The Media as Participants in the International Legal Process

We know what we know about current international events through the media. The media (with their instantaneous transmission of images and sound across great distances) inform us of everything from the train bombings in Madrid and London, to human rights abuses in Darfur, to the fall of Saddam Hussein’s Iraq. Yet the media do not simply communicate raw information; they selectively filter, define and give shape to the events that they cover — in terms of what is happening, whether it is appropriate, and how relevant international actors should and do respond. The media thus are the nerves of the international system, and, as mass communicators, they perform critical functions in the international legal process. The media’s effects on societies and individuals have been studied from a gamut of academic and political angles. In international legal scholarship, however, the media tend to be discussed briefly or in certain limited contexts, such as the use of the media to disseminate propaganda or the regulation and control of the media. There has not been any comprehensive study on the media’s functions in the international legal process. The lack of scholarship in this regard is likely attributable, at least in part, to the facts that the media are unconventional participants, and that they oftentimes operate “behind the scenes” — as messengers for other actors and at deep levels of the public subconscious. If anything, however, these characteristics increase, rather than decrease, the media’s influence. This Article examines that influence. In Part I of this Article, I put in context the question of the media’s influence in the international legal process. That process is characterized by significant communicative gaps that the media help fill. In Part II, I analyze the media’s functions at every stage of the international legal process — from the prescription of international law, to its codification, invocation, application and even termination. In Part III, I address systemic factors that impede media performance, demonstrating that, although the media perform important legal functions, they do not perform those functions perfectly. In Part IV, I consider efforts to minimize these imperfections. I conclude that the media will continue to operate imperfectly but as unique and specialized participants in the international legal process. The goal, then, is to recognize both the media’s functions and their limits so that we, as international scholars and practitioners, can work within that process to achieve desirable legal and policy outcomes

Reply on \u3cem\u3eThe Work of International Law\u3c/em\u3e

In the Article, I distill and then criticize a prominent view about the role of international law in the global order. The view—what I call the “cooperation thesis”—is that international law serves to foster a particular kind of cooperation, specifically to help the participants achieve their common aims and curb their disputes. Lawyers who subscribe to this view of course appreciate that international law is, like all law, often contentious in operation. But they posit that, unless such conflict is overcome, it detracts from cooperation and evinces the limits of international law. That view is wrong. It incorrectly assumes that cooperation and conflict are antithetical—that they pull in opposite directions, such that international law fosters one by curtailing the other. In fact, international law fosters both simultaneously. Even as it helps the participants achieve their shared goals and reconcile their differences, it also helps them have and sharpen their disputes. The two kinds of interactions are not antithetical but interdependent. I will not use this Reply to rehash that argument. I will simply address the main criticisms and questions that the respondents raised

The \u3cem\u3eBond\u3c/em\u3e Court\u27s Institutional Truce

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.” This resolution betrays the Court’s ambivalence about the appropriate limits of the treaty power and about the Court’s own capacity to define those limits

State Bystander Responsibility

International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state\u27s relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework is grounded in international law and intended to guide decisions in concrete cases. So after presenting and justifying the framework, the article applies it to two current debates in human rights law: when must a state protect against third-party harms committed outside its territory? And what must states do to protect women from private acts of violence? The article ends by suggesting how the same framework may inform analogous obligations outside human rights law

Secondary Human Rights Law

In recent years, the United States has appeared before four different treaty bodies to defend its human rights record. The process is part of the human rights enforcement structure: each of the major universal treaties has an expert body that reviews and comments on compliance reports that states must periodically submit. What\u27s striking about the treaty bodies\u27 dialogues with the United States is not that they criticized it or disagreed with it on the content of certain substantive rules. (That was all expected.) It\u27s the extent to which the two sides talked past each other. Each presumed a different set of secondary rules-rules governing how and by whom human rights law may be made, applied, and enforced -so their arguments on substance appeared irresolvable

Defensive Force against Non-State Actors: The State of Play

This article assesses the implications of the current Syria situation for the international law on the use of defensive force against non-State actors. The law in this area is highly unsettled, with multiple legal positions in play. After mapping the legal terrain, the article shows that the Syria situation accentuates three preexisting trends. First, the claim that international law absolutely prohibits the use of defensive force against non-State actors is increasingly difficult to sustain. States, on the whole, have supported the operation against the so-called Islamic State in Syria. Second, States still have not coalesced around a legal standard on when such force is lawful. Most States seem conflicted or uncertain on that question. Third, this ambivalence has contributed to a sizable gap between the norms that are most often articulated as law and the ones that are operational. States regularly tolerate operations that they are unwilling to legitimize with legal language

The Theory and Practice at the Intersection Between Human Rights and Humanitarian Law

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking on them

The Bond Court\u27s Institutional Truce

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.” This resolution betrays the Court’s ambivalence about the appropriate limits of the treaty power and about the Court’s own capacity to define those limits

A Functional Approach to Targeting and Detention

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the domain method is practically unworkable and theoretically dubious. Practically, the method breeds uncertainty and subverts the discursive process by which international law adapts to new circumstances and holds decisionmakers accountable. Theoretically, it presupposes that the domain choice, rather than shared substantive considerations embedded in the domains, drives legal outcomes. This Article argues, to the contrary, that all targeting and detention law is and ought to be rooted in a common set of core principles. Decisionmakers should look to those principles to assess when states may target or detain nonstate actors. Doing so would address the practical problems of the domain method. It would narrow the uncertainty about when targeting and detention are lawful, lead to a more coherent legal discourse, and equip decisionmakers to develop the law and hold one another accountable

The Council of Europe Addresses CIA Rendition and Detention Program

In November 2005, the U.S. media reported that the Central Intelligence Agency was operating secret detention facilities in a handful of foreign countries, including two in eastern Europe, and that detainees were often transferred between those facilities and states known to engage in torture. The news that terrorism suspects may have been denied their human rights in member states of the Council of Europe caused concern within the Council and triggered several responses. Within days of the media reports, the Council\u27s Parliamentary Assembly appointed a rapporteur to investigate the extent to which member states were participating in the CIA program. The rapporteur, in turn, asked the Venice Commission to prepare a legal opinion on the member states\u27 related international obligations. On the basis of that opinion, and the rapporteur\u27s finding that a fair number of member states had acquiesced or participated in the CIA program, the Parliamentary Assembly adopted a resolution and a recommendation intended to safeguard against such conduct in the future. Separately, the secretary general of the Council invoked his authority under Article 52 of the European Convention on Human Rights (ECHR) to survey member states on relevant aspects of their domestic legal systems, including whether those systems contain controls on foreign state conduct deemed to infringe ECHR rights. To be sure, the Council of Europe is not the only international actor to have considered the lawfulness of the CIA program or certain aspects of it. Since the program became public, it has been scrutinized by other international institutions, national organs, the media, and international legal scholars. Yet the activities of the Council of Europe-an international body devoted to human rights-manifest a unique combination of relevance, breadth, and (with the opinion issued by the Venice Commission) legal rigor. The Council of Europe\u27s response to the CIA program thus warrants particular attention. This essay reviews that response, focusing primarily on the legal opinion issued by the Venice Commission. That opinion is significant for its determination that member state participation in the CIA program is incompatible with the ECHR, for its interpretation of the ECHR as requiring member states to police the conduct of states not party to that Convention, and for its effective imputation of ECHR obligations to those nonstate parties