Tea leaves on Kagan & international law

How will President Barack Obama's nominee to the U.S. Supreme Court treat issues of foreign, international, comparative, or transnational law?
As with many other areas respecting the judicial potential of Elena Kagan (left) (prior posts), this one is tabula rasa.
Kagan, who seems likely to succeed in her bid to replace retiring Justice John Paul Stevens (at right in bottom photo), has among the sparsest written record of public writings of any nominee in decades.
Consideration of the question of Kagan and intlaw thus requires resort to reading tea leaves.

Leaf No. 1: Marshall Clerk
► Among the judgments issued during Kagan's OT '87 clerkship for Justice Thurgood Marshall was Thompson v. Oklahoma (1988), in which international context played a role in the Court's holding that execution of a 15 year old would violate the Cruel and Unusual Punishments Clause of the 8th Amendment to the U.S. Constitution. The controlling plurality opinion stated (footnotes omitted):

The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo American heritage, and by the leading members of the Western European community. Thus, the American Bar Association and the American Law Institute have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.

As I've written here, that passage, written by Justice Stevens, set the stage for the debate over consultation of foreign context, one that continues to this day. It's impossible to find out from my Pacific Coast perch what, if any, role Kagan, 1 of 3 TM clerks that year, played in Justice Marshall's decision to join Stevens' opinion.
Kagan appears never herself to have written about the advisability vel non of consultation -- a practice that, as posted, then-Judge Sonia Sotomayor (far right) was constrained to rebuke in her quest last year to become a Justice. But Kagan surely knows of the debate. Indeed, though she offered no thoughts of her own on the matter, Kagan invited Justice Ruth Bader Ginsburg (near right) to rise to the defense of the practice during an interview published as "Remarks Commemorating Celebration 55: The Women's Leadership Summit," 32 Harvard Journal of Law & Gender 233, 237 (2009).
► The term "foreign experiences" does surface in "For Justice Marshall," 71 Texas Law Review 1125 (1993), Kagan's tribute to her then-just-departed Boss. She recalled the penchant Marshall (below left) had for telling stories -- not only of his work as a civil rights and criminal defense lawyer in America, but also of his ventures overseas. (As posted, the best account of the latter is by IntLawGrrls guest/alumna Mary L. Dudziak.) Kagan wrote:

When Justice Marshall was investigating racial discrimination in the military in Korea, a soldier demanded that he provide a password; the hulking (and, of course, black) Marshall looked down at the soldier and asked, 'Do you really think I'm North Korean?' And when assisting in the drafting of the Kenyan Constitution, the Justice was introduced to Prince Philip. 'Do you care to hear my opinion of lawyers?' Prince Philip asked in posh British tones, mimicked to great comic effect by Justice Marshall. 'Only,' Justice Marshall replied -- before the two discovered mutual ground in a taste for bourbon -- 'if you care to hear my opinion of princes.'

Here's the lesson that Kagan said she drew from such stories:

They were a way of showing us foreign experiences and worlds, and in doing so, of reorienting our perspectives on even what had seemed most familiar. And they served another function as well: they reminded us, as Justice Marshall thought all lawyers (and certainly all judges) should be reminded, that behind law there are stories -- stories of people's lives as shaped by law, stories of people's lives as might be changed by law.

Leaf No. 2: Legal Scholar
► No reference to foreign, comparative, transnational, or international law/context appears in any of the half-dozen or so articles that Kagan authored or coauthored while a professor at Chicago and Harvard.

Leaf No. 3: Harvard Law Dean
► Among the most-remarked features of Kagan's tenure as Harvard Law's 1st woman dean was her recruitment of numerous conservatives, among them Jack L. Goldsmith, a Bush Administration lawyer post-9/11 and author of an Office of Legal Counsel memorandum ably criticized by José E. Alvarez in "Torturing the Law" and Leila Nadya Sadat in "Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law," at pages 175 and 309, respectively, of 37 Case Western Reserve Journal of International Law (2006).
► Kagan also oversaw the introduction into the mandatory 1L curriculum of a class "that looks at law in a comparative or international framework," an innovation she discussed in "The Harvard Law School Revisited," 114 Green Bag 2d 475 (2008):

The courses in comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.

Leaf No. 4: Solicitor General
► Kagan's 14-month stint as the United States' top Supreme Court lawyer has been distinguished mostly by the fact that she's the 1st woman in the post. (It's her 2d turn in the Executive Branch; not much seems to have been written yet about her couple years in the Clinton White House.) Kagan's 1st oral argument before the Court came last September in Citizens United v. FEC; she failed to persuade a majority to sustain a federal statute regulating corporate spending on elections.

Here's a sampling on cases with a transnational angle:

► In Samantar v. Yousuf (a pending case on which we've posted here, here, and here), Kagan, along with State Department Legal Adviser Harold Hongju Koh, signed an amicus brief on behalf of Alien Tort Statute plaintiffs, who're seeking affirmance of a lower-court ruling denying sovereign immunity to a former Somali official.

► During her confirmation hearings and since, Kagan's SG office has called for robust executive power in the campaign against terrorism (and see here). That fact should not surprise anyone who remembers the Clinton DOJ.

In short, a mixed bag. Perhaps the best answer to the question posed at the top is one implicit in a speech by Justice Stevens, whose own approach to transnational matters evolved, as I've written here. Stevens' speech, published at 74 Fordham Law Review 1561 (2006), was delivered in 2005, almost immediately after he'd administered the oath of office to Chief Justice John G. Roberts, Jr. (above).

Applied to present context, the underlying question is this:

What will Justice Kagan be open to learning on the job?

Such on-the-job learning, Stevens said, is

'essential to the process of judging.'

STL H-R-D 2 C R2P

Gareth Evans (left) has published a must-read op-ed criticizing Russia's invocation of the concept of "responsibility to protect" -- infelicitously dubbed "R2P" -- as justification for warring against Georgia over South Ossetia and Abkhazia.
Evans, President of the Brussels-based International Crisis Group and former Foreign Minister of Australia, chaired the International Commission on Intervention and State Sovereignty that issued the report The Responsibility to Protect (2001). He writes:

For those of us who have worked long and hard to create a consensus that the world should never again turn its back on another Cambodia or Rwanda, this and every misapplication of R2P -- genuine or cynical -- is an occasion for alarm. We are conscious of the fragility of that consensus should the impression gain hold that R2P is just another excuse for the major powers to throw their weight around. It needs to be made clear beyond a doubt that whatever other explanation Russia had for its military action in Georgia, the R2P principle was not among the valid ones.

An accurate critique, well made.

But is it really any surprise that Russia would lay claim to "responsibility to protect"? Seems scarcely more surprising than the fact that Russia has -- as Mary Ellen O'Connell guest-noted last month -- equated its August embrace of breakaway independence in the Caucasus with the West's February embrace of breakaway independence in Kosovo. (IntLawGrrl Elena Baylis' February Kosovo posts are here and here.)

The aims behind the R2P movement are exemplary. Nonetheless, as I've written in this essay and in posts here and here, and as José Alvarez wrote here, skepticism's due any undue focus on rhetorical flourish over actual reform of existing mechanisms.

R2P, like any effort at collective avoidance of atrocity, must operate primarily within the collective security framework established in 1945; that is, within the Security Council (right). Article 27(3) of the U.N. Charter, of course, permits permanent-member Russia -- and permanent-members China, and France, and Britain, and the United States -- to sideline all collective bids to act against them or their ally/client states.

The core problem in the conflict in Georgia, then, is the veto power. Russia's dubious claim that it's shouldering a "responsibility to protect" is but a symptom.

Papal Benediction for International Law

An encomium to international law is headline news this morning. Not, alas, because of its content, but rather because of its source: Pope Benedict XVI. In his address to the General Assembly of the United Nations yesterday, the pope warned against an international order dependent solely on the whims of sovereign countries. "Discernment, that is, the capacity to distinguish good from evil," he said,

shows that entrusting exclusively to individual States, with their laws and institutions, the final responsibility to meet the aspirations of persons, communities and entire peoples, can sometimes have consequences that exclude the possibility of a social order respectful of the dignity and the rights of the person.

Benedict (right) looked, rather, to transnational and international institutions as vehicles to promote human dignity, using a "common language" and not "a relativistic conception." For the pope religion is one such transnational vehicle, of course; "relativist" is, after all, an antonym of "catholic," itself a a synonym of "universal." Yet he devoted much of his address to a vehicle typically expressed on the temporal plane: human rights, the promotion of which Benedict called

the most effective strategy for eliminating inequalities between countries and social groups, and for increasing security.

Even as he found traces of human rights in the centuries-old writings of Catholic scholars like Augustine and de Vitoria, the pope found its contemporary source in a 20th C. secular instrument, the 1948 Universal Declaration of Human Rights. In tacit reprimand of those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa -- Benedict reaffirmed the 60-year-old decision to intertwine those rights:

[E]fforts need to be redoubled in the face of pressure to reinterpret the foundations of the Declaration and to compromise its inner unity so as to facilitate a move away from the protection of human dignity towards the satisfaction of simple interests, often particular interests. The Declaration was adopted as a 'common standard of achievement' (Preamble) and cannot be applied piecemeal, according to trends or
selective choices that merely run the risk of contradicting the unity of the human person and thus the indivisibility of human rights.

Perhaps most notable was the pope's embrace of "responsibility to protect," the international law concept that each nation-state has the primary duty to protect persons within its jurisdiction and control, but if it does not do so, the international community as a whole has a duty to protect those persons against, as the pope put it, "grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made." Use of means permitted by the the law of the U.N. Charter is not "an unwarranted imposition or a limitation of sovereignty," the pope maintained, for "it is indifference or failure to intervene that do the real damage."
Some approach the "responsibility to protect" with skepticism, wondering whether the energy spent on pushing a new concept with a catchy acronym -- R2P -- might be better spent on working to strengthen the U.N. Security Council and other pre-existing mechanism that in the end would have to effect any such intervention. I'm among those skeptics, so too José Alvarez, Columbia law professor and immediate past president of the American Society of International Law. Despite disagreement on means, however, we all agree on the ultimate goal, greater enforcement of human rights. And so yesterday's strong statement in support of that objective, from one of the globe's premier norm-shapers, is welcome.


(cross-posted at Slate's Convictions blog)

A not so sweet deal?

À propos of the post above respecting a new politics of "global governance," check out "Noblesse Oblige at the World Bank," new column by our colleague José E. Alvarez, President of the American Society of International Law. It raises cogent questions about the "60 year old cozy handshake deal" by which the United States names the head of the World Bank and Europe the head of the International Monetary Fund. (The occasion for these questions is, of course, the hasty departure of Paul Wolfowitz and, consequently, President George W. Bush's nomination of Robert Zoellick.) Alvarez concludes:

Changing the way the Bank chooses its President and making sure that that President is above reproach are good ideas as matters of principle. They also make sense practically – if the Bank is to overcome the perception in borrowing countries that the Bank’s rule-of-law projects are the least effective of its efforts.