Blogging on battlefield robots at Opinio Juris

I put up a post introducing the topic of battlefield robots over at Opinio Juris today. And Glenn Reynolds gave it an Instalanche - thanks Glenn!

Congratulations to all WCL graduates!

My congratulations to all the graduates of WCL - commencement was today, with Justice Breyer delivering the commencement address. My warmest congrats to all WCL grads, but especially to my students and their families, and to my two research assistants during this past year, Marc Patterson and Shaunna Bailey.

Guest-blogging at Opinio Juris this week

As I mentioned a few days ago, I am guest blogging this week at Opinio Juris. Hope you can join us there!

Elliptically joining the discussion of Peter Spiro's book at Opinio Juris

... by quoting Michael Ignatieff. Here at Opinio Juris. I will be guest-blogging at Opinio Juris for real next week.

The redoubtable Megan Mcardle on the media and numbers

Most reporters can't read a financial statement, don't know how to handle statistics, and would run screaming if you suggested a regression.

Philip Glass, Songs and Poems for Solo Cello

(Update. I’ve now listened to the 7 songs a number of times. I’ve concluded that it is much less Bach, than the earlier, more primitive Domenico Gabrielli, of the Ricercars for solo cello, among the earliest of all known music composed specifically for cello. Gabrielli is simpler and less developed than Bach, but has a driving insistence all his own. I actually quite love Gabrielli, the Ricercars, the Canon for 2 cellos (which is arguably the earliest cello music), and also his two sonatas for cello and continuo, all of which I play - badly. The thing is, Glass’s cello songs are arpeggios repeated mostly, rather than counterpoint and, except for the wonderful song V, there is relatively little of the polyphony of the Bach solo suites. Indeed, not really even the polyphony that you find in the Gabrielli ricercars. In that respect, it has a more raw, primitive feel to it, like the Gabrielli ricercar number 1, which is almost like a continuo line for solo cello. Wendy Sutter, playing the Glass songs, gets a big bite on these repeated arpeggios with her bow. She is a player with enormous precision and control - you can feel that in her bow arm, completely - but there is also a sense, in her bowing of these chords, that she is, I don’t know, tearing off chunks of raw meat with that same bow. There is a huge, guttural power there. It is unusual to have the music focused so much on the lower range of the cello, but it is definitely ‘gutteral’. I’m not sure that is what she or Glass had in mind, but there you have it.)

Jean-Marie just gave me a gift out of the blue, something she had seen reviewed somewhere ... Philip Glass, Songs and Poems for Solo Cello, performed by Wendy Sutter.

It’s an absolute stunner, both the music and the performance. It is very close in feel to Bach solo cello suites. I will be listening to this a lot, especially late at night working with headphones on.

I have not normally been a huge Philip Glass fan - the repetition just got too boring, even if I was supposed to be achieving a higher plane or something. It seemed like perfect soundtrack music for the right kind of performance, but not something I really wanted to listen to.

No, that’s not quite right. I saw, many years ago at American Repertory Theatre in Cambridge, a quite stunning Philip Glass opera, The Juniper Tree. That was rivetting. But it was also true that the force lay in the repetition, which would have quite bored me out of my mind if it had not been tied to the book being played out on stage.

This album is something very different. Quite remarkable. Wendy Sutter has a remarkable sound, precision and intensity. Utter and complete control. The sound of her bow conveys utter control.

Track V is particularly wonderful.

Guest-blogging at Opinio Juris May 19-25

The folks over at Opinio Juris have very kindly invited me to guest blog there during the week of May 19-25. It is one of the genuinely high quality law blogs, a great combination of voices, so I hope I will have something to add.

I am greatly tempted to join the discussion of Peter Spiro’s new, outstanding book - outstanding, splendid, and well worth your buying it despite my disagreements with it - that will take place on Opinio Juris next week. I might yet. However, I am looking to persuade an editor to let me review it as part of a larger review, and it probably doesn’t help things if I shoot my wad off on a blog before a review is published. So I will probably refrain.

What kinds of things cross my mind to blog about? My interests are a little different from most of the Opinio Juris folks - I have long standing interests in laws of war and international law and human rights law, of course, but my day job is actually as an international business and finance professor. Although even there, my interests run toward nonprofits, ngos, international philanthropy, and global civil society. Development finance, microfinance, international development paradigms. I have a long standing interest in terrorism and counterterrorism that long predates 9-11; one of my favorite, if unsung, roles is on the editorial board of the Journal of Terrorism and Political Violence, dating back to the 1980s. I have a very long standing interest in ethics of war, just war theory, and am currently looking at the ethics of war in the Second Inaugural Address, contrasting Lincoln’s views in the Address with Sherman, McClellan and ... well, there’s no easy way to put this, but I am interested in certain comparisons to Albert Camus, Rene Char, and Raymond Aron. There, I’ve said it. The idea and limitations of humanitarian neutrality. And of course ... robot soldiers!!

Also, I am very interested, for the first time in my career as an academic, in trying to understand the shape of the scholarship that makes up international law scholarship. I’ve never really paid attention to it. Now I am - and am increasingly finding that the most interesting connections draw one back to the larger questions of where legal scholarship is going in an age of reinvigorated legal realism as social science, rationalism and empiricism. The triumph of the Higher Utilitarianism in the legal academy - we are living the age of a kind of combined Cass Sunstein and Eric Posner. It must be a sign of age - although because I started into academic law in my mid-40s, I haven’t been doing this that long - that I’d get interested in the navel-gazing.

What else? Strategy and tactics in the US response to transnational jihadist terror - and the alternative approach that Cass Sunstein offers, in Worst Case Scenarios, of a narrow cost benefit analysis, or the other analysis from cost benefit analysis given by Eric Posner and Adrian Vermeule - very interesting Opinio Juris forum on this - but what interests me is the implications of cost benefit analysis. It is, as Philip Bobbitt has said (he says he doesn’t recall, and the reason is that it was an offhand remark while we were walking around my neighborhood as he smoked a cigar a couple of months ago), “relentlessly tactical.”

So there are a lot of things on my mind to blog about - how much they really have to do with international law, though, I have no idea. I fear that I am going to bore - or mystify - the Opinio Juris readership.

Anyway, hope you can join us at Opinio Juris, that week and every week!

Nicholas Eberstadt on 'Graying Europe' in the Revista de Libros (Madrid)

If you read Spanish, you should check out Nicholas Eberstadt’s new essay - part of a three part series - on demography in Europe. It is:

Nicholas Eberstadt and Hans Groth, El proximo desafio demografico de Europa: la rentabilidad de la salud, Revista de Libros (Madrid), No. 137, May 2008.

The Revista de Libros website is here (although NIck’s article is not available online). Nick is one of the world’s leading demographers, and holds a chair at American Enterprise Institute here in DC.

I regard the Revista as the finest Spanish language literary review - the equivalent of the New York Review of Books, the TLS, or the London Review of Books. It is such a pleasure to read, both for the prose in Spanish - but equally for the intellectual and cultural breadth. Of course, I have a certain bias. I started reading the Revista while on sabbatical in Spain four years ago, and got hooked. Eventually I found myself in contact with the review, was delighted to have a piece of mine from the TLS published there, and ... well, I am proud to say I am the coordinador de ciencia politica for the Revista - roughly the editorial advisor on political science.

All that said, I am late, late, late with a review of my own for the journal, a review of Paul Kennedy’s history of the United Nations, Parlamento de la humanidad.

Private equity equals 'proxy for the credit markets'?

This Financial Times comment, “Private equity boom was nothing more than a clumsy trick,” dates back to March 31, 2008, by Michael Gordon, but having finished teaching my private equity class ten days ago, and sitting and reading papers from the 70 or so students in that class, I am pretty much convinced that this is the case. (For those of you who occasionally look at this blog for law of war and public international law, etc., my day job is actually corporate finance and international business law professor.) Excerpt:

So now we know. The boom in private equity, which was promoted as the superior business model, based on patient capital, superior management and an alignment of interests, was nothing more than a trick of financial engineering – and a clumsy one at that. The magic of leverage works both ways, as we are discovering.

Henry Kravis of Kohlberg Kravis Roberts is asking his investors to be patient after a bout of negative returns and writedowns, echoing the cries of Alan Bond and other entrepreneurs of earlier credit cycles. Hamilton James, Blackstone’s president, said at the Super Returns private equity conference on February 26: “We’re a proxy for the credit markets.” David Rubenstein, co-founder of Carlyle Group, recently asked whether “modest return” was a more apt name for private equity. He thinks it’s funny. It’s not.

As investors are increasingly bruised by the recognition that reality has once again triumphed over hope, the private equity barons are having to confess that the benefits of superior management, alignment of interest and, of course, the superior reward structure counted for very little.

Many of the private equity deals look no different from Yell and other highly leveraged public companies. As Warren Buffett notes, when the tide is going out, we find out who has been swimming without their shorts.

Sometimes a simple observation can prove an important point. In November 2006 Citibank published a research report that highlighted how private equity returns could be achieved by just leveraging basic stock market indices. It is a seminal note. “How do they do that?” asked the report, and then went on to provide the answer.

By leveraging the basic stock market indices by three to one, Citibank pointed out, returns could exceed even the best historical private equity returns. Never mind that as they were spellchecking the final version of the note, leverage on that season’s deals was reaching four to one and even five or six to one.

As Citibank pointed out, the private equity barons would always emphasise alpha over beta – their ability to outperform a market rather than merely ride the market wave – but it showed clearly that leveraged beta was where the returns were being generated.

My view is a pretty traditional one of private equity: that it is one end of the oscillation between public markets (characterized by weak control, leading to agency problems and inefficiencies, but relatively cheap cost of capital) and private equity (characterized by strong control, alignment of agency interests, but relatively high managerial costs to achieve gains). Firms move back and forth between those two points, or are threatened implicitly, or the market is threatened implicitly, with movement via buyouts and resale back into public markets. Superior management pays off at one point in the cycle; cheap capital at another. A pretty traditional view.

But after the Fed shovels so much capital out the door, then the business model is transformed from that into simple leverage. As Gordon, quoting Citibank, says, leveraged beta triumphs over patient alpha when the money is easy. So, as Hamilton James says, private equity is just a “proxy for the credit markets.”

For this, you get gigantic fees and a big premium? So much rent-extraction from the conveyor belt moving money out of the Fed? Remind me again what super-duper skill set it takes to take money from Ben Bernanke?

'Lawfare' as illegal behavioral counters to superior military forces, and the limits of technological responses to it

A very considerable amount of weapons technology for war-fighting today is aimed at greater discrimination in targeting. It can be obtained in very different ways - better intelligence gathering for the sake of targeting, avoiding ambushes, the use of robots and remotely controlled platforms, greater precision in firepower, and many other things. These are very good technologies to develop for their own sakes.

But, likewise to a very considerable extent, these advances in technology are aimed to compensate for the fact that the enemy, the other side, fights by means of violations of the laws of war jus in bello. An enemy indifferent to the laws of war can counter advances in war-fighting technology by finding new ways to violate the rules of war faster than we can develop new technologies to address them. Behavior can generally change faster than technology, and bad behavior can usually outstrip the rate of advance in adaptive good technology.

One way to define ‘lawfare’, in fact, is systematic behavioral violations of the rules of war, violations of law undertaken and planned through advance study of the laws of war in order to predict how law-abiding military forces will behave and exploit their compliance; and where such violations are intended as a behavioral counter to superior military forces, including superior, yet law-compliant, technology and weapons systems.

Understood in this way, lawfare is not merely particular violations of the laws of war and particular war crimes, such as illegal use of civilian shields or the failure to wear uniforms or distinguishing marks, etc. It is conceptually, if not legally, perfidy. It seeks illegally to induce an enemy to rely for its safety and the safety of civilians upon the laws of war in order to attack through violations of those self-same laws of war.

(’Lawfare’ is used in other ways and contexts, but this is the one that is primarily relevant to the battlefield.)

Robot war spiders

My research assistant Marc found this picture of a robotic intelligence gathering spider.

British defence giant BAE Systems is creating a series of tiny
electronic spiders, insects and snakes that could become the eyes and
ears of soldiers on the battlefield, helping to save thousands of
lives.

Prototypes could be on the front line by the end of the year,
scuttling into potential danger areas such as booby-trapped buildings
or enemy hideouts to relay images back to troops safely positioned
nearby.

http://www.dailymail.co.uk/pages/live/articles/technology/technology.html?in_article_id=563786&in_page_id=1965

'New Class' theory and a new intellectual project for the American center-right?

I come to center-right conservatism via the left. That makes me a neocon on one definition: the intellectual who starts out left and moves right. It is a movement somewhat akin to Christopher Hitchens’ drift, I suppose, although I never embraced Trotsky or anything that far left. But it also means that I haven’t spent the last twenty years raised on Russell Kirk or Michael Oakshott or Leo Strauss or anyone, really, other than Edmund Burke and Milton Friedman. I was busy reading Rawls and Dworkin and Marx and &tc., &tc.

But when I think about my own rightward movement, it is essentially the same, general rightward drift of a certain set of my fellow Telos editors from the 80s-90s – the late, great Paul Piccone, Russell Berman, the new editor, Fred Siegel, Jean Bethke Elshtain, among others, in which a big motivation was analysis of what was understood as the ‘New Class’ and the ‘wholly administered society’. (There was another argument that revolved around left and right interpretations of Schmitt, but I was not so interested in that.)

What I suggest below is, in one sense, and one may as well start by saying it, quintessentially neocon – arrogant leftwing intellectual hijacking of the right’s project and turf. But, possibly, it is also part of a plausible new project for the center-right, one that goes beyond the admittedly crucial concerns of national security and war, and which connects the security concerns of 9-11 to a larger and, in my perception, widely shared view on the American center-right, that the more fundamental category, even for national security and current wars, is about the meaning of a large democratic sovereign state and the identification of its people as citizens and members of a particular society. It is not everything, not a comprehensive project, agreed. And it perhaps inevitably trends toward a (undogmatic) libertarian conservatism, an optimistic conservatism, and a very American conservatism, as distinguished from social conservatism, pessimism and declinism, and European-style reaction. It is an economic program mostly by implication, and it is not inherently socially conservative. Anyway, it seems to me largely beyond dispute that the center right is in need of a new and positive (rather than simply anti-) self-conception and way of defining its agenda.

Roughly I propose the question of elites and their relation to the rest of America in an economically globalized age. Taken a certain way, this seems like a very lite-weight, insubstantial, gossamer-thin question about ‘leadership’ – one that looks a little too much like business self help books, ‘7 qualities of effective leaders’ and all that pablum.

But one might undertake this, however, as a genuinely robust analysis of the problems of the increasingly fraught relationship in America between governing elites and the governed in a globalized world, in which elites are increasingly disconnected from those they purport to govern, but who, in order to obtain political power in a democracy, affect forms of populism and authenticity. The practical problem is how to have elites that are sufficiently connected to those they govern while not losing their qualities as elites. It is a particular discussion for the right because the right has not formally given up the open commitment to elites in the way that the left has (dishonestly, however, because in actual fact the left has a very particular commitment to globalized elites to manage American masses for their own good, but one which it increasingly understands is unpalatable among the unwashed mass of Americans and a political commitment which it has difficulty directly admitting). The left thinks it has solved the connection problem by identity group politics and the management of the masses through the ideology of multiculturalism: the trinity, and strictly defined hierarchy of race, gender, class. The right, however, still believes that a society needs elites as such - rather than the left’s vanguard class or vanguard managers - and that those American elites need to be formed and committed to democratic society as such and a democratic society - American society - in particular.

This gap between left and right over the formation and role of elites has large implications for the notion of nation-state, cosmopolitanism, and the things Philip Bobbitt talks about re ‘market states’ in his brilliant new book, Terror and Consent. How do you have the cosmopolitan virtues of the market state while still maintaining the social capital that enables such a market state? These are questions that carry me, at least, back to Christopher Lasch and Philip Rieff, New Class theory, the therapeutic state, and the ‘administered society’. The dangling issues are the globalized economy, on the one hand, inviting elites away from their own societies, and multiculturalism, on the other, offering elites an ideology for the management of the social conflicts of identity politics.

These questions are large enough to define a certain ethic for a center right that seeks the benefits of a globalized world but which nonetheless sees the democratic nation state as the repository of the social capital – the social trust relationships, the social institutions of the rule of law, and so on – that makes that global economy socially sustainable. What kinds of elites does it take to run, maintain and extend that kind of world? How cosmopolitan can they be? How much can they find their training and values purely through pure cosmopolitanism and what appears increasingly to be the only truly universal language of our world - finance? What does citizenship mean? As political actors, what connection should they have with those whose lives they effectively run? Does it make any difference that the loose citizenship affiliations of the elites of the market state seem to apply mostly to the post-industrial Western world, and that nationalism is a driving force in, for example, China – no cosmopolitanism there – and that quite different models obtain in China, Russia, India, etc.?

This was a bigger discussion in the mid 1990s than it is today, as a matter of domestic American society - but it seems to me of growing importance, the transformation, in an economically globalized world, of elites into today’s mobile, market driven experts. In 1996, I wrote a long review essay for Columbia Law Review on New Class theory in connection with reviewing Anthony Kronman’s 1990s book on unhappy lawyers, together with Lasch’s final book, Revolt of the Elites and a wonderful book of sociology of the New Class, Steve Brint’s In an Age of Experts. The last half of my essay lays out an argument about New Class elites and lawyers, and how professionals such as doctors and lawyers who used to form the leadership elites that British socialist reformers such as RH Tawney saw as a crucial leadership class, if rooted in particular communities, instead have opted for market returns that have, however, caused them to uproot from particular communities, giving up social and authority for fluid, market-based expert pay. I haven’t been thinking about that for a while, but I think it might be time to return to it and update it.*

Is this really about the renewal of American conservatism? Is it large enough for that? Or something quite different? Is it really a form of small-l libertarianism, not conservatism? Heck if I know, but although once upon a time I might have looked for this kind of thing from the left, those days are long since gone.

*
“The new elites are in revolt against the burdens of leadership because those would require becoming part of these communities and would put some restriction on their mobility. It would require that they talk with the masses and not simply to each other as experts. The old elites wanted to be the top of the communities in which they had grown up; whether to lead or dominate, to serve communities or exploit them, at least they understood themselves as having a place in them. The new elites, by contrast, want no connection; they understand that power is elsewhere, money is elsewhere, and mobility is everything; if indeed they have to live somewhere, it will be if at all possible in a wholly private, gated community. Yet simultaneously they want politically to dominate.

The New Class pushes its mobility to absolute limits, launching itself into what it imagines is a global society conducted in the jet stream made weightless by the complete mobility of capital, but with devastating consequences for those left behind on the ground. For those who cannot fly, there is first, the administration of life by these same elites and their hirelings, the authoritarian, bureaucratic formations which, to be sure, express themselves alternately in soothingly therapeutic psycho-babble or communitarian slogans of the common good or assertions of new and endless rights and, second, economic insecurity in the midst of being urged to greater self-esteem.”

(From my 1996 Columbia Law Review essay. Notice that I have not mentioned here Obama, Clinton, or McCain. But the above concerns do not seem to me irrelevant to current arguments in the midst of the presidential election campaign. These are notes, by the way, for a forthcoming essay for Nomos on conservatism.)

Against Libel Tourism ... Floyd Abrams in WSJ

It is time to stop letting English law allow wealthy Saudis and others to undermine the First Amendment. Floyd Abrams, the renowned First Amendment lawyer, calls for putting a stop to ‘libel tourism’ - by which Cambridge University Press and other supine publishers, under libel threat in England, not only pulp books without so much as a legal fight, but actually demand successfully that American libraries take them off the shelves. Floyd Abrams, “Foreign Law and the First Amendment,” Wall Street Journal, April 30, 2008.

Ian Fleming and the TLS

So Ian Fleming was a fan of the TLS? And even once wrote a review for it? See TLS editor Sir Peter Stothard’s blog note in advance of the new issue.

ps. I am pleased to see that a new Bond series of novels is coming out - with Sebastian Faulk at the writing helm - and quite eager to get the new one, Devil May Care, from Amazon when it appears at the end of the month. I just pre-ordered it for my wife for her birthday, in fact, so I hope it’s good, but I have a lot of confidence in Faulk.

Peter Bernstein interview in WSJ on economic crisis

Peter Bernstein, the Wall Street investment banker turned historian, and the first editor of the Journal of Portfolio Management, has a very interesting interview in today’s WSJ (link via Moneyweb).

Bernstein, now 89, has written wonderful books on the nature of contemporary finance economics. I once reviewed his Against the Gods: The Remarkable Story of Risk, in the TLS back in the mid-1990s. I have the review posted as an open access download at SSRN; as the financial crisis has taken off, I note that it has been increasingly downloaded.

All of Bernstein’s books are worth reading, including the ones that deal with the new hedging and leveraging strategies in finance. But I think Against the Gods is his best book, a genuine classic in finance, one that succeeds wonderfully in offering a highly informed understanding of risk economics to the non-mathematical reader but, more importantly, succeeding in revealing it as a core cultural and historical competency of Western culture from the Renaissance forward, a crucial element in the growth of capitalism but an independent cultural and intellectual history all its own.

“Mr. Bernstein, whose books include "Against the Gods: The Remarkable Story of Risk," sees two culprits. One is the abuse of securitization -- the trend for banks to hold fewer loans on their books and instead turn them into securities that were sold to other investors. The other is simply years of overborrowing by financial institutions and consumers alike.”

Bernstein sees the crisis taking much longer to resolve than many analysts, used to the Fed waving its magic wand, seem to think, and thinks the resolution will be shallower with less upside. Strikingly, however, he sees an environment in which those with the capital to take risks will find opportunity. Why? Because the resolution of the crisis will entail a long term pull back in risk and credit. Opportunities will be available for those able to take risks - but the crisis will severely limit the credit available for such risks. Those with available resources will be able to take advantage.

Also, Bernstein suggests that although a recovery in real estate is crucial for the economy, it is too hard for regular investors to enter such areas easily - too much money is involved, and credit too tight. So he suggests - I was intrigued by this, because it struck me as counterintuitive - the stock market as offering a complete range of risk but with some level of liquidity unlike real estate.

(Unrelated: there is one other great book on finance as intellectual history, political theory, a whole bunch of intriguing things run together, well worth reading, and that is James MacDonald’s A Free Nation Deep in Debt.)

My own views on international law and the attempted shipment of Chinese arms to Zimbabwe

The background to the post below, urging the Nobel Peace Prize to the South African longshoremen’s union, is as follows. I’ve have moved it separately in order to not mix up that call with my own special views on broader topics of international law. So:

I was asked a few days ago by the Africa department of a major international philanthropy which, safe to say, is strongly pro-international organizations and global governance, as to whether I could think of any basis in international law to prevent the shipment of Chinese light weapons to Zimbabwe where chances seem pretty excellent they would be used to kill the political opposition to Mugabe.

I got my research assistants on it and, unsurprisingly, we couldn’t find any. After all, as I pointed out to the foundation, if you take the position that, in order to constrain the United States from wicked unilateralism by saying that things like embargoes and sanctions must be approved by the Security Council, the price will be that when you want to constrain China, you don’t have any easy international law mechanism to do so. That’s because you already decided that the Security Council would be not simply the political meeting ground of the great powers, but something much more ambitious, the supreme arbiter of a federalized global governance system in what Kofi Annan called, in one of his worse moments, our “fledgling collective security system.”

Hence things like ‘responsibility to protect’ (probably not applicable because, horrendous at the situation is, it probably is not at the level contemplated by R2P, but maybe I’m wrong about that, if you count starvation) under the UN 2005 General Assembly reform document require that the Security Council approve action. I am willing to contemplate a different interpretation of that language, as is the US State Department, and read it to permit unilateral or ad hoc coalition action such as NATO action. But that’s not how most countries understood it when they drafted it - they intended it as a constraint upon the US and NATO following the Kosovo war - and to claim otherwise is thereby just more US wicked unilateralism.

That’s not even mentioning the fact that Zimbabwe - at the United Nations General Assembly, the UN Human Rights Council, any of the UN organs that supposedly truck in the ‘values’ of the international community - is in jolly good standing.

You can come up with all sorts of very, very, very soft law that can usefully be cited in press releases. You can talk about actions that need to match the aspirations of human rights documents such as the ICCPR. But of course it’s aspirational values talk. So what?

And anyway, a lot of the idealist value of those documents on light weapons and small arms - the value that might have existed to deal with a government importing arms to mow down its own citizens in order to override an election it lost - has been frittered away because the global civil society activist community thought it more important to use what started as a generally laudable campaign against promiscuous shipment of small arms into various conflicts in Africa, and into the hands of ten year old militiamen, into a frivolous campaign for gun control in the United States. Not surprisingly, the language of those documents doesn’t have quite the same moral force against Mugabe when language quite appropriate against a dictator shooting his own people is profligately employed against lawful gun ownership in the US.

Look, I’m not a gun owner - I strongly favor Second Amendment rights along the lines that, say, Glenn Reynolds does, and I have come to agree on the evidence that to a considerable extent I and my family are free-riders on the security provided by gun owners - but I don’t personally much care about guns as such.

I have lots of experience, though, in how activists cheapen and exhaust their own rhetoric, by taking it from one context and promiscuously applying it to another. Beware easy political analogies. The entire light weapons and small arms campaign went from serious concern about flooding Africa with weapons to a fantasist’s view of gun control in the US. The activists might continue to believe that there is a simple continuum from Mugabe to concealed-carry laws in the US, but that way lies madness, and many in the international community have gone there. Leaving them with far fewer tools of rhetorical seriousness by which to confront the Mugabe’s of the world - if that, rather than railing against the United States, was ever their first priority.

Real action requires democratic sovereign states to stand up, not just to Zimbabwe, but even more importantly to the country that - forget the US - genuinely embodies pure amoral self-interest and unilateralism, China. Hard as it may be for the American or European progressive left to understand, there are indeed worse things - and quite possibly worse things to come - than American hegemony. And give some credit where credit is due - the strongest force in the international community against the Chinese arms shipment has been the US State Department. Not international law in the supposed fora of international law - plain old diplomatic pressure by a democratic sovereign. But even at that, the US did not have serious international support and it appeared quite likely that the shipment would go ahead.

Luckily, the South African longshoremen’s union stepped into the gap - physically and not just diplomatically. By refusing to unload the small arms off the Chinese freighter, and sending it back out to sea, they sent a message worldwide that no one else had sent.

Nominate the South African longshoremen's union for the Nobel Peace Prize

In the past few days, the South Africa longshoremen’s union refused to unload small arms from a Chinese freighter being sold by a Chinese company to Zimbabwe, where chances are excellent the arms would be used against Mugabe’s political opposition. By their own refusal to offload the weapons, and by encouraging their union fellows in other southern Africa countries to follow suit, they have done more than anyone else to stir up public moral outrage that has enabled the pressure of democratic sovereigns - the US and others - to have bite with China. They gave local moral cover to regional African organizations, whose individual countries have not been critical of Mugabe, to make statements against the arms shipments.

Judges in South Africa have also been very courageous in issuing orders against transshipment across South African territory. They have special tools in that the South African constitution incorporates international human rights standards into the local law in a way that is not true in other places, including the US. I think it is fine that South Africa’s constitution does so, under the historical development and circumstances of that country, in a way that I would not think right for, say, the United States. But it meant that judges were able to issue orders that, within that country’s constitutional order, were not exercises of judicial overreaching.

***
So my proposal is that the next Nobel Peace Prize be awarded to the South African longshoremen’s union for its contributions to world peace by standing up against arms shipments by an amoral, rising power, China, concerned only with commercial advantage and currying favor its fellow dictators worldwide, and standing up for the population of Zimbabwe when damned few in the rest of the world are willing to do so.

Give the 2008 Nobel Peace Prize to the South African longshoremen’s union.

(Hey, thanks to the Weekly Standard Scrapbook for the shout-out!)

(ps. I originally said 2009 prize, assuming that the 2008 process is either largely over or well underway. But then someone told me it wasn’t, and I should say 2008 prize. I don’t actually know, but would be happy were someone to take up this suggestion, either way.)

John Bellinger on ATS litigation and KA on opinio juris

John Bellinger, State Department Legal Advisor, made a very important speech at Vanderbilt Law School on Alien Tort Statute litigation. I am not a fan of the ATS, and believe moreover that Sosa did virtually nothing to rein it in - all it did was give a judge inclined to go forward a formal checklist for going forward, and a judge inclined not to go forward a formal checklist for not going forward. That’s a long discussion. (I see Roger Alford has a very useful, detailed post at Opinio Juris.)

However, even beyond the question of the ATS, there is something that I regard as an even larger - and more intractable problem, of which the ATS is only a part - the inability of the US government to give out consistent opinio juris and coordinate it through the various executive departments. In particular, there seems to be no mechanism by which State, Defense, and Justice can put themselves on the same page and consistently present the same position whether to foreign governments, international organizations, and courts.

I realize that as a professor, I don’t really understand how hard it is to make policy and act on it, let alone have it be coordinated with other departments of government. I also have a vague, outsider’s idea that different parts of the government probably think that there already is okay coordination and broadcasting of US views - despite perceptions of people like me that the US does nowhere near enough to plainly state it and declare it to be opinio juris. So it is without any idea at all of how government works on the inside that I suggest some kind of coordinating, uh, something to establish and publicize consistent opinio juris. The task the US faces is to assert in a systematic way its state practice as its view of international rules of law. It needs to do so in an environment that is increasingly hostile to the idea of state practice as establishing international law, but also an environment that, being increasingly judicialized, has difficulty recognizing - because of its own rhetorical methods - anything that does not involve written pronouncements of one kind or another.

The government has not understood this fundamental shift - that courts find it much easier to look at something like the ICRC’s not-so-good customary law treatise rather than facts of US state practice. In part this is because something like the customary law study is easy to use - it looks, to a US judge, like a Restatement, with a bunch of reasonable sounding rules, and a judge can simply find a rule, apply it and cite it. State practice is often not very reasonable or rational from the standpoint of how a judge might reasonably see things - state practice is political. Indeed I doubt that very many ATS courts even understand that state practice does constitute a source of international law in any real way - it is so alien their domestic sense that law is a rational and rationally established set of norms. So they look instead for materials that conform to their domestic law sense of what law is supposed to be and how it is established. The US government needs to learn how to put forth its views consistently, in support of its state practice, and in a way that puts it forth as opinio juris. For that, government needs to be on the same page and say so publicly.

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Let me make several observations regarding the ATS at the outset. The first is that ATS litigation continues largely unabated, despite the Supreme Court’s attempt in Sosa to rein it in. Second, the ATS has given rise to friction, sometimes considerable, in our relations with foreign governments, who understandably object to their officials, or their domestic corporations, being subjected to U.S. jurisdiction for activities taking place in foreign countries and having nothing to do with the United States. Third, the development of the scope of the ATS has largely been left to litigants and the courts, without formal involvement from Congress and largely contrary to the views of the Executive. This has been a problem, not least because many recent ATS suits have tended to implicate important aspects of U.S. foreign policy. In the end, there are good reasons for limits on the scope of the ATS – through courts exercising restraint, or if necessary, through legislation. We need to ensure the ATS does not complicate international efforts by the political branches to promote human rights abroad, a cause to which the United States is deeply committed.
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[T]he Court [in Sosa] identified a number of factors that counseled special “judicial caution” and a “restrained conception of the discretion a federal court should exercise in considering a new cause of action” under the ATS. Among other things, the Court recognized the “potential implications for the foreign relations of the United States” that “should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Accordingly, the Court stressed that devising new federal common law causes of action based on international law “should be undertaken, if at all, with great caution.” Justice Souter’s opinion summed up the situation: the door for ATS litigation was “still ajar subject to vigilant doorkeeping.”

Notwithstanding the Court’s directive for restraint, almost four years later, litigation has showed no signs of slowing down. Plaintiffs continue to push against the door the Court left “ajar,” arguing for expansive applications of customary international law. Among the suits courts have heard are a suit against an American company for selling Israel bulldozers under a U.S. military assistance program that were eventually used to demolish Palestinian homes; a suit against U.S. chemical companies that manufactured Agent Orange used by the U.S. military as a defoliant during the Vietnam War; a suit against two high-ranking government officials of the United Arab Emirates alleging involvement in abuses of underage camel jockeys; and a suit against a Canadian energy company for aiding and abetting human rights abuses by investing in Sudan. The Second and Ninth Circuits, in particular, have proceeded as before. One post-Sosa federal court has frankly conceived of its role as that of a “quasi international tribunal[ ],” dispensing an international law that “supersed[es] and suppl[ies] the deficiencies of national constitutions and laws.”[1]

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As it happens, I served as an expert defense witness in the Agent Orange litigation mentioned above. I was astonished in the hearing in front of Judge Weinstein that he referred at the beginning of the arguments to him sitting as a sort of international tribunal. The very young lawyer for the government plucked up his courage and told the judge that it was not an international tribunal but a district court of the United States under the laws and Constitution of the United States. Judge Weinstein took it all in good humor and rather admired the young man’s chutzpah. But it was obvious to me, watching, that Judge Weinstein was quite in love with the idea that he was a sitting international tribunal.

I would also add that although the Bellinger address focuses mostly on human rights issues as a foreign policy matter for the executive, the trend in ATS cases is actually more centrally about environmental and resource extraction issues, even if they are wrapped, for strategic post-Sosa reasons, into some version of human rights arguments. One important reason why ATS cases need new limitations is that US district courts are in effect creating a sort of US-centric “international law” that recognizes corporate and entity liability, and indeed civil liability, an international law of civil liability of corporations in environmental matters despite the absence of any treaty recognition of such. It is not merely US conservatives who have concerns about that - it is also international lawyers outside the US who are fully aware of the general refusal of the international order to establish either civil liability in international law or entity liability, and are also aware of the risks of creating different species of international law, one in US district courts, cross-citing each other endlessly to inflate a little jurisprudential, self-referential body of “international law,” and what others in the world do. I myself am not disturbed by the fragmentation of international law in this way, but I certainly would imagine that others might feel quite differently. But certainly in my world of the international law academy in the US, the ATS is more or less sacred ground, and virtually all the academic commentary little more - from my perspective - than an activist echo chamber.

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[F]oreign governments do not see the ATS as an instance of the United States constructively engaging with international law. Quite the opposite: we are regarded as something of a rogue actor. We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.

In letters to the State Department or in amicus filings in federal courts, foreign governments consistently argue that the assertion of U.S. court jurisdiction over cases that have little connection to the United States is inconsistent with customary international law principles and interferes with national sovereignty. Canada, for example – internationally, a strong promoter of human rights and accountability for human rights violations –strongly objected to a case in the Second Circuit against a Canadian energy company for allegedly aiding and abetting human rights abuses in Sudan. The U.K. and Australia – also leading human rights advocates – have similarly argued that the scope of ATS jurisdiction is inconsistent with principles of international law.

When you consider the Sudan case, or the Apartheid case, from other countries’ perspective – a good thing to do generally in international law and relations – there is considerable force to these criticisms. Imagine, for example, what the U.S. reaction would be if a Swiss court sought to adjudicate claims brought against U.S. government officials or businesses for Jim Crow-era racial restrictions, or – since (without a statute of limitations) ATS suits can reach far into the past – even for slavery. As much as we might denounce past injustices, most of us would probably take offense at the notion that a Swiss court could hear such a suit and decide it based on the court’s own articulation of international law. The United States, after all, has come to terms with and sought to remedy the effects of slavery and Jim Crow laws through domestic measures under Acts of Congress and state laws resting on a strong moral consensus of our people – and according to the principles, procedures, and norms of our legal system. From the South African perspective, the Apartheid case must look very similar, and it is no wonder that the South African government has asked that the case be dismissed.

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And then the conclusion of the address:

The problem that human rights enforcement must ultimately address – and for which the ATS is of little avail – is the failure of foreign countries’ own domestic rule-of-law institutions to prevent and provide redress for abuses. These failures cannot be fixed by any single policy program or lawsuit, and certainly not by making U.S. courts ad hoc claims tribunals. Rather, inculcating a respect for law and human rights takes a sustained and careful effort focused on strengthening legal institutions in foreign States, not necessarily expanding the reach of our own.

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Also over at Opinio Juris, Dave Glazier, whose work I admire but often, alas, disagree with, makes the

following observations in the comments. I think these observations are astute, although my general agreement with what Dave thinks is the result perhaps overly persuades me:

[F]rom a legal and historical perspective, I have to conclude that a narrow reading of the ATS makes far more sense. The original language from the Judiciary Act of 1789 is still recognizable in the current statute, but the original contains a couple of nuances I believe are key to understanding the intended scope of the law. The full 1789 text reads:

[district courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.

Points I take from this are:
(1) If federal ATS jurisdiction was to be concurrent with State courts, then the conduct envisioned to be actionable seems logically limited to acts taking hich takes place within the United States. Once admiralty and maritime jurisdiction was committed exclusively to the federal courts, it seems unlikely that State courts were considered to have any extra-territorial jurisdiction in the 18th century

(2) Don't the language's location in Art. 9 of the 1789 Act, which deals simply with federal jurisdiction, the reference to "tort," and the mention of concurrent State jurisdiction all suggest that the statute is purely jurisdictional and that a separate recognized cause of action is required to bring suit?

(3) Since it isn't until the 20th century that international law was considered capable of regulating a nation's internal conduct towards its own citizens, it seems wholly implausible to think that the Framers were intending to open U.S. courts to foreign citizens to sue other foreign parties for conduct that wasn't regulated by international law at the time. It is much more realistic to conclude that the ATS was simply intended to ensure that a foreigner whose diplomatic status or safe passage rights were violated while they were in the United States could have their case heard in a federal court. This interpretation seems entirely consistent with concerns expressed by leading figures during the Articles of Confederation period and several comments in the Federalist Papers.

While I personally wouldn't mind federal courts having a broad power to adjudicate egregioius human rights abuses regardless of where they take place, as a matter of law I just don't think that view of the ATS is persuasive. If the ATS creates actual causes of action to sue for violations of international law, that would mean that aliens had greater rights in U.S. courts than U.S. citizens, who would have to find a separate cause of action before they could sue. Surely neither the Framers nor any subsequent Congress intended that result!

Thanks to John Witt and all the folks at Columbia for the law of war conference

I just got out of a wonderful conference co-put on by Columbia Law School and Columbia History Department on the law of war, and the history of the law of war. It was great. I was in the splendid position of having been invited to attend - but without any obligations to present something. (My thanks to Matt Waxman and Philip Bobbitt for getting me invited!) I just sat and annoyed everyone around me by furiously typing notes. Which is what happens when you have Michael Howard, Philip Bobbitt, Ryan Goodman, and more on the panels. Really thoughtful presentations, comments, and all.

I was struck in this by the turning of historians’ attention to the law of war itself, and the discussion of the current debates within the moral philosophy community of just war theory and its history. John Witt, for example, one of the conference organizers, is working on Francis Lieber and the development of his Civil War era Lieber Code. It does seem to me a very rich area for work. Moreover, since one of my concerns about post-Walzer just war theory (which inevitably has a large cascading effect on law of war, at least in the US) is its general ahistoricism, the entry of legal historians and, I hope, intellectual historians into this area brings a welcome perspective to the discussion.

But it was a great, great pleasure to listen to the presentations, make more comments than I was really entitled to, and get a chance to meet some wonderful people. John, and everyone else who organized this thing, my thanks. And it was loads of fun to have a drink with Philip, John, Matt, and Ruti Teitel afterwards.

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One of the pleasures of this short trip to NYC has been the chance to stay on the upper west side - meetings at Columbia, hotel at 77th and Broadway. Matt Waxman, Philip Bobbitt, and I walked down from Columbia after the meetings, straight through my old neighborhood at 93rd and Broadway. I walked back there this morning and took some camera photos of our old street, the great Hippo Park where Renee spent so many, many hours playing. All on a glorious spring day, everything in bloom.

It’s Saturday noon, and I’m sitting in a Cosi with free wifi before going to the train, at 78 and Broadway, looking out at everyone passing by. I sure do miss it. When I come to New York these days, it’s usually quick trips to Chelsea, and I rarely get up here to the neighborhood where Renee was born and Jean-Marie and Renee and I spent many happy years. The Cosi is filled with families with kids, going to the park, coming back, and they all look like us from ten years ago. Passover weekend, Fairway and Zabar’s jammed.

The Little Matchstick Girl Passion by David Lang

The winner of the 2008 Pulitzer Prize in music is David Lang’s The Little Matchstick Girl Passion. I’ve listened to it several times, and have been very taken with it. The structural parallels to the Bach St Matthew Passion are striking. And the Hans Christian Andersen story has always seemed to me genuinely shocking. It can be heard at the Carnegie commissioned music site.

Book blogging

Something I will do occasionally even on this semi-hiatused blog is post about books I think worth reading. And music too. Partly it is to keep them as a reference for me, but partly because I would like a larger audience - dozens and dozens at its heyday! - to be aware of these books.

Philip Bobbitt's Terror and Consent reviewed by Niall Ferguson

I will be reviewing Philip Bobbitt’s Terror and Consent for a major book review in a couple of weeks, so I will refrain from saying anything about this book now. However, I strongly recommend reading Niall Ferguson’s review of it in today’s New York Times Book Review (Sunday, April 13, 2008). Strongly recommend. Ferguson says:

This is quite simply the most profound book to have been written on the subject of American foreign policy since the attacks of 9/11 — indeed, since the end of the cold war. I have no doubt it will be garlanded with prizes. It deserves to be. It is more important that it should be read, marked and inwardly digested by all three of the remaining candidates to succeed George W. Bush as president of the United States.

Bobbitt’s originality lies in his almost unique ability to synthesize three quite different traditions of scholarship. The first is history. The second is law, particularly constitutional law. The third is military strategy. This synthesis owes as much to the corridors of power as to the sequestered groves of academe. Bobbitt was an associate counsel to President Carter, legal counsel to the Senate’s Iran-Contra committee and a senior director on the National Security Council under President Clinton.

My TLS editor on writing - an editor's email to an author

Ben Wittes and I were on a panel on Thursday at the meetings of the American Society of International Law, called writing for the mass media.  Advice to law professors on how to place things in the mass media; I'm a bit of a fraud on that, as I don't really write that much for mass venues.  Ben, on the other hand, is a real journalist.  However, I did read to the audience the following email, received from my TLS editor in the midst of editing something years ago.  I keep a copy up on my wall, although I can't really say I am good about following it.  It's very good advice:

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Ken, you really think this is short?  May I enjoin you further on the virtues of concision.  There are too many long quotes from the book, for a start.  And I fear you risk partaking of the book's clearly leisurely pace and alleviatedly theoretical tone.  Unalleviatedly theoretical!  You!  Que pasa?

Maybe you haven't quite come down from your sojourn in the jungle of tenure-grabbing, publish-or-perish academic vanity publishing.  This is journalism, albeit the higher journalism. People don't have too much time.

The piece reads airlessly for the first half.  Look, there's nothing here that can't be said in half - no, a third - the space.

(Email to Ken, June 2001.)

Jeffrey Toobin's New Yorker article on the future of Guantanamo

The New Yorker's Jeffrey Toobin has a new article on the future of Guantanamo.  It features a visit to Guantanamo by Toobin, but also summarizes data developed by Ben Wittes on the characteristics of the detainees - any way to tell who is a continuing threat and who is not? - as part of his forthcoming book.  It also has a very interesting discussion on the idea of a national security court, and is nice enough to mention a conference that Steve Vladeck, Dan Marcus, Ben Wittes and I put on at Washington College of Law, American University, this past February 1, on the idea of a national security court.  Toobin attended that conference, which had an all star cast.  

The article has some interesting commentary from Jack Goldsmith and others on the possibility that the Bush administration will go back to Congress with some kind of proposal for a civilian national security court, in time for the November election.  One striking feature of the current presidential campaigns, of course, is that although everyone favors closing Guantanamo, no one wants to get very specific about what happens next.  So far as I can tell, McCain favors closing Guantanamo but continuing the military commission trials under current law.  Obama seems to favor closing Guantanamo and turning the detainees over for trial in regular federal court.  Clinton seems to favor closing Guantanamo and turning the detainees over to some kind of regular federal court trial but with perhaps some national security modifications.  I have my intrepid research assistants tracking down the candidates' statements, and perhaps will write up something for the Weekly Standard, but what seems currently to be out there is noteworthy for what it does not want to say.  

Jack G's point, says Toobin, is that the Bush administration may decide to put everyone - the candidates, the Congress, everyone - on the spot in time for the election.  That is fine with me; I have always opposed the Bush administration's assertions of executive power in this area, with the consequence of letting everyone else off the hook of accountability, and have always favored forcing everyone to raise their hands and vote on exactly and plainly US policy in so important a matter ought to be.  Toobin  implies that the Bush administration forcing that to happen with the Military Commissions Act at the moment of the fall midterm elections was a sort of cheap electoral advantage - no doubt it was entirely calculated.  But it also seems to me quite right; an election and an election campaign seems to me exactly the right moment when candidates and officeholders should be forced to stand up and be counted, whatever their views.  What better moment for accountability to the voters than in an ... election?

Thanks to Peter Spiro, David Zaring, and the folks at Temple University

I just wanted to take a moment publicly to thank everyone at Temple University for the lovely conversation about my early draft paper on politics and method in public international law, which I offered yesterday at an international law seminar there.  The redoubtable Peter Spiro, whose new book, Beyond Citizenship, is out from OUP and highly recommended even from a skeptic like me (I don't think you can really take part in that debate without reading Peter's book), organized things, and it was terrific.  David Zaring, from Wharton, commented and was very patient and generous with comments on a very early stage, development stage paper.  (You can see the gist of it in the post preceding this one.)  I prefer to present very early stage papers where possible - meaning the point is not to show off something already done, but to develop it - precisely because I prefer getting comments at a point when the ideas are still being shaped.  Once too far along, the ideas are a bit set in concrete and it feels like defending a completed paper, rather than getting help in developing a new one.  David's comments were extraordinarily useful.  Likewise comments from the rest of the international law faculty and numbers of very thoughtful students.  My thanks to everyone.

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ps.  A quick note to myself, so I don't forget it when I get past the current crisis deadline and start working on this again.  The broad background for this discussion, at least in matters of method, is the general decline of the humanities and the rise of social science as the way of explaining things.  David was quite right to point to the method axis and suggest that it might better be labeled not prescriptivist and descriptivist, but humanities and social science.  The subtext for the discussion of international law method might be the decline of Kant and the rise of Bentham.  But it seems to me that a big part of this method issue in law is the role of quantitative modeling - and it is echoed across the academy as, for examples, business schools dump the marketing and motivational and leadership stuff and recast themselves as applied economics, etc.  The humanities have themselves to blame for their loss of status, having embraced postmodernist theories that deprived them of any claim to authority, much less truth.  No one looks to humanities, from novels to the essay to art to you-name-it, as a source of revelation.  Social sciences, preferably with a statistical edge, have taken pride of place.  The difficulty is that it is hard, at least in large swathes of law, to see that the new methods are as yet set to deliver.  Mathematics in many of the new fields appears to be less a means of revelation than of a way of establishing an intellectual pecking order: the more math, the smarter you must be:  but the relationship to truth in the real world appears murkier.  Maybe one day the methods will pay off in unambiguous ways - I am no postmodernist, and I would like to hold out for ways of coming at complex social truth, including statistically.  But much of it seems more promising as yet than able to deliver.  How much of the stuff that I see in political science, IR, and international law in these new fields depends, for example, on survey research that cannot be made better than it is by any amount of statistical massage.  Here is a moment for the humanities and its traditional emphasis on the interpretation of texts: consider the Pew survey questions for worldwide attitudes toward Americans, or about religions, etc., and consider the ambiguities that many of those polled might :  when American pollsters are able to show a vastly better track record just for exit polls for national elections, then we might turn to consider the same issues on a worldwide cross cultural basis.  But at the moment, it is more the promise of a method than a method.  In that sense, the new quantitative methods of social science in the traditional humanities and law appear to be more exercises in post modernism than science.  Sorry this is cryptic; it is really scattered notes to myself.