Go On! IntLawGrrls at AALS

(Go On! is an occasional item on symposia and other events of interest)

The Association of American Law Schools will be holding its 2011 annual meeting in San Francisco from January 5-8th. This year's theme is: Core Educational Values: Guideposts for the Pursuit of Excellence in Challenging Times.

If you are attending, be sure to check out IntLawGrrls and IntLawGrrl guests/alumnae in action. As detailed in the annual meeting program, they are:

Wednesday, Jan 5th

► At 2:00 pm, Afra Afsharipour will be speaking at the Law and South Asian Studies Section's panel: Lawyers as Social Change Agents in South Asia.

► Also at 2:00, Michele Bratcher Goodwin will speak on the Biolaw Section's panel: Synthetic Biology Meets the Law, and Penelope Andrews will moderate the Africa Section's panel: U.S. Africa Policy at the Midpoint of President Obama's First Term.

Thursday, Jan. 6th

► At 9:00 am, Stephanie Farrior, Hari M. Osofsky, Christiana Ochoa, Annecoos Wiersema, Leila Nadya Sadat, and Cindy Galway Buys will be participating in the International Law Section's panel: International Law Year in Review.

► At 2:00, Penelope Andrews will be speaking on the Constitutional Law Section's panel: American Constitutionalism in Comparative Perspective.

► At 2:30 pm, Lisa R. Pruitt will take part in a panel on Class, Socio-Economics, and Critical Analysis.

Friday, Jan. 7th

► At 8:30 am, Caroline Bettinger-López and Alexandra Huneeus will present at the
New Voices in Human Rights panel of the Section on International Human Rights.

► At 10:30 am, yours truly, Rebecca M. Bratspies, and Hari M. Osofsky will be participating in the Hot Topics panel: The BP Blowout Oil Spill and Its Implications.

► Also at 10:30, Laurel S. Terry will be speaking on the Education Law Section's panel: Immigration and Higher Education.

► At 4:00, Michelle Oberman will be speaking on the Law, Medicine and Health Care Section's panel: Women's Choices, Women's Voices: Legal Regimes and Women's Health.

Saturday, Jan. 8th is an action-packed IntLawGrrls day:

► At 7:00 in the morning, Laurel S. Terry will be speaking at the AALS Workshop and Continental Breakfast for 2010 and 2011 Section Officers.

► At 8:30 am, yours truly, Rebecca M. Bratspies, will be speaking on the Animal Law Section's panel: Treatment and Impact of Farmed Animals.

► At 1:30 pm, Elizabeth L. Hillman will be speaking on the National Security Section's panel: The Relationship Between Military Justice, Civil/Military Relations and National Security Law.

► Also at 1:30 pm, Jenia Iontcheva Turner will be speaking on the Comparative Law Section's panel: Beyond the State: Comparative Approaches to Group Political Identity in the Age of the Transnational.

► At 3:30 pm, Christiana Ochoa, will be moderating the International Law Section's panel: Was Medellin Wrongly Decided?

► Also at 3:30 pm, Jennifer Kreder will speaker on the Section on Law and Anthropology panel entitled The Role of Cultural Property Across Cultures and Legal Regimes.

As always, I am struck by the wide range of interests that our fearless leader Diane Marie Amann has brought together under the IntLawGrrls umbrella.

FYI: Because the Hilton is embroiled in a labor dispute with UNITE HERE, Local 2 (the hotel's workers have been working without a contract for over a year), registration and most of the AALS events have been moved to other nearby hotels. There may be other last-minute changes, so be sure to go by the locations in the schedule you receive at check-in rather than the brochure that circulated last month. See you in San Francisco.

(credit for 2010 poster of San Francisco by Kevin Dart)

Nottebohm’s Nightmare

(Delighted to welcome back IntLawGrrls alumna Cindy Galway Buys, who contributes this guest post on her scholarship)

Many international law professors likely teach the 1955 International Court of Justice decision in The Nottebohm Case.

If so, they will recall that Frederic Nottebohm was a German-born businessman living in Guatemala at the time of World War II. He traveled to Liechtenstein during the war and became a citizen of that country in very short order. Guatemala refused to recognize his change in citizenship, leading Liechtenstein to bring suit against Guatemala at the ICJ. The ICJ held that Guatemala did not have to recognize Liechtenstein’s grant of citizenship to Nottebohm because he did not have a genuine connection to Liechtenstein.

Reading the ICJ decision always left me with unanswered questions. Accordingly, I began digging into the history a bit more to better understand why the ICJ reached the decision that it did.My research revealed that Nottebohm was the victim a little-known program run by the United States during World War II in which the United States pressured Latin American countries like Guatemala to identify persons of German nationality or ancestry and turn them over to the United States for internment for the duration of the war. Many of these persons were arrested and detained for lengthy periods of time as Nazi sympathizers on the basis of mere accusations unsupported by any real investigation or evidence. Sadly, as with the Japanese-Americans who were forced into detention camps during World War II, U.S. law and courts allowed these arrests and detentions of persons with German connections with little or no proof of Nazi sympathies, much less subversive activities. (credit for photo at right of arrival at Camp Kennedy, Texas, whose detainees included Germans from Latin America)

The original motivation for the U.S.-Latin American Detention Program appears to have been national security concerns, especially after the attack on Pearl Harbor on December 7, 1941. However, as time went on, the United States continued detaining persons who, like Nottebohm, had been deemed to present little or no security risks, because it was beneficial for the United States and Latin American governments to do so for economic reasons.

Thus, what started as a national security measure evolved into a program aimed at increasing U.S. economic influence in Latin America. Continuing to treat Nottebohm as an alien enemy ultimately paved the way for the Guatemalan government to expropriate his assets in Guatemala without compensation. The wartime setting and the alien enemy accusations also may have influenced the ICJ in its decision.

This research is set forth in an article I have posted on SSRN, entitled Nottebohm's Nightmare: Have We Exorcised the Ghosts of WWII Detention Programs or Do They Still Haunt Guantanamo?

The article begins by telling the story of how Frederic Nottebohm and his extended family came to be caught up in the U.S.-Latin American Detention Program. It relates the motivations behind the creation of the program and analyzes the legality of the program under both United States and international law existing at the time. The article next examines the extent to which the law has evolved and whether the changes in the law would lead to a different result today. (credit for photo at left of Crystal City, Texas, detention camp for interned Latin American families)

The article then draws parallels between the arrest, detention, and trial of alleged alien enemies during World War II and those practices being employed today with respect to alleged “unlawful enemy combatants” in the current fight against terrorism. Finally, the article suggests some lessons that may be learned regarding the treatment of so-called alien enemies during times of conflict that have relevance for current U.S. policies regarding the arrest, detention and trial of suspected foreign terrorists.

Guest Blogger: Cindy Galway Buys

It's IntLawGrrls' great pleasure to welcome Cindy Galway Buys (left) as today's guest blogger.
Associate Professor of Law and Director of International Programs at Southern Illinois University School of Law in Carbondale, Cindy directs both the Immigration Detention Project and the summer study-abroad program in Ireland. Her courseload includes International Law, International Business Transactions, Constitutional Law, and Immigration Law, and her publications (here and here) reflect her expertise in these fields.
Cindy holds an LL.M. in International and Comparative Law, with distinction, from the Georgetown University Law Center, where she earned the Chetwood Prize for the Most Outstanding Academic Performance. She earned her J.D. and an M.A. in International Relations from Syracuse University in New York, where she served as an associate editor of the Law Review.
Before entering academia in 2001, Cindy practiced in the private and public sectors in Washington, D.C. At the U.S. Department of Commerce, she defended agency decisions before the Court of International Trade, the U.S. Court of Appeals for the Federal Circuit, and panels of the World Trade Organization.
She completed a stint as a Fulbright Senior Specialist in Vilnius, Lithuania, last year; her numerous professional affiliations include service as Co-Chair of the Teaching International Law Interest Group of the American Society of International Law and member of the Executive Committee, Section on International Law, Association of American Law Schools.
In her guest post below, Cindy posits a way forward respecting the United States' obligations under international law in the aftermath of recent Vienna Convention on Consular Relations litigation, before the U.S. Supreme Court and the International Court of Justice. Another topic of current research is linkage between Nottebohm (Liechtenstein v. Guatemala) (International Court of Justice, 1953) and the World War II-era U.S. detention program in Latin America.

Heartfelt welcome!

The better to implement U.S. obligations

(Thanks to IntLawGrrls for this opportunity to contribute this guest post)

Increasingly, the proper implementation of the United States’ international obligations in domestic law has presented difficult challenges in the structural context of the U.S. legal system. Challenges are evident at multiple levels of that structure; that is, among the branches of the federal government and between the states and the federal government.

In my recent article, The U.S. Supreme Court Misses the Mark: Towards Better Implementation of the United States’ International Obligations (2008), I use the efforts of the White House (below right) to implement the judgment of The Hague-based International Court of Justice (courtroom above), in the Case Concerning Avena and Other Mexican Nationals (2004), to illustrate some of the problems presented by this issue.

International law scholars, not to mention IntLawGrrls readers of these prior posts, will remember the backstory:

In Avena, the ICJ found that that the United States had breached its obligations under Article 36 of the 1963 Vienna Convention on Consular Relations, for the reason that authorities within the United States had not informed certain arrestees, Mexican nationals, of their treaty-based rights to consular notification. The ICJ further found that the appropriate reparation would consist of providing, by means of the United States’ own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the case.

In the domestic implementation stage of that decision, a 2005 memorandum by President Bush asserted the power to order state courts to provide review and reconsideration of the Mexican nationals’ judgments in state criminal proceedings. The President’s claim to such authority was troubling, because it appeared to violate structural principles of separation of powers and federalism. Ultimately, the U.S. Supreme Court (below left) rejected the President’s claim to such unilateral authority in Medellín v. Texas (2008), in a decision that leaves unanswered many questions regarding the proper implementation of the United States, international obligations.

My article analyzes the strengths and weaknesses of arguments that were made in the Medellín litigation regarding the proper way to implement the ICJ judgment consistent with the United States' constitutional structure. It then places the litigation in the larger context of the debate regarding the implementation of the United States’ international obligations, examining: from a separation-of-powers perspective, the proper role of each branch of the federal government; and from a federalism perspective, the interplay between the state and federal governments. Finally, the article provides some suggestions as to how the United States can better handle implementation of these obligations in the future:

► 1st, the U.S. Supreme Court should pay more than lip service to its own statement, at footnote 9 of Chief Justice John G. Roberts' opinion for the Court, that ICJ decisions are entitled to “respectful consideration.” The article describes how a true respectful dialogue between the two courts might proceed.

► 2d, with respect to the political branches, when ratifying a treaty the Senate (left) and the President should provide clearer directions as to how the treaty ought to be implemented, and whether and what types of private claims will be allowable under the treaty.

► 3d, the federal and state governments should establish a better consultation process, particularly for treaties that affect areas of traditional state regulation.

Through these methods, it is hoped that treaties will be implemented more effectively in U.S. law, and that better relations will result, both externally with the United States’ treaty partners and internally among the various branches and levels of government.

An ILSA 1st: President Leila Nadya Sadat

Delighted to announce that by unanimous agreement the International Law Students Association's selected our colleague, Leila Nadya Sadat (left), as its new President. She becomes the 1st woman to head ILSA, the Chicago-based international organization best known for running the Philip C. Jessup International Law Moot Court Competition.
Leila is the Henry H. Oberschelp Professor of Law at the Washington University School of Law and Director of the Whitney R. Harris Institute of Global Legal Studies, both in St. Louis, Missouri. She specializes in international criminal law and human rights. She served as a delegate to the 1998 diplomatic conference at which the Rome Statute of the International Criminal Court was adopted, and also as a member of the U.S. Commission on International Religious Freedom.
Thanks for the tip are due our colleague Mark E. Wojcik of The John Marshall Law School in Chicago, who's just launched the latest addition to the blogosphere, International Law Prof Blog (along with the new Netherlands-based ECHR Blog, profiled here). Joining Mark are Cindy Galway Buys, law professor at Southern Illinois University, and Michael A. Peil, Assistant Dean at Wash. U. Welcome!
And to Leila, heartfelt congratulations!