops kill him while he was huddled in a bunker. And it is surely better for the U.S. that he be executed after an Iraqi trial, and by Iraqis, rather than through a U.S. military tribunal.

Maybe I shouldn’t care, even if the penalty is wrong because these sanctions aren’t ours to distribute. But that can’t be quite right, since the current Iraqi regime is (at least partially) an American creation. And if the death penalty is unjustifiable murder, if I truly believed that to be true in all cases, I would have to be upset and angry, and probably feel compelled to take at least some small action in opposition.

I can’t quite get to the bottom of my own emotions. The process seems like slow motion, a bit, though it is far faster than any American death penalty. (Isn’t that oxymoronic? The American process is so slow that it doesn’t even look like motion. In the end, the execution feels little different from a premeditated killing precisely because it is not part of a continuing, visible, inevitable process that leads directly to execution. Here, however, the process is swift enough that we can watch it unfold slowly before our eyes.) I fear that it will have negative political repercussions. I fear that it will reopen wounds that should stay closed, or close wounds that demand further inspection and investigation. I fear that the comfortable use of death in this case will reassure some people that the death penalty is appropriate for more mundane crimes.

But I don’t feel much pity. And I don’t feel a sense of injustice. So in some awful sense, I don’t care much at all. And there’s the rub. I deeply dislike the idea that the intentional killing of another human being would not generate deep discomfort in me. I seem to have found out why I don’t oppose the death penalty categorically. But I’m not sure I’m proud of the insight.


Further Studies of Bilateral Free Trade Agreements Needed

As Larry Helfer writes, the United States has “regime shifted” in international trade, moving from the multilateral, global negotiations in the WTO, where liberalizing trade has stalled, to bilateral or regional agreements. These agreements have received insufficient attention.

In a recent paper written as part of a symposium in honor of Margaret Jane Radin, I offer one example of how we might approach such studies. In the paper, “Exporting DMCA Lockouts,” I compare anti-circumvention provisions in all of the post-DMCA FTAs. To do this, I ran dozens of blacklines, comparing those provisions in various FTAs with each other. This comparative approach revealed a significant amount about the negotiating position of the United States, viz., what aspects of these provisions on which the U.S. would be flexible. Such an approach provides information not only for other potential FTA counterparties, but also demonstrates the extent of our commitment to largely not budge from very strong anti-circumvention rules.

The amount of material for future scholarship in such an approach is quite large. Many aspects of human endeavors are affected by these FTAs–which bind not only our trading partners, but ourselves. Thus, there is a large need for academic inquiry into what these FTAs require.

Here’s my abstract for the paper, which can be downloaded here.

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Pay the Poor to Be Citizens

money.jpgA colleague suggests that there might be a relationship between a series of seemingly random observations:

  • A sudanese cell-phone billionaire announced a prize for good governance, to be awarded to current African leaders when they step down from office. According to news reports, “each leader awarded the prize will receive $5 million spread over 10 years after leaving office. If still alive when the initial prize is exhausted, prize-winners will receive another $200,000 annually until they die.”
  • The Arizona Voter Reward Act, which would establish a $1,000,000 prize whose proceeds would go to a randomly-selected voter, is on November 7th’s ballot. The state’s Chamber of Commerce is opposed: Harvard’s Info/Law project is more open minded. Most think the law would be plainly illegal preempted by federal law even if passed.
  • Jury pay rates are embarassingly low, if meant to be compensatory. Some jurisdictions are funding pilot projects to study if pay raises will increase compliance with jury service.

Here is the question for debate: is there any meaningful way to distinguish the African prize (which many legal commentators no doubt would celebrate) from the voting and jury service problems? Or, more provocatively, are the powerful the only people who we will allow to make money from being good citizens?

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A Review of UN Secretary Generals Past


I have copied here the Wikipedia entry reviewing the history of the UN Secretary General post.

The Security Council has just selected South Korean Ban Ki-Moon for the post of UN Secretary General–the leader of both the free and unfree world.

As the chart shows, the post has moved fitfully between continents.

Early on in the deliberations, many agreed that it was now Asia’s turn. However, U.S. Acting Ambassador John Bolton argued that the job should go to the best qualified candidate regardless of nationality. The United States ultimately agreed to the selection of an Asian SG, albeit one from a historic American ally. One hopes that, when it is North America’s turn, the United States will remember its earlier preference for a wholly merits-based approach. Who knows? The best person for the job then might be an African, a European, or an Asian.


‘See At Least One Subtitled Movie A Month’

See at least one movie with subtitles a month. bfbroke06.jpg

This is Kwame Anthony Appiah’s injunction to the audience at a Fordham conference on global citizenship over this past weekend. Appiah, the dazzling University professor at Princeton, believes in conversations across cultures. Such conversations, he hopes, will help us to understand one another, perhaps even inculcate global feelings.

Some might argue that this might lead us to recognize what we all hold in common. But Appiah believes in difference as well. The conversation might lead us to recognize what divides and differentiates us as well.

Appiah is not a cultural relativist: tolerance, he notes, suggests a view as to what is not to be tolerated.

So here is my question for you: Have you learned something from watching a film with subtitles (and, if so, what film)? Did it reveal commonality or difference?

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Law school killed the video star?

Thanks to all at C.O. for hosting me. I’m getting a late start on my guest stint.

Thanks to differing school years, this summer I had the pleasure of visiting at Keio University School of Law, one of Japan’s new “American-style” post-graduate law schools. They had just graduated their first class; prior to 2004 formal study of law at universities in Japan was through undergraduate law faculties.


As luck would have it, the #1 song on Japan’s version of the Billboard charts at that time was Daite Senorita (Hold Me Senorita) by Tomohisa Yamashita — one in a long line of manufactured J-Pop stars from Japan’s foremost hit factory, Johnny’s Entertainment.

I happened to see the video, and you can too, thanks to YouTube. It’s not all that entertaining, but during the last minute (hint: you don’ t have to watch the whole thing), he and his minions brawl with a similarly suit-clad opposing street gang. Then he goes back to his apartment and studies what appear to be law books. What appears to be the Compendium of Laws (Roppo zensho) by the legal publisher Yuhikaku appears in the foreground (lower right); another law book is in the lower left of the screen.

This raises two not-too-serious questions. First, what an illustration of the competition in Japan between private and legal ordering. (Apologies to West and Milhaupt, The Dark Side of Private Ordering, 67 U. Chi. L. Rev. 41 (2000))! Second, besides All the Kings Men or Krzysztof Kieślowski’s Red, I wonder how often law professors or law students appear in fictional works that are not actually about law school?


The U.N. Human Rights Commissioner Who Cried Wolf

wolf.jpgU.N. Commissioner Louise Arbour said today about Hezbollah, Gazan forces, and Israel that:

Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians. Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable. International humanitarian law is clear on the supreme obligation to protect civilians during hostilities. This obligation is also expressed in international criminal law, which defines war crimes and crimes against humanity. International law demands accountability. The scale of the killings in the region, and their predictability, could engage the personal criminal responsibility of those involved, particularly those in a position of command and control.

I am not in any way an expert in the laws of law. These folks are, but they haven’t blogged the story yet. Is the theory that the laws of war require laser guided bombing? And, in any event, did the region really need more asymmetric, empty, blundering threats? (Hezbollah and the Gazan militants are, in domestic parlance, judgment proof as against war crime tribunals).

[Update: Lynn’s comment below suggests I ought to have been less glib and more clear. Isn’t the commissioner’s statement at least very premature, given that the fog of war is still blooming?]


European Court of Justice Strikes EU-US Agreement on PNR Data

The European Court of Justice dealt a blow yesterday to European Union and U.S. policymakers, with two important judgments on privacy and transatlantic relations. Back in 2004, the European Union and the United States signed an agreement guaranteeing the privacy of European airline passenger data when that data was transferred to the U.S. government. In European Parliament v. Council of the European Union and European Parliament v. Commission of the European Communities, the Court of Justice found that the Europeans did not have the power, under their constitutional rules, to enter into the agreement. Luckily for the airlines and the governments, the Court delayed the effect of its decision until September 30, 2006. Until then, European airlines will keep on being able to transfer their passenger data—and keep on being able to fly into American airports–without having to worry about breaking European privacy law. Afterwards, it could get complicated.

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The NSA Phone Call Database: The European Perspective

Had a European government, instead of the Bush administration, created the NSA’s call database, would that government be in violation of European privacy law? I think so, for the reasons I explore below.

Why should anyone care that the outcome would have been so different under European privacy law? One reason for the comparison with Europe is that it enables us to understand better current developments in American law. It is striking how similar American and European data privacy law was in the early 1970s, how different it is today. The first European database privacy statutes of the 1970s drew on the U.S. Privacy Act of 1974. Alan Westin’s Privacy and Freedom, published in 1967, was read widely by both American and European policymakers. There are many reasons for the divergent paths of the two systems. This latest example of difference highlights one set of reasons: the President’s new constitutional powers in fighting terrorism, post-September 11. Congress, the courts, and the public might very well accept that the NSA program is legal, based on the President’s inherent authority as commander-in-chief. In Europe, that would not be possible.

A more pragmatic reason for caring about the different result under European privacy law is that it could undermine transatlantic cooperation in the fight against terrorism. Some European laws forbid the transfer of public security and law enforcement data to countries without adequate privacy protection. This latest revelation just reinforces the European view that U.S. privacy laws are inadequate—and therefore could make European governments reluctant to turn over information on European citizens to the American government in the fight against terrorism.

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