Humberto Leal is dead. Does this threaten our own rights?

As I posted recently (“The Right to Access Your Consulate”), Humberto Leal was scheduled for execution by the state of Texas yesterday. Despite appeals from a large number of external actors (the UN, Obama, and apparently 4 of our current Supreme Court justices), Texas Governor Rick Perry decided to continue with the execution. As I stated in that previous post, at issue is the right of a foreigner to get assistance from their own country’s consulate (and to be told of this right) when arrested. The Vienna Convention on Consular Relations that codified this right has been a relatively straightforward deal for most countries. We seem to be creating most of the problems (and of course, the fact that we allow for the death penalty in some states, while many other countries do not, brings more attention to our cases).

It is now up to Congress to pass legislation to make sure that we no longer run afoul of our international legal obligations. Fortunately, there is a bill in the pipeline. Let’s just hope that Congress acts soon.

The Right to Access Your Consulate

Let’s say you are on vacation somewhere outside of the United States–let’s say it is Europe–and you run into some serious legal problems. Perhaps you find yourself being charged with a serious crime, such as murder or being an American spy. An unlikely scenario for most of us, but it might still make you feel a little better to know that you have a right to contact the American consulate and request advice or assistance from your home country. Indeed, this is a real concern for American military and aid personnel serving overseas. And it is a right that even so-called rogue nations respect, as Liz Goodwin notes in a recent article. North Korea granted such access to American journalists it jailed and Iran did the same for the American hikers it thought were spies.

The Vienna Convention on Consular Relations, adopted in 1963, both created new international law and codified pre-existing international customs. Much of its 79 articles focus on the definitions of consular activities and the rights and immunities of consular staff. Article 36, however, has been broadly interpreted as providing foreigners who are arrested a right to access their home country consulates.

Al of this seems straightforward, so why is there a problem in the United States? On one level, there is a question of federalism. The typical VCCR case that makes its way into law school case books, cases such as Medellin, Avena, and LaGrand, have often involved American Presidents trying to tell Governors to stay executions of foreign nationals because their consular rights were never invoked. Indeed, this is exactly what is happening right now. President Obama, and his solicitor-general are asking Texas to grant a stay of execution. This is to give Congress time to finally pass legislation that will finally incorporate American obligations under the treaty it signed and ratified into the domestic legal system, as the Supreme Court has said is required. So this goes to the second reason for the problem today. There is disagreement as to whether our original ratification of the treaty was sufficient and self-executing (as the Massachusetts Supreme Judicial Circuit has apparently said), or whether Congress was required to enact legislation first (what the Supreme Court has said).

So here we are. Tomorrow, July 7, the State of Texas is scheduled to execute Mexican national Humberto Leal. Whether or not he is guilty (likely he is, in this case) and whether or not an intervention from the consulate would have altered the penalty, we should still be aware that how we treat the nationals of other countries may impact how those other countries treat our own nationals.

One of the key principles underpinning international law is reciprocity. We often make agreements and uphold those agreements in the hope that others will do the same. As so many observers have been pointing out, this is one issue where the United States is not upholding its end of the bargain and if that continues we should be worried that others will no longer do the same for us. Let’s hope that Congress finally passes this legislation so that we can put this issue to rest.

The WTO’s Doha Round

The Doha Round still limps along.

You know the WTO is in trouble when…
… The Financial Times says negotiations are dead. In 2008 they argued that leaders should admit the talks are over. They haven’t really been optimistic since.
… We start to argue that an assassination will save it. Jagdish Bhagwati, one of the great spokesmen for concluding the Doha negotiations, starts grasping at straws. For instance,his letter to the Financial Times on May 6th, argues that Osama bin Laden’s assassination provides just the opportunity that is needed to restart the round.
… We say we should kill the talks in order to save them. That is the logic that Bhagwati claims they are using when his (and Sutherland’s) High-level Expert Group on Trade advises that the Doha Round be abandoned if there is no agreement this year. “Our idea,” he states, “was that just as the prospect of an imminent hanging concentrates the mind, the deadline and prospective death of the Doha Round would galvanize the world’s statesmen behind completing the last mile of the marathon.”

Should we narrow the agenda and what are the obstacles to doing this?
The Financial Times has editorialized on the progress of the talks a number of times.This past April, they suggested the WTO should move away from its current all-or-nothing approach to negotiations. It is important, they argued, that the WTO show it is a “rule making system [that] can adapt and renew itself.”

That concern and approach has driven WTO Director-General Pascal Lamy’s move to conclude a limited version of a Doha deal this year. However, “Doha Lite” seems to be hitting roadblocks as well. (“Doha lite runs into rough weather”, June 10). The US is at the center of this. Alan Beattie reports (“WTO scrambles to savage Doha talks” FT, June 12.) that the US is a major stumbling block to progress on the Doha Round. As I write in my book manuscript, African countries have been able to wield significant influence in the round by reasonably demanding that the US change its support for one commodity: cotton. Indeed, cotton–and other agricultural issues–remains a major issue.

Why should we save the Doha Round?
While I was on vacation, Sutherland and Bhagwati’s Trade Experts Group published their important report, “World Trade and the Doha Round.” You can download it here. In it they argue that the Doha Round should definitely be saved. Some of the highlights:

  • There is a moral argument, as well as an economic argument, that needs to be considered: “Indeed before the twentieth century the conventional case for trade was a moral one: that it promoted economic integration and therefore peace, and that the efficient allocation of resources that it encourages pushes down prices for clothes, food and consumer goods. The argument that open trade damages the interest of workers in developed countries too often misses completely the fact that it has rendered the goods they buy cheaper, more diverse and in many cases more sophisticated than at any previous point in human history.”
  • And then there are the familiar economic reasons for open trade: competition promotes efficient specialization, open trade is linked to economic growth, etc.
  • The WTO is under threat: PTAs and other regional agreements, the lack of political will on the part of country leaders today, and the continuing struggle to accommodate the wishes of emerging powers are all part of this.

Other ad hoc solutions for governing global commerce are not better. I agree with Bhagwati, for the most part, when he says that Preferential Trade Agreements are starting to take over the rule-making agenda (also one of the conclusions made in the report above).

We also don’t want to have 1930s-style destructive economic competition. As Pascal Lamy and others have warned, the recent financial crisis already has increased protectionism around the world but that sort of policy can lead to mistrust and threaten not just the global economy but also global security. As a recent report from Roubini Global Economics (gated) suggests, the WTO has played an important role in stemming such problems.

Finally, if the “we” in my question above is the United States, then there might be an even more poignant reason to act and try to conclude the Doha Round now. We may not get the agreement we most desire (we definitely will not, nor will anyone else) but it is even less likely that we will get a deal we like in the future. The American economy may recover from its recent crisis and begin to grow again, but all signs point to our gradual relative economic decline. This could be our last great shot at putting our mark on global economic governance and ensuring that an institution we created survives the inevitable change in the distribution of power.

On that note, I keep thinking I should write a post (or something) on this theme: The United States should act like a great power, but think like a middle power. That is, we should use our power resources which still allow us to dominate on most global issues, but we should be interpreting our interests more and more in terms of how we will like the international system to look when we are no longer so dominant.

The WTO is more than Doha
However, I believe it is too easy for the casual observer to interpret the faltering Doha talks as signs of a weak institution. The WTO still clearly matters a great deal in global economic relations. Countries still expend considerable resources to participate in the daily meetings in Geneva and the dispute resolution system is still one of the most relevant (if not the most relevant) quasi-judicial process the international system has (although there is the occasional concern about its future, such as in this post by Hufbauer and concerns expressed in Elsig and Pollack’s recent piece).

Apparently, Lamy thinks we may know by the end of this month whether a deal this year will be possible (“WTO’s Lamy Says Working on ‘Early Harvest’ Trade Deal”, June 13, Washington Post). I will definitely be watching.

The spread of norms and the UN vote to make access to water a human right

A friend from my Peace Corps days posted on Facebook the UN press release that the General Assembly has adopted a resolution “Recognizing Access to Clean Water, Sanitation as Human Right, By Recorded Vote of 122 in Favour, None Against, 41 Abstentions.”

This isn’t exactly getting major press coverage. And, indeed, just because the UN General Assembly calls something a human right doesn’t automatically make it so, though it can be important in the development of such a norm. Some, however, have argued that it already is a human right. Since we need water to live, and since a right to life is enshrined in the UN Declaration on Human Rights, then perhaps there is already consensus on this? (See the post by Jennifer Vettel at Columbia’s Earth Institute). But 41 nations did choose to abstain, including (please note with appropriate shock) famed human rights-leading Canada. Of course, the US also abstained. As did, apparently, some developing countries who were concerned about incurring greater legal obligations for providing water to their citizens then they could possibly fulfill (see the Huffington Post on this).

So what is the significance of this General Assembly vote? At this point, it seems to me unclear that much will change if change requires politically costly choices. As Iman Kurdi suggests in his post on ArabNews.com, it is unlikely that Israel or Turkey will change or reverse their dam-building, which has infuriated neighbors in the past. So I would expect others interested in building dams (Ethiopia, for instance) are probably proceeding without giving such human rights concerns a second thought. Possibly the biggest impact will be to act as a fundraiser for the UN’s various water and sanitation-related initiatives. As the International Law Observer reports, there is a clear non-binding appeal to states and international organizations to commit resources.

While the impact of the resolution is therefore limited. It does help bring needed publicity and international attention to an important problem. One of my students here at Wesleyan University, Oluwayimika Taiwo-Peters, is tackling this head-on in her home-country of Nigeria this summer. She is visiting local schools as part of a health education program she created, and installing a rainwater catchment system at a local school. Her activities remind me of my old Peace Corps days as a water and sanitation volunteer in Northern Ghana! But the bottom-line is that for many people in Africa — and close to a billion people worldwide — reliable access to safe water and sanitation is an important obstacle to development and happiness. So I will hold out the hope that this norm continues to grow.

And since we are talking about norms, this isn’t a bad place to mention Schrad’s recent book on The Political Power of Bad Ideas, which The Duck of Minerva reviews. The excellent point of the book is to explore how not just good ideas (we need clean water) but also bad ideas (prohibition counts as one of these, in his view) can be spread via advocacy networks. I haven’t read this yet, but Charli Carpenter’s post makes me want to!

Climate change, international public opinion and more: links, stories, and comment

Climate change

This was the week for thinking about climate change.  And when not distracted by “climate-gate”, there were some good debates out there.

Not on climate change, per se, but Dan Bodansky’s new book, The Art and Craft of International Environmental Law, looks interesting.

International Public Opinion

Opinio Juris reports that the Council on Foreign Relations has released a report, “Public Opinion on Global Issues”.  Some of the findings are relevant to concerns about climate change:

Perception of Climate Change as a Problem or Threat: On average in 2009, 85 percent of those polled globally said the problem was serious, with 56 percent saying it was very serious. The number of people saying that it is not a problem averaged just 3 percent and was always in the single digits, with the exception of the United States in 2009 when this figure reached 11 percent. (The average 2007 and 2008 numbers were almost exactly the same as those in 2009.)

Other findings challenge the idea of American Exceptionalism:

Contrary to conventional wisdom, the digest suggests substantial consistency in the views of Americans and their counterparts abroad regarding the importance of international law, international institutions, and multilateral cooperation to address global challenges. Far from being insular or obsessed with sovereignty, Americans convey support for internationalist principles and a willingness to compromise for effective multilateral cooperation.

A few headlines are particularly striking. Most Americans favor a world order that is multipolar or led by the United Nations, rather than based on U.S. hegemony or a bipolar balance. They believe that all nations must abide by international law even when doing so is at odds with their national interest. A large majority of Americans express support for U.S. participation in the International Criminal Court, even after hearing past U.S. government objections.

Dan Drezner has his own take on a recent Pew Survey on American public opinion about foreign policy.  He finds that Americans are quite “realist” right now.  But Americans are also rather uninformed (he actually calls us “dumb”).

Other stories

Opinio Juris has a link to some stories suggesting Blackwater “assassins” may be posing as aid workers.  This reminds me of when I interned in Congress one summer during college. There was a Senate hearing on whether the CIA should use journalists, priest, Peace Corps Volunteers and the like as spies overseas.  The hearing was stopped quite early on when it was decided that having a public debate about such things is not smart.

The Reuters Africa Blog ponders whether the war is over in Darfur.

Some of Ghana’s football stars are in trouble. Fortunately, it is a minor issue.  But come on guys!  You have to get your acts together for the World Cup!

News and Comment: last weekend of March roundup

Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials from the NY Times.  Judge Baltasar Garzon is at it again. He was the Spanish judge who ordered the arrrest of former Chilean dictator Pinochet. He also has looked into the activities of Basque separatists and the executions of the Franco era.  This time, due to the fact that some Spanish citizens or residents were detained at Gauntanamo, Spain can claim some jurisdiction.  It will be interesting to see how far this goes.

Staying in Touch Internationally, on the Cheap from the NY Times. Includes some great ideas for using cell phones while traveling internationally.  One option it mentions is Google Voice, which has taken over from Grand Central (a service I signed up for early on but never followed through on).  This could really make things easy for those of us who travel abroad.

The African Export-Import Bank talks up the potential benefits of South-South trade. But Botswana’s Minister of Finance and Development Planning complains about how Africa is “marginalised and patronised” during the current financial crisis.

Finally, Zimbabwe retains its pariah status as the US continues sanctions. It may not help that Mugabe remains n power and continues to act friendly towards exiled former Ethiopian dictator Mengistu.

 


Darfur and the ICC

A major debate has been brewing over whether the ICC’s decision to issue an arrest warrant for Sudanese President Omar Al Bashir was a “good idea”. In my view, our answer to this question depends on our criteria for a “good idea”. I think a common perception is that this is a justice versus order issue. Justice may be achieved by the ICC’s actions, but at the cost of more lives and greater political chaos in the Sudan. However, a number of commentators have (rightfully) muddied that easy equation. A roundtable discussion at The New Republic is also trying to answer these questions while making suggestions for what, exactly Obama should do.

Criteria One: Good Idea = Contributes to End of the Humanitarian Disaster in Darfur

Probably the most popular criteria is based on the assumption that our primary goal should be to end the current humanitarian disaster in Darfur, whether or not we call it a genocide (I still like Scott Strauss’ Foreign Affairs article on this point).

Julian Ku at Opinion Juris makes the clear academic argument that international criminal tribunals can lead to greater humanitarian atrocities (but not that this is a necessary outcome). Michael Kleinman offers a similar view from the perspective of someone who has worked in the field of humanitarian relief, arguing about the already clear dire humanitarian consequences of the ICC’s decisions.

Chris Blattman,  is among those who seriously doubt that the ICC’s actions can have positive consequences. He has a great link to Wronging Rights’ post on the subject.

However, one could also make the argument that the short-term costs are outweighed by the long-term benefits of action, as Kevin Heller seems to in a recent post. After all, someone has to do something about the roots of the crisis and no other actions (yet) seem to aim for that.

Criteria Two: Good Idea = Contributes to the Development of International Human Rights

Human Rights Watch clearly supports the ICC’s decision. In a separate Q&A section, they highlight the cases that arrest warrants against Liberian leader Charles Taylor and Bosnian Serb leader Radovan Karadzic actually helped the peace processes in those countries as well. One can wonder whether these are useful cases as a number of commentators have mentioned that, for instance, the international community only went after Milosevic once the conflict had been settled.

Alex de Waal also makes a great case for how the ICC actions may actually undermine the cause of human rights in Africa. He wonders whether African countries will follow Libya’s calls to de-ratify the Rome Statute of the ICC.  I’m not convinced this is really going to happen on a large scale, but it is true that the ICC’s actions may make some African states that have not joined more wary about joining (there are only 30 African states that have ratified at this point, I believe).

Criteria Three: Good Idea = Contributes to Justice (International and/or Local)

As some of the commentators already mentioned above have argued, the question of how to achieve justice is far from clear. Alex de Waal mentions Archbishop Desmond Tutu’s New York Times call for African states to support the ICC and its role in providing justice.  However, Alex notes that South Africa demonstrated that retributive justice is not the only form of justice.  Additionally, there is the concern that ICC’s actions have undermined the ability of local judicial (and political–there is to be an election later this year) institutions to deal with the problem.

Criteria Four: Good Idea = This is What International Law Tells Us to Do

This is essentially the case that Eric Reeves makes when he argues that Obama should support the ICC’s actions (Elizabeth Rubin makes a similar point.)

Some question issues of ICC jurisdiction and whether the UN Security Council’s referral to the ICC undermines the principle of complementarity (the idea that the ICC should be a court of last resort and that local judicial institutions should be used first).

Relevant to these points is a consideration of the proper role of the ICC. Should we think of ICC prosecutors as we think of criminal prosecutors in domestic legal systems?  A common theme in American legal textbooks is that the role of the prosecutor is “to seek justice”. This is not too different from the primary emphasis described in the Rome Statue: Prosecutors should investigate crimes.  Does the ICC really have any responsibility to consider the trade-offs between justice and peace/order?  Justice Goldstone has argued that the Prosecutor’s duites are “exernal to the political process of negotiations to end armed conflict”, but there is an “order” dimension to Moreno-Ocampo’s assertion that the Prosecutor’s office should also contribute to the prevention of crimes (see Winfield‘s post on this). But has the international community provided the ICC with all of the necessary tools to consider such trade-offs?

Further Thoughts on What To Do About Leaders We Do Not Like

All of this reminds me of arguments that have been made a number of times about what should be done about problematic political leaders, and especially dictators.  Scott Adams, of Dilbert fame, has even piped in on such debates with his idea of a “retired dictator program”.  His idea is more serious than it might at first sound.  Kieth Hartley at York University, made the argument in 2005 that it would have been cheaper to pay Saddam Hussein to leave Iraq. And, while optimistic about the role of an ICC, Hans Koechler has argued in the past that “the promise of a comfortable pension or discreet exile is sometimes the most expedient way to dislodge despots from power” (cited by Jeremy Bransten).

More generally–and not necessarily directed at “bad” leaders–Mo Ibrahim has wondered whether something should be done to make retirement more attractive to African leaders. This thinking contributed to his prize for African leaders who rule fairly and resign to elected successors.

Final Thoughts

In many respects, the debate about whether or not the ICC should have issued an arrest warrant for President Omar Al Bashir is rapidly losing relevancy.  We now need to turn to thinking about what to do about the current situation. Clearly there have been short-term negative consequences for the humanitarian situation in Darfur.  What can we do to make the medium- and long-term situation improve?