Category: International & Comparative Law

1

Law school killed the video star?

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

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

yamashitaroppozensho.JPG

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

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

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

5

The U.N. Human Rights Commissioner Who Cried Wolf

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

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

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

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

5

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

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

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The NSA Phone Call Database: The European Perspective

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

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

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

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5

Parting words from Justice Scalia

scalia.jpgThe time has come for me to say farewell to the CoOp community — I’ve thoroughly enjoyed my stint as a guest blogger, and hope to visit again sometime soon.

As much of my blogging over the last month has been on the controversy over the use of foreign and international law in U.S. courts (see here and here), I thought it would be appropriate in my “farewell” blog to give Justice Scalia the last word. His diatribes against foreign and international law have inspired various Congressional attempts to legislate against the practice: A Senate bill, for example, would forbid federal judges from citing “any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” So what does the Justice himself think about his Congressional fan club?

Not much, apparently. The Washington Post reports today that Justice Scalia chastised Congress for sticking its nose where it doesn’t belong. “It’s none of your business. No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions.” The pending legislation, Scalia complained, “is like telling us not to use certain principles of logic.” And he concluded, “Let us make our little mistakes just as we let you make yours.”

As surprised as I am to find myself in agreement with him, I say, “Amen, Justice Scalia.” In my view, the jury is still out on whether it’s a “mistake” to rely on foreign and international law in constitutional interpretation — but surely this is something for our judges to decide for themselves. America is blessed with one of the strongest judiciaries in the world, and we can trust them to figure this out on their own. Congress should leave them alone and let them do their jobs.

And on that note, I’ll sign off for now. Many thanks to all those who have debated this and other issues with me over the past month. I have learned much from your comments, and look forward to continuing the dialogue in the future.

3

Wanna hobnob with George Clooney this weekend?

Then come join the crowds at the Save Darfur Coalition’s “Rally to Stop Genocide” on the National Mall in Washington, D.C., this Sunday, April 30. Other luminaries appearing at the event include Senator Barack Obama, Nobel Peace Prize winner Elie Wiesel, rap impresario Russell Simmons, and Paul Rusesabagina (whose story was depicted in the superb film Hotel Rwanda, which you should rush out and rent tonight if you haven’t seen it yet). The Save Darfur Coalition brings together more than 160 faith-based, human rights, and humanitarian organizations, and the list of speakers at Sunday’s event reflects the incredibly diverse, grass roots nature of this effort. Here’s the blurb from the Coalition’s website:

“The rally is part of the “Million Voices for Darfur” campaign to generate one million postcards for delivery to President Bush, who recently pledged to push for additional UN and NATO help to protect the people of Darfur. We applaud the President’s leadership, but the work is far from done. We are urging President Bush to take steps necessary to end the genocide and build a lasting peace.”

Organizers estimate that around 20,000 people will attend the rally in DC, with smaller rallies to be held in cities around the country. Even if the crowds defy expectations and number in the hundreds of thousands, they will be dwarfed by the figures coming out of Sudan itself: According to the Coalition website, in just three years, 400,000 people have died and nearly 2.5 million have been displaced.

How many political issues out there can unite Barack Obama and Sam Brownback in common cause? Kudos to both Senators, and to the many other politicians, celebrities, and ordinary folk who have put compassion and principle above partisan bickering, in an attempt to shake us all out of our apathy.

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Looking Out Over the Crowd: A Moderate’s Take

In a previous post, I asked whether there was anything new to be said on the issue of the role of foreign and international law in interpreting the U.S. Constitution. Roger Alford wrote a thoughtful comment (also posted on Opinio Juris), laying out what he sees as some of the big issues that remain to be explored among scholars and courts. His post got me thinking: How will the debate over foreign and international law evolve over the next, say, ten years? And what will second-generation scholarship in this area look like? I, for one, hope it looks something like the following:

First, I hope we all tone down the rhetoric. Justice Ginsburg has a point when she blames the hysterical tone struck by many Congressmen (and, I would add, by Justice Scalia) for fueling the death threats that she and Justice O’Connor have received from the “irrational fringe”. On the other hand, she and others in the so-called “internationalist” camp surely deserve some of the blame for the ratcheting up of the rhetoric: They wrongly dismiss the democratic legitimacy concerns of those in the so-called “nationalist” camp as just so much neo-isolationist thinking. Is the simplistic, Crossfire-esque tone of the debate really helpful, and why does everyone feel the need to choose up sides? Am I an internationalist or a nationalist? I have no idea, because I don’t know what these labels MEAN.

Instead, I hope future debate on these issues becomes increasingly dominated by moderates, who reject these simplistic labels. In fact, the tide may already be turning: A recent editorial in the Washington Post called for moderation, and pointed out that “in the debate over foreign law, neither side has a monopoly on wisdom.” So what does a nuanced debate on the role of foreign and international law – one dominated by moderates in both camps — look like?

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1

If you’re watching television tonight …

Check out “The Armenian Genocide,” a PBS documentary that tells the sad story of the slaughter of over a million Armenians by the Ottoman Empire during and just after World War I. Read the New York Times’ review of the documentary here.

Genocide is much in the news of late: Justice Kennedy devoted his entire keynote speech at the Annual Meeting of the American Society of International Law to the issue (see my previous post here), and genocide charges are pending against Saddam Hussein for the mass slaughter of Kurds during the 1980s. The PBS documentary reminds us that the crime of genocide has a long and painful history, one that pre-dates the 1943 coining of the term “genocide”. (For those who are interested in the issue, there’s no better reference than Samantha Power’s Pulitzer prize-winning book, “A Problem from Hell: America and the Age of Genocide.)

Amazingly, the Armenian genocide is still the subject of tremendous controversy a hundred years after it took place — the government of Turkey resolutely refuses to admit that it occurred, even at the risk of jeopardizing its entry into the European Union. Apparently PBS’s treatment of the issue is also not immune from the controversy: According to the New York Times, many PBS stations (bowing to lobbying efforts by Armenian groups and some U.S. Congressmen) have pulled a panel discussion that was to air after the documentary, in which two “experts” were to defend Turkey’s position that the genocide never occurred.

Why should you care about a “forgotten” genocide that occurred almost a hundred years ago? Here’s one reason: Many argue that the Armenian genocide – and the world’s failure to stop (or even to condemn) it – served as a source of inspiration for the policies of Adolf Hitler. He famously said:

I have placed my death-head formations in readiness, with orders to them to send to death mercilessly and without compassion, men, women, and children of Polish derivation and language. Only thus shall we gain the living space which we need. Who, after all, speaks today of the annihilation of the Armenians?

Kudos to PBS for proving Hitler wrong. The show airs tonight on PBS, at 9 p.m. EST.

11

Reading Justice Kennedy’s Tea Leaves

Scholars like myself who write on the formerly-arcane-now-bizarrely-fashionable issue of the role of international law in U.S. courts were sorely disappointed by Justice Anthony Kennedy’s keynote address a few weeks ago at this year’s Annual Meeting of the American Society of International Law. The past four years of ASIL having witnessed Justices Breyer, Ginsburg, O’Connor, and Scalia speak at length on the issue, Justice Kennedy departed from established tradition and instead gave the crowd a moving (even if somewhat depressing) speech on the dangers of genocide and our obligations as lawyers to do something about it. (Peggy McGuinness at Opinio Juris blogs about it here. Tony Mauro reports on the speech here.) He even declined to answer a question asking him for his views on using international law from none other than Anne-Marie Slaughter (former president of ASIL and now dean at Princeton), simply responding that “we should be judged by what we write.” But Justice Kennedy has not always been so reticent. In a speech just last year before the Eleventh Circuit Judicial Conference, he discussed at length the numerous international law issues before the Court, and defended the Court’s use of foreign legal sources in its decisionmaking.

All of which leaves me wondering: Has Justice Kennedy suddenly lost interest in the debate over the role of foreign and international law? What explains his reluctance to share his views? Have Congressional resolutions condemning the use of foreign authority in US courts lessened his enthusiasm for the practice? Have the diatribes of irresponsible politicians — inspiring death threats from those whom Justice Ginsburg calls the “irrational fringe” – played a role? In short, is Kennedy backing away from his now-famous statement in Roper: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom”? Or is it simply that the battle lines have now been drawn, everyone has chosen up sides in this Crossfire-esque debate, and so Justice Kennedy reasonably believed that there is nothing new to be said on the subject?

What does the CoOp crowd think? IS there anything new to be said on this subject? And will Justice Kennedy back away from Roper in future decisions?