The United States Code defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.” 18 U.S.C.A. § 2340 (West 2012). Further,

 “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from: (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D)  the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

18 U.S.C.A. § 2340 (West 2012).  The problem with this definition is its workability.  To one person on the street, keeping a prisoner awake for 36 hours may not fit any of these definitions, while to another person it might “disrupt profoundly the senses.”  The same can be said for stress positions, a 20-hour interrogation, and waterboarding.  Ultimately, the meaning of the definition depends on who you ask, which does little to help interrogators trying to do the right thing.

Further, government agencies are little help.  Ali Soufan, a top FBI Interrogator, testified before Congress that harsh interrogation techniques are slow and unreliable and he recommended the use of the Informed Interrogation Approach, which involves having knowledge beforehand about the detainee’s past and building a relationship with the detainee. On the other hand, the CIA claims that the interrogation of Khalid Sheikh Mohammed (who was waterboarded 183 times) saved numerous lives, both here and abroad, and “led to the arrests of al Qaeda operatives that same month, while they were plotting attacks on American soil.” Both accounts have fair points, but should be taken with a grain of salt.  Since the FBI has a policy not to use harsh interrogation techniques while the CIA does employ such techniques, it makes sense for each agency to defend its own policy.

In sum, torture is not an easy thing to define.  The definition we have is vague and cannot be used to clearly put any tactics in the column of either “torture” or “acceptable interrogation.”  Congress can work on the definition and the president can issue executive orders, but at the end of the day the definition of “torture” is a philosophical and moral issue, complicated by the threats facing our country today.  It is hard to get just right, so until someone comes up with a practical, workable definition, we simply have to trust our government not to go too far.

Although not yet addressed by the courts, I think it’s worth noting that the Amendment’s language on international law may also be unconstitutional. The reason is the Supremacy Clause. First note that the Amendment explicitly prohibits Oklahoma courts from “considering or using” international law in the form of both treaties and custom. This prohibition is unqualified, and thus at least facially encompasses treaties and custom of all kinds.

Now consider the text of the Supremacy Clause. Article VI, Section 2 of the U.S. Constitution establishes that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” By referencing treaties that are “made, or which shall be made, under the Authority of the United States,” the Clause establishes supreme status for treaties to which the United States is a party.

The argument for the Sharia Law Amendment’s unconstitutionality is pretty straightforward. Insofar as it refers to treaties without qualification and thus includes those to which the United States is a party, the Amendment bars Oklahoma courts from considering or using treaties that have the status of supreme federal law. To prohibit a ratified treaty’s consideration or use is to deny its legal relevance, in effect even its existence, regardless of how significantly the treaty might otherwise affect the outcome of a case. Even litigation outcomes directly at odds with those dictated by U.S. treaties would seemingly be permissible in Oklahoma.

There’s also a Supremacy Clause argument concerning the Amendment’s language on customary law. International custom binds all states that have not timely objected to its development, and thus as a formal matter generally binds the United States. Although recently a subject of pretty heated debate, the traditional view is that such custom is a form of federal common law and thus backed by the Supremacy Clause. If one accepts that view, then it would be unconstitutional for the Amendment to bar Oklahoma courts from considering or using custom in much the same way that it would be unconstitutional to bar their consideration or use of U.S. treaties.

A court might attempt to avoid these problems in a couple of ways. The first would be to narrowly construe the Amendment. There is a fair argument that the text pertains only to treaties to which the United States is not a party, and to custom not applicable to the United States. Certain language, for example, suggests a general intent to adhere to federal law—a body that obviously includes U.S. treaties and at least arguably includes customary norms. Other language states an opposition only to the application of the “legal precepts of other nations or cultures.” The latter does not implicate ratified treaties or binding custom, which are the law of this country. The narrow interpretation would alleviate the Supremacy Clause problem by ensuring that the Amendment’s prohibition applies only to treaties and custom that are not federal law.

Another potential way to save the Amendment from unconstitutionality would be to conclude that custom is simply not a form of federal common law. This position would be contrary to the traditional view, but it has gained at least some support since Professors Curtis Bradley and Jack Goldsmith first articulated it in the late 1990s. If customary law is not federal common law, then the Supremacy Clause does not encompass it, and Oklahoma courts would not be obliged to consider or use it in their decisions.

Both of these efforts to save the Amendment would encounter difficulties, however. First, the narrow interpretation would render the Amendment’s text on international law essentially irrelevant in practice. I doubt that Oklahoma courts encounter many cases requiring them to resolve disputes concerning U.S. treaties, much less treaties to which the United States is not even a party. I also doubt they encounter many opportunities to resolve disputes over obscure principles of international custom that do not bind the United States. And as long as that is true, the narrow interpretation would essentially tell the courts not to do something that they don’t do anyway.

Second, concluding that international custom lacks the status of federal common law would require a departure from the traditional doctrine on that issue. There are, frankly, pretty intriguing arguments on both sides of the debate that the Bradley and Goldsmith argument has generated, but the U.S. Supreme Court has never squarely held that international custom lacks the status of federal common law.

In short, the constitutionality of the Sharia Law Amendment’s language on international law is, at best, uncertain. Its treatment of treaties is either unconstitutional or essentially irrelevant. And its treatment of custom may require courts to resolve a longstanding debate about custom’s domestic status.

The principal hurdle to either type of closure is the U.N. Convention on the Law of the Sea, a treaty that Iran has not ratified but that is widely accepted as codifying preexisting customary rules that bind parties and non-parties alike. One such rule is that in a strait all ships and aircraft shall enjoy an unimpeded right of “transit passage,” which is “the exercise . . . of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait” (art. 38). A corollary is that states bordering straits “shall not hamper transit passage,” and that “[t]here shall be no suspension of transit passage” (art. 44).

Closure of the Strait to all transit would clearly violate these rules. The more interesting question is whether closure only with respect to unauthorized foreign warships would also be illegal. To justify this action, Iran might argue that although the right of “transit passage” must be unimpeded, foreign warships cannot claim to exercise the right when their presence in the Strait is at least in part for a military purpose, and that refusal to grant authorization to transit in such circumstances is therefore perfectly permissible. The U.S. Navy, for example, might enter the Strait in part to contain Iran, fight piracy, signal a commitment to regional stability, or accomplish some other military objective. In those cases, the Navy would not be in the Strait solely for the purpose of “continuous and expeditious transit,” and therefore not be engaged in transit passage, and therefore lack the right of unimpeded passage under the treaty articles mentioned above, and Iran could permissibly decline authorization for the Navy’s vessel to pass through.

Such an argument has at least two significant problems, however. One is that while Iran’s territorial waters extend up to 12 nautical miles from its shoreline, the Strait is 21 nautical miles wide at its narrowest. Thus, to close the Strait, Iran would have to prohibit transit beyond its territorial waters, over at least 9 miles of ocean extending from the limit of those waters to the other side of the Strait. Nothing in the Law of the Sea Convention gives Iran a general power to do so.

The second problem with the argument is that, as a factual matter, the intent of the potential Iranian action appears to be to block the U.S. Navy from entering the Strait regardless of purpose. If executed in accordance with this intent, the action would violate the U.S. Navy’s right of transit passage in any case where U.S. warships aimed to use the Strait solely for the purpose of traveling to another destination.

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 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 given 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 disagreed with the Second Circuit on the ground that that court had simply overlooked a salient example of corporate liability–that of the German company I.G. Farben for its conduct during 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 the mundane, day-to-day behaviors of the entire “civilized world”–to use Sosa‘s words–over a course of years, even 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 are inevitably incomplete.

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 circuit split may simply reflect the difficulties inherent in federal judicial identification of international custom. Perhaps the Seventh Circuit was right, and the Second simply overlooked relevant precedent. Perhaps both circuits did so. Absent a rigorous historical inquiry, it’s hard to say with certainty. Either way, to say that it is difficult to accurately identify whether any given customary norm enjoys the clarity and acceptance 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 find 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 preclude courts from “effectively and timely” identifying customary international law, then the Rule would seem to permit courts to use special masters to supplement their efforts. These special masters would ideally be international legal experts or historians with expertise in the relevant area of custom, and would 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 see any examples of courts using special masters in this way, but perhaps it’s a step worth considering.

Cross-posted at PrawfsBlawg.

Trademark law grants trademark owners the right to prevent third parties from using identical or similar signs to identify confusingly similar products in the market. Nevertheless, once a trademark owner has introduced into the market a product, or a batch of products, these rights are considered exhausted with respect to those products, and the trademark owner can no longer rely on trademark rights to control the products‘ future circulation. . . . [F]ierce disputes have characterized the application of this principle in the context of international trade with respect to the parallel imports of gray market goods—i.e., genuine (originally manufactured) products, which are imported into a country from unauthorized third party importers after their first authorized sale by trademark owners in another part of the world.

In the article, Irene considers how the “first sale” issue has been addressed in North American and European trade law.  The abstract to her paper appears after the jump.

This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movement of goods across international borders, notably across members of free trade areas. In particular, this Article examines the application of the principle of trademark first sale and the resulting process of market integration that has characterized to date the members of NAFTA and the European Union. Based upon this comparison, this Article argues that the creation of an effective system of free movement of goods in free trade areas requires, at a minimum, the adoption of uniform national rules providing for the exhaustion of national trademark rights with respect to products lawfully distributed worldwide or, at least, in the territory of all members of those areas. This Article highlights, however, that effective market integration across free trade areas may be jeopardized when corporations can use material differences in product quality to control product distribution and prevent the free movement of goods even when members of these areas nominally permit the importation of products lawfully distributed internationally or, at least, in the territory of other members. Following the analysis of the approaches adopted by NAFTA and the European Union, this Article stresses that the convergence of national standards, the mutual recognition of product characteristics, or the acceptance into national markets of materially different products from other members carrying appropriate labels disclosing these differences can nonetheless overcome these barriers. Ultimately, this Article concludes that invoking trademark protection to segment the market against the parallel trade of genuine goods not only undermines the purpose of free trade areas; it also goes against the general scope of trademark protection, which protects consumers against confusion and trademark owners against illegitimate acts that could take unfair advantage of, or damage the reputation of, the marks, and does not include the prohibition of the resale of genuine goods that trademark owners themselves have introduced into the market, even if in the territory of another member of a free trade area.

The Alien Tort Statute (“ATS”) creates federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity.

Sosa’s guidance notwithstanding, the frequent indeterminacy of international custom creates a significant risk of disagreement among circuit courts tasked with identifying the precise contours of ATS jurisdiction. And indeed, over the past year, appellate courts have split on a new and important aspect of the statute—namely, whether it creates federal jurisdiction over claims alleging corporate violations of customary international law. The D.C. and Seventh Circuits have answered the question affirmatively, and thus permitted plaintiffs to sue corporations for engaging in conduct that violates international custom. But in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit reached precisely the opposite conclusion. The plaintiffs in Kiobel alleged that Royal Dutch helped the Nigerian government to suppress dissent among Nigerian citizens who were unhappy with the environmental effects of oil exploration in the region, and in doing so aided and abetted the government’s commission of various human rights abuses. The complaint asserted, for example, that Royal Dutch provided transportation to Nigerian forces, allowed its property to be used as a staging ground for military attacks on protestors, and provided food and compensation to soldiers involved in the attacks. The Nigerian forces allegedly used this support to engage in extrajudicial killings, crimes against humanity, torture, and arbitrary arrest and detention, among other acts. The plaintiffs asserted jurisdiction under the ATS, but Royal Dutch moved to dismiss on the ground that the statute does not confer jurisdiction over corporate defendants because there is no norm of corporate liability under international custom for the types of offenses alleged. The Second Circuit agreed, and therefore dismissed for lack of jurisdiction.

Given the circuit split and the importance of the question, the Supreme Court granted certiorari in Kiobel last month. It is difficult to predict how the Court will decide the case, but a ruling in favor of either side of the split will have significant implications for corporate responsibility abroad. If the Court agrees with the D.C. and Seventh Circuits, we can expect that plaintiffs will use the ATS to hold corporations accountable for conduct at odds with important international legal norms. If the Court agrees with the Second Circuit, however, plaintiffs will lose a valuable tool for constraining corporate behavior.

To start, it is worth noting that there is no judicial precedent. Because of justiciability hurdles and the federal judiciary’s longstanding aversion to deciding questions concerning foreign affairs and the legality of international conflict, federal courts have consistently dismissed actions under the War Powers Resolution without reaching the merits. In fact, just three weeks ago, a federal district court dismissed a lawsuit by Representative Dennis Kucinich for precisely this reason. Representative Kucinich had claimed that the President’s introduction of U.S. forces into Libya violated the War Powers Resolution, but the court dismissed for lack of standing.

There is, however, relevant precedent from the Executive Branch in the form of two opinions from the Justice Department’s Office of Legal Counsel. The first is a 1980 opinion by Assistant Attorney General John M. Harmon, entitled “Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization.” In examining the meaning of the word “hostilities,” the Harmon Opinion cited as instructive a House of Representatives Report stating that the word “hostilities” in the War Powers Resolution “was substituted for the phrase ‘armed conflict’ . . . because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, ‘hostilities’ also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict.” The Harmon Opinion also cited a letter from the Departments of State and Defense explaining that the term “hostilities” includes “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces,” but does not “necessarily encompass[] irregular or infrequent violence which may occur in a particular area.” The Opinion concluded that “the term ‘hostilities’ should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces abroad.”

With the Harmon Opinion in mind, stop for a moment to consider how the law circa 1980 would have viewed the Libya intervention: If my last post is correct, the ordinary meaning of “hostilities” encompassed the conflict. Additionally, the legislative history seems to corroborate the text and suggest that Congress would have intended the War Powers Resolution to apply. If “hostilities” “encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict,” then surely the term must also encompass the U.S. bombing of Libya with manned and unmanned aircraft, and the U.S. provision of military support to NATO allies. And the Harmon Opinion’s partial reliance on the legislative history shows an Executive approach to war powers that aligned with the Resolution’s text and intent. Thus, at least as recently as the early 1980s, the law would have framed the Libya intervention as a “hostility.”

The law lost clarity, however, with the second relevant Executive precedent–a 1994 opinion by Assistant Attorney General Walter Dellinger, entitled “Deployment of United States Armed Forces Into Haiti.” OLC issued the opinion in response to a request from President Clinton for an analysis on the lawfulness of a planned deployment of U.S. forces into Haiti to oust Raoul Cedras from power and restore the democratic government of Jean-Bertrand Aristide. Concluding that the deployment would be consistent with the Resolution even without congressional authorization, the Dellinger Opinion explained that the Resolution’s “overriding interest was to prevent the United States from being engaged, without express congressional authorization, in major, prolonged conflicts such as the wars in Vietnam and Korea, rather than to prohibit the President from using or threatening to use troops to achieve important diplomatic objectives where the risk of sustained military conflict was negligible.” Notably, the Opinion cited no authority for this view.

With the Dellinger Opinion, it was no longer clear whether the War Powers Resolution applied to conflicts such as Libya. Given the Opinion’s suggestion that the Resolution’s overriding interest is simply in preventing unauthorized U.S. involvement in “major, prolonged conflicts,” the effective reach of the Resolution narrowed significantly. Moreover, there was no Executive analog to the doctrine of stare decisis to require the President to adhere to the decades-old Harmon Opinion.

So why does this matter? I think the OLC opinions are a microcosmic reflection of the steady march toward increasingly expansive presidential war powers–a march that has been powered by the Executive and that continues today. President Obama’s introduction of U.S. forces into Libya probably violates the text and purpose of the War Powers Resolution. The President’s action, however, aligns quite well with the practice of other recent presidents, including President Clinton with respect to Haiti and President George W. Bush with respect to the war on terrorism.

The War Powers Resolution has three basic components, the first of which is a requirement of consultation. “In every possible instance,” it reads, the President must consult with Congress before introducing U.S. Armed Forces into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” and must consult regularly with Congress after introducing U.S. forces until they are no longer engaged in hostilities. The second component is a reporting requirement. In the absence of a declaration of war, the President must report to Congress on the circumstances, legal authority, and estimated scope and duration of “hostilities or involvement” in “any case” in which U.S. forces are introduced into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The third basic component is a congressional termination power: within sixty days after reporting to Congress, the President must terminate any use of the U.S. forces, unless Congress (1) “has declared war or has enacted a specific authorization for such use”; (2) “has extended by law [the] sixty-day period”; or (3) “is physically unable to meet as a result of an armed attack upon the United States.” The President can extend the sixty-day period, but only in limited circumstances and for no more than thirty days.

The Obama Administration did not consult with or report to Congress on Libya under the terms of the War Powers Resolution. Rather, the Administration argued that the Resolution and its requirements did not apply because the U.S. involvement in Libya did not amount to “hostilities.” This position primarily rested on the relatively limited nature of the U.S. role, which entailed airstrikes during the early phase of the conflict, and then occasional drone strikes and the provision of surveillance, refueling and other logistical assistance to the forces of other NATO members thereafter. “Hostilities,” in the Administration’s view, requires something more substantial.

I am not necessarily persuaded; the ordinary meaning of “hostilities” seems to encompass the operations that U.S. forces carried out in Libya. The United States and its NATO allies used both manned and unmanned military aircraft to bomb significant numbers of military targets, and in doing so played a critical role in facilitating the Libyan rebels’ victory over Gaddafi and his supporters. Most would regard such conduct as hostile acts. Of course, the War Powers Resolution could in theory use “hostilities” as a term of art that carries some sort of non-ordinary meaning. But there is no textual evidence that it does. There is no statutory definition, for example, that would justify a departure from ordinary meaning. If Congress had intended the Resolution to apply only where U.S. forces are directly engaged in combat on a significant scale, it could have easily used more precise language.

Whatever its merits as a matter of statutory interpretation, the Administration’s position is significant for the way in which marginalizes the role of Congress in small- and even medium-scale warfare. If drone strikes and limited bombing campaigns by manned aircraft do not amount to “hostilities,” then the President can use some of the most important tools in modern warfare with little regard for congressional approval. To some, this development is necessary for national security. To others, it presents an accountability problem.

With respect to legality, the debate continues and has both international and domestic features, but I’ll focus exclusively on the former in this post. Here, Security Council Resolution 1973 has been the focal point because it authorized “all necessary measures” to protect civilians and civilian-populated areas under threat of attack from Gaddafi’s forces, and was the asserted basis for NATO’s intervention. The argument in favor of legality basically goes like this: Resolution 1973 was a permissible use of the Security Council’s powers under the U.N. Charter to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security,” and NATO acted in accordance with the Resolution by using only “necessary measures” to protect civilians from Gaddafi. I think the argument is pretty good. If NATO had acted without Security Council approval, as it did in Kosovo in the late 1990s, the international legal questions would be far more problematic. But even with Resolution 1973, legality is debatable. First, it’s not entirely clear that Libya’s internal conflict necessitated military action to maintain or restore “international” peace and security within the meaning of the Charter. Perhaps the fight between Gaddafi and the rebels would have spread across borders or sent an internationally destabilizing message of impunity if NATO had not intervened. Yet Libya was not a threat to international peace and security in the classic form of an armed conflict between states. Insofar as the U.N. Charter envisions that type of conflict as the basis for Security Council action, NATO’s action was problematic. Second, it is not entirely clear that NATO always honored the limits of Resolution 1973—some have reported that NATO bombings included military targets that were far removed from civilian populations and unlikely to present any direct threat to them. Whether eliminating those targets was “necessary” to protecting Libyan civilians is also debatable.

I think the practical implications are equally mixed. On one hand, the signaling effect of the intervention is a good one—the actions of the Security Council and NATO buttress the message that the international community will not allow even the highest-ranking national leaders to commit atrocities against their citizens. On the other hand, some heads of state might conclude that Gaddafi’s mistakes lay elsewhere—i.e., in his decision several years ago to give up on developing weapons of mass destruction that could have deterred a NATO attack, and his failure to establish close relations with Russia and China, two states that could have used their Security Council vetoes to block the intervention. To the extent that these are the lessons, the example of Libya will only strengthen the drive by some states to acquire WMD capabilities, and to develop strong relationships with veto-wielding members of the Security Council that tend to oppose the foreign policy of the West.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process.  Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution.  Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment.

The legality of the extrajudicial assassination of al-Awlaki was the subject of a civil suit in 2010.  After learning that his son had been placed on a CIA/Joint Special Operations Command “kill list”, al-Awlaki’s father brought suit in the U.S. District Court for the District of Columbia against President Obama, Secretary of Defense Robert Gates, and CIA Director Leon Panetta.  In an attempt to enjoin the executive branch from killing his son, al-Awlaki introduced several claims based in both constitutional and tort law.  The court’s lengthy opinion begins with a compelling recitation of the questions presented:

How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen –himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 8-9 (D.D.C. 2010).

Before contemplating the more compelling issues, the court first decided the issue of standing.  Al-Awlaki’s father lacked “next-friend” standing because he failed to provide an adequate reason justifying why Anwar could not appear in court on his own behalf.  His father claimed that if Anwar presented himself to authorities he would be exposed to attack.  The court disagreed, citing public government statements indicating that if al-Awlaki surrendered peacefully he could not be executed without due process.

The court also denied third party standing, holding that Anwar’s father could not show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing.  Anwar’s status as an adult was of particular importance because a parent does not have a constitutionally (or common law) protected liberty interest in maintaining a relationship with his adult child free from government influence.

Prudential standing was denied because, among other reasons, the court refused to “unnecessarily adjudicate rights” that it believed al-Awlaki did not wish to assert himself.  The court noted that al-Awlaki made numerous public statements professing his contempt for the U.S. legal system.  Al-Awlaki did not believe that he was bound by U.S. laws because, in his view, they are contrary to the teachings of Allah.  I personally find it difficult to believe that a person would not want to contest his own assassination, but it also seems unlikely that al-Awlaki would wish to assert legal rights in a court system that he did not recognize as authoritative, especially in a country that he openly despised.

Ultimately, the most compelling issues were not addressed because the court found that judicial review was inappropriate.  The court held that separation of powers and the political question doctrine prohibited interfering with the executive branch’s orders with respect to military action abroad.   Meaningful review was deemed impossible, because it would require an unmanageable assessment of the quality of the President’s interpretation of military intelligence and his resulting decision (based upon that intelligence) to use military force against terrorist targets overseas:

[T]his Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” (citation omitted), the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, (citation omitted), presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a “drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,”(citation omitted) But as the D.C. Circuit explained in Schneider, a determination as to whether “drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.” (citation omitted) Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

Al-Aulaqi, 727 F.Supp.2d at 52-53.

It is unfortunate that the Aulaqi case never made it beyond the issue of standing, but perhaps that was the proper outcome.  Although Awlaki was a U.S. citizen (and a citizen of Yemen), he was also clearly a member of al-Qaeda.  Shortly after 9/11, Congress passed the Authorization for Use of Military Force (“AUMF”).  The AUMF provides that:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…in order to prevent any future acts of international terrorism against the United States…

Everyone (except for the guy who leaves “9/11 was inside job” comments beneath every news article on the internet) knows that al-Qaeda is the organization that planned and committed the terrorist attacks that occurred on 9/11.  Al-Awlaki was indisputably a member of al-Qaeda.  The Executive’s killing of al-Awlaki was certainly aimed at preventing future acts of international terrorism against the United States.  If the AUMF can be read as authorizing al-Awlaki’s killing, then it would appear that the President assassinated him with congressional approval.  In that scenario, Justice Jackson’s concurrence in Youngstown would indicate that the President was acting at the highest ebb of his authority.

Still, many columnists and politicians like Ron Paul believe that Obama’s decision was illegal on due process grounds.  Might Ron Paul be engaging in political grandstanding?  I do seem to remember hearing something about an upcoming election.  On the other hand, the AUMF only authorizes necessary and appropriate force.  In his suit against the Executive, al-Aulaqi suggested that imminence is the key factor in determining whether lethal force is justified.  It would have been interesting to find out what legal standard the court would apply to the use of lethal force on foreign soil against a member of al-Qaeda holding U.S. citizenship, but that issue was never addressed.

Was the force used against al-Awlaki necessary and appropriate?  It seems difficult to determine without a meaningful presentation of evidence against al-Awlaki.  Personally, I don’t think I’ll hold my breath waiting for the day that the general public is offered an explanation as to why al-Awlaki couldn’t be captured and tried in a U.S. courtroom.  It is troubling to know that the President can order the extrajudicial execution of a U.S. citizen based upon secret evidence.  On the other hand, it has been said that the Constitution is not a suicide pact, and it’s comforting to know that the President is tracking and killing those who are actively trying to kill Americans.

After reading the al-Aulaqi opinion, I was left feeling unsatisfied with the court’s decision to defer to the other branches of government, but I understood why it did so.  In many ways, the moral issue of al-Awlaki’s murder leaves me feeling the same way.  I think it’s unfortunate that al-Awlaki was not indicted, captured, and tried in Federal court.  I also understand that applying traditional due process to a terrorist abroad might create a logistical nightmare and place many innocent lives in danger.  Is this a slippery slope?  If so, wouldn’t requiring the judicial approval of military strategy abroad be just as slippery?  Either way, I respect those who speak out in favor of due process.  I also wonder how many of those people, if faced with the same choice as the President, would choose differently.

Most media reports suggest that the United States would refuse to extradite. But as a purely legal matter, it is questionable that such a move would be permissible. The United States and Italy are parties to a bilateral treaty in which the United States has agreed to extradite to Italy “persons whom [Italian] authorities . . . have charged with or found guilty of an extraditable offense.” The treaty defines “extraditable offense” to include an offense “punishable under the laws of both [countries] by deprivation of liberty for a period of more than one year or by a more severe penalty.” Murder is plainly punishable in the United States by imprisonment for over a year, and Ms. Knox’s original sentence of 26 years in prison demonstrates that the same is true in Italy. The crime for which the Italian high court might reinstate the Knox conviction, therefore, is an extraditable offense.

This analysis suggests that if the United States were to decline an Italian request for extradition after reinstatement of the conviction and sentence, we would be doing so in contravention of international law.

Because full-member status would establish broad, formal international recognition of Palestinian statehood. For Palestine, statehood would bring a number of benefits, including diplomatic immunity for many of its officials, the ability to join treaties and vote in the U.N. General Assembly, and standing to litigate with other states—including Israel—before the International Court of Justice. Even more significantly, statehood would establish Palestine’s sovereign equality with Israel and rights to self-determination and territorial integrity.

At least some of these effects are also the basis for opposition to Palestinian statehood on the part of Israel and the United States. Formal recognition as a sovereign state would empower Palestine in its dealings with Israel while circumventing the peace process. Because one of the classic elements of statehood is control over a specific territory, identification of Palestine’s borders is analytically prior to recognizing Palestine as a state. Palestine has therefore made clear that it seeks U.N. membership as a state based on its pre-1967 borders with Israel. If Palestine’s borders are formally settled by means of a U.N. vote, then Palestinian leaders have less reason to negotiate with Israel, and more leverage if they choose to negotiate.

Wherever Gaddafi is headed, international law provides an intriguing tool for prediction. Under the Rome Statute—the ICC’s founding treaty—a state-party is generally obligated to comply with ICC requests for arrest and surrender. Of the states bordering Libya, Chad, Niger, and Tunisia are all party to the Rome State, and thus seem to be obligated to turn Gaddafi over to the Court if they find him within their borders. If international law is effective, we should anticipate that Gaddafi will avoid these states out of fear of arrest.

Consider, therefore, Libya’s remaining border-states—Egypt, Sudan, and Algeria. None of these are party to the Rome Statute. As a result, none of them have an obligation under the treaty to comply with the arrest warrant. All of these states, however, are signatories to the Rome Statute, and are thus are obligated, under generally accepted principles of international law, not to act in ways that would defeat the treaty’s “object and purpose.” There seems to be a fair argument that this obligation precludes Egypt, Sudan, and Algeria from providing exile to Gaddafi—to do so would seriously interfere with the Court’s ability to prosecute, and would thus defeat—at least in part—the Rome Statute’s purpose of ending impunity for individuals responsible for crimes against humanity. Whether this argument will ultimately persuade is unclear, but it should make Gaddafi hesitate before trying to take shelter in the territory of any of these neighbors.

Which leaves non-bordering states in Libya’s vicinity. If Gaddafi has indeed entered Niger by land, and if he did so for the purpose of traveling by land to another state to Libya’s south or west, only Togo, Mauritania, and Equatorial Guinea remain as reasonably proximate states that are not party to the Rome Statute. Exile in any of these countries would make sense to the extent that they lack a treaty obligation to arrest and surrender Gaddafi to the Court. Of the three, Togo is probably closest, and therefore might present the most attractive option. Ivory Coast and Cameroon are also non-parties in the region, but both have signed the Rome Statute, just like Egypt, Sudan, and Algeria. Thus, whether Gaddafi sees the Ivory Coast and Cameroon as attractive candidates for his state of exile should depend at least in part on whether those states view the provision of exile as an act that would impermissibly defeat the Rome Statute’s object and purpose—seemingly an open question.

Clearly, many variables will affect Gaddafi’s decision about where to attempt to secure exile. But if he has headed into Niger by land to secure exile in a state within the region, and if the Rome Statute has any influence on his choice of destination, then Togo, Mauritania, and Equatorial Guinea look like attractive candidates. As such, the search for Gaddafi might benefit from focusing on those states. If Gaddafi secures exile elsewhere in the region—particularly in a state-party to the Rome Statute—we might fairly question the efficacy of the Court, and even the Security Council resolution that established its jurisdiction in this case.

The estimates are truly alarming. Some have argued that the impact on humans will be limited because the vast majority of the material has fallen or leaked into the ocean, where it will disperse and substantially dilute. But dilution is not a great reassurance. Given the extended half-lives of some of these materials, there is reasonable concern that radiation from Fukushima will damage marine habitats for years and, in turn, harm the citizens of Japan and other proximate countries.

Although not discussed in the media, the radiation leak may also violate international law. The United Nations Convention on the Law of the Sea, which entered into force in 1994, requires states-parties such as Japan to take steps to prevent and control pollution into the oceans. One of its provisions mandates that states take measures necessary “to prevent, reduce and control pollution of the marine environment,” including pollution involving the “release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources.” Another provision mandates that states-parties “take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control.”

The Convention seems to cover the type of pollution coming from Fukushima. Radiation leaking from Japanese nuclear reactors into the ocean is a “toxic, harmful or noxious substance[]” from a “land-based source[].” It is also pollution that “result[s] from the use of technologies” under the jurisdiction and control of a state-party.

Whether the Japanese government took “all measures necessary to prevent, reduce and control” the Fukushima pollution is less clear. With the benefit of hindsight, it is obvious that the government did not do enough to prevent radiation from leaking from the nuclear plants into the ocean—if it had, the leaks would not have occurred. But the Convention does not itemize the specific measures that are deemed “necessary,” and there is often a difference between the necessary and the sufficient. The government could theoretically complete “all measures necessary to prevent” radiation leaks and yet still fail to do enough to completely preclude any possibility of a leak. The mere occurrence of pollution, in other words, may not demonstrate a violation, at least as a matter of textual interpretation.

One way to think about the problem is normatively, by asking simply whether there should be a difference between the necessary and the sufficient in this area. In the United States, tort law imposes strict liability for certain ultra-hazardous activities, and in doing so effectively closes the gap between necessity and sufficiency for purposes of liability determinations. But other areas of tort law leave a gap, and thus permit actors to avoid liability by meeting certain minimum standards of conduct even if harm still follows. What is your view? Is strict liability for environmental harms from accidents at nuclear plants the appropriate standard?  Or should international law utilize some other standard?

The question of ICC jurisdiction is also relevant to ongoing events in Libya. With Muammar Gaddafi’s regime in the midst of collapse and the Colonel himself in hiding, we should consider what role, if any, the ICC will play once Gaddafi is found. Here, the prospect of ICC prosecution seems significantly higher. Like Syria, Libya is not a state-party to the Rome Statute. But in February 2011, the Security Council passed a resolution referring Gaddafi’s use of military force against regime opponents in early 2011 to the ICC. The resolution ordered “Libyan authorities” to “cooperate fully with and provide any necessary assistance to the Court,” and “urge[d] all [other] States” to cooperate fully as well. Several months later, the Court issued arrest warrants against Gaddafi and two other Libyan officials for offenses including crimes against humanity.

Now that Gaddafi has lost control of the government and is in hiding, it will be interesting to see whether the ICC is able to make use of its established jurisdiction. With the Libyan government obliged to adhere to the Security Council’s resolution and all other states urged to do likewise, Gaddafi may have few places to hide.

The report seems to raise three questions for most readers: First, what is a “crime against humanity”? Second, how might the Syrian government have engaged in such conduct? And third, what consequences, if any, follow from culpability?

The Rome Statute of the International Criminal Court (“ICC”) answers the first question. Article 7 of the Statute provides that a “crime against humanity” occurs when (1) a government makes an attack against a civilian population; (2) the attack is widespread or systematic; (3) the government makes the attack knowingly; and (4) the attack includes any of the following: murder, extermination, enslavement, deportation, severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, persecution, enforced disappearance of persons, apartheid, or “other inhumane acts of a similar character.”

The High Commissioner’s report shows that the Syrian government has likely engaged in conduct proscribed by Article 7. The report recounts violent attacks on hundreds and possibly thousands of civilian protestors by the government’s military forces. It recounts evidence of these attacks in locations such as Damascus, Dara’a, Homs, Hama, Idlib, and several other localities, and thereby suggests that the attacks are widespread and systematic. It suggests by the pervasiveness of the attacks, the level of their coordination, and their repetition over the course of several months that the government has knowingly carried them out as a national policy aimed at suppressing dissent and affirming the rule of President Assad. And it recounts a substantial body of direct evidence of murder; torture; persecution on religious, ethnic, and political grounds; and enforced disappearance of persons. Among other acts, the report describes hundreds of summary executions; disproportionate and indiscriminate use of military force against unarmed civilians; mass graves; and official torture by means of electric shocks, beatings, and psychological abuse.

Assuming the accuracy of the report, the argument that Syria has violated its international legal obligations seems persuasive, for two reasons: First, it is widely accepted that customary international law prohibits states from committing crimes against humanity. Second, there is an established principle that signatories of a treaty must refrain from acts that defeat the treaty’s “object or purpose.” Syria has not ratified the Rome Statute, and therefore has no treaty obligations to violate. It has, however, been a signatory to the Rome Statute since November 2000, and thus might be vulnerable under Article 7 on the view that the crackdown defeats the Statute’s purpose of deterring and holding governments accountable for crimes against humanity.

Perhaps the most intriguing question, however, is not whether the Syrian government has engaged in crimes against humanity, or whether the government has violated its international legal obligations in doing so, but instead whether there is anything the international community can do to hold the government accountable. It seems unlikely that the ICC will be able to exercise jurisdiction over culpable members of the Syrian government. Typically, jurisdiction exists under the Rome Statute where an accused is a national of a state party, an alleged crime occurs within a state party’s territory, or the United Nations Security Council refers the matter to the Court. Because Syria has not ratified, it is not a state party over which the Court can exercise jurisdiction in the absence of a referral from the Security Council, and there is no sign that the Security Council will make a referral anytime soon. Absent ICC jurisdiction, unilateral or coordinated state action seems to be the primary option for meaningful penalties. And it looks like national governments are already beginning to utilize this option: President Obama issued an executive order yesterday that freezes certain Syrian government assets and prohibits Americans from transacting business with the government. Several European countries are anticipated to follow suit.

What are your opinions with regard to Syria’s potential culpability for crimes against humanity? Have such crimes been committed? If so, what can the international community do about it?

For young women coming of age today, their equality with men seems assured.  As youngsters they’ve played on co-ed sports teams; they’ve often been more successful than boys in school; they’ve pursued careers in previously male-dominated fields like math and science, medicine and law.  For them, women have always been able to vote, abortion has always been legal, and women have reached high places in politics.  Many probably have mothers (and fathers) who came of age during and after the second wave of feminism, believing they would raise their daughters to believe in their capacity to be equal citizens.

It might surprise some women, then, to learn that women’s equality is not guaranteed, at least not constitutionally.

Neither our constitution nor any of its amendments provide for women’s right to be equal to men.  And, according to Justice Antonin Scalia, the Fourteenth Amendment does not protect women from sexual discrimination.  In an interview with California Lawyer earlier this year, Justice Scalia said,

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

An equal rights amendment to the constitution was first proposed by suffragist Alice Paul in 1923 and introduced in Congress every session since then.  Finally, Congress passed the amendment in 1972, and it was ratified by 35 states, leaving it three states shy of the requisite number needed to add it to our constitution.  The equal rights amendment continues to be reintroduced regularly in Congress, but has gone nowhere.  While there are various federal and state laws that offer women equality and protect them from discrimination, these laws are, like any law, subject to revision or repeal, potentially wiping away any hard-fought protections.  A constitutional right, however, cannot be decimated quite so easily.  (This is not to say that a constitutional right, once given, is always recognized or enforced; the experience of black America illustrates this point.)

Recently, I attended the Southeastern Association of Law Schools Conference where I heard a panel presentation called “The 1988 Brazilian Constitution and Social Composition.”  Panel members David T. Ritchie (Mercer University Law School) and Fernanda Duarte Lopes Lucas da Silva (Universidade Federal Fluminense Faculty of Law) explained how the 1988 Brazilian constitution purposely set out to create a new liberal social order in Brazil.

Many aspects of the Brazilian constitution are interesting, but here I want to focus on a few provisions involving women.  The most significant is that the constitution explicitly provides for equal rights for women.  One of the “fundamental objectives” of the country is “to promote the well-being of all, without prejudice as to origin, race, sex, colour, age and any other forms of discrimination.”  Tit. I, art. 3, sub. IV (emphasis added).  Further, the constitution provides that “[a]ll persons are equal before the law, without any distinction whatsoever, . . . being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms,” the first of which being that “men and women have equal rights and duties under the terms of [the] Constitution.”  Tit. II, Ch. 1, art. 5.   Among the social rights afforded all Brazilians are education, health, work, and protection of motherhood, including a specific right to paid maternity leave for 120 days and free day care for children up to five years old.  Tit. II, Ch. 2, arts. 6 and 7.

Because the 1988 Brazilian constitution guarantees a vast array of social rights and entitlements, there are, in reality, some problems delivering all those entitlements.  For example, while there is free public education, its quality falls well below private education, and there is not yet free day care.  On the other hand, women who work in civil service jobs are, like their male colleagues, paid on a scale that does not vary by sex.  A male judge with a certain number of years’ experience is paid the same as a female judge with the same number of years’ experience.  The constitution demands it.

The 1988 Brazilian constitution is surely ambitious, but its creators have envisioned a different society than what we see in the United States, a society based foremost on the equality of all of its citizens.  That such a concept was so important as to guarantee it in the organic governing document is more than we will see in this country, but the idea makes me wonder:  What would change, what would be possible, if the United States were to truly fully enforce equality of all its citizens?  Why are we in this country so unwilling to do what most other civilized countries have done?

Cross-posted at Ms. JD.

As an initial matter, perhaps notions of “granting” or “providing” rights already obfuscate a fundamental question; that is, is it honest to say that any human can actually grant rights, or are humans solely in a position to deny fulfillment of rights that exist inherently for the benefit of all beings? 

Although any possible answer to this question will be charged with moral and religious assumptions, its posing is intended to frame the issue of the proper role of humans in protecting those categories of “goods” that may be said to have value (and perhaps some sort of “rights”) separate from that which humans grant or ascribe to them, such as the idea of an inherent benefit in ecosystems unsullied by the wastes of human overconsumption.

The fact that the Anglo-American tradition of anthropocentric rights is not the sole method of allocating or acknowledging rights suggests that there is nothing necessarily or absolutely true about our legal systems’ means of recognizing certain right-holders, to the exclusion of other types.  Indeed, the worldwide history of other cultures’ clear acknowledgement of humans’ component role (as opposed to a central role) in creation and existence suggests that a legal system that includes rights held by or bestowed upon natural systems is equally as logical as a human-based rights system.  Thus, there would seem to be nothing inherently illogical or impossible about a human system that recognizes the rights of nature.  Rather, the concepts of individual property and individual rights that are the hallmarks of Anglo-American legal systems perpetuate assumptions about our role in the world, defining our relationship to resources and natural systems as one of domination and superiority over the natural world.

Currently, that conception of our role in the world—that of controllers—is bringing modern society face to face with the realities of living in a world largely if not entirely beyond our control, and during recent decades we have been forced to begin to modify our legal systems in attempts to protect environmental resources.  However, a fundamental divide between protecting environmental goods for the benefit of humans for their own sake and protecting natural systems for a purpose separate from direct human benefit remains evident in these laws.  The Clean Water Act, for example, seeks to protect water bodies with the goal that those bodies be returned to a “fishable and swimmable” condition, making clear that the law’s intended beneficiaries are the members of the human community.  Similarly, the Clean Air Act’s air quality standards state the Act’s protections in terms of human public health and safety.

Let me be clear here: I do not disagree with the goals of either of these Acts, or with those of numerous other laws intended to curb or reverse the deleterious effects that human activities have had on the planet.  My point is simply to draw attention to the purpose of these laws as solely (or, more generously, “primarily”) benefiting humans, as opposed to having been enacted with the intention of protecting the planet’s natural systems as having a “good” separate from anything that could benefit humans.

For example, while the AEP litigation is pending before the United States Supreme Court, other legal systems throughout the world are affording different potential methods to address the multifarious problems of human-caused environmental alteration and degradation.  In Ecuador, as one example, a fairly recent amendment to that country’s constitution recognized the rights of nature “to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.”  Notably, similar language has also been incorporated into local laws and resolutions passed by communities in the United States, reaffirming that the sentiment (if perhaps not yet the substance) is clearly reconcilable with the American legal tradition.

Even more recently, the Ecuadorian constitution’s protections for nature were invoked in what could set groundbreaking precedent in adjudicating the “rights of nature.”  The human plaintiffs in the lawsuit (questions of standing, anyone?) allege that harms outside Ecuador, to wit, the Deepwater Horizon oil spill in the Gulf of Mexico in 2010, caused injury to natural systems (or rather “Nature”), and that these injuries are redressable in the Ecuadorian constitutional courts.  The case was filed quite recently, and members of the environmental community, among many others, wait with baited breath to learn how the court will treat the alleged harms and claims for relief, which essentially would require that BP ensure that no such injuries occur in the future, rather than pay monetary compensation or penalties.  Taking a similar approach, Bolivia is also in the process of passing legislation acknowledging and protecting the rights of nature, although the scope and effect of the pending law remain to be seen.

Utilizing a different, more traditional individual-rights approach, the Federated States of Micronesia are seeking to invoke principles of international law to challenge the development of coal-fired power plants on the other side of the globe in the Czech Republic.  The challenge is based on alleged climatic damages caused by the use of fossil fuels.  This method of challenge, which maintains the existing Western framework of the rights of humans as opposed to nature, showcases another way in which the existing legal structures must be manipulated or contorted to remedy the problems caused by human inputs into the non-human natural world.

This approach seeks to massage existing remedies in established legal systems in attempts to ensure the preservation of natural systems.  Perhaps the most notable advocate of such a system in the United States was Justice William O. Douglas, whose position has been characterized by the idea that even trees have standing to redress environmental wrongs.  The fundamental idea of this position is that a human legal system should be able to provide remedies for harms to the environment, solely on the basis of those harms, rather than on any human injuries suffered.  Other attempts have been made to establish claims on behalf of natural objects, species, or particular creatures in the natural world, using concepts of guardianships or trusts to fit protections for the natural world into existing legal systems.  None of these methods of retrofitting, however, fully address the question of whose rights are actually at issue, or whether natural systems can even have “rights” subject to protection by humans legal systems.

The preceding discussion is, admittedly, loaded with numerous assumptions, extra-legal considerations, and other questions left begging.  Moreover, the ideas are nothing new in the realm of legal theory, but merely present issues central to problems of extreme current interest.  Thus, in light of the rapidly expanding base of scientific information, as well as growing fears of climate change, worldwide pollution, loss of natural ecosystems, and loss of species, to name a few, questions of how we grant or recognize rights for the benefit or protection of natural systems should be given substantial consideration in the continuing development of our legal systems.

Most people said I was a little crazy for heading to Israel in my first trip out of the country but what more could I ask for?  We went to meetings and museums, saw Roman ruins, and spent time at the beach.  I was feeling pretty good about my knowledge of the region both from my own studies and from the preparation I had from the first few weeks of class.  After patting myself on the back on the way over, almost as soon as we landed I realized what a neat little box I had placed around the Israeli-Palestinian conflict.  Needless to say, the conflict is anything but. 

Listening to Ir Amin speak on the second day I learned that the conflict is complicated.  I knew my mind was being opened when I heard Joe Perlov say “I hate the fence, thank God for the fence,” and I actually understood it.  At the Parent’s Circle meeting, Robi taught us that the conflict is deteriorating the moral character of Israel and the proof is in the rising levels of drunk driving and domestic violence. The man at the Arab Center for Policy talked about the Israeli-Arabs who have so many domestic and discrimination issues overshadowed by the conflict.  Even the extremely petite women who took us on our tour of Haifa Law School spoke about their experiences in the IDF.  What I thought I knew turned out to be the smallest sliver of reality; it affects so many people in so many ways.  This conflict consumed almost every conversation and meeting we had in Israel, but no one seems to know how to end it.  The one thing everyone did agree on was that a solution is necessary and the sooner the better.  The trip gave me an entirely new perspective on what is happening in that part of the world, and although completely exhausting, it was definitely a once-in-a-lifetime opportunity.

For me, the best moment was a moment of reflection in the executive suite of the InterContinental Hotel toward the end of the trip when we were unexpectedly given extra time to reflect on the absolutely insane but phenomenal few preceding days. [ed. note--this was when our flight was cancelled and the airline put us up at the InterContinental.]  Not only had the entire trip in general been an exhilarating experience, but it had also given to me one of the things I had been seeking since my matriculation into law school, a sense of group unity and reaffirmed self identity.  I have to admit, at first I was quite scared about what I would find when we landed in Israel and simply going was a conquering of my fear of the unknown.  However, I am exceedingly happy that I decided to follow through because it was through this experience that I was able to realize one of the things that I had been seeking since I started law school, namely that sense of camaraderie or unity with a group of people in the law school.  Finally finding one such experience after three years of searching made me breathe a sigh of relief.  In exploring Israel’s continuing journey toward discovering its own identity and place in the world, I have been able to discover some of my own identity.  I experienced many of the incredibly complex facets that make up the Israeli culture, I shared many exciting “firsts” with likeminded individuals, and I was allowed to experience the difficult complexities that make up some of Israel’s most pressing issues.  I saw people at their best … and I saw people at their worst.  It was being able to observe and partake in this entire gamut of emotion that made this a truly once in a lifetime experience.

And for one of the funniest memories from one of the students: “When we were walking the Via Dolorosa a man came up to me and gave me his pizzeria’s business card and assured me that this was where Jesus ate pizza!”

From Mary Ferwarda: It was the last day in an exciting, but very packed and exhausting schedule. We had just come from free time on the beach in Tel Aviv on the most perfect morning — sunshine, light breeze, few crowds — and I, personally, was dreading having to sit inside for yet another lecture.  When we all packed into a room at Tel Aviv University, and the speaker pulled up his Powerpoint, I took a deep breath to pool all of my energy to pay attention.  I should have taken a deep breath to prepare to be blown away.  Mr. Moty Cristal lectured, or rather, preached, his piece on crisis negotiation to a roomful of rapt students and professors.  Combining a pointed wit, quick humor, and a couple of Hollywood movies, Mr. Cristal walked the class through his experience negotiating with Palestinian militants who barricaded themselves in the Church of the Nativity in 2002 to avoid capture by the Israeli Defense Forces (IDF). 

With this event as a framework, Mr. Cristal discussed the movement between the parties’ power, self-identified rights, and underlying interests throughout this negotiation. He also focused on the balance between controlling the negotiation process while holding a “mindset of uncertainty” to flex to the ever-changing nature of crisis.   Ultimately, Mr. Cristal left the class with a four-step method of approaching crisis negotiation:  1) Diagnose the situation before acting;  2) Analyze the options available in your (broad) toolkit; 3) Respond in appropriate measure; and 4) Don’t forget to breathe!   After just over an hour of the intense give-and-take of Mr. Cristal’s lecture style, I took yet another deep breath, this one full of energy, hope, and gratitude. I was energetic about the far-reaching effects of ADR, hopeful about the good people accomplishing good results in this highly-conflicted region, and grateful to have participated in a week of such transformational education through Marquette University Law School! 

From Aaron Vanselow: Professor Cristal, an experienced crisis negotiator, seemed to promote that rather than simply trying to follow BATNAs, WATNAs, and other formal negotiation strategies line by line, the real key is that negotiators must always keep an open mind and constantly keep track of the basics.  The most important point he sent home with us was “power.”  Be aware of it, know who has it, know the sources of it, and know how to use it effectively.  Therefore, to be effective negotiators, we should at all times be mindful of what state the balance of power is in, know how we can change the balance of power to be in our favor, and finally take advantage of the balance when it is in our favor by having creative solutions that are at least marginally acceptable to both sides (and if there are no terms that are marginally acceptable to both sides, rephrase it so that there are).  In negotiation and dispute resolution, power plays an exceedingly important role.  Power is perception.  The trick seems to be controlling the perception and negotiating with finesse.  Doing that effectively requires awareness and much more preparation than action.  After all, as Professor Cristal said, “When the only tool you have is a hammer, every problem will always look like a nail.”

Cross posted at Indisputably.

For me, Roni Lev was one of the most interesting speakers we had during the trip. She presented on the operational legal questions she would face in her job as legal adviser to the Northern Command of the IDF. I was most interested in how Israeli law has evolved to address targeting and weighing the risk of civilian casualties. It was fairly clear the Israeli military and legal system had devoted a considerable amount of time to those questions, and that Israeli ethics had weighed heavily in the determination of operational rules. The whole discussion was rounded out nicely by Roni’s father, who provided an anecdote from his Air Force days of an Israeli pilot who received orders to fire but chose not to because of the probability of substantial civilian casualties. The commanding officer expressed his disagreement but respected the pilot’s decision. Overall, it was an interesting look at how the law tries to solve difficult operational questions, but also how the law will never be able to govern the complex situations that confront the Israeli military.

Cross posted at Indisputably.

When we arrived in Israel and began our sightseeing and touring, one of the things that struck me the most was how “normal” our surroundings were – people went to work, had families, and lived their day-to-day lives like the nothing out of the ordinary was going on in the region. Even though the conflict was not as apparent as I thought it would be, as the trip went on, we heard many different speakers with many different perspectives on the Israeli-Palestinian conflict, some more favorable to Israel and some more favorable to Palestinians. However, it was during our time meeting with two individuals from Parent’s Circle that the consequences of the conflict became real while at the same time breaking down the barrier between the two sides.  During our Parent’s Circle meeting, we met with two individuals both of whom lost a loved one in the conflict. The older woman, Robi, lost her son while he was on active duty in the Israeli Defense Force and the younger Palestinian man, Ali, lost his brother at the hands of the Israeli Defense Force. At first blush, one might assume these two individuals would be natural enemies given their stories, but instead they have come together in their grief to move past the conflict. Although these two individuals, like many others who participate in Parent’s Circle, have come together as a result of unfortunate circumstances, I think it demonstrates a larger concept at the heart of resolving disputes peacefully. Participants in the Parent’s Circle, both Israelis and Palestinians, are able to move beyond the conflict because they each have something in common, something in common that humanizes one another. I hope that if more Israelis and Palestinians can come together based on common interests or common experiences such that each side realizes that the other is human, both living day-to-day lives as mothers, fathers, brothers, sisters, wives and husbands, the conflict can fade into the background.

“A woman in South Africa described forgiving as giving up your just right for revenge, for me forgiving is understanding.” Such were the words of Robi during our meeting with Parent’s Circle on March 13, 2011, in Jerusalem. Robi is an Israeli woman who lost her son, an Israeli soldier, amidst the numerous confrontations that have assailed Israeli-Palestinian relations in the last fifty years. Robi’s remarks described the necessity of non-legal measures to reach the peace that both parties to the conflict in Israel desire. Robi’s co-speaker, a Palestinian by the name of Ali who had lost his brother in the same conflict, expressed hope in that if only Palestinians and Jews could understand each other’s narrative, not from their own perspective but from the other’s point of view, a solution might be reached. In his view, understanding each other’s narrative puts a “face on the enemy.” Robi and Ali led me to believe that current efforts by the Knesset and other organizations are working, but that  governmental efforts alone are insufficient to overcome decades (and centuries) of social, political, and religious animosity. In addition, the ability of Parent’s Circle to humanize the conflict would seem to stand for the proposition that a humanistic approach would prove more powerful and would create more permanent change than brute force or legislation. Anecdotal references from Parent’s Circle emphasize that violence creates a pernicious circle of victimization, revenge, and mistrust. To break this circle, individuals, followed by communities and states, must adhere to acts of non-violence, create empathy, and enable an atmosphere of trust. Trust is crucial to reach an agreement. Legislative efforts may establish trust through the rule of law, but community efforts are necessary to reach individual and collective reconciliation.

As followers of the blog know, one of the high points of our trip to Israel was dinner with Justice Aharon Barak and his wife Judge Elika Barak.  We were also joined by their daughter, Tamar, who is a mediator.  Interestingly from the dispute resolution perspective, Justice Barak was the judge who brought mediation to Israel through the Supreme Court, permitting cases to be referred to mediation.  In this post, student Olga Kordonskaya reflects on the evening:

The Baraks were open and willing to discuss various topics, including dispute resolution and their professions. Justice Barak spoke about criticisms made of him and discussed them in various contexts to help us understand what role he saw for himself in the judiciary. Justice Barak, who brought mediation to Israel, shared his opinions on mediation and its role in Israel and as a vehicle of dispute resolution. Judge Barak, with a different perspective as a labor judge, discussed the role of mediation in the labor courts, as well as her experience as a judge there and the challenges that the labor courts face.

Their daughter talked about the challenges of being a full-time mediator in a country where most mediators hold other jobs because there is not enough work, her approach to mediation, and the value of different approaches. In this conversation we had a chance to learn about dispute resolution and to better understand the court structure and the challenges that structure is posing, as well as potential solutions. We also considered what it means to bring a constitutional question in a country with no formal constitution. It was a pleasure being a guest in their home and having a chance to speak with people whose perspectives on dispute resolution in general and alternative dispute resolution specifically come from varied backgrounds. Additionally, it was humbling to have such access to a family that is so essential to the country’s dispute reolution development.

Cross posted at Indisputably.

We had the opportunity to meet some extremely bright and influential people in the Israel-Palestinian debate.  When I think back to the speakers we heard from, my mind turns to the three Arab men that we met.  [Ed. note--We met with Justice Joubron of the Israeli Supreme Court, Ali from the Parent's Circle, and Youssef Jabareen from the Arab Center for Law & Policy.]  Many of the Israelis (Jews) that we met were committed to the concept of peace and, likewise, were very open minded and tried to present fair assessments of how the conflict affects everyone involved.  I felt that I got a very good sense of the conflict from the Israeli perspective, but we often got the Palestinian and Arab Israeli perspective through the lens of an Israeli Jew.  There was something about hearing these concerns from people within the affected community that made me want to pay attention.  For me, understanding the human rights concerns that the Arab population in Israel faces  helps me to understand a facet of war that I have never been able to relate to.

Essentially, Israeli (Jews) are concerned about safety.

They have a fully formed and functioning country based on Jewish ideals . . . exactly what they envisioned when they fought for independence in the 1940’s.  My impression is that Israelis don’t care much about whether Gaza and the West Bank become part of Israel . . . IF turning over the land would mean peaceful borders and interactions between the residents.  I can relate to the desire for safety.  I’ve lived in a post-9/11 world filled with Level Orange Alerts and near-body cavity searches to board airplanes.

I have much more difficulty relating to a systematic cycle of discrimination and segregation that I liken to conditions in the South pre-1950’s.  The closest comparison I can make is to the segregated inner-city neighborhoods that populate the schools I’ve been privileged to teach in.  After championing myself as a forward-thinker in the area of diversity, the most surprising moment of self-awareness on the trip was walking through the Arab markets in Jerusalem and realizing how tense I felt.  I was hyperaware of cars with a junk-loaded back seat.  I felt nervous when I heard Arab shop owners yelling to each other in Arabic.  I think this anxiety stemmed from a combination of being among a culture that was completely unlike my own and thinking of all the images of terrorists I’ve seen on TV and in the movies.

When I took a step back and began meeting our Arab speakers, I could see that there was no need to be afraid.  These people wanted the same thing the Israelis do, a good, safe life.  Suddenly, I could see the cycle.  Not knowing and understanding another culture makes us afraid.  Fear encourages us to separate and discriminate.  Discriminating creates anger.  Anger causes acting out.  Acting out causes fear.  This cycle fuels the Israeli-Palestinian conflict, but also racial, religious, and class tensions here.  The only way to break this cycle is to remove the fear, and to remove the fear, we must understand.  Now, I can’t honestly say that a week in the Middle East has made me fearless, but I can say that I am committed to continuing to try and understand.

Cross posted at Indisputably.

We traveled to Jerusalem, the Galilee (where we slept at a kibbutz right on the Sea), Safed, Nazareth, the Golan Heights, Haifa, and Tel Aviv. In addition to visiting important religious sites along the way, our itinerary included tours of the Supreme Court and the Knesset, visits to Haifa, Bar-Ilan, and Tel Aviv University law schools, meetings with co-existence groups like the Parent’s Circle (a group of bereaved families from both sides) and Ir Amim (an NGO working on Israeli and Palestinians equality in Jerusalem), a briefing from the legal advisor to the Northern Command of the Israel Defense Forces, meetings with practicing attorneys, a meeting in Nazareth with a lawyer from the Arab Center for Law and Policy, and so on.

One clear highlight near the end of the trip included dinner at Aharon & Elika Barak’s home. You might recall that Justice Aharon Barak was our Hallows speaker this past fall. As former president (chief justice) of the Israeli Supreme Court, Aharon Barak is widely considered the “John Marshall” of Israeli law. His wife, Elika, just stepped down as Deputy Chief Judge of the Labor Court. Not only did they help coordinate the visit to the Israeli Supreme Court at the beginning of our trip, which included a meeting with the first Israeli Arab judge on the court, they provided a home-cooked meal in their backyard while discussing judicial activism and the role of dispute resolution in the court system!

Over the next few days, I’ll be posting some of the student reflections from the trip. We are also hosting a public debriefing of the trip at the Law School this Monday, April 4th in Room 267.  The entire community is invited.