IntLawGrrls |
| Posted: 01 Dec 2010 09:43 AM PST (Delighted to welcome back alumna Mary Ellen O'Connell (below right), who contributes this guest post on release of classified documents by WikiLeaks, an issue on which alumna Patricia M. Wald posted yesterday)  I generally share Judge Wald 's critical view of WikiLeaks' action.In thinking about the matter from the perspective of international law, so far I see three areas of special interest:  1. ProsecutionState Department Legal Adviser Harold Koh, Attorney General Eric Holder, Secretary of State Hillary Clinton, and others have all discussed prosecuting "those responsible" for the document dump. The main figure associated with WikiLeaks is the Australian, Julian Assange. He is thought to be in hiding somewhere in Europe. Interpol has issued an international arrest warrant for Assange, to send him to Sweden to face questioning. I have seen no reports of a U.S. request for an international arrest warrant. (credit for logo of Interpol Red Notice) My first thoughts in this episode have concerned on what basis Assange could be brought to the U.S. for prosecution. If he comes into Swedish custody, for example, and the United States then requests his extradition, NPR is reporting that the basis of criminal prosecution would likely be the Espionage Act. (See, e.g., 18 U.S.C. sec. 798 "Disclosure of Classified Information".) The Espionage Act seems to be narrowly drafted and to contain details that might well make it difficult to meet the requirements of U.S. extradition treaties. 2. Terrorism Perhaps for the issues raised in Point 1, U.S. Rep. Peter King (R-N.Y.) is calling for WikiLeaks to be declared a terrorist organization? I wonder if Rep. King believes that declaring WikiLeaks a terrorist organization means that the U.S. will treat Assange as an "enemy combatant?" International law has no authority to support such assertions. We can hope that the administration will definitive reject them, and even reconsider other cases where criminal suspects are currently being treated as "enemy combatants." (See my soon-to-be forthcoming article, "The Choice of Law Against Terrorism.") 3. Diplomacy We can further hope that this case will wake up governments around the world to greater vigilance on behalf of international law. We should all be very concerned that certain Middle Eastern governments want to see military force used against Iran. There is no right to use military force against a state for the possession of even unlawful weapons. (See my "The Ban on the Bomb and Bombing, Iran, the U.S., and the International Law of Self-Defense".) This is only one example. The documents are full of issues we in international law should be bringing to public awareness. Ironically, in some cases involving the United States and non-compliance with international law, I wonder if governments are going to read the unflattering documents and either end cooperation or pressure the United States into ending non-compliant conduct? I have written about U.S. uses of military force in Yemen that conflict with international law. Is Yemeni President Ali Abdullah Saleh going to continue to cooperate in this after what has been said about him?  And, of course, all of us in international law need to be concerned about the attempt to steal private information concerning the Secretary-General of the United Nations.The gratuitous gossip in some of the communications is also striking — it made me think of the Rolling Stone interview with General Stanley McChrystal. (prior IntLawGrrls post) The WikiLeaks decision to release this material was reprehensible. Hopefully the right lessons will be learned from it with respect to the conduct of diplomacy and the goals of U.S. foreign policy.  |
| Need for new nuclear containment tools Posted: 01 Dec 2010 01:26 AM PST  (My thanks to IntLawGrrls for the opportunity to contribute a 2-part series of guest posts. Part 2 is below; Part 1, published yesterday, is here)Just announced are the terms for the next round of talks on Iran's nuclear technology. They are set for next Monday and Tuesday in Geneva, Switzerland, between: ► Catherine Ashton, the European Union's High Representative for Foreign Affairs and Security Policy, formerly an officer of the London-based Campaign for Nuclear Disarmament; and ► Dr. Saeed Jalili, secretary of Iran's Supreme National Security Council and its lead nuclear negotiator. As demonstrated in my post yesterday, to date these negotations have been marked by lack of trust on all sides. Debate remains, however, to what extent the lack of trust can generate legal implications. Some argue that without a 'smoking gun', there is no ground to act against Iran. They warn of the danger in relying on strategic assessment, which may prove to be misguided, as was the case of Iraq in 2003. Others emphasise the severity of the risks, on the one hand, and the ability of proliferators to hide the evidence, on the other hand. They agree that comprehensive and logical assessments regarding nuclear proliferation need to include as much hard evidence as possible; nonetheless, they contend that in the interest of non-proliferation, such assessments should not be held hostage to the absence of such evidence. (credit for above logo from Iran's atomic energy site) No less significant is the question of how to deal with a state once it is identified as a suspected proliferator. Clearly the regime established by the 1968 Nuclear Non-Proliferation Treaty is ill-equipped to deal with cases such as Iran's. The provisions of the treaty are not geared to seeking out and stopping suspected defectors; moreover, these provisions lack precise criteria for dealing with such suspicions when they arise. Drafters devoted little attention to the prospect that a state might develop an interest in becoming a nuclear-weapon state without first withdrawing from the treaty.  (credit for map showing states with nuclear weapons in red, treaty-established Nuclear Free Zone in blue, and nuclear sharing states in orange, and states that are none of the above yet members of the treaty) In a world of new instabilities, where nuclear technology is increasingly accessible, the treaty is failing to achieve containment. The treaty's consensual regime was established during the Cold War, which encouraged adherence to the treaty and to the safeguards regime of the International Atomic Energy Agency. Some argue that this consensual regime is not only increasingly ill-fitted to address nuclear weapons proliferation risk, but actually enhances the incentive to proliferate.Various initiatives and proposals attempt to escape this impasse. Some proposals would try to strengthen the existing non-proliferation regime from the inside, both substantively and institutionally. Other proposals move away from consensual mechanisms aimed at encouraging compliance, and towards effective enforcement. Even initiatives related directly to strengthening compliance with safeguard agreements invest in non-consensual mechanisms for strengthening the existing regime. Examples include: ► Generic Security Council resolutions to address the case of a state that has been found by the Agency to be deliberately in non-compliance with its safeguards undertakings; or ► Declaration that nuclear weapons proliferation constitutes a 'threat to the peace', thereby engaging the sanctions regime of U.N. Charter Chapter VII in every case of non-compliance with the Atomic Energy Agency. None of these proposals, however, addresses what is perhaps the greatest obstacle to success of the Non-Proliferation Treaty regime: its unique formal asymmetry and the legacy of international practice. Whatever the legal extent of the obligation to disarm, undoubtedly the  political legitimacy of the regime is being undermined by what is perceived as abuse of status by the 5 treaty-recognized nuclear weapons states, Britain, China, France, Russia, and the United States.It remains to be seen whether effective legal tools will be adopted in a timely manner to prevent Iran's nuclear programme from maturing into a nuclear threat, or whether international law will continue to play a merely responsive role to that threat.  |
| Posted: 30 Nov 2010 11:01 PM PST (Taking context-optional note of thought-provoking quotes)
 -- Retired U.S. Supreme Court Justice John Paul Stevens (right, credit), summarizing and quoting the conclusions drawn by New York University Professor David Garland in his just-published book, Peculiar Institution: America's Death Penalty in an Age of Abolition.In the same review, Stevens restated his own conclusion, which he had announced in his opinion in Baze v. Rees (2008), that the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.'  |
| Posted: 30 Nov 2010 09:34 PM PST  On this day in ...... 2009, the U.S. Senate voted 97-0 to confirm the 1st Vietnamese American federal judge appointed with life tenure pursuant to Article III of the U.S. Constitution. Serving since then as a U.S. District Judge for the Central District of California is Jacqueline Hong-Ngoc Nguyen (left). Nguyen was born in 1965 in Dalat, in what was then South Vietnam. When that country was defeated in 1975, she came with her family to the United States. Following undergraduate and law studies at Occidental College and UCLA, respectively, she held a number of posts, including Deputy Chief of the General Crimes Division for the U.S. Attorney's Office, Central District of California, and Judge of the Los Angeles County Superior Court. (Prior December 1 posts are here, here, and here.)  |
| You are subscribed to email updates from IntLawGrrls To stop receiving these emails, you may unsubscribe now. | Email delivery powered by Google |
| Google Inc., 20 West Kinzie, Chicago IL USA 60610 | |
No comments:
Post a Comment