The Supreme Court Blocks The Politicization Of International Law (Forbes.com) April 25, 2013
Posted by daviddavenport in Op/Eds.Tags: International Law, Supreme Court
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Sometimes the reaction to a Supreme Court decision is as telling as the opinion itself. So it is, I think, with the Court’s recent judgment in Kiobel v. Royal Dutch Petroleum Co., in which the Court decided that the Alien Tort Statute does not allow tort cases to be brought in U.S. federal courts when the actors and territories involved are outside the U.S.
At first blush, this seems like a relatively straightforward case, one of statutory interpretation and the seemingly arcane rules of legal jurisdiction. But, in fact, a human rights cottage industry had formed around this statute, such that the New York Times editorial board and Amnesty International have decried the decision as an assault on human rights, and the Chamber of Commerce saluted a welcome limitation on expensive lawsuits against corporations. It is one more example of how international law is as much about politics as it is law.
What the Supreme Court was trying to say is that the United States is not the world’s courtroom (even if it is the world’s policeman). The Alien Tort Statute, enacted as part of the Judiciary Act of 1789, permits federal courts to recognize private claims in for a limited number of international law violations. The legislative history suggests that its purpose was to open federal courts to legal claims by foreign ambassadors serving in the U.S., and the statute remained in relative obscurity for its first 171 years, being invoked only three times.
But as California Governor Jerry Brown wisely observed, “Needs very quickly turn into rights, and rights turn into laws, and laws turn into lawsuits.” And so beginning in the 1970s, nearly two hundred years after its enactment for a different purpose, creative human rights lawyers found a way to bring foreign nationals who suffered injury or loss of human rights at the hands of foreign corporate entities or government officials to bring claims in U.S. federal courts. The laws of jurisdiction normally require that cases be brought where the plaintiffs or defendants reside, or where the acts complained of occurred, where there is a direct stake in the matter and witnesses are located. But the 33 words of this old statute looked like a loophole waiting for lawyers to drive through, and those cases began to be brought. Finally, last week, the Supreme Court closed the door, saying there was nothing about this law to give it “extraterritorial application.”
In response, the New York Times editorial board reminded me why I almost never read their work anymore. The opening line of their editorial attacked the “Supreme Court’s conservatives” for dealing “a major blow” to human rights. Not until you got to the fourth paragraph did you learn that, in fact, all nine justices agreed with the basic outcome of the case, though concurring opinions were filed. So as far as the Times is concerned, this case was not really about the 33-word statute from 1789, nor its extraterritorial application to make the U.S. into the world’s courtroom for torts. It was about five conservatives out to undermine human rights. You wonder if they even bothered to read the case.
The concerns of Amnesty International and other human rights organizations were at least more thoughtful, if still more political than legal. These organizations, which are often thought to wear white hats and represent the greater good, are in fact single-issue advocates who are not as concerned with legal process as they are winning on their issues. The case at hand involved Nigerians whose rights were allegedly violated by corporations based in the Netherlands and the U.K. Their claims could be heard by courts in Nigeria, where the alleged conduct occurred, or in the countries where the corporate defendants are based. But lawyers like to “forum shop,” choosing courts that are most sympathetic to their cases and the laws of jurisdiction are rarely their concern. So this case about limiting a jurisdictional loophole became all about limiting human rights enforcement for them, even though the plaintiffs were left with perfectly good legal options.
Finally, the U.S. Chamber of Commerce viewed this as a tort reform case, protecting corporations from further expensive cases in U.S. courts. That wasn’t really the point either, since it was really about the laws of jurisdiction more than the law of torts, but they were happy to celebrate the victory.
In my view, the Court wisely exercised judicial restraint and, in an essentially unanimous decision, ruled that U.S. federal courts are not prepared to take torts cases from all over the world. But you would never have known that was the legal question or the Court’s answer from the retort by political players who surround and fuel international tort and human rights litigation.
Please click on the link to the article in Forbes.com:
http://www.forbes.com/sites/daviddavenport/2013/04/25/the-supreme-court-blocks-the-politicization-of-international-law/
Palestinian Statehood: Politics Trumps International Law — Again (Forbes.com) December 4, 2012
Posted by daviddavenport in Op/Eds.Tags: International Law
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The recent vote by the United Nations General Assembly to accept Palestine as a nonmember observer state is a powerful reminder that what often passes as international law is not really law at all, but is merely politics by another name. In fact, in this case, the U.N. decision runs contrary to international law in ways that not only failed to win the day, but that weren’t even considered.
For starters international law has objective criteria for determining whether or not an entity qualifies as a state. The Montevideo Convention on the Rights and Duties of States (1933) sets forth what is generally accepted as the legal criteria for the establishment of a nation-state: (1) A permanent population, (2) a defined territory, (3) a government, and (4) the capacity to enter into relations with other states. Essentially all of these questions are still up for grabs in the case of Palestine. The negotiations between Palestine and Israel have yet to define a territory, and a key part of the territory contemplated by the U.N. vote, Gaza, is actually controlled not by the Palestinian Authority, but by the terrorist organization Hamas. Multiple regimes operate throughout Palestine, and its residents are perennial refugees.
So did the U.N. vote create a state even though these criteria were not met (or even discussed)? Legally the answer is “no” but politically the answer is “in a limited way, yes.” If Palestine does not meet the required criteria, it is not a state, no matter what the General Assembly might say. The entire atmosphere surrounding the vote was more pep rally than legal process. Those who cast votes did not struggle with the legal criteria for, as Israeli diplomat Abba Eban once said, “If Algeria introduced a resolution declaring that the earth was flat and that Israel had flattened it, it would pass by a vote of 164 to 13 with 26 abstentions.” The actual vote here was very close to that: 138-9 with 41 abstentions. Nations were voting political preferences, not law.
So if the vote did not create a legal state of Palestine, what did it accomplish? By elevating Palestine to nonmember observer state status at the U.N., it falls short of making Palestine a U.N. member, which would be a stronger claim to statehood. Only the Security Council can do that, however, and it has declined to do so. But by calling it a state, the vote does give Palestine access to certain international bodies, most especially the possibility of bringing a matter before international courts and tribunals. This, of course, is precisely what Palestine wanted, since it already attempted to bring a case against Israel in the International Criminal Court, but was turned back because it was not a state. So the vote does provide at least some kind of claim to statehood, or a kind of quasi-statehood, the full implications of which are not yet known.
But ironically, in elevating its status at the U.N., Palestine violated yet another international law, the Oslo Accords. Under this legal convention, Palestine agreed not to change its international status except through the Accords and the peace process they established. By going to the U.N. to seek statehood and define its territory, Palestine has violated this international treaty, and placed its roadmap to peace at real risk. Of course Palestine would say that the treaty violation was a risk worth taking so lengthy and frustrating has the whole process been, but strengthening one’s legal status on one hand by violating international legal agreements on the other hand is more than a little troublesome.
Which brings us back to international law and its discontents. Much of what passes for international law is really at best international norms countries agree to follow, and politics or national interest when they decide not to. As Judge Robert Bork wrote in his book Coercing Virtue: The Worldwide Rule of Judges: “International law is not law but politics. For that reason, it is dangerous to give the name ‘law,’ which summons up respect to political struggles that are essentially lawless.” Thanks to the Palestinian statehood campaign and the U.N. vote, the political struggles of the Middle East are now worse, and international law is cast aside and violated in the process.
Riyad Mansour, the Palestine Observer Mission’s Ambassador to the United Nations, speaks to the media November 27, 2012 at UN headquarters in New York on the upcoming vote in the General Assembly on November 29 to recognize Palestine as a non-member observer state at the UN. (Image credit: AFP/Getty Images via @daylife)
Please click on the link to view the op/ed on Forbes.com:
http://www.forbes.com/sites/daviddavenport/2012/12/04/palestinian-statehood-politics-trumps-international-law-again/
International Court Resists Palestinian End-Run (Townhall.com) April 17, 2012
Posted by daviddavenport in Radio Commentaries.Tags: International Law
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For three long years, the Prosecutor of the International Criminal Court has been trying to decide whether he has jurisdiction to investigate Israel for alleged war crimes in Gaza in 2008-09.
Although the legal answer was clearly NO, he faced political pressures to acknowledge Palestine as a state, and to bring Israel, under the jurisdiction of international criminal law.
Finally this month he said no, Palestinian statehood is a question for the United Nations, not a criminal court, and therefore Palestine’s complaint against Israel could not be taken up.
There are good reasons why the U.S., Israel and 70 other nations have not joined this Court because, like many international tribunals, it is often more about politics than law. It took far too long, but at least they got this one right.
To listen to the audio please click on the link:
http://townhall.com/talkradio/audioplayer/639975
The ICC and Palestine: A Response (OpinioJuris.org) April 6, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
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In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could: the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States. The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found. Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009). Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.
The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg. A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction. Those debates belong in political bodies, not in criminal courts. This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.
So, what now? Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally. How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later? If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations. And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations. Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.
Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively. Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.
To view the op/ed please click on the link:
http://opiniojuris.org/2012/04/06/the-icc-and-palestine-a-response/
International Criminal Court Prosecutor Resists Palestinian End-Run (Forbes.com) April 4, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
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For three years, the Prosecutor of the International Criminal Court in the Hague has been trying to decide whether he had jurisdiction over Israel for alleged war crimes in Gaza. Even though the legal answer (“NO”) seemed obvious from the start, both politics and the inevitable expansionist agendas of international courts kept the question alive and Israel potentially subject to the Court.
Finally this week the Prosecutor announced that he would not pursue the investigation of Israel “for acts committed on the territory of Palestine since 1 July 2002.” For now, this closes off yet another legal front of attack on Israel, and also thwarts another end-run by Palestine around the path by which Palestinian statehood is supposed to be resolved; namely the Middle East peace process and the United Nations.
The interesting question is why it took so long for the Prosecutor to reach what seemed like a no-brainer outcome from the start. In January 2009, the Palestinian Minister of Government filed a submission with the ICC asking the Court to take jurisdiction over Israel’s actions in Gaza. But the Court’s own rules require that any matters submitted must come from a “State.” Since Israel is not a party to the treaty creating the Court (nor is the U.S. and 70 or so other nations), and since Palestine is neither a party nor a State, it seemed obvious to most international lawyers that the ICC had no jurisdiction over the matter.
This is precisely what Prosecutor Luis Moreno-Ocampo concluded at first, that he had no jurisdiction. But a few weeks later, he reversed field and said he wanted to think further about whether Palestine might have sufficient earmarks of a State to submit a case to the Court. And so the hunt for those earmarks began. Some argued, for example, that because Palestine walks like a state and talks like a state, it therefore must be a state. Only in the vagaries of international law might one describe such a legal argument as “teleological” and therefore be taken seriously. Others said that because some states interact with Palestine as a state, it must be a state.
But when you look at the list of nation-states that belong to the United Nations, Palestine is not there. Instead it is listed as an “observer” at the U.N. And when you review those who attended the meetings creating the International Criminal Court itself, again Palestine is not listed as a state, but rather as one of the “other organizations” in attendance. Indeed, Palestinian officials themselves have long admitted that statehood is their objective, not something they have already attained.
Yet the ICC Office of the Prosecutor spent three years pursuing a lengthy and, for a prosecutor, almost bizarre process of consideration. First, prosecutors entertained “submissions”, not only from parties but from anyone, really, who had something to say. Memoranda were filed by human rights organizations, NGO’s, academics and countless others, with many of these posted on the Prosecutor’s website. Then the Prosecutor invited eight international lawyers who had made submissions, to come to the Hague for a chat about the matter. If it’s difficult to imagine your local prosecutor holding afternoon tea sessions to discuss whether to prosecute war criminals, again welcome to what passes as the world of “international law.”
It is both interesting and important to understand why the Prosecutor took so long with this question. For one thing, the impulse of international organizations is inevitably to expand their jurisdiction. They want more power and influence, not less. Since the purpose of the ICC was to halt impunity for war crimes, genocide and crimes against humanity, the human rights organizations that were behind formation of the Court worry less about legal niceties such as jurisdictional rules and want broader jurisdiction. The Prosecutor himself may share those views but, at the very least, he feels pressure from those who founded this relatively new court in 2002, a court that only recently completed its first trial.
The Prosecutor also faces political pressures that he is only bringing cases against Africans and not those from other, more powerful countries. Indeed, virtually all of his early investigations have been against Africans and perhaps he needed to keep this case alive, if only to demonstrate some balance. Further, he may have been under pressure to keep his hand in the Middle Eastern peace process, holding the threat of prosecution over Israel’s head. And, the ICC could have been one more ticket for Palestine to punch in its effort to receive recognition from international organizations and move along toward its goal of statehood.
But in the end, all those political pressures could not find a proper legal argument to carry the day, and the Prosecutor had to admit that the question of statehood, and therefore the ability to bring cases to the ICC, was really a decision for the United Nations, and not for the Court. Imagine, though, all the time, effort, frustration, and political leverage that were invested in a decision that could and should have been reached three years ago.
To view the article please click on the link:
http://www.forbes.com/sites/realspin/2012/04/04/international-criminal-court-prosecutor-resists-palestinian-end-run/
The Prosecutor of the International Criminal Court Makes a Sensible, if Delayed, Decision (Advancing A Free Society) April 3, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
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The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.” This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.
But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state. To that the answer is “no, for now.”
The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation. But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.
The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in The Hague. He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally. He spent three years looking at arguments that Palestine possessed this or that mark of statehood. One sensed that he was under political pressures to open the doors of the Court more widely to take this case.
In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer. It thus becomes a political decision for the U.N., rather than a legal decision for an international court, which was surely the right answer all along. The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.
To view the article please click on the link:
http://www.advancingafreesociety.org/2012/04/03/the-prosecutor-of-the-international-criminal-court-makes-a-sensible-if-delayed-decision/#more-5729
The Palestinian End Run (Townhall.com) November 4, 2011
Posted by daviddavenport in Radio Commentaries.Tags: International Law
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The Palestinian campaign for statehood marked one more notch towards
Courtesy of Townhall.com
victory when the U.N. cultural arm, UNESCO, voted to admit them to membership. But the win came at a high price—the U.S. will end its financial support, which comprises 22 percent of the agency’s budget.
There is an established and objective test for statehood, which Palestine does not meet. But in recent years, a competing postmodern approach says, if other nations think you are a nation-state and treat you as one, then you must be one.
It is this kind of international legal nonsense that Palestine is pursuing, seeking to get its statehood card punched by every international body and nation it can. The U.S. is right to oppose this end-run by vetoing it in the Security Council, voting against it elsewhere, and declining further funding to bodies that give into it. Otherwise international law reflects little more than the mood of international leaders on a given day.
To listen to the audio please click here:
http://townhall.com/talkradio/dailycommentary/628327
Prosecuting Israelis? (Townhall.com) September 30, 2011
Posted by daviddavenport in Radio Commentaries.Tags: International Law
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Many close observers ofPalestine’s bid for statehood at the U.N. believe their primary motive is to join the International Criminal Court and seek charges againstIsraelfor war crimes inGaza. But it’s not at all clear that will happen.
The Palestinian Authority has worked for over two years to get the ICC to bring charges and the Prosecutor rightly seems reluctant to wade into those political waters. Even at the U.N., the Secretary General has declined to comment on whether “observer state” status would permitPalestineto join the ICC, and some believe he will try to avoid the issue as long as possible.
The fact is that U.N. bureaucrats and international courts should not decide the complex diplomatic, political and military questions that characterize theIsraelandPalestineconflict. These should be, and whatever the U.N. decides about statehood, will ultimately have to be decided through diplomatic negotiations.
To listen to the audio please click here:
http://townhall.com/talkradio/dailycommentary/622190
A Central Part of the Palestinian Identity (‘The Frank Gaffney Show’ Secure Freedom Radio) September 27, 2011
Posted by daviddavenport in Radio Interview Podcasts.Tags: International Law
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With JAMES ROCHE, ANDY MCCARTHY, DAVID DAVENPORT
Will the reality of a Russian government run by the admittedly authoritarian Vladimir Putin translate into a hurdle for the Obama administration? Frank opens today’s Secure Freedom radio with his thoughts on the subject. When Putin officially becomes President again, this will be the first time in Moscow since 2000 that Russia will acknowledge that there is no power center besides this one man. The Obama administration, as displayed in the past, is completely helpless in stopping this authoritarian rule from continuing. The current administration’s policy towards the Russian government has been based on appeasement of its leaders. Thus, Russian strategic forces are being upgraded with new weapons, as the United States must downgrade its own. By passing the New START treaty, the Obama administration has stopped any production for new nuclear technology and has only forced the US to cut up our long-range nuclear weapons. Why are we allowing such an atrocity to occur while the Russians are able to keep their short-range missiles?
Contributing Editor for National Review Online and weekly commentator on Secure Freedom Radio, Andy McCarthy discusses his desire and America’s need for a competent President during these trying times. In the words of Ambassador John Bolton, President Obama is the “First Post-American President,” who is rejecting American exceptionalism and innovation. McCarthy fears what Obama will do in the one and a half years that he has at the helm of American leadership. Now, in order to gain more financial backing for his re-election campaign, he is catering his policies more towards the Jewish minority. Hurting the situation, the President maintains an ignorant view of foreign policy in regards to Palestine. His administration believes that most Palestinians are in favor of an Israeli state, whereas data suggests that over 90% of Palestinians in their early teens through early 30s deny that Israel has a right to exist. How can our leaders expect the numbers to be any different when it is as central to the Palestinian identity that Israel needs to be destroyed as the First Amendment is to Americans?
Research Fellow and Counselor to the Director at the Hoover Institution, David Davenport gives us a legal lesson on the qualifications for statehood. Currently in international law, there is no clearly defined test to determine whether a territory is or is not a state. There is also no clear body that has the power to recognize a nation as such. However, there are four traditional criteria that determine the legitimacy of a state. The two most important of these criteria are that the state must have a clearly defined territory and have control over this territory. Palestine does not fulfill either of these requirements; therefore, it cannot be considered for statehood. Davenport thinks that the reason they are asking for statehood now is due to their frustration with the Two-State Agreement failing between the cracks.
To Listen to the Podcast please click:
http://www.securefreedomradio.org/2011/09/27/a-central-part-of-the-palestinian-identity/
Palestinian Statehood Violates International Law (Townhall.com) December 7, 2012
Posted by daviddavenport in Radio Commentaries.Tags: International Law
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When the U.N. General Assembly voted to make Palestine a nonmember observer state, it showed once again that there is a lot of politics at the U.N. but not much law.
There are 4 criteria for recognizing a state in international law. The Palestinian Authority does not meet them and, amazingly, these criteria were not even reviewed. Instead the General Assembly voted on politics—“we think it’s time,” or, “we don’t like Israel.”
Further, the Palestinian Authority move to seek U.N. recognition violated an international treaty. In the Oslo Accords, the PA had agreed not to change its international status except through its negotiations with Israel.
Maybe there is no such thing as international law, only international politics, since countries only seem to follow it when it suits them. That’s certainly how it looks at the United Nations.
Please click on the link to listen to the audio:
http://townhall.com/talkradio/dailycommentary/659979