Faculty Scholarship Digest
On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise. (See Archives)
John Quigley, The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Access Cases: Reasons and Consequences, 19 DUKE J. COMP. & INT’L L. 263 (2009).
Quigley is the leading authority in the United States on consular relations, the author of a treatise and many articles on the subject. This article provides a thorough and up-to-date analysis of an important aspect of consular law that has long been a particular focus for Quigley: the obligation under the Vienna Convention on Consular Relations (“VCCR”) to inform a foreign national arrested in this country of a right to communicate with the consular post of the arrestee’s home country, and, most particularly, the remedy for a violation of that obligation.
As Quigley explains, the United States has taken the position that the right belongs to the foreign country and not to the arrestee and, in any event, that there is no suppression remedy. These positions have been successful in U.S. courts, where the issue has arisen most prominently in cases in which foreign nationals are facing the death penalty, but have been widely rejected (Quigley argues correctly) by other countries and by international tribunals, including the International Court of Justice (“ICJ”). In 2005, the United States gave notice that it was withdrawing from the “Optional Protocol” that allows the U.S. to sue and be sued in the ICJ for disputes arising under the VCCR, although thirty-five years earlier, the United States had been the primary mover behind pushing countries to accede to such ICJ jurisdiction.
After reviewing this history, the article explores the withdrawal in detail. To begin with, there are substantial questions about the procedural requirements and possibility of a withdrawal, the effect on pending cases, and how those questions would be adjudicated, and the article covers those issues in detail. The article also discusses the substantive reasons for and likely impact of the U.S. withdrawal, including the role of the issues of capital punishment and federalism in the decision to withdraw and the possible responses from other states.
John Quigley, President Bush’s Directive on Foreigners under Arrest: A Critique of Medellin v. Texas, 22 EMORY INT’L L. REV. 423 (2008).
This article considers a Supreme Court decision from last term in which, for the third time in three years, the Court denied relief to a death row inmate whose claim centered on the failure of state authorities to advise the foreign-national/arrestee of his right of consular access. Quigley, the leading authority on consular law, was counsel to an amicus curiae brief in this case. Medellin was a special case because, following an International Court of Justice (“ICJ”) decision finding against the United States, President George W. Bush determined that the United States would comply with the ICJ’s order “by having State courts give effect to the decision [for] . . . the 51 Mexican nationals [including Medellin] addressed in that decision.” The Texas state courts subsequently concluded that the law did not require them to follow the President’s determination and denied further substantive review to Medellin. So, even though the United States had taken the position that consular access was not an individual right, here the executive was on the side of the foreign national, arguing the President’s power to implement the ICJ decision.
As Quigley describes, the added weight of support of the United States as amicus curiae was not enough to produce a victory for the foreign national. The Court found that the case turned on whether the treaty was “self-executing” and concluded that it was not. The article contends that “self-execution” issues only arise when a private party is seeking to enforce a treaty and that the issue here, in contrast, was the President’s authority to enforce the treaty which, the article argues, was ample. Moreover, the article contends, the treaty properly construed under existing precedent would be self-executing, if that mattered. Quigley provides detailed arguments in support of both of these propositions. In a final section, the article suggests that the outcome “may be hazardous for the United States since consular law is affected by the degree of states’ mutuality in observing a given set of norms.” The article contends that, by overlooking a 2006 decision in Germany that incorporated the same ICJ decision into domestic law, the Supreme Court erroneously “seems to believe that it is acting consistently with other countries.”
John Quigley, Genocide: A Useful Legal Category?, 19 INT’L CRIM. JUST. REV. 115 (2009).
In the aftermath of the atrocities of the Third Reich, the nations of the world framed a Genocide Convention creating rules not only to punish, but also “to stop incipient atrocities.” As Quigley explains, the crime of genocide was therefore defined based on an “intent to destroy, in whole or in part, a national, ethnic, racial, or religious group” and to take certain acts with that intent, but one killing or attack can suffice, provided the necessary intent can be proven. Reviewing the history of both domestic and international prosecutions of individuals for the crime of genocide, the article argues that political considerations or the appearance of political considerations, as well as the availability of other charges such as crimes against humanity and traditional assault and homicide crimes, often make the crime of genocide an unfortunate alternative.
The article then identifies a series of issues Quigley contends limit the Genocide Convention’s effectiveness against state sponsored genocide, including states’ refusal to submit to International Court of Justice (“ICJ”) jurisdiction, doubt over whether the Genocide Convention prohibits genocide for states as opposed to individuals and the length of time ICJ cases take. Yet, because the crime of genocide is one of the rare legal categories that allow any state to potentially gain jurisdiction over another state, the article concludes, based on its comprehensive survey of cases over the decades, that genocide “may be of greater utility in the state-to-state context than in criminal prosecutions.”
John Quigley, “If You Are Not a United States Citizen...”, International Requirements in the Arrest of Foreigners, 6 OHIO ST. J. CRIM. L. 661 (2009).
Quigley is the leading authority on the law of consular relations, and in this commentary he returns to the subject as it regards obligations under international law regarding consular access for a citizen of one country arrested in another country. In the past decade, the U.S. Supreme Court has heard four cases of foreign nationals challenging their criminal convictions on the grounds of violation of consular access law and ruled against the foreign national each time.
After reviewing consular access law, the commentary turns to the most frequent issue: failure to inform an arrested person of their right to consular access. The article canvasses the sources of these difficulties, the resulting litigation, and the potential consequences. Quigley describes the United States as alone among states in its opposition to rights and remedies regarding consular access and continues his argument that the United States should apply the remedy of exclusion for incriminating statements when an arrestee is not informed of this right.
John Quigley, The Palestine Declaration to the International Criminal Court: The Statehood Issue, 35 RUTGERS LAW RECORD 1 (2009).
In January, 2009, the Palestinian National Authority submitted a declaration “accepting” International Criminal Court (“ICC”) jurisdiction in “the territory of Palestine.” When a state accepts ICC jurisdiction, it gives the ICC jurisdiction over various crimes, such as aggression, committed in its territory. Thus, by this declaration, the Palestinian National Authority presumably seeks to challenge recent Israeli actions in Gaza. A key element of this challenge would be a determination of whether Palestine qualifies as a “state” under the ICC statute, since only a sovereign state can confer territorial jurisdiction to the ICC.
In this essay, Quigley argues that Palestine does so qualify. In support of this view, Quigley points to the Palestine National Council’s 1988 declaration of statehood, the reaction of other states at that time and subsequently, the absence of competing claims to title (Quigley argues that, although Israel controlled Gaza in 1988 “as a belligerent occupant,” it “did not claim sovereignty”), a right to self-determination, and a history of Palestinian statehood.
John Quigley, Palestine is a State: A Horse with Black and White Stripes is a Zebra, 32 Mich. J. Int’l L. 749 (2011).
John has recently published a Cambridge University Press book arguing the statehood of Palestine and now stands as a leading legal authority for that position, with frequent invited participation in debates and fora on the issue. This article is John’s response to an article in the same journal by Professors Daniel Benoliel & Ronen Perry a substantial part of which is a reply to a separate article of John’s making the case for Palestinian statehood. Here the discussion rises again in the context of the jurisdiction of the International Criminal Court to investigate and prosecute war crimes in the 2008-09 war in Gaza. Because the Palestinian Authority conferred jurisdiction on the Court, if Palestine is a state, that action would give the ICC jurisdiction. The article responds to five specific arguments Benoliel and Perry made in response to John’s arguments and finds all of them wanting in legal analysis. So much so, John concludes, that “the failure of authors who reject Palestinian statehood to find persuasive arguments for their view only reinforces the conclusion that Palestine is a state.”
John Quigley, Britain’s Secret Re-Assessment of the Balfour Declaration. The Perfidy of Albion, 48 13 J. Hist. Int'l. 249 (2011).
In 1917, the British Government issued the Balfour Declaration which stated that Britain would “use their best endeavors to facilitate” “the establishment in Palestine of a national home for Jewish people,” but also stating that “nothing shall be done which may prejudice the civil and religious rights of the existing non-Jewish communities in Palestine.” Following the conclusion of World War I, oversight of the territories taken from the central powers, including territories in the Arab world that had been controlled by Turkey, would be divided up among countries that reported to an oversight agency within the League of Nations called the Permanent Mandates Commission. Palestine was assigned to Britain, with the understanding that part of Britain’s role would be the development of a “Jewish national home,” consistent with the Balfour declaration.
This article carefully traces the history of the early years of that British oversight, contrasting the public statements and reports Britain made to the Permanent Mandates Commission with the substance of Britain’s internal deliberations. In particular, the article focuses on a largely overlooked “confidential re-assessment in 1923 of the advisability of promoting a Jewish national home.” (The re-assessment was made public in the 1970's, but has “largely escaped the attention of lawyers and historians” studying these matters). Conservative Prime Minister Stanley Baldwin appointed a cabinet level committee whose secret report recognized a tension between the dual goals of establishing a Jewish home and the “maintenance of Arab rights,” though the committee nonetheless recommended continuation of existing policy. The article describes the internal machinations and contrasts them with the external affirmations of the policy that resulted in continuing approval from the Permanent Mandates Commission. The article concludes that Britain’s lack of candor “set Palestine on a course of collision between the Jews and the Arabs.”
John B. Quigley, Palestine at the United Nations: What Does It Take to Be a State?, 20 ILSA Quarterly 29 (2011).
John is a leading academic voice on the question whether Palestine has as a matter of law achieved the status of statehood, examining the question in detail and answering it in the affirmative is his 2010 book THE STATEHOOD OF PALESTINE: INTERNATIONAL LAW AND THE MIDDLE EAST CONFLICT and numerous other articles. As the article notes, “[t]he question of Palestine’s status has bedeviled international lawyers for many years,” and in this latest discussion of the subject, John surveys some recent disputes before international tribunals and the legal and political arguments involved.
The question arose most recently in Palestine’s September 23, 2011 request for admission to the U.N.. Statehood is one of three requirements for admission to the U.N. (along with a “peace loving character” and the “ability to carry out the obligations of membership”). John cites a 1948 International Court of Justice advisory opinion for the proposition that, in considering an application for membership, the Security Council “may legitimately vote in the negative only if they regard the entity as failing on one or more of the three criteria.” The article notes that, at least in their public statements, Security Council members are offering reasons that are, in effect, ultra vires for denying Palestine admission, such as Bosnia demanding an agreement with Israel and France describing an affirmative vote as pointless because of the prospect of a United States veto. The article concludes that, in the face of such unlawful reasoning, the General Assembly, under Article 4 of the U.N. Charter, could admit Palestine on its own since, the article concludes, Palestine does meet the criteria for statehood.
John B. Quigley, What is the Most Important Issue to American National Security?, 37 WILLIAM MITCHELL L. REV. 5174 (2012).
This issue of the William Mitchell Law Review is devoted to the Journal of the National Security Forum. That forum’s board of editors posed ten questions on national security to a group of national security experts who were free to choose which question(s) to answer. John’s choice is encapsulated in the title of his contribution. Working from an apparent perspective of terrorism as the critical issue, John argues that “[w]hile we can take punitive measures, while we can seek to isolate governments that support terrorists, it is unlikely that these measures alone will suffice. What is needed is a fundamental reassessment of our policies, and a realistic analysis of how these policies come back to haunt us.” In particular, the policies John refers to are those relating to the Israeli/Palestinian struggle, including Israeli settlements and monetary aid to Israel. John argues that the Obama administration has continued the policy of past administrations in many respects in this area and in some cases “tilting even more strongly to Israel.” The legacy of past policies, John argues, aggravates each new step, hence his call for a fundamental reassessment.
John Quigley, Consular Relations (Oxford 2012).
Oxford University Press has an electronic series of bibliographies, designed to give some basic sources to a reader not well-versed in a particular area. One of their bibliographies is “International Law,” and John, co-author of the Oxford treatise “Consular Law and Practice” was asked to write this entry for consular relations. The elegant entry is usefully broken up into very small sections (e.g., treatises, Vienna Convention, judicial remedies for violations) covering about sixteen different topics, each with its own one paragraph introduction explaining the topic followed by a list of leading sources. The result is a thirty-four page document that is not only an excellent bibliography, but a mini-treatise in its own right.
John Quigley, THE LAW OF CONSULAR ACCESS, A DOCUMENTARY GUIDE (Rutledge 2009) (with William C. Aceves & S. Adele Shank).
When foreign nationals are suspects in criminal investigations, they can be particularly vulnerable because of that status; language difficulties, discrimination, and other problems are particularly likely to arise. As a result, the international community has devised a system to “appoint representatives, called consuls, to protect their nationals and monitor local authorities.” International agreements require local authorities to allow consuls to do this work. Not surprisingly, problems often arise, and a whole field of litigation surrounding consular access has arisen in the past twenty years, with the authors of this book at the heart of it.
In this volume, John and his co-authors not only provide an overview of consular access law, but pull together otherwise disparate and sometimes-hard-to-find documents from around the world that are relevant to consular access litigation (the international coverage is particularly crucial in this international law context, since the practice in each nation is expressly relevant to the meaning of that law). The book annotates the documents, greatly enhancing their potential usefulness.
The documents are extraordinarily varied. Some examples: instructions to U.S. consuls regarding the service they should provide American nationals, taken from Volume VII of the State Department’s Foreign Affairs Manual; the Korean Ministry of Justice’s directive to Korean police about when to inform a foreign national of the right to consular access, taken from a Korean government document; a German Supreme Court decision concerning the effect in Germany of a decision of the International Court of Justice; an International Court of Justice decision regarding a claim by Guinea against the Democratic Republic of Congo for money damages on behalf of a Guinean national for a violation of his consular access rights.
This is just a tiny sampling of the documents contained in the book’s twenty-seven chapters and three hundred pages. As the many chapters suggest, the documents are usefully and meticulously organized by subject matter (e.g., statutory right to sending state protection; diplomatic protest by a sending state), and each chapter begins with a description of its subject matter and a description of the content and relevance of each of its documents. In short, this is anything but a traditional “forms” book and constitutes a remarkable and valuable compendium of law.
John Quigley, THE STATEHOOD OF PALESTINE (Cambridge Univ. Press 2010).
Is Palestine a state? The question is obviously a politically powerful one, as seen in the Palestinian reassertion of statehood in the past quarter century. The question also has important legal consequences; for example, the question arises with regard to the International Criminal Court’s jurisdiction to investigate war crime allegations in Gaza and in civil suits in which defendants seek sovereign immunity under a claim of Palestinian statehood. In this book, John argues that Palestine (which, at the time of World War I, was territory within the Ottoman Empire) became a state at the time of the League of Nation Mandates of 1924, which also established statehood for Syria and Iraq, and remained a state although it lacked independence, had its territory administered by different states and set in different configurations. In constructing this view, John examines not only the history of Palestine, but also the remarkably murky question of what constitutes a state. As John notes, quoting another scholar, “the creation of a state [is] ‘a mixed question of law and fact.’”
Following an introductory overview, the book follows a chronological course, carefully charting the treatment of Palestine from the League of Nations Mandates in the 1920's, through the continued administration by Britain as other “Mandates” became independent (e.g., Iraq in 1932, Lebanon in 1941 and Syria in 1946), through the establishment of Israel, the creation of the Palestinian National Council (“PNC”) and the Palestinian Liberation Organization, the 1967 war, subsequent international actions and negotiations, the PNC’s 1988 declaration of independence, to the present stage of “Palestine in the new century.” At each step, John applies the factual history he describes to the soft criteria relevant to determining statehood, in support of his thesis that Palestine became and remained a state. The final part of the book addresses the broader issue of what constitutes a state, discussing the Montevideo criteria established by treaty in 1933 (“The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states”) and their application to these facts. John concludes that they do support his argument that Palestine has been a state since the 1920's, but also questions their efficacy in the context of belligerent occupation and whether they “are applied with any rigor in the actual practice of the international community.”
John Quigley, Self-Determination in the Palestine Context, in Susan M. Akram et. al. eds., INTERNATIONAL LAW AND THE ISRAELI-PALESTINIAN CONFLICT, A RIGHTS BASE APPROACH TO MIDDLE EAST PEACE(Routledge 2011).
For decades Fatah was the dominant voice in the Palestinian political movement and long argued “that the predominantly Arab population of Palestine was entitled to exercise self-determination there.” By 1993, however, John explains that the PLO effectively ceded to Israel the right to exercise sovereignty over much of “historic Palestine” that now is Israel in return for the establishment of a Palestinian state in the Gaza Strip and the West Bank. However, when Hamas gained control of the Palestinian Authority in 2006, this “‘historic compromise’ was thrown into question. . . . Hamas held to Fatah’s original position: [claiming] the territory of historic Palestine.” That shift, John explains, has brought a critical new (or renewed) importance to the question of self-determination under international law. John’s chapter examines this claim to a right of self-determination under international law and its relation to the separate question of a right of repatriation.
John’s review of history and international law leads him to conclude that there is a right of self-determination, but he notes that “recognition of a right of self-determination led to confusion over the identity of the territory in which the right was to be exercised.” Moreover, if self-determination is limited to a smaller area than originally claimed (i.e., to only the Gaza Strip and the West Bank), would that also limit the right of repatriation to the same territory? The chapter argues that repatriation is an individual right, while self-determination is a collective one. Therefore, John concludes, the “establishment of a Palestinian state in the West Bank and Gaza Strip in no way deprives displaced Palestinian Arabs of their right to be repatriated by Israel and to be accorded the nationality of Israel.” A final section of the chapter examines the complexity of the process surrounding the exercise of self-determination in this context.
John B. Quigley, The International Criminal Court and the Gaza War, in XVI THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (Martinus Nijhoff 2011).
The Palestine Yearbook is published in cooperation with Birzeit University Institute of Law in order “to contribute to the modernization of Palestinian legal structures both at the academic and professional levels.” Birzeit is the oldest Palestinian university, and the Yearbook has been published for about twenty years, since the start of the Institute of Law. This volume focuses on the UN Fact-Finding Mission led by Richard Goldstone to investigate the 2008-09 Gaza War and the aftermath of the Goldstone report.
John’s chapter considers the possible jurisdiction of the International Criminal Court over charges of war crimes in the Gaza hostilities. In January 2009, the Minister of Justice of the Palestinian National Authority filed a document granting the ICC jurisdiction over “acts committed on the territory of Palestine since 1 July 2002.” There has been much debate on this issue, and John has been a leading United States proponent of the pro-jurisdiction view. The chapter details the legal provisions involved and the different arguments that have been made on both sides. John’s conclusion in favor of jurisdiction rests on the alternative grounds that Palestine is a state (both in general or, more narrowly, for the purposes of the ICC jurisdictional provision) and particular provisions of the Rome Statute of the International Criminal Court, the treaty which sets the particulars of the ICC’s jurisdiction.
John Quigley, Holy and Contested City (reviewing JERUSALEM: IDEA AND REALITY, Tamar Mayer and Suleiman Ali Mourad eds.), 11 GLOBAL DIALOGUE 121 (2009).
In this review, John discusses a collection of eighteen essays by different authors that look at the great city of Jerusalem from the perspective of different ethnicities, while examining religion, geography and political struggles. John’s review describes a handful of the contributions, and offers his own critical take on their contentions. John lauds the book for the different perspectives it brings and the enhanced understanding of Jerusalem those perspectives provide but concludes that the book underscores a less happy point: “[T]he strong focus on Jerusalem, the importance given to it, may condemn Israelis and Arabs to even more years of conflict, of death, of destruction.”
John B. Quigley, Camp David Accords, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Oxford 2012).
This is a substantial entry in a leading encyclopedia of international law. The entry begins with a mis en scène of the Camp David Accords—Carter, Begin, Sadat, 1978, the Middle East of that time, its politics and tensions, all come rushing back. John describes the two “framework agreements” that came from the meeting at Camp David, “one to deal with Egypt-Israel issues, the other with Palestine issues.” After describing the remarkable mediation role of the United States in this process, John details the aftermath of the accords, which included as relative successes an Israel-Egypt Peace Treaty in 1979, Israel’s withdrawal from the Sinai, diplomatic relations between Israel and Egypt and the pathway for a similar agreement with Jordan in 1994. Yet the accords “failed to achieve the grand purpose pursued by the U.S. of achieving an overall resolution of the Arab-Israel conflict, and in particular of gaining a resolution of the Palestine question that had been on the UN agenda since the 1940s.”
John Quigley, Does the Prosecutor of the ICC Have the Authority to Open an Investigation into Alleged Crimes Committed in the 2008-2009 Gaza Conflict?, UCLA Human Rights & Int’l Crim. L. Online Forum, gaza question (2011)
In this invited contribution to an online debate, John contends that the International Criminal Court has jurisdiction over alleged war crimes during the Gaza conflict “because the prosecutor has in hand a consent declaration from the state on whose territory the alleged crimes were committed.” The state in question is Palestine, so John’s argument in the debate turns on the statehood status of Palestine, though he notes there would be other pro-jurisdiction arguments in the absence of Palestinian statehood. In this contribution, John draws on his 2010 Cambridge University Press book addressing Palestinian statehood. In a related post on the same forum, John also responds to Professor George Fletcher’s arguments that Palestine is not a state and, hence, that the ICC lacks jurisdiction.
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