Posted: 26 Apr 2010 09:31 PM PDT by Julian Ku What should South Korea do if it confirms the responsibility of North Korea for the sinking of a South Korean naval vessel? This article quotes a Korean law professor offering three options:
The first option seems no problem, except that it is hard to get the Security Council to do anything. The second option is a problem since, well, North Korea has not accepted the compulsory jurisdiction of the ICJ. The third option seems the most interesting, but it is also the most complicated one legally. The Koreas are in a state of cease-fire. But blockades, at least in theory, are not permitted under the U.N. Charter except when authorized by the Security Council (see U.N. Charter Art. 42). The 1962 U.S. “quarantine” of Cuba was carefully not called a blockade to avoid this legal problem. I suppose South Korea could end the cease-fire, initiate hostilities, and institute the blockade as part of its right of self-defense. Now that would be legally defensible, although it would probably start an all out (maybe even nuclear) war. So let’s hope they go with option 1. Article 42Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. |
Does South Korea Have the Right to Blockade North Korea?
Obama and Israel: Showdown at the UN?
| For Immediate Release: April 16, 2010 | Contact: Anne Bayefsky info@eyeontheun.org |
April 16, 2010 - 2:44 PM | by: Ben Evansky
The Obama administration is reportedly signaling another major shift in policy towards one of its staunchest allies, Israel, and this shift could change the way it votes at the Security Council. The change would mean an end to the US' use of its veto power in the United Nations Security Council when certain anti-Israel resolutions are introduced for a vote.
Reports surfaced a couple of weeks ago, that a senior US diplomat met with Qatar's foreign minister in Paris. They discussed the possibility that the US was giving serious consideration to not using its veto if a vote on Israeli settlements was to come up. It has been the policy of successive administrations to veto virtually all anti-Israel resolutions at the Security Council.
While the Israeli spokesperson at the United Nations would not comment on the reports, US officials at the UN told Fox News that there is no such initiative before the Security Council and they are not "pursuing or encouraging such action", but some critics believe they are playing a game of smoke and mirrors.
Anne Bayefsky is a senior fellow at the Hudson Institute and Touro College and says the administration, like none other before them, appears prepared to blackmail Israel at the UN. She says "The administration may imagine that the threat of withholding the veto at the Security Council, or the failure to oppose vigorously any one of a constant stream of anti-Israel UN concoctions, will be good for the United States. They will be dead wrong." She believes "Israel's enemies are America's enemies, and an effort by the Obama administration to use the UN as a tool to blackmail Israel or undermine Israel's independence and security is a double-edged sword."
Daniel Levy the Director of the Middle East Task Force at the New America Foundation in Washington disagrees. He tells Fox News that he doubts the US would vote for a UN Security Council resolution against Israel and expects that they will continue to veto them but he says the veto has not always been used by the administration on votes concerning Israel.
It was last month when tensions between the Obama administration and Jerusalem surfaced. While on an official visit to Israel, Vice President Joe Biden and the administration were infuriated when the Israeli Housing Ministry announced it was building 1600 new units in a hitherto undisputed part of Jerusalem. Ever since then, relations between the two erstwhile allies have been tense.
Levy who also advised former Israeli Prime Minister Ehud Barak tells Fox News that "if Israel were to continue to flout its own commitments, undermine the possibility of a two-state solution, or if in the context of a peace process impasse, the US and its Quartet allies were to advance their own plan, then under those circumstances it is conceivable that the US would support or abstain on a UN Security Council vote". He believes that such an outcome would be "presented as being part of, rather than in contravention of, America's support for Israel."
John Bolton the former US ambassador to the UN, and now a senior fellow at the American Enterprise Institute for Public Policy in Washington says that successive US administrations have played a vital role in stopping the delegitimizing and marginalization of Israel at the UN, and that foes "knowing that the United States was not prepared to countenance mischief making in the Security Council alone deterred considerable unhelpful activity, and at least mitigated much of what remained." He says "If President Obama materially changes this long-standing, bipartisan American policy, peace in the Middle East will be set back. America's friends and allies alike will conclude that the Obama Administration is indeed a feckless ally."
Levy is not so sure and says that relations between the two countries continue to be "strong and supportive." He questions the choices that the Netanyahu government has made, which he says "seem to place loyalty to settlements and a far-right wing coalition of choice above peace and the needs of the strategic relationship with the US."
Bayefsky, who is also editor of EYEontheUN.org, says "If the Obama administration believes that it can bring about more peace and harmony and respect for America by sitting on its hands and refusing to exercise the veto, while the likes of Russia and China and Lebanon (which is currently a member) revel in a hate-filled denunciation of Israel, then the administration is delusional. The refusal to exercise the veto will be read as weakness, as will any attempt by the Obama administration to deflect criticism by claiming "the UN made me do it."
Lawyers Must Give Immigration Advice - Padilla case
HEADLINE: Lawyers Must Give Immigration Advice
MICHELE NORRIS, host:
Now a decision that could affect tens of thousands of people. The U.S. Supreme Court ruled today that legal immigrants must be told by their lawyers that pleading guilty to a crime could lead to their deportation.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Jose Padilla, a native of Honduras and a decorated Vietnam War veteran, has lived in the United States legally for 40 years. A truck driver, he was stopped at a weigh station in Kentucky, and gave a law enforcement officers permission to search his truck. Stowed among his registered cargo were 23 Styrofoam boxes containing a half-ton of marijuana. He refused to plead guilty until the eve of trial, when his lawyer assured him that his guilty plea and a five-year prison sentence would not affect his immigration status. The lawyer was wrong.
The guilty plea triggered a mandatory deportation, and Padilla, upon learning that, tried to withdraw the plea, contending he'd been denied effective assistance of counsel. The Kentucky Supreme Court ruled against him, concluding that the constitutional right to counsel does not extend to matters that fall outside the criminal case at hand. Today, the U.S. Supreme Court disagreed, by a 7-2 vote.
Writing for the court majority, Justice John Paul Stevens noted that because Congress over the last two decades has made deportation mandatory for a wide variety of crimes, the stakes have been dramatically raised for noncitizens pleading guilty. Although staying in the United States may be more important than any potential jail sentence, he said, defendants are often not advised that a guilty plea may result in their deportation. In a case like this, said Stevens, where a simple reading of the statute would've told the lawyer her client would face near certain deportation, failing to provide that information denies the defendant the effective assistance of counsel. It is our responsibility, said the court, to ensure that no criminal defendant is left to the mercies of incompetent counsel, and we now hold that counsel must inform her client whether a plea carries the risk of deportation.
Immigrant-rights advocates say today's ruling could potentially affect tens of thousands. Benita Jain is co-director of the Immigrant Rights Project based in New York.
Ms. BENITA JAIN (Co-Director, Immigrant Rights Project): I think historic is not an understatement.
Mr. STEPHEN KINNAIRD (Attorney): This is really a watershed decision in the immigration rights area.
TOTENBERG: Stephen Kinnaird represented Padilla in the Supreme Court. He notes that with nearly 13 million immigrants living legally in the United States, some of whom came here as toddlers, it's axiomatic that tens of thousands of them will have some sort of run-in with the law each year. And just like citizens who face similar charges, most agree to plead guilty in exchange for a lighter sentence, even no jail time.
Mr. KINNAIRD: And then it would turn out that crime, you know, it might be theft or something like that, would result in their automatic deportation, and they're shocked by it because they had no idea.
TOTENBERG: The examples of such cases are legion, from the woman who stole a bottle of medicine for her sick child, to the Georgia business owner with no criminal record, pulled over by police one night and charged with a drug violation after a dollar bill found in his pocket was found to have trace amounts of cocaine. His guilty plea in exchange for no jail time and a promise to expunge his record didn't protect him from deportation proceedings. Immigrant-rights advocates say that the more minor the crime and the lighter the sentence, the greater the shock at the near-certain deportation that may follow.
Now the Supreme Court has declared that lawyers have a duty to advise their clients that a guilty plea, even with no jail time, can result in deportation.
Nina Totenberg, NPR News, Washington.
LOAD-DATE: April 1, 2010
Explaining American Foreign Policy: Obama’s Liberal Internationalism v. Bush’s Neoconservativism
Posted: 06 Apr 2010 12:02 PM PDT
by Julian Ku
Walter Russell Mead has an illuminating post on the liberal internationalist tendencies of the Obama Administration. Putting aside whether or not liberal internationalism is, as Mead puts it, ”a strategic mistake that leads a lot of people inside the administration and well beyond it to make consistently bad decisions about American foreign policy.”, I find his post fascinating for its classification of different approaches to foreign policy and international law. According to Mead, foreign policy decision makers in both the Bush and Obama administration are in favor of the promotion of liberal democracy and human rights. The real difference is how to do so: neoconservativism (Bush) tends to support unilateral or at least liberal coalitions acting alone whereas liberal internationalists (Obama) are deeply committed to international institutions and their legal processes. Anyway, something worth keeping in mind. I wonder if “liberal internationalism” will ultimately acquire the same kind of negative connotation that neoconservatism currently has.
===========================
Posted on April 1st, 2010
Liberal Internationalism: The Twilight of a Dream
Posted In: 2010s, American History, Anglo-American Project, Fall of Europe, Global Warming, U.S. Foreign Policy
Yesterday I wrote about a pattern of choices in our foreign policy that may make sense individually but that overall project an image of weakness before our enemies, disloyalty to our friends.
Today I want to write about something bigger: a strategic mistake that leads a lot of people inside the administration and well beyond it to make consistently bad decisions about American foreign policy.
It is, like all truly great mistakes, a vision thing. “Where there is no vision the people perish,” says the Book of Proverbs (29:18). It’s even worse when the vision is wrong: when your light has turned to darkness. That, unfortunately, is where a lot of America’s Wilsonians are right now.
As I wrote in Special Providence, Wilsonians are the Trotskyites of the American revolutionary tradition. Just as the Trotskyites thought the Bolshevik revolution wasn’t safe unless communism conquered the whole world, American Wilsonians believe that the success and the security of the democratic American revolution at home depends on the triumph of democracy worldwide.
Wilsonians come in more than one flavor. Liberal internationalists (like Woodrow Wilson himself) believe simultaneously in the spread of democracy and the establishment of a world order that looks a lot like world government. (Sometimes they go all the way and think that the establishment of a single world government is the key to humanity’s future.) They believe, passionately, that only international law can save us from chaos, violence and, hopefully, war. A strong body of international law, enforced by international courts and obeyed by national governments is the way to make war less likely and less dreadful when it occurs; it can also deter torture, human rights violations and a whole host of other bad things.
Liberal internationalists want the world to become a more orderly and law abiding place. Ideally many would like the United Nations or some other international organization to evolve into something a little bit like a world government: the European Union on a global scale. But failing that, liberal internationalists would like to see better enforcement mechanisms for documents like the Universal Declaration of Human Rights. They would like the ‘laws of war’ to become ever more clearly codified and ever more effectively enforced. They look to the day when power shifts from national governments to international bureaucracies and institutions.
Neoconservatives, on the other hand, are Wilsonians who think, among other things, that the twin goals of democracy promotion and the development of global institutions can’t always be pursued simultaneously. With for example, two non-democratic powers on the Security Council, the goal of democracy promotion might sometimes come into conflict with the goal of making the UN the supreme arbiter of world politics. Otherwise you are saying that China and Russia can veto your efforts to promote freedom worldwide: you are giving the keys of the prison to the bad guys.
The Bush administration wrestled with the consequences of ne0conservative ideas; in the Obama administration it is liberal internationalists who are trying to steer history their way.
During the neoconservative years of the Bush administration, liberal internationalists were developing a new variation on their point of view. In the past, Wilsonian visions have been linked to the idea that the United States was a rising power. As America’s power and influence grew in the international system we had more ability to shape the flow of history; liberal internationalists wanted us to use this rising power to build a steadily more democratic and law-bound world. But what if America is in decline? What becomes of the Wilsonian project then?
Some liberal internationalists have come to see a more institutionalized and organized global polity as a strategy for dealing with what they see asAmerica’s relative decline in the twenty first century. While the United States is still strong, they argue, we should use our power and influence to promote global institutions and governance with agreed rules and procedures. That way the transition from an American world order to the coming post-American system can be made smoother, less dangerous and, from an American point of view, much more pleasant. Entranced by the aura of legitimacy surrounding these august institutions (and, to be fair, appreciative of the benefits provided by orderly methods for settling trade and other disputes), the rising new powers will continue to lead the world down the path the Americans laid down. Wilsonian, once an ideology of rising American power, becomes a strategy for smoothing America’s decline.
This idea is, I think, pretty influential among some of the people in the Obama administration. It may even have a place in the President’s thinking.
It could not be more wrong. The world is inexorably developing in directions that undermine the authority and efficacy of big international institutions, and American power (not, I think, doomed to decline) will increasingly have to operate outside of institutional frameworks, like it or not.
There are three big factors in world affairs that make the liberal internationalist path increasingly problematic going forward.
First, the decline of two of the three Trilateral powers (Europe and Japan; the United States is in a different category) means that we increasingly live in a post-Trilateral world, and that world is much less hospitable to institutions and ideas that are rooted in the Kantian visions that have been so influential in European and American history. Western concepts of bureaucratic institutions date back to the Roman Empire and the concept of law that guides them also has Roman roots. Angl0-Americans sometimes bristle at this with our own cultural preferences for common law and (we like to think) common sense approaches; nevertheless, Europeans and Americans both find the Kantian vision of a bureaucratic world state incorporating basic European cultural ideas about states and laws very natural. Outside the old West, these ideas and institutions don’t seem nearly as natural. Both because Europeans (and whites generally) are over-represented in the existing global institutions and because the institutions themselves evolved out of the era of western colonial dominance along western ideological and cultural patterns, the liberal internationalist vision has a limited appeal in countries like India and China. With non-Euro-American cultures becoming more capable of shaping the international system and more confident in their own values and histories, we cannot expect that Euro-American norms and cultural preferences will do anything but decline as factors in international life.
Second, the increasing complexity of international life combined with the world’s deep-seated cultural differences to make global institutions less and less useful for handling international business. There is a tremendous hunger for regional institutions around the world; Latin America, Africa and various parts of Asia are all trying to emulate the success of the European Union. But nobody likes the idea of having global institutions interfere with one’s local affairs. This makes sense. East Asians responded to their experience with the IMF during the 1997 financial crisis by taking a series of steps to ensure that the IMF would never again take charge of Asian economic policy during an economic crisis. Global institutions are seen as too much under the influence of outside powers and too little attuned to regional preferences and priorities. While the global financial institutions are (occasionally) effective as well as unpopular, the hapless United Nations is a terrible forum for almost all purposes. Only those who have no other option turn to it; UN peacekeepers are too often poorly led, poorly trained, poorly supported and poorly behaved. Africans dream of the day when Africa can manage its own security affairs without the blue helmets; as regional institutions develop in Asia, Africa and Latin America, the role of the UN is more likely to decline than to grow.
Third, the world economy is evolving in ways that undermine the ability of international institutions to manage it. Until and unless countries like China are ready to accept international oversight and constraints on their domestic economic policies (which will be roughly the 12th of Never), such institutions cannot hope to fill the macroeconomic role that Keynes, for example, hoped international institutions would play after World War Two. Ever since theBretton Woods institutions were established, the world economy has been slipping steadily out of their grasp.
Although specific international agreements affecting common problems will continue to be reached, the economic interests and concerns of the world’s countries are so different that the degree of common governance to which they will submit will remain small. Even within the eurozone we see thatGreece and Germany are unwilling and unable to coordinate their policies or agree on a common vision for how the economy should work; yet by world standards Greece and Germany are practically cultural and economic twins. As more emerging markets and countries are able to speak for themselves and advance their interests with confidence in the international political arena, we are going to see less consensus and less agreement on international rules of the road, not more. At bottom, this is the process that is making the Doha Round of international trade negotiations so slow to progress. As more interests are brought to the table with more conviction and more confidence, agreement gets harder to reach.
The United States may try to swim against this current, but it won’t have much success. The new dynamic in American foreign policy was clear at the Copenhagen climate summit last fall. The Europeans, dreaming of a global and institutional solution to the climate change issue, wanted formal negotiations leading to a binding treaty. It became unmistakably clear during 2009 that this was out of reach; in the end, President Obama stitched up an informal, backroom deal with Brazil, China, India and South Africa. The terms of the agreement were vague; the effect was to underline the difficulty of getting a global treaty rather than to make progress on hashing one out. The process-loving, Kantian Europeans weren’t even in the room.
In the future, American diplomacy will work better if we cut to the chase. Rather than chasing liberal internationalist mirages, we should focus on what we want and need, think about how we can get as much of it as possible at the best price — and go for it in the most efficient way possible.
This is by no means the end of Woodrow Wilson. The protection of human rights and the spread of democracy will not disappear from America’s list of objectives. It is not even the end of international institutions; global institutions will continue to exist and will always have a role, and regional institutions are likely to grow more important and more effective. But it does mean that the construction of a legal world order is going to look less and less feasible.
The shift might even be good news for embattled Wilsonians. To the degree that regional institutions are more effective than universal ones at building peace and promoting democratic development around the world, Wilsonian values could flourish — and the world could become a more peaceful, prosperous and happier place. Probably, however, some regions will be more successful than others at building strong and effective institutions. And because the regional institutions will be rooted in the values and political histories of different parts of the world, they will have very different sets of weaknesses and strengths.
All that is for the future. Of more immediate concern is the possibility that American foreign policy makers, unable or unwilling to give up on the old liberal internationalist vision, will waste the resources, energy and political capital of the United States pursuing an unworkable agenda. Perhaps worse, they will make the mistake of believing that the liberal international vision is more acceptable to countries like China and India than neoconservatism was. Generally speaking, Europeans like liberal internationalism and hate neoconservativism. In much of the rest of the world the similarities of these two ideologies seem more important than the differences. In both cases, China sees a threat to its political order at home and to its ambitions abroad. For Islamists, the two ideologies look like two different strategies to achieve the same goal: the subjugation of the Islamic world to a set of ideas rooted in Christian culture and, ultimately, faith. For much of Latin America, the question is how to assert an independent voice and presence in world affairs — and the conviction among many Latin leaders (and not just the Bolivarians) is that this requires limits on US influence in the hemisphere.
These days, liberal internationalism is a solution in search of a problem: it is an idea whose time has passed. Liberal Wilsonians must take a long hard look at a world that is not moving toward global governance in any serious way and think about how the values at the heart of the Wilsonian vision can be advanced in a new century.
Federal Court Adopts “Purpose” Test for Alien Tort Statute, “Knowledge” Test for Antiterrorism Act
Posted: 09 Apr 2010 09:56 AM PDT
by Roger Alford
A federal district court in Texas has held that the Alien Tort Statute (”ATS”) requires allegations of intent to violate international law. The mere knowledge that such violation was occurring, or would occur, is insufficient to support a claim under the ATS.
The complaint in Abecassis v. Wyatt alleges that various corporations and individuals purchased oil from Iraq and made payments that violated the United Nations Oil-for-Food (”OFP”) program. The plaintiffs allege that the oil companies were involved in buying Iraqi oil with payments to a secret bank account in Jordan controlled by Hussein. Hussein used these funds from this account to make reward payments to the families of suicide bombers and others who engaged in terrorist attacks in Israel. The also allege violations of the TVPA and the Antiterrorism Act (”ATA”).
With respect to the ATS, the court dismissed the ATS claim, finding that that the requisite allegations of corporate intent to violate international law were not alleged:
It is not sufficient to allege facts showing that the defendants intended to violate the OFP or to assist Hussein in violating the OFP. That, while unlawful, is not a violation of the type of definite, universally accepted norm of international law that Sosa would include among the small set of norms giving rise to ATS jurisdiction. The allegation would have to be that the defendants acted with the purpose of assisting terrorists to murder or maim innocent civilians. No such factual allegations appears in the complaint…. The factual allegations in this case do not support a plausible inference that any defendant acted with the purpose of assisting terrorist attacks. The absence of any such allegations defeats aiding and abetting and conspiracy liability under the ATS. [pp. 51-52].
With respect to the ATA claim, the court applied a different standard, essentially a knowledge standard, but tweaked to require evidence that the defendant must know that money will be used to support terrorism against Americans:
The defendant must collect funds willfully but the only required knowledge is that the funds will be used for terrorism. Knowledge is sufficient. But … it is not enough to know the character of the ultimate organization. The defendant must know (or intend) that its money is going to a group engaged in terrorist acts or is being used to support terrorist acts…. [T]he plaintiffs have not … sufficiently alleged that any defendant had the knowledge necessary for liability. The only relevant allegations are either wholly conclusory or inadequate. The plaintiffs must allege, at a minimum, that each defendant knew that the oil it was buying through the OFP was tied to a kickback to Hussein and that Hussein was using OFP kickback money to fund terrorism that targeted American nationals…. There are no allegations that, if proven, would show that the defendants had information that Hussein was using OFP kickback money to fund terrorism targeting Americans. [pp. 67-68].
I’m not keeping score, but there seems to be a strong movement afoot for the ATS to require purposeful intent on the part of corporate defendants. With the heightened pleading standard of Iqbal, it seems increasingly likely that this standard could shut down most ATS claims. How does a plaintiff properly allege corporate intent in a complaint in order to survive the purpose test? --> ??? DOng disagree ...
===============================
Maybe Debt Relief Won’t Help Poor Countries After All
Posted: 09 Apr 2010 03:38 PM PDT
by Julian Ku
The results of this new study about the ineffectiveness of international aid to certain developing countries is not surprising, but it is still depressing.
For years, the international community has forked over billions in health aid, believing the donations supplemented health budgets in poor countries. It now turns out development money prompted some governments to spend on entirely different things, which cannot be tracked. The research was published Friday in the medical journal Lancet.
Experts analyzed all available data for government spending on health in poor countries and the aid they received. International health aid jumped from about $8 billion in 1995 to almost $19 billion in 2006, with the United States being the biggest donor.
Most countries in Latin America, Asia and the Middle East doubled their health budgets. But many in Africa - including those with the worst AIDS outbreaks - trimmed their health spending instead. In the Lancet study, for every dollar received from donors, poor countries transferred up to $1.14 originally slated for their health budgets elsewhere. The research was paid for by the Bill & Melinda Gates Foundation
Moreover, debt relief for many countries is unlikely to have a positive effect either, the study suggests.
Murray’s paper also found debt relief had no effect on health spending. Activists like Bob Geldof and Bono have long argued canceling African debts would allow countries to spend more on their health problems, but there was no evidence of that.
“When an aid official thinks he is helping a low-income African patient avoid charges at a health clinic, in reality, he is paying for a shopping trip to Paris for a government minister and his wife,” said Philip Stevens, of the London-based think tank International Policy Network. He was not linked to the study.
==========================
Study: Health aid made some countries cut budgets
By MARIA CHENG The Associated Press Friday, April 9, 2010; 7:30 AMLONDON -- After getting millions of dollars to fight AIDS, some African countries responded by slashing their health budgets, new research says.
For years, the international community has forked over billions in health aid, believing the donations supplemented health budgets in poor countries. It now turns out development money prompted some governments to spend on entirely different things, which cannot be tracked. The research was published Friday in the medical journal Lancet.
Experts analyzed all available data for government spending on health in poor countries and the aid they received. International health aid jumped from about $8 billion in 1995 to almost $19 billion in 2006, with the United States being the biggest donor.
Most countries in Latin America, Asia and the Middle East doubled their health budgets. But many in Africa - including those with the worst AIDS outbreaks - trimmed their health spending instead. In the Lancet study, for every dollar received from donors, poor countries transferred up to $1.14 originally slated for their health budgets elsewhere. The research was paid for by the Bill & Melinda Gates Foundation.
"We don't know what countries are doing with their own money once the donor money comes in," said Christopher Murray, director of the Institute for Health Metrics and Evaluation at the University of Washington and one of the paper's authors. Murray said health aid saves millions of lives, but governments need to be more transparent about what they're spending on.
The research raises questions about whether international aid is sometimes detrimental. Previous studies have found pricey United Nations health initiatives haven't paid off and occasionally hurt health systems. Experts estimate about half of international health aid can't be traced in the budgets of receiving countries.
Murray's paper also found debt relief had no effect on health spending. Activists like Bob Geldof and Bono have long argued canceling African debts would allow countries to spend more on their health problems, but there was no evidence of that.
"When an aid official thinks he is helping a low-income African patient avoid charges at a health clinic, in reality, he is paying for a shopping trip to Paris for a government minister and his wife," said Philip Stevens, of the London-based think tank International Policy Network. He was not linked to the study.
Others said countries might be shifting money to other areas that could benefit health tangentially, like building schools or roads.
Stevens said donors should demand results from countries before agreeing to cough up more cash, and that foreign aid gives countries little incentive to tackle their own problems. "Why should African governments, many of whom are riddled with corruption, direct resources towards social services when they can rely on international donors?" he said.
Health officials said more research is needed on how money gets spent in poor countries and that the West shouldn't immediately pull the plug.
"Donors should be much more insistent about whether aid does add to health budgets," said Andrew Cassels, a senior strategy expert at the World Health Organization. "In the past, it was assumed that aid did good things, but we clearly need more data."
----
On the Net: http:/
/ www.lancet.com
Pushing Back Against Italy's "Push-Back" Policy
Posted: 09 Apr 2010 03:16 AM PDT  Last month, the United Nations High Commissioner for Refugees submitted a third-party written intervention to the European Court of Human Rights in the case of Hirsi and Others v. Italy. The case was filed last May by a group of Eritrean and Somali asylum seekers, including children and pregnant women. who attempted to reach Italy by boat from Libya. When they were thirty-five miles south of Lampedusa (pictured below left), the Italian Coast Guard and Navy interdicted these vessels and returned their passengers to the Libyan authorities in Tripoli. Italian officials made no attempt to identify, let alone interview these asylum seekers. Most remain in temporary detention centers while some are in Libyan prisons. The Italian Interior Minister confirmed that this interdiction and return was conducted pursuant to a bilateral treaty concluded with Libya aimed at reducing irregular migration.The case raises several important legal issues to which the UNHCR brief responds, namely the practice of interdiction or "push-back" on the high seas, the reception conditions and asylum process in Libya, and the scope of the principle of non-refoulement on the high seas. On the first point, to justify its interdiction practices, it was interesting to see that rather than citing sovereignty concerns, the Italian government cited international law, namely its treaty with Libya and the Protocol Against the Smuggling of Migrants by Land, Sea, and Air (supplementing the United Nations Convention against Transnational Organized Crime). The UNHCR contends that neither of these treaties overrides the Italian government's duty of non-refoulement. To highlight the importance of applying this principle in the case of interdiction near Lampedusa, UNHCR noted that in 2008, 75% of sea arrivals applied  for asylum and 50% of those received protection.The return to Libya is also seriously problematic under international law. Libya has not joined either the UN Refugee Convention or its Protocol, and it has no domestic asylum legislation or processes. As a result, asylum seekers who are caught in "push-back" operations are considered illegal migrants and subject to detention. The poor conditions in Libyan detention centers range from sanitation problems to sexual assault. Even worse, the Libyan government has reportedly concluded an agreement with the Eritrean government for the return of Eritrean nationals -- a guarantee of non-refoulement violations. All this of course raises the much larger question of the applicability of the non-refoulement principle on the high seas. While there is no right to asylum under international law, UNHCR notes that non-refoulement applies in any territory under a the jurisdiction of a State Party to the ICCPR and to any person within the actual control of a State Party to the ICCPR or UNCAT, irrespective of her physical location. As a result, de jure and de facto jurisdiction exist on board a boat of an intercepting state, requiring that the principle of non-refoulementbe respected on such a vessel. The Hirsi case raises enormously important questions that need thoughtful and creative solutions. Italy appears to be trying to create a legal black hole, an arena in which legal constraints can be ignored; the dangers of such an approach have been amply de  monstrated in recent years. Yet the difficulties of addressing mass influxes of undocumented migrants are serious, and include not only severe administrative burdens and costs but potential risks to national security -- not to mention the risks to the migrants of attempting such journeys in less-than-seaworthy vessels. Though the "Fortress Europe" approach of building higher fences has created significant problems, the ECtHR may struggle to dismantle these policies effectively. The case poses a serious challenge to the court's ability to protect human rights while ensuring that its decision is respected and enforced by member states. |
Justice Stevens and the "War on Terror"
by
When Justice John Paul Stevens retires this summer he will have served longer than any Supreme Court Justice in history save one -- William O. Douglas. In his decades on the court, Stevens has had a profound influence on several issues -- including one of the central aspects of recent U.S. foreign policy: the "War on Terror".
Stevens has made a couple landmark decisions regarding alledged terrorist detainees from the wars in Afghanistan and Iraq. The first one, Rasul v. Bush, was decided in 2004. He wrote the majority opinion in the case, finding that foreigners held in Guantanamo Bay are under the jurisdiction of federal courts, saying, "They have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control." This meant that prisoners could now challenge their detainment through legal channels.
Two years later, in 2006, Stevens wrote the majority 5-3 decision in Hamdan v. Rumsfeld. The ruling curbed executive power by arguing that the government had to follow U.S. laws and the Geneva conventions when detaining prisoners of war. Moreover, because neither the president nor Congress has the authority to authorize military tribunals when they can be avoided, they are illegal in this case. When speaking about the use of military tribunals, Stevens argued:
The danger posed by international terrorists, while certainly severe, does not by itself justify dispensing with usual procedures.
Because the procedures adopted to try Hamdan do not comply with the uniformity requirement of Article 36(b), we conclude that the commission lacks power to proceed.
For similar reasons, the commission lacks power to proceed under the Geneva Conventions, which are part of the law of war under Article 21 of the UCMJ.
Common Article 3 of those conventions, which we hold applicable to this case, prohibits the passing of sentences without previous judgment by a regularly constituted court, affording all the judicial guarantees recognized as indispensable by civilized peoples."
With the legal questions surrounding Gitmo far from settled, Stevens' absence will certainly be felt.
Apr 9, 2010 (2 days ago)
FP passport
On April 8
Posted: 08 Apr 2010 01:04 AM PDT
On this day in ...... 1985 (25 years ago today), India sued in the U.S. District Court in Manhattan to recover damages from the Union Carbide Corp., owner of the pesticide plant (left) in Bhopal where a gas leak 3 months earlier, "the worst industrial accident in history, killed about 1,700 people and injured as many as 200,000 more." (photo credit)Sought were not only damages to compensate victims and pay for the costs of emergency relief, but also punitive damages in order, the suit said,
'to deter Union Carbide and any other multinational corporation from the willful, malicious and wanton disregard of the rights and safety of the citizens of those countries in which they do business.'
The litigation eventually moved to India, where, in 1989, the Supreme Court of India approved a $470 million settlement.
(Prior April 8 posts are here, here, and here)
Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill
A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.
Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military's Joint Special Operations Command and has survived at least one strike carried out by Yemeni forces with U.S. assistance against a gathering of suspected al-Qaeda operatives.
Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.
"He's in everybody's sights," said the U.S. official, who spoke on the condition of anonymity because of the topic's sensitivity.
CIA spokesman Paul Gimigliano said: "This agency conducts its counterterrorism operations in strict accord with the law."
The decision to add Aulaqi to the CIA target list reflects the view among agency analysts that a man previously regarded mainly as a militant preacher has taken on an expanded role in al-Qaeda's Yemen-based offshoot.
"He's recently become an operational figure for al-Qaeda in the Arabian Peninsula," said a second U.S. official. "He's working actively to kill Americans, so it's both lawful and sensible to try to stop him." The official stressed that there are "careful procedures our government follows in these kinds of cases, but U.S. citizenship hardly gives you blanket protection overseas to plot the murder of your fellow citizens."
Aulaqi corresponded by e-mail with Maj. Nidal M. Hasan, the Army psychiatrist accused of killing 12 soldiers and one civilian at Fort Hood, Tex., last year. Aulaqi is not believed to have helped plan the attack, although he praised Hasan in an online posting for carrying it out.
Concern grew about the cleric's role after he was linked to the Nigerian accused of attempting to bomb a U.S. airliner on Christmas Day by detonating an explosive device he had smuggled in his underwear. Aulaqi acknowledged teaching and corresponding with the Nigerian but denied ordering the attack.
The CIA is known to have carried out at least one Predator strike in Yemen. A U.S. citizen, Kamal Derwish, was among six alleged al-Qaeda operatives killed in that 2002 operation but was not the target.
===============================
A Question About Targeted Killing
Posted: 07 Apr 2010 04:25 PM PDT
by Kevin Jon Heller
As the Washington Post notes, the Obama administration has authorized the CIA to assassinate Aulaqi wherever he is found. It is very unlikely that CIA agents qualify as lawful combatants — they don’t distinguish themselves from the civilian population, they don’t carry their arms openly, etc. So, let’s assume that CIA agents manage to kill Aulaqi in Afghanistan. I assume everyone would be okay with Afghanistan capturing and prosecuting those agents for murder? They would have no combatant’s privilege, and “self-defense” would only (at best) prohibit Afghanistan from claiming that the US committed an internationally wrongful act.
Thoughts?
NOTE: I should make clear that I am interested in situations in which the US is relying on IHL, not “self-defense,” to justify targeted killing — situations in which the US argues that the individual in question was directly participating in hostilities and was thus a lawful target for lethal military force. My point is simply that, even if we assume the existence of an armed conflict and that the target was directly participating in hostilities and was thus not a civilian at the moment he was killed, a CIA agent could be prosecuted for murder under domestic criminal law even though a US soldier could not, because only the latter would have had a combatant’s privilege to kill. I take it as fairly obvious that if IHL does not apply — and the US’s argument that we are in an amorphous global armed conflict with Al Qaeda is no less incorrect when made by Obama than it was when made by Bush — anyone who used lethal force against a “terrorist,” CIA or US military, could be prosecuted for murder in a domestic court with jurisdiction over the crime. As Marko has pointed out, the US’s alternative claim of “self-defense” might prevent the state whose territory was the object of the attack from claiming that the US violated its sovereignty. But it would not provide the killer (-CIA, non combatant - DOng-gle ) with a defense to a criminal charge.
=====================================
Why the President’s Targeted Killings are Illegal (According to Professor O’Connell) Posted: 09 Apr 2010 11:43 AM PDT by Julian Ku Kevin has done, and is doing, a very nice job of critiquing the legality of the Obama Administration’s targeted killing policy. On the critical side, it is also worth noting the views of Mary Ellen O’Connell, Professor at Notre Dame, who has become a leading public critic of the legality of this policy. Her basic point is that international law only permits such killings on the battlefield, and any killings off of the battlefield (as she defines it) are illegal acts of extrajudicial murder. This would be true whether or not the U.S. actor is a privileged combatant. I think this makes sense, even if I doubt it is right. It does show, however, that the Obama and Bush Administration’s policies as to the nature of this war is pretty close (and getting closer). Because it is President Obama, and because he has folks like Harold Koh, Neal Katyal, and Marty Lederman to defend these views, I don’t think there will be nearly the same level of controversy as during the Bush years. ===========================