I am delighted to announce that Opinio Juris has formed a partnership with the Melbourne Journal of International Law, one of the leading non-US journals in the field.  Twice a year, beginning tomorrow, we will be hosting the same kind of symposia that we have been holding the past couple of years for the Yale Journal of International Law and the Virginia Journal of International Law.  Unlike those journals, MJIL is student-run but peer-reviewed.  The first symposium will feature two articles from the most recent issue of the journal.

The editors of MJIL will be introducing the journal and the articles tomorrow.  I hope our readers will enjoy the symposium.

Last week, the U.S. and Canada reached an agreement to permit Canadian firms to bid on projects funded by U.S. stimulus money based on the legislation enacted last year. The confusing part is just how exactly this will occur.  According to CTV,

Canadian firms will be exempted from “Buy American” restrictions under seven of the stimulus programs, in 37 U.S. states that signed on to the World Trade Organization. Those states will be able to use American stimulus money to buy Canadian manufactured goods.

Apparently, the whole deal is being done via an executive agreement, an executive order, and some sort of subsequent agreement with some (but not all) of the states. (The USTR website confirms the report, but has no further details).

The interesting part of this agreement to me is my belated realization that only 37 of the 50 U.S. states are bound by the WTO procurement agreement.  I somehow didn’t know that, although I am all for foreign policy federalism.  Canadians seem to realize that this agreement with the U.S. government will only get them so far.  As one Canadian opposition leader notes (correctly).

“The American government machinery is so amorphous, that a deal signed with the administration in Washington is a long way away from applying to the municipal government in Cleveland, or in Bangor, Maine,”

It’s really not such a great deal for Canada. They are getting, one year later, the legal access (in 37 states) that they should have had a year ago. But I suppose you have to take what you can get.

Eight Oscar nominations and accolades at the Museum of Tolerance — not a bad week for Mr. Tarantino:

Last night at a special community screening at The Simon Wiesenthal Center Museum of Tolerance, internationally renowned rabbi Marvin Hier addressed the film’s growing cultural significance among a panel that included Tarantino, ‘Basterds’ producer Lawrence Bender, actor Eli Roth and media entrepreneur Dan Adler, who organized the evening in honor of his recently deceased father Mayer Michael Adler, a survivor of the Auschwitz concentration camp.

“Let me explain why I think it was a great idea to sponsor this film,” Hier said, addressing concerns from Holocaust survivors who were troubled by some of the film’s subject matter. “Not every film on the second World War has to be about the Holocaust.”

No one would argue that “Inglourious Basterds” is a traditional Holocaust movie, but it does presume a sophisticated knowledge of the Holocaust in order to grasp its emotional impact. Hier, who is an Oscar-winning filmmaker himself, said that historical accuracy is not a necessity in harnessing the power of cinematic fantasy. “This [film] has a certain release factor,” he said. “If only we would have been privileged to see the Nazis defeated early on; imagine that they were all gathered in a theater and we didn’t have to roll the clock until 1945 to find out that 6 million Jews plus millions of other individuals were killed by an insane man named Adolf Hitler.”

For many Jews, including Hier, the fact that ‘Basterds’ permits not only historical revisionism but also deep seeded Jewish revenge is psychologically satisfying. “I find it to be quite exciting,” Hier said. “The plot I thought was quite ingenious.” Though he did point out that there were, historically, several failed attempts on Hitler’s life, so the idea of an assassination mission is not implausible. Hier also spoke of Pinchas Rosenbaum, the son of a rabbi whose family was killed in Auschwitz and who successfully infiltrated the SS to avenge them.

I know this is not a uniform reaction — many Jews, particularly here in Melbourne, thought that the film made light of Hitler and the Holocaust.  Readers are no doubt aware that I rarely like Holocaust movies.  But I loved Inglourious Basterds, for the same reasons as Rabbi Hier.

I’m just starting to write the “Aftermath” chapter of my book, which discusses the gradual erosion of the US’s commitment to the war-crimes program following the end of the NMT.  The villain in the story is John J. McCloy, the High Commissioner of Germany — who in addition to setting nearly all of the NMT convicted free by the early 1950s, was also one of the US officials who had turned down Jewish requests to bomb Auschwitz on the ground that doing so was “impracticable” and would divert necessary resources from “decisive operations elsewhere.”  Recent research indicates that, contrary to McCloy’s position, Allied bombers could have reached Auschwitz and the rail lines leading to the camp any time after June 1944 — and that an attack could have considerably slowed the killing process, saving perhaps some 400,000 Hungarian Jews.

If only McCloy and the other US officials had shown Tarantino’s creativity…

Apparently, the Obama Administration has decided it will not seek ratification of the ICC Rome Statute.  There is still no official policy, as far as I know, but this is the latest from Assistant Secretary of State for War Crimes Stephen Rapp. This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.  This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.

Here’s a wonderful story from my friend and former student Jeff Cook on the wonderful work he is doing in Cambodia with International Justice Mission to fight child prostitution. Jeff Cook is a former law clerk to Judge Urbina in Washington, D.C. and a former associate at O’Melveny & Myers. Here is Jeff’s account of the conviction of a man who had been selling the sexual services of an eight-year-old girl:

“Just before Christmas I received a gift that was far greater than any I had ever received. From an impoverished village outside of Phnom Penh where abuse, molestation and trafficking are part of daily life, a story of triumph, hope and inspiration emerged. A little over two years ago a small eight-year-old girl, weighing no more than 40 pounds, was being sold day in and day out to foreign pedophiles. Through persistence and prayer, IJM was able to work with the police to rescue this particular girl from her horrific situation. A few months later, the pimp, a strikingly tall Vietnamese man, was arrested for arranging these elicit and illegal encounters with pedophiles.

From the time of her rescue, the young girl lived in a shelter due to the danger of further abuse if returned to her family. As she spent more and more time at the shelter she became better able to verbalize what had happened to her. This is a testament both to the strength of the young girl and to the effectiveness of the care she received from the shelter’s counselors and staff. Sitting in on the trial preparation well over a year after her rescue, I was amazed to see the ease with which she discussed the crimes committed against her. And in a moment of downtime she exhibited her comfort and conversancy with these sensitive topics when she picked up a large picture book and began instructing those in the room on the differences between appropriate and inappropriate behavior with children. At that point, I pinched myself, and to my relief, I was indeed awake witnessing a miraculous development. I prayed at the time that she could pull upon this strength to provide testimony at the trial that was to take place the following week.

On the morning of trial, which was scheduled for the week before Christmas, she appeared calm, cool and collected. But when the perpetrator entered the courtroom, everything fell apart for this young girl. She began shaking and crying uncontrollably, gripped with fear at the sight of the imposing man who had been the vehicle for years of sexual abuse. As counselors comforted her, the court kindly provided a screen to shield the young girl from the perpetrator’s intimidating glares.

There was another victim, a fourteen-year-old girl, there that day who had been sold by this perpetrator several years earlier. Due to this girl’s family situation, she had remained in a shelter all this time and was able to provide lucid, strong and incriminating testimony against the perpetrator. The younger girl watched intently as the fourteen year old gave her testimony. She saw the courageous testimony and when it concluded, said, “I want to be brave like she was.” Without any tears or hesitation she stood up and walked around the protective screen to the center of the well of the court. For her small stature, she stood tall, with no more than five feet between her and the perpetrator on one side and the same distance separating her from a large table set up on a platform with three judges staring at her on the other. She then explained in great detail to each of her inquisitors (including the defense attorney) how the perpetrator or his friends would pick her up from her home and take her to be sexually abused by foreigners. She even explained how the perpetrator taught her what to do and how he negotiated prices. This small and vulnerable child had provided powerful and overwhelming evidence of the perpetrator’s guilt.

A week after the trial, on Christmas Day, the verdict was handed down — the perpetrator was found guilty and sentenced to 10 years in prison. In a small dusty courtroom in an overlooked corner of the world, justice was done. And for one young girl that meant all the world.

Please remember this girl and many like her who regularly face their fears by facing their abusers in courtrooms. And please pray for this girl and this case as it will no doubt be appealed requiring the victims to appear in court again to provide further testimony.”

The NY Times Opinionator has a nice roundup of lefty-blog reaction to the Obama Administration’s claim of the legal authority to kill and assassinate U.S. citizens abroad (and its admission to having already done so). Most lefty-blogs seem unconcerned about this policy, with the notable exception of Glenn Greenawald. From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance).  Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing?  Here’s why these assassinations/killings pose such a real legal problem, especially under their previously stated views of how U.S. law should work.

It is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal, that the U.S. is bound by constitutional requirements even when acting abroad in a war zone, and especially when it is acting against U.S. citizens.   But if one believes all of these things, then one cannot possibly believe that deliberately assassinating U.S. citizens is constitutional.  As I’ve said before, if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law), then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing.  Am I missing something?

As some of the commenters have pointed out, the nationality of the victim is not that important from the perspective of international law.  Under international law, the main question is whether there is legal authority to kill or assassinate anyone, much less one’s own nationals.  But even under international law, as readers of Ken Anderson’s posts here and at Volokh know, it is still not all that clear.   Indeed, there seems a more than plausible argument that certain kinds of assassinations, as currently executed by the Predator drones, could indeed constitute a violation of the law of war.

In any event, if the U.S. is going to pursue this policy, it should openly defend its legality.  As Stuart Taylor suggests, now might be a good time for Harold Koh to earn his keep over at the State Department and lead a robust legal defense of U.S. practice before the world community and in NGO circles.  And what better place to launch this defense do so than here at the Opinio Juris?

We are very grateful to Professors Ginsburg, Vandenbergh, Cohen, and Wiener for engaging in this dialogue with us. The value of discussing these issues with such leading scholars in the field cannot be overstated.

Professor Ginsburg’s very helpful comments push us to focus on two main points: (1) the U.S. has similar internal dynamics that make committing to a climate change agreement difficult; and (2) China can more easily implement an agreement when it commits to “environmental policy  . . . over growth.” Professor Wiener’s post makes the first point as well. We agree that the US and other countries have internal divisions that complicate their attempts to deal with climate change.  We argue, however, that the differences in China are of a far greater magnitude than the blue state/red State divisions in the US and have more serious consequences for climate change. Eastern China is 5 times richer than Western China and the most serious fault lines that produce social instability—rich and poor, industrialized and agrarian, urbanized and rural—fit the East/West divide.  Moreover, in the US, blue states turn red and vice-versa; the CCP must satisfy its constituencies through economic growth, not representative government.  The cost of failure is much higher for the CCP (and China) than for the Democratic or Republican parties in the US.

Second, we agree completely that “when” China commits to climate change, it has the capacity to be effective in implementation. The question is how we should understand China’s incentives and when we can anticipate that this commitment will occur.  We don’t argue that it is impossible.  Rather, we argue that extant studies of China’s incentives miss the fact that the cost of restructuring internal center/province governance to address climate change is much higher than currently anticipated and that the projections of future emissions are too low because they don’t examine China’s internal dynamics.  We suggest that China will deal with climate change once it is more comfortable with the status of its domestic challenges, and that such a time will come later than most analysts predict.  Kyoto and Copenhagen suggest that more time is needed. While we certainly agree with Professor Ginsburg’s excellent comment that the US’s federal structure and adversarial legal culture can be an obstacle for climate change, we think that the internal obstacles that China faces—the necessity of aggressive growth policies, the social instability and East/West divisions—might be greater long-term obstacles for climate change.

Similarly, Professor Wiener may well be correct that internal dynamics will push China towards—rather than away from—an international climate change agreement. The mechanisms he points to are undoubtedly real, and we do not doubt that they exert some force. We suspect, however, that the opposite forces we describe in the Article will dominate any pro-regulatory tendencies, at least in the short term. Domestic Chinese movements for environmental protection are dwarfed by ongoing domestic demand for economic growth. And while Western China might have something to gain from a transition to a greener economy, it has much more to lose from curbs on cheap coal-based electricity and carbon-intensive cement production, to name just two industries.

Finally, we agree with Professors Vandenbergh, Cohen, and Wiener that innovative solutions—supply-chain pressures or the provision of extra pollution credits—might hold the key to inducing Chinese compliance with an international climate change accord. We hope that their optimism regarding these measures will turn out to be well-placed. We wish to emphasize only that we believe that the cost of implementing even these more creative and politically palatable approaches will be high—higher than any American policymaker yet realizes. Until the United States and Europe confront these costs squarely, a workable carbon emission agreement will remain out of reach.

[Jonathan B. Wiener is the Perkins Professor of Law and Environmental Policy at Duke University; Eli Goldston Visiting Professor at Harvard Law School; and a University Fellow at Resources for the Future]

In their paper on the “Two Chinas” and climate change policy, Professors Abebe and Masur raise an important point about how China’s internal politics may affect its international relations. They observe that China has relatively richer eastern Coastal provinces and a poorer West, and that continued economic growth (especially in the West) is vital to the Chinese leadership’s priority objective of preventing internal unrest. They also suggest that a disaggregated look at these two Chinas portends higher CO2 emissions than seen in aggregated forecasts. Thus, they argue that the costs to China (both economic and political) of reducing greenhouse gas (GHG) emissions are higher than aggregate models have indicated. They posit that China will therefore not agree to reduce its GHG emissions without significant international side payments from wealthy countries (and may also need to generate internal side payments, from the Coast to the West). But they fear that direct financial transfers from the US to China are politically infeasible in the US. They see more promise in delivering such side payments via transfers of valuable technology from the US and Europe to China.

In this brief post, I can offer several reactions. First, I fully agree that internal politics are highly important to international relations and in particular to participation in international environmental treaties. (For earlier work making this point, see, e.g., Kal Raustiala, Domestic Institutions and International Regulatory Cooperation, 49 World Pol. 482 (1997); Jonathan B. Wiener, On the Political Economy of Global Environmental Regulation, 87 Geo. L.J.749 (1999)).

Second, while Abebe and Masur focus on the influence of China’s domestic divisions on its costs of reducing GHG emissions, they do not address the influence of China’s domestic politics on its benefits of reducing GHG emissions. I argued in a recent paper that the Chinese leadership may plausibly be concerned that political unrest may also be sparked by extreme storms and other environmental disasters that are perceived as linked to climate change. This is especially true in China, which has a history of dynasties falling after natural disasters, and a popular psychology that links the two. Hence China’s internal politics may also motivate the Chinese leadership to see greater benefits from avoiding climate change. See Jonathan B. Wiener, Climate Change Policy, and Policy Change in China, 55 UCLA L. Rev.1805 (2008). This is distinct from and on top of the more general trends that the appreciation of climate change damages in China may be rising, and the costs of GHG emissions abatement may be falling.

Moreover, China’s efforts to reduce the carbon intensity of its economy may also aid its Western economy. Although the Western provinces are major sources of coal, there are also growing new industries in wind energy and nuclear power that may be sourced or sited in the West. And there is some discussion of a domestic GHG emissions trading program within China being oriented to direct transfers to the West.

Third, the rapid rise in China’s GHG emissions in recent years (observed and extrapolated by Abebe and Masur) may also be due to other factors related to climate change policy, notably, possible leakage from the climate policies adopted in Europe and elsewhere. Thus, the type of economic growth and associated rising GHG emissions in China (both Coastal and Western) may be endogenous to the international climate change regime (or its failure).

Fourth, I agree that some side payments will likely be needed to engage China, and that direct government-to-government financial transfers are unlikely (and, worse, would be distorted by internal politics in both donor and recipient countries). The better method, as Dick Stewart and I argued in our book Reconstructing Climate Policy (2003), is through international allowance trading, with China receiving an implicit side payment in extra headroom allowances, and using these to trade back to the US and Europe in return for technology. Thus, the side payment would be delivered in myriad competitive private transactions, a much more cost-effective, and more politically palatable, approach; indeed, US firms would be selling technology to China in return for allowances obtained at lower cost than domestic US abatement.

Finally, and perhaps most interestingly from the standpoint of comparative law, the Coastal-Western tension that Abebe and Masur see within China may be not so different from the Coastal-Western tension within the US. If so, internal side payments may be necessary within both China and the US if the Coastal beneficiaries of climate policy in each country are to persuade the Western resource-rich provinces to go along with a national climate policy. Analogous regional tensions are present within European climate policy. Further study could compare the abilities of the rather different legal/political systems in China, the US and Europe to arrange internal transfers that serve the aggregate national and global interest in effective climate policy.

[Michael P. Vandenbergh is Tarkington Professor of Law; Director, Climate Change Research Network; and Co-Director, Regulatory Program at Vanderbilt University Law School. Mark Cohen is Vice President for Research, Resources for the Future; Director, Vanderbilt Center for Environmental Management Studies; Professor of Management and Law, Owen Graduate School of Management at Vanderbilt University.]

Daniel Abebe and Jonathan Masur have made an important contribution to the international climate literature by emphasizing the importance of understanding China’s administrative and economic constraints. They argue that China does not have the incentive to enter into an agreement that requires substantial emissions reductions, and we hope that their paper is the first of many that will look inside the black box to better understand why it might not. A more complete understanding of the “Two Chinas” is all the more important given the lack of progress in Copenhagen. Of course, we note that the United States is not immune to administrative and economic constraints, and that a complete analysis of the prospects for an international climate change agreement must account for the incentives of all the major contributors.

In a forthcoming paper, Climate Change Governance: Boundaries and Leakage, 18 N.Y.U. Envtl. L.J. (forthcoming 2010) (available at http://papers.ssrn.com/abstract=1511797), we argue that global supply chains can be a source of additional incentives for China and other countries to join in and comply with an international agreement. Supply chain pressure also can generate emissions reductions in the absence of an international agreement. If corporate carbon footprints and product carbon labels include supply chain emissions, social license pressure on firms in the US and EU can lead to pressure for carbon emissions reductions by suppliers in developed and developing countries. This disclosure strategy is not a panacea, but it is one of the few viable ways to shift the incentives of both Chinas, creating economic incentives at the firm level in all areas of China and bypassing the political concerns that are the focus of the Abebe and Masur paper. Most of the public and private reporting schemes that have been proposed or adopted to date, however, do not include supply chain emissions within the corporate boundary (e.g., many include a 25,000 metric ton threshold). In fact, they risk making the problem worse by creating incentives for leakage via off-shoring to China and other developing countries.

Abebe and Masur also have highlighted the important fact that factories are heterogeneous with respect to carbon emissions. They argue that clear regional variations exist and that these variations cast doubt on existing emissions forecasts.  These types of variations can be accounted for in corporate carbon footprinting and product labeling schemes through the use of default GHG ratings by location of factory. All Chinese steel products might not be the same—some may be dirtier than others.  This heterogeneity highlights why bringing the analysis down to the factory level has value, even if it is an imperfect science.

[Tom Ginsburg is a Professor at the University of Chicago Law School]

Thanks for this opportunity to respond to the Article by Professors Abebe and Masur.  My learned colleagues are certainly correct that, notwithstanding its status as a unitary and authoritarian state, China is an internally complicated place, with substantial de facto control at the provincial level.  Besides the East-West cleavages that Professors Abebe and Masur focus on, there are other internal tensions among different levels of government, different governmental agencies at each level, and different ideological groups within the Party. This internal complexity would complicate any climate change deal, were one to be within reach.

Of course, the United States also has internal tensions that undermine the possibility of reaching a climate change agreement. The U.S. also has an imperative of economic growth, and has a population not fully convinced of the benefits of addressing climate change. To over-simplify, the internal debate over climate change here roughly tracks the red-state/blue-state (or red rural/blue urban) distinction.   So there may be a “Two Americas” problem that is roughly symmetric with the “Two Chinas” problem.

Perhaps more importantly, China has a distinct advantage over the United States in climate change policy.  In China, when major political decisions are taken, they can be (though by no means always are) effectively implemented.  Were the center to decide that environmental policy was a priority over growth, it would probably be able to effectuate it, just as China has dealt with numerous other formidable challenges in building a “socialist market economy.” (Consider how the CCP divested the military of its profitable businesses, implemented tax reform, fired hundreds of millions of workers, suppressed major political reform movements etc.)  While it is unlikely that China would decide that, say, the Western regions should subsidize the richer coastal regions, do Professors Abebe and Masur really believe that China could not implement such a program if it wanted?  The capacity for executive enforcement is quite formidable once decisions are taken.

In this regard, the democratic U.S. may have a more difficult time implementing costly policies.  We have a formally federal structure that complicates policy implementation. We have a culture of “adversarial legalism” in which no major decision ever goes unchallenged in the courts. And we seem to be quite unwilling to take any positions that require political will.  Bottom line: the U.S. may be just as much an obstacle as China in this area.

As Kevin notes, the ICC Appeals Chamber has overruled the Pre-Trial Chamber on the question of whether Sudan’s President Bashir can be charged with genocide.  In a very useful note, Chile Eboe-Osuji points out here that the Appeals Chamber did not in fact provide the Pre-Trial Chamber with guidance on what standard it should adopt to determine whether there was sufficient evidence of the “intent” to commit genocide to issue an arrest warrant.  As he puts it,

Curiously, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. This is not very helpful.

Read the whole post to see his best guess as to what the standard will be.  I would be curious to see if folks have different views than his.

[Daniel Abebe and Jonathan S. Masur are Assistant Professors of Law at the University of Chicago Law School. Their Article may be found here.]

On July 8th and 9th, 2009, the New York Times published two seemingly unconnected articles about China. One focused on China’s rejection of an agreement to curb greenhouse gas emissions, while the other concerned clashes between Uighurs and Han in Xinjiang Province in Western China. Although these two stories appeared to have little to do with one another, they were actually closely linked. China’s unwillingness to join a climate change agreement is related to its internal political, economic, and social dynamics: the regime’s future depends on its ability to ensure social stability in Western China by guaranteeing high rates of economic growth. A climate change agreement threatens this continued growth, and thus threatens China’s internal balance.

Scholars miss this because they mistakenly treat China as a “black box”: a unitary state whose domestic idiosyncrasies are unimportant. This error has consequences, producing overly optimistic projections about China’s incentives to fight climate change and producing an inability to appreciate the international impact of China’s internal challenges.

The conventional wisdom on China’s willingness to join a climate change agreement reflects this error. The consensus is that the world would benefit from such an agreement, and that such an agreement would be worthless without China. Scholars acknowledge that joining an agreement is not in China’s self-interest. China’s will lose from emissions limitations, while China has little to gain because it stands to lose relatively little if global warming occurs. Despite this difficult problem, scholars conclude that China can be persuaded relatively easily through a series of side payments and that this can be accomplished in a manner that is palatable to the U.S. and Europe.

We believe that this conclusion is flawed. We pry the lid off the Chinese “black box” and explore the impact of internal dynamics on China’s interest in an agreement. Our conclusions suggest that it will be far more difficult to reach a meaningful agreement in the immediate future.

China has several striking internal characteristics. First, China has delegated tremendous authority to provincial and local governments. Second, the Chinese Communist Party’s (CCP’s) success is measured by its ability to create private-sector economic growth. Third, China encompasses an industrialized, prosperous East, and a more agrarian and poor West. Among industrialized nations, China is remarkable in its domestic heterogeneity.

The presence of “Two Chinas” will create problems for negotiating a meaningful agreement. First, the CCP has adopted economic growth to justify its rule. In Eastern China, the CCP’s growth policy worked. Western China, however, is far behind: per capita GDP in Western China is less than half of Eastern China, resulting in income inequality and social instability. Economic growth in Western China has become important and the CCP has prioritized it. China is likely to balk at any agreement that might imperil growth.

Second, as a result of its growth-driven delegation of power, the CCP suffers from an erosion of state capacity: the provinces often ignore the central government, frequently without meaningful consequences. Environmental regulatory agencies are often subordinate to the bodies they regulate.

Finally, the vast majority of economic and scientific projections appear to have underestimated China’s future emissions by failing to account for internal heterogeneity. Eastern China is already industrialized and wealthy; it will likely move towards cleaner technologies and services. Western China is poorer and more agrarian, and the development pattern for such an area involves a shift towards industrialization and higher per capita energy consumption—and Western China is moving in this direction.

Every quantitative forecast of Chinese emissions—save for two—uses only national-level data and washes out distinctions between East and West. Of the two that employ sub-national data, one projects higher emissions than any of the national-level studies; the other projects much higher emissions. This suggests that Chinese carbon emissions in the future may be greater than the models have anticipated, increasing the cost to China of an agreement. Given the importance of economic growth, the structure of Chinese governance, and the need to develop Western China, the prospects for China choosing to join such an agreement in the immediate future seem slim.

I’ve been on blog-silence the last few months, but one of my students today made me feel a little guilty about my lack of blogging, so I’m back (at least for now).  So while not wanting to interrupt this great online symposium, I’ll just point our readers to this remarkable little exchange between U.S. Director of National Intelligence Dennis Blair and members of Congress.

“We take direct actions against terrorists in the intelligence community; if … we think that direct action will involve killing an American, we get specific permission to do that,” Director of National Intelligence Dennis Blair told the House Intelligence Committee.

Blair goes on to helpfully explain that such assassinations will not be for free speech, but for “engaging in action that threatens Americans.”

In fact, as the report goes on to point out, the U.S. Predator strike campaign has already killed a number of Americans in Pakistan associated with Al Qaeda.  So I guess this isn’t such a big deal. But as a legal matter, it is odd that the U.S. must grant substantial constitutional rights to citizens abroad, and it must even grant habeas rights to challenge their status to U.S. citizens held as enemy combatants, but it can target and deliberately kill Americans abroad without notice or a hearing.  Would love to see the OLC opinion (no doubt by Marty Lederman) on that one…

I intend to closely follow the reactions to the Appeals Chamber’s decision on the genocide charges against Bashir.  The pushback has already begun in a predictable place: the Making Sense of Darfur blog, which has led the charge against the arrest warrant. The post itself, in which David Barsoum asks “what is the ICC really after in Sudan?”, is not particularly noteworthy, because the answer is straightforward: accountability for a mass murderer who has done everything he could for nearly two decades to prevent any kind of peace that would threaten his regime.  More interesting — and more troubling — is Alex de Waal’s comment to Barsoum’s post.  He writes:

This episode at the ICC is somewhat bizarre. In March last year, the pre-trial chamber issued the arrest warrant that the Prosecutor had requested. This made Pres. Bashir into a fugitive from justice. The crimes for which he is charged are no less heinous than genocide. Any additional charges added subsequently make absolutely no difference to that reality. The Prosecutor’s decision to appeal against the exclusion of the genocide charges, while perfectly permissible in law, served only the purpose of satisfying the personal or political ambition of the Prosecutor. If the ICC ever succeeds in getting Pres. Bashir in Court, the Prosecutor can then add whatever charges he believes are warranted by the evidence. Insisting on them at this stage is a political act.

None of Alex’s claims are compelling.  First, it is difficult to seriously maintain that there is no difference between charging someone with crimes against humanity and genocide.  There may be no difference in terms of the maximum possible sentence, but it clear that genocide is viewed as far more serious than even the crime against humanity of extermination.  That’s why Raphael Lemkin coined the term “genocide.”  That’s why we have a Genocide Convention.  That’s why activists and scholars and governments put so much energy into ensuring that various situations — Saddam’s gassing of the Kurds, the Khmer Rouge’s “auto-genocide,” China’s treatment of Tibet, Australia’s treatment of aboriginals, etc. — are (or are not) labeled genocide instead of “mere” crimes against humanity.  Perhaps it is regrettable that we rank international crimes, but there is no question that we do.  Indeed, if Alex genuinely believed there was no difference between genocide and crimes against humanity, he would not have spent so much time and energy over the past year attempting to rebut the claim that Bashir committed genocide.  He admits that Bashir committed crimes against humanity on a massive scale, so if there is no difference, why bother to oppose describing the situation in Darfur as genocidal?

(There is, of course, an important theoretical justification for viewing genocide as more serious.  The identity of the victims is irrelevant in the crime against humanity of extermination; any mass killing will suffice.  In genocide, by contrast, the victims are singled out for extermination because they are members of a particular racial, ethnic, religious, or national group.  Genocide is thus more serious than extermination in two ways: (1) the crime threatens the existence of a particular protected group, a result that would reduce human diversity; and (2) the victims are specifically targeted for extermination by the perpetrator, a more culpable mental state than the one required by extermination, which is simply the intent to kill.)

Alex’s second claim — that the decision to appeal the Pre-Trial Chamber’s decision on the genocide charges “served only the purpose of satisfying the personal or political ambition of the Prosecutor” — is simply incorrect.  The Pre-Trial Chamber completely misunderstood Article 58’s “reasonable grounds” standard, leading it to wrongly exclude the charges.  Whatever one thinks of the genocide charges against Bashir — and Moreno-Ocampo is far from the only person who supports them — the OTP could not permit the Pre-Trial Chamber’s flawed standard to go unchallenged, because it would have almost certainly come back to haunt the office in other cases involving different charges.  As the Appeals Chamber noted in its decision (para. 33), “requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt.”  In other words, the Pre-Trial Chamber effectively converted the “reasonable grounds” requirement into a requirement of “proof beyond a reasonable doubt,” the standard that applies at trial, not at the arrest warrant stage.  That erroneous interpretation of “reasonable grounds” was not limited to the Bashir case or to the genocide charges; it represented the Pre-Trial Chamber’s first sustained interpretation of Article 58.  The OTP thus had to challenge it.

That explanation of the OTP’s decision to appeal helps rebut Alex’s third claim, which is that we can conclude that the decision was a “political act,” because “[i]f the ICC ever succeeds in getting Pres. Bashir in Court, the Prosecutor can then add whatever charges he believes are warranted by the evidence.”  Adding the genocide charges later would not address the mischief created by the Pre-Trial Chamber’s erroneous interpretation of Article 58.  Moreover, seeking to amend the arrest warrant is far more fair to Bashir (or to any defendant in like circumstances) than waiting until the confirmation of charges hearing, because it puts him on notice now — not months or years from now — that he will be facing genocide charges.  Bashir is going to be a fugitive from justice either way, so isn’t it better for all the charges to be on the table as early as possible?  I can only imagine the outcry from Bashir supporters and defense attorneys (including me) if the OTP had never mentioned genocide charges until Bashir was standing in front of the Pre-Trial Chamber!

Critics of the ICC often claim that the Court pays insufficient attention to politics.  I think it’s safe to say that most of those critics pay insufficient attention to law.

UPDATE: At his NUI-Galway blog, Bill Schabas, one of the great ICL scholars, goes even further than Alex, writing that “This is all much ado about nothing. Given the close overlap between genocide and crimes against humanity, even with the existing arrest warrant the Prosecutor would be unconstrained in producing relevant evidence that might lead to a conclusion that genocide was taking place. The judges would be relatively free to add a conviction for genocide, if they thought it appropriate.”  I have to respectfully disagree.  I think it would be a terrible prosecution strategy to adduce evidence that supports a conviction for genocide during trial and then hope that the Trial Chamber enters a conviction for genocide even though it wasn’t charged.  After all, the Appeals Chamber very recently rejected a similar “recharacterization” of the evidence in Lubanga, refusing to add new crimes against humanity charges because the “facts and circumstances” in the confirmation of charges did not support them, thereby violating Article 74(2) of the Rome Statute.  I simply fail to see how, if Bashir went to trial only on the war crimes and crimes against humanity charges, the “facts and circumstances” in the charging document would support “recharacterizing” them to support a genocide conviction, given genocide’s objective requirement that the targeted individuals be members of a protected group and its subjective requirement that the defendant have specifically intended to destroy the protected group as such.  Frankly, Alex’s suggestion — that the OTP seek to amend the charges once Bashir was arrested but before trial — would be the lesser of two evils.

[David H. Moore is a Professor at J. Reuben Clark Law School, Brigham Young University]

The Supreme Court’s decision in Medellin v. Texas has understandably generated substantial debate on the status of treaties in domestic law. Medellin has significant implications for three other areas of foreign relations law as well: Alien Tort Statute litigation, the domestic legal status of customary international law, and the development of a uniform doctrine governing the domestic status of both treaties and customary international law.

ATS Litigation

While most ATS claims are grounded in CIL, treaty-based claims are also raised. Treaty-based claims will not succeed, however, unless the treaty is self-executing and the plaintiff has a cause of action. By endorsing a broad notion of non-self-execution and by endorsing the presumption that treaties do not create domestic rights of action even when treaties “directly benefit[] private persons,” Medellin restricted prospects for treaty-based claims under the ATS. Medellin also undermines the more common CIL-based claims. In Sosa v. Alvarez-Machain, plaintiff Alvarez cited the International Covenant on Civil and Political Rights as evidence that CIL prohibits the type of arbitrary detention he suffered. The Court discounted the evidentiary value of non-self-executing treaties like the ICCPR in identifying actionable norms of CIL, stating that even if Alvarez properly represented the ICCPR’s content, he had mustered “little authority that a rule so broad has the status of a binding customary norm today.” Medellin’s broad view of non-self-execution reduces the evidence available to establish viable CIL-based claims.

The Domestic Status of Customary International Law

Medellin also bears on the more substantial question of CIL’s domestic legal status. That question has split scholars into two primary camps: a modernist camp that perceives CIL as federal common law that the federal judiciary may apply in the absence of positive authorization, and a revisionist camp that maintains that the political branches or Constitution must authorize federal judicial use of CIL as a rule of decision. I have argued, based on Sosa, that the Supreme Court favors the revisionist perspective. Medellin strengthens that argument by displaying the same separation of powers vision evident in Sosa. In that vision, which is consistent with the revisionist view, the political branches take the lead in making domestic law based on international law and in conducting foreign affairs. The vision is evident in the considerations Sosa provided to guide lower courts in identifying actionable norms of CIL in ATS cases—the intent of the political branches, specific definition, wide acceptance, practical considerations, effects on foreign affairs and the political branches’ foreign affairs authority, and alternative means of enforcement. The vision is also evident in the Sosa Court’s comments on the limited role of the judiciary in exercising common law powers and managing foreign relations.

Medellin manifests the same separation of powers vision. In deciding whether the relevant treaty obligations were self-executing, the Court considered the intent of the U.S. treaty makers, the specificity of the treaty obligations, other state parties’ understanding of the treaty obligations, the potential consequences of classifying ICJ judgments as inscrutable federal law, the effects on foreign affairs and political branch authority of eliminating political discretion to reject ICJ judgments and of rendering self-execution a case-by-case judicial question, and the existence in the Security Council of an international alternative to domestic judicial enforcement. These considerations reflect the view that Congress and the executive should have “the primary role in deciding when and how international agreements will be enforced.” In short, the separation of powers vision that undergirds both the revisionist position and Sosa appears in Medellin.

Medellin supports the revisionist position in two other ways as well. The Court’s repeated (and confusing) suggestion that non-self-executing treaties are not domestic law and not merely judicially unenforceable, evidences a view that international law, absent incorporation, generally resides outside domestic law. And Justice Breyer’s divergent conclusions in Sosa and Medellin—favoring a more limited role for CIL than the Sosa majority allowed but a more expansive role for treaties than the Medellin Court permitted—indicates that he, at least, may appreciate the revisionist suggestion that treaties should, absent statute or constitutional amendment to the contrary, have a broader domestic role than CIL.

A Developing Uniformity

Not only do the considerations that Medellin invoked to determine self-execution reveal a separation of powers perspective similar to Sosa’s, those considerations significantly resemble the guidance Sosa provided for the creation of common law causes of action based on CIL. With regard to both treaties and CIL, the intent of the political branches, specificity, mutuality, practical consequences, foreign affairs effects, and alternative means of enforcement (at a minimum) affect the domestic legal import of international law. The Supreme Court’s most significant explanation of self-execution analysis thus supports the notion that a uniform doctrine governing the domestic status of both treaties and CIL is developing.