Vol. 2:1 Fall 2011
In April 2011, JICL co-sponsored the symposium “Challenges to International Law, Challenges from International Law: New Realities and the Global Order” with CICL and the American Society of International Law (ASIL). At the event, preeminent academics, practitioners and past and present government officials examined current challenges facing international law through the lens of three areas of regulation—the use of force, human rights and economic relations. Participants also explored the United States’ role in international law-making and enforcement.
I. Trade Liberalization as Counter-Terrorism
How should the world trading system be regulated? Not by using the Doha Round of multilateral trade negotiations as an example. Who should regulate the world trading system? Not the World Trade Organization (WTO) Members, if their behavior in this Round, particularly that of most major, and several developing Members, is an example.
The Members of the WTO have succumbed so completely to the pursuit of their commercial self-interest that the Doha Round has devolved from its grand launch in November 2001 as a counter-terrorist strategy to a monstrous mishmash of international trade law minutiae. The Round has lost its links to its original purpose, to fight Islamist extremism by attacking one (not the only, but one) of its causes: poverty. The correct idea was that multilateral trade liberalization could spur poverty alleviation among Muslim communities and countries, and integrate them more completely into the global trade order. Seeing and experiencing the benefits from this order, otherwise marginalized Muslims might be less susceptible to plotting against the order and some of its non-Muslim participants. Why take a dangerous job as a lowly courier for Osama Bin Laden when the WTO system offers the realistic possibility of a lucrative career with an import-export business and promises, in a legally binding manner, market access and a level competitive playing field for the merchandise of that trading house?
About the Author
Raj Bhala - Rice Distinguished Professor, The University of Kansas, School of Law; J.D., Harvard (1989); M.Sc., Oxford (1986); M.Sc., London School of Economics (1985); A.B., Duke (1984). Marshall Scholar (1984-86). Member, Council on Foreign Relations, Royal Society for Asian Affairs, and Fellowship of Catholic Scholars. This essay is based on the author’s April 2011 remarks at the symposium entitled, “Challenges to International Law, Challenges from International Law: New Realities and the Global Order.” The author is grateful to his colleagues and friends at St. John’s Law School, including Professors Christopher Borgen, Margaret McGuinness, and Mark Movsesian, and the Editors and Staff of the St. John’s Journal of International and Comparative Law. He is also grateful to his Research Assistant, Ms. Sarah Schmidt; J.D., University of Kansas School of Law; M.A. Economics, University of Kansas (expected May 2013).
For a more in depth treatment of the matters discussed herein, please see the Doha Round Trilogy by the author:
● Poverty, Islamist Extremism, and the Debacle of Doha Round Counter-Terrorism: Part One of a Trilogy – Agricultural Tariffs and Subsidies, UNIVERSITY OF SAINT THOMAS LAW JOURNAL (2011, Annual Law Journal Lecture);
● Poverty, Islamist Extremism, and the Debacle of Doha Round Counter-Terrorism: Part Two of a Trilogy – Non-Agricultural Market Access and Services Trade, 44 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW issues 1 & 2 (2012, War Crimes Research Symposium on International Law in Crisis);
● Poverty, Islamist Extremism, and the Debacle of Doha Round Counter-Terrorism: Part Three of a Trilogy – Trade Remedies and Facilitation, 40 DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY issue 1 (2012, 40th Anniversary Symposium in Honor of Professor Ved Nanda).
This essay addresses the issue of how separation of powers relates to the domestic enforcement of international human rights standards in the face of opposition from the President. Specifically, I consider the role of the judiciary in defending international human rights standards when the Executive branch invokes its ostensible foreign relations expertise against them.
Nowhere has such conflict arisen more sharply than in the cases arising from the attacks of 9/11. Three scenarios have stood out. First, the President and Supreme Court have joined issue over statutes implicating human rights commitments. Notable in this regard is Justice Souter’s concurrence in Hamdi v. Rumsfeld, in which he bolstered his reading of the Non-Detention Act with reference to Article 5 of the Third Geneva Convention. Second, the judiciary has challenged the executive more directly on issues of treaty interpretation. In Hamdan v. Rumsfeld, Justice Stevens’ majority opinion summarily rejected the Bush administration’s idiosyncratic argument that “unlawful enemy combatants” were not entitled to the protections of the same treaties’ Common Article 3. Lastly, the Court has refused to set aside constitutional principles at the executive’s behest in the name of national security. Not least, in Hamdi v. Rumsfeld, the Court rejected the President’s arguments for a restrictive reading of Guantanamo detainees’ Constitutional Due Process rights. Though here the parallel international standards operated offstage in U.S. Reports, they did make a significant appearance in amicus briefs. No less important, the Court refused to consider only Article II’s national security concerns at the expense of the Fifth Amendment.
About the Author
Martin S. Flaherty - Leitner Family Professor of International Human Rights Law, Fordham Law School; Visiting Professor, Woodrow Wilson School of Public and International Affairs, Princeton University.
From May 31 to June 11, 2010, a significant event occurred in Kampala, Uganda: the first ever Review Conference to consider amendments to the International Criminal Court’s Statute. At the conference, agreement was reached by States Parties to the International Criminal Court (“ICC”) to adopt an amendment to the Rome Statute, adding, inter alia, the definition of the crime of aggression as well as conditions for the ICC’s exercise of jurisdiction over it.
The fact that States Parties reached this agreement was a significant advancement for the rule of law. Over the years, many States Parties supported these negotiations, including some of the U.S.’s closest allies. States Parties also expressed broad support for the amendment during the 2010 session of the Assembly of States Parties (“ASP”). This support for adoption of the crime of aggression is not shared by all states, and, even among States Parties, there is no doubt some diversity of views as to the merits of the final agreement.
About the Author
Jennifer Trahan - Assistant Clinical Professor of Global Affairs, N.Y.U.-S.C.P.S. Professor Trahan attended negations on the crime of aggression, including the International Criminal Court Review Conference in Kampala, Uganda, as an NGO observer for the Association of the Bar of the City of New York, a member of the American Bar Association 2010 International Criminal Court Task Force, and Chair of the American Branch of the International Law Association International Criminal Court Committee. These remarks were originally delivered as a speech on April 1, 2011, at St. John’s School of Law, as part of a symposium entitled “Challenges to International Law, Challenges from International Law: New Realities and the Global Order.”
In her recent New York Times column, Gail Collins addressed Republican criticism of President Obama’s approach to foreign policy:
Mitt [Romney] told a conservative radio host [Hugh Hewitt] this week that the President is weak because of “his fundamental disbelief in American exceptionalism.” This is part of a widespread Republican theory that simply believing that our country is a great and unique nation is not good enough unless you also run around the world publicly pointing out to our allies that we are way, way better than they are.
Ms. Collins goes on to refer sarcastically to Mr. Romney’s criticism of President Obama’s “nuanced” diplomacy given that most diplomatic exchanges require at least a nuanced approach.
While President Obama was almost certainly not even thinking about Mr. Romney’s remarks, I thought that the President responded rather well to this criticism in his speech at the National Defense University concerning, among other matters, the United States’ role in Libya. Whatever one might say about the merits of the decision concerning Libya, the President set out a useful framework for the range of American responses to calls for United States intervention. He discussed those cases where, as he submitted was the situation in Libya, the safety of our country is not at risk but “our interests and values are.” He calls these threats to “our common humanity and our common security” and makes clear that they can arise from natural or man-made disasters. The President added, “In such cases, we should not be afraid to act – but the burden of action should not be America’s alone.”
About the Author
Peter D. Trooboff - Senior Counsel, Covington & Burling LLP. Peter Trooboff has practiced in the area of international trade and investment for over forty years. He won a Theberge award for private international law in 2010 and was the president of the American Society of International Law from 1990 to 1992. He has supervised numerous investigations into U.S. foreign trade control violations by international corporations and is often involved in international arbitral proceedings.
This Essay is based on the author’s remarks at the symposium on “Challenges to International Law, Challenges from International Law: New Realities and the Global Order,” held at the St. John’s University School of Law, April 1, 2011.
This Essay focuses on “transnational judicial governance”—that is, the regulation of transnational activity by domestic courts. Specifically, the Essay makes three points: First, transnational judicial governance is an important form of global governance that interacts with, but is distinct from, other forms of global governance such as international institutions, transgovernmental networks, and private governance. Second, it appears that the influence of U.S. courts in transnational judicial governance may be declining as the transnational litigation system becomes increasingly multipolar. Third, transnational judicial governance seems to be a normatively mixed bag. But, for better or worse, it is likely that domestic courts will continue to play an important role in global governance.
I. Transnational Judicial Governance and Other Forms of Global Governance
Legal scholars and political scientists have devoted considerable attention to the role of domestic courts in domestic governance, as well as to the role of international courts in global governance. So far, however, they have devoted little attention to the role of domestic courts in global governance. Yet domestic courts are routinely involved in the regulation of transnational activity. This section briefly discusses the important, but often neglected, role of domestic courts in global governance, and highlights the relationship between transnational judicial governance and other forms of global governance.
About the Author
Christopher A. Whytock - Acting Professor of Law and Political Science, University of California, Irvine School of Law. This Essay is based on the author’s remarks at the symposium on “Challenges to International Law, Challenges from International Law: New Realities and the Global Order,” held at the St. John’s University School of Law, April 1, 2011. The author thanks Christopher Borgen, Margaret McGuinness and Trea McPherson for organizing the symposium, and Mark Movsesian for moderating the panel on global economic regulation.