Category: International & Comparative Law

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The Countermajoritarian Difficulty, Turkish Style

turkey_flag_large.bmpTurkish politics are interesting. One of the largest Islamic countries on earth, it is — by Middle Eastern standards — an extremely stable and even moderately liberal regime. You wouldn’t want to get too gushy about Turkey. They do all sorts of nasty things from time to time in the Kurdish regions of the country, for example. Still, they have regular and more or less contested elections and moderately smooth transfers of power from one party to another, not something that you can say about too many countries in their neighborhood. Things, however, are a bit more complicated than this. The recent election of Abdullah Gul to the presidency illustrates why. Gul is the standard bearer for the Justice and Development Party, a moderate Islamicist group. Back in the day, he was the foreign minister of an earlier Islamicst government that was deposed by a military coup. The question is whether the Turkish Army will now oust him from power.

The Turkish military does this from time to time. They see their role — when not suppressing the Kurdish minority — as safe-guarding the secular constitution set up by Kamal Ataturk after the fall of the Sultanate at the end of World War I. Accordingly, they feel fully justified from time to time in deposing duly elected governments that get too enthusiastic about political Islam. It is easy, of course, for Americans to get sanctimonious about such things. For all of the anxiety that some feel about the military-industrial complex, the American military does a pretty good job at maintaining political neutrality and subservience to civilian leadership. No one but conspiracy-theory wingnuts expects the Pentagon to mount a coup if they are unhappy with election results. How horrible, we say, that the Turkish military feels justified in thwarting the will of the people.

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Beware the Teenie Weenie: Social Norms and Expressive Culture

teenieweenie.jpgI’ve been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I’ve also come across some pretty weird stuff, like this story from the German media about a children’s book deal that fell through. A famous German children’s book author was trying to get a book deal to publish a translated version of her illustrated children’s book in the US. Unfortunately, the deal didn’t happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.

We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we’re really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people’s decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

What’s the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren’t published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children’s literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequently do) that they occupy a social institution that has real effects on our expressive culture. Our expressive culture depends on publishers fulfilling their professional role as guardians of free speech as well as profit-maximizers. Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.

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“Bad Thai cops to endure Kitty shame”

This one was just too good to pass up — both for the headline, above, and for the story itself. From the Associated Press:

BANGKOK, Thailand – Thai police officers who break rules will be forced to wear hot pink armbands featuring “Hello Kitty,” the Japanese icon of cute, as a mark of shame, a senior officer said Monday.

Police officers caught littering, parking in a prohibited area, or arriving late — among other misdemeanors — will be forced to stay in the division office and wear the armband all day, said Police Col. Pongpat Chayaphan. …

The striking armband features Hello Kitty sitting atop two hearts.

“Simple warnings no longer work. This new twist is expected to make them feel guilt and shame and prevent them from repeating the offense, no matter how minor,” said Pongpat, acting chief of the Crime Suppression Division in Bangkok.

“(Hello) Kitty is a cute icon for young girls. It’s not something macho police officers want covering their biceps,” Pongpat said.

Indeed.

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Piercing the Veil of Anonymous Bloggers

Lives of Others Picture.jpgI’m delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, “there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach.”

Personally, I don’t need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a “show me your papers” internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model — as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above — and you really should see it — you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

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The Right to Food

hunger.jpg[Another dispatch from Rome.]

Yesterday, we visited the UN’s Food and Agricultural Organization (FAO), based near the Circus Maximus. The FAO’s legal staff was gracious enough to give Temple’s students and faculty a presentation on their work, along with tips on how to get into international legal work.

The presentation and idea I found most interesting was the FAO’s advocacy on behalf of the (so-called) human right to food. The FAO (and the considerable scholarship on this topic) derive the right largely from the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 11:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent . . .

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

In response to a student question, the FAO’s lawyers acknowledged that this right is not presently internationally justiciable. Instead, in the words of the FAO’s strategic plan, advocates for the right should “support initial national implementation of the right to food and the Guidelines.”

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Can Boeing Make the U.S. Government Pay Up?: Human Rights Litigation and “Who Pays” Arbitration

Last week, the ACLU filed a federal lawsuit against a subsidiary of Boeing Company, on behalf of alleged victims of the U.S. government’s “extraordinary rendition” program. The lawsuit, filed under the Alien Tort Statute, claims that Boeing’s subsidiary knowingly aided the CIA in transporting terror suspects to secret overseas locations, where they were tortured. The ACLU did not name the U.S. government itself as a co-defendant in the suit, presumably because it feared that the U.S. would successfully plead some sort of governmental immunity as a defense, and that Boeing might be able to free ride on that defense.

The ACLU’s strategy – go after the corporate accomplice, and leave the government perpetrator out of it – is increasingly typical of human rights litigation under the Alien Tort Statute and its sister statute, the Torture Victim Protection Act. Frustrated in their attempts to hold U.S. and foreign governments themselves legally accountable for abuses, human rights lawyers have increasingly turned their sights on multinational corporations who “aid and abet” governments in committing human rights abuses. (According to business groups who track these suits, claims against corporations now make up roughly 75% of all lawsuits filed under the ATS and TVPA.)

Not surprisingly, this state of affairs has transformed corporate lobbying groups into mortal enemies of the Alien Tort Statute – but thus far, their efforts to kill the ATS have yielded little. Congress has declined to repeal or amend the ATS to protect corporate interests, and the Supreme Court has left the ATS door open to suits against private actors.

Would corporations be better off abandoning their “kill the ATS” strategy altogether, and instead seeking a kind of compromise with human rights groups? Should they refocus their efforts toward shifting the blame – and the litigation costs – to the state actors who perpetrated the human rights abuses in the first place? That’s the question posed by Roger Alford in an intriguing article, “Arbitrating Human Rights” (forthcoming in Notre Dame Law Review). (You can download it here.)

The problem, as Alford sees it, is that all too often, “human rights litigation against corporations is a proxy fight in which the accomplice is pursued while the principal evades punishment.” He (rightly, in my view) questions a state of affairs in which the corporate accomplice alone bears the cost, while the primary malfeasor – the state itself – escapes liability.

Alford’s proposed solution? Corporations should look to the fine print in their existing contracts with sovereigns. Contracts between corporations and sovereigns typically include provisions regarding waivers of sovereign immunity and arbitration. Alford asserts that a corporation found liable for aiding and abetting human rights abuses should invoke these provisions to pursue a “who pays” arbitration claim against the sovereign itself for contribution or indemnification.

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An Insider’s Critique of the War on Terror

Harvard law professor Jack Goldsmith will soon be offering up his own critical account of the Bush Administration’s post-9/11 legal justifications for the war on terror. Here’s the abstract of his forthcoming book, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” courtesy of Amazon.com:

A central player’s account of the clash between the rule of law and the necessity of defending America.

Jack Goldsmith’s duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do…legally. Goldsmith took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed.

Goldsmith is a conservative lawyer who understands the imperative of averting another 9/11. But his unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. Goldsmith’s fascinating analysis of parallel legal crises in the Lincoln and Roosevelt administrations shows why Bush’s apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.

Should make for a fascinating, and no doubt controversial, read. Thanks to Peter Spiro over at Opinio Juris for calling this to my attention.

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The Almost French Thirteenth Amendment

Here is a story that ought to fill don’t – cite – foreign – law – to – construe – the – constitution conservatives with horror. Of late I have been reading the legislative history of the Thirteenth Amendment. The language ultimately adopted was lifted virtually verbatim from the Northwest Ordinance of 1787. Senator Sumner of Massachusetts, however, did not like this langauge and proposed instead that the amendment should read:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.

The “all persons are equal before the law” language, however, also had a history. Sumner traced it back to the various declarations of rights contained in the constitutions of the French Revolution. He went on to note that “this article has been adopted in the charters of Belgium, Italy, Greece; so that is is now a well-known expression of a commanding principle of human rights.” Sumner’s language was defeated, of course, but not before Senator Howard had taken a swipe at Sumner’s Francophilia (and his knowledge of French history):

The learned Senator from Massachusetts, I apprehend, has made a very radical mistake in regard to the application of this language of the French constitution. The purpose for which this language was used in the original constitution of the French republic of 1791, was to abolish nobility and privileged classes. . . . It was never intended there as a means of abolishing slavery at all. The Convention of 1794 abolished slavery by another and separate decree expressly putting an end to slavery within the dominions of the French Republic and all it colonies.

Now, sir, I wish as much as the Senator from Massachusetts in making this amendment to use significant language, language that cannot be mistaken or misunderstood; but I prefer to dismiss all reference to French constitutions or French codes, and go back to the good old Anglo-Saxon language employed by our fathers . . . .

Indeed.

Welcome to the Blogosphere. . .

Jacob Katz Cogan’s International Law Reporter. ILR should be a great guide to the ever-growing literature on international law. Jacob has served as assistant director of Yale Law School’s Global Constitutionalism Project and has held fellowships at the Carr Center for Human Rights Policy. I know many international law professors follow Opinio Juris and IntLawGrrls. . . if you want to point readers to other international law blog resources, please post on the comments below!

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Interested in what’s hot in international law scholarship?

Then check out the rising stars who have contributed to Opinio Juris’s inaugural on-line symposium for young scholars. The subject matter runs the gamut, from climate change to compliance to international criminal procedure to WMD proliferation. Authors include Jacob Cogan, Gregory Gordon, Vik Kanwar, Eugene Kontorovich, and Hari Osofsky. Senior scholars in the field serve as commentators for each of the papers.

Kudos to Opinio Juris for offering yet another important contribution to the international law blogosphere!