ContractsProf Blog

More from the Wall Street Journal on How International Law Sucks

I have already provided a brief comment on the Wall Street Journal's campaign to blame international human rights law for the sudden rise in piracy off the coast of Somalia. But the Journal's interest in international law goes beyond piracy. Tuesday's paper also included this opinion piece by Jack Goldsmith and Eric Posner, "Does Europe Believe in International Law?" You may already be familiar with the works of Goldsmith and Posner on international law, such as "A Theory of Customary International Law," in which they attempt to demolish all hitherto existing understandings of customary international law, "Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective," in which they argue that "moral and legal rhetoric in international relations is the result of strategic incentives, not of the desire to comply with morality or law," and The Limits of International Law, in which they argue that states comply with their international obligations only when it is convenient for them to do so.

In their new opinion piece, Goldsmith and Posner confront the United States' reputation as an international scofflaw by contending that Europe is no better than the U.S. when it comes to compliance with international legal obligations. " Like the Bush administration," they write, "Europeans obey international law when it advances their interests and discard it when it does not."

This is clearly point II in the brief on behalf of the United States. The Legal Advisor to the U.S. Department of State, John Bellinger, is off arguing to anyone who will listen that the United States takes its international obligations very seriously. When the U.S. is accused of non-compliance, Bellinger says, those accusations are usually the product of a good faith disagreement about the nature of those obligations rather than a willful breach.

For example, consider these excerpts from his June 6, 2007 lecture at The Hague:

The United States does believe that international law matters. We help develop it, rely on it, abide by it, and - contrary to some impressions - it has an important role in our nation's Constitution and domestic law. . . .

In the course of the evening, a few themes should emerge. One is that a reliance on sound bites and short-hand can give the deeply misleading impression that we are not committed to international law. A second is, in fact, deeply ironic: that the very seriousness with which we approach international law is sometimes mischaracterized as obstructionism or worse. A third is that some of the most vehement attacks of our behavior - although couched as legal criticism - are in fact differences on policy. A fourth and related theme is that our critics often assert the law as they wish it were, rather than as it actually exists today. This leads to claims that we violate international law - when we have simply not reached the result or interpretation that these critics prefer.

So Goldsmith and Posner argue in the alternative. In case the court rejects Bellinger's defense of the United States as a good faith participant in international legal regimes, Goldsmith and Posner argue that the United States' disregard for its international obligations is no worse than that of those highfalutin' Europeans.

The difficulty with their arguments, however, is that the examples they cite of European violations of international law are not generally viewed as anything of the sort. They name European participation in NATO's humanitarian intervention in Kosovo and in the International Criminal Court as not only violations of international law but as violations of the U.N. Charter. Unfortunately, these instances are simply additional examples of how the U.S. sees international law as requiring one thing and the vast majority of other states see it as requiring something completely different, just as Mr. Bellinger said.

Which brings me back to a theme I have addressed in previous posts, e.g. here and here. Jack Goldsmith was briefly the director of the Office of Legal Counsel, the President's chief source of legal advice within the DoJ. If the President's advisor suggests that the U.S. has no real international legal obligations, only political ones, it undermines any remaining confidence that the United States' potential treaty partners might have in its willingness to uphold a bargain.

[Jeremy Telman]

Is International Law to Blame for Piracy?

Well, it's a bit of a stretch, but treaties are just contracts between states, so it's close enough for a day-before-Thanksgiving post. The Wall Street Journal is on a campaign to convince the world that international law is to blame for the sudden rise in piracy off the coast of Somalia. Last week, it was David Rivkin and Lee Casey blaming international human rights "scolds" for our wimpy response to the Somali pirates. "Why Don't We Hang Pirates Anymore?" Bret Stephens asks in yesterday's Journal. The answer, according to Stephens, is that it is all the fault of the U.N. Convention on the Law of the Sea (UNCLOS), Article 110 of which, according to Stephens, "enjoins naval ships from simply firing on suspected pirates. Instead, they are required first to send over a boarding party to inquire of the pirates whether they are, in fact, pirates." He neglected to mention that the boarding party must also offer the suspected pirates tea and scones.

But here is the relevant text of Article 110:

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship . . . is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy . . . .

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

I don't know why Stephens insists on reading Article 110(2)'s "may" language as a "shall" or a "must." I can't find anything in UNCLOS that would justify Stephens' reading of what is required under international law when one engages pirates. And of course, even if Article 110 did prohibit firing on suspected pirates based on reasonable suspicion (and I do not believe that it does), that provision could be overridden by treaty. So the real question is why states have not developed a more muscular policy for dealing with Somali pirates.

[Jeremy Telman]

New Scholarship: Schooner on Contractor Fatalities

Steven Schooner (pictured) of the George Washington Law School, has posted to the Social Science Research Network his new article, Why Contractor Fatalities Matter.  As a Law Prof whose scholarship focuses on national security and U.S. foreign relations law but who also teaches contracts (and contributes to this blog), I am happy to call our readers' attention to the work of another scholar whose work spans the subject matters of contracts law and national security law.  Professor Schooner's work is published in Volume 38, no. 3 (Autumn 2008) of Parameters.  The abstract follows:

At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities (and injuries) remain generally outside the public's consciousness. This article asserts that, in a representative democracy, public awareness of the human cost of our nation's security and foreign policies is critical.

[Jeremy Telman]

DC Law Firm Sues the D.C. Government

BLT reports that Crowell and Moring LLP has filed a suit agaisnt the District of Columbia seeking unpaid legal fees in excess of $300,000.  According to the complaint, C&M represented the DC Public Schools from 2001 through March 2006. Despite its satisfaction with C&M's legal services, DC failed to pay for three months of legal services.  In April 2006, DC Public Schools decided to shift responsibility to the Office of the Attorney General for a class action law suit that C&M had been handling, allegedly as part of an attempt by the DC government to reduce its reliance on external counsel.  C&M alleges that it was not paid for its services from January through March, 2006. 

C&M alleges causes of action for breach of a written contract, breach of an implied-in-fact contract, quantum meruit and unjust enrichment. 

Really, a DC law firm suing the government has a tinge of a dog biting the hand that feeds it.  In fact, I have some footage here of the scrap that led to the falling out:

Ah Barney, when will you learn? If it weren't for reporters, you'd just be another dog. And do you know what they do to dogs that bite?

[Jeremy Telman]

Glass Ceiling on Government Contracts?

Last Thursday, the New York Times reported that although women own almost half of all small businesses in the country, generating $2 trillion in revenue, they are awarded only 3.4% of annual federal contracts. In 2000, Congress voted to put in place safeguards so that businesses owned by women would be awarded at least 5% of such contracts, but implementing that legislation has been difficult. Senator Olympia J. Snowe of Maine (pictured) is dismissing as "a sham" the Small Business Association's proposed rule to implement Congress's directive from 2000.

She and 15 other women in the Senate have written to the S.B.A. to urge the agency to revisit the rule. Meanwhile, according to fcw.com, the Senate is considering a measure (or was in August) that would block the implementation of the proposed S.B.A. rule.

[Jeremy Telman]

$40 Billion Contract with &%*$! Europeans Canceled

I used to think "Why would anybody want to fly on an air bus?" But then I learned then when you pronounce it the proper, French-inflected way, it's really not so bad. That must have been what the Pentagon was thinking when, as reported previously on this blog, it awarded a $40 billion contract for aerial refueling tankers to Northrop Gruman and EADS, the parent corporation of Airbus. But with a little prodding from Boeing, as reported in the Wall Street Journal and on National Public Radio, the Pentagon has gone back to thinking of Airbus planes as little more than Greyhound buses with wings.

Seven years ago, the Air Force determined that it needed to replace its aging fleet of tankers, but Boeing persuaded the Department of Defense that it had been too hasty in awarding the contract to do so to those nasty, nasty foreigners, who were going to build the new planes in faraway Mobile, Alabama. Defense Secretary Robert Gates prescribed a "cooling off" period to redress mistakes made in the bidding process by the Department of Defense. He did not elaborate on the nature of these mistakes, but I suspect that the problem was that the DoD permitted an American value (protect Boeing) to be trumped by other, less significant American values, such as freedom of contract, competition, and national security.

[Jeremy Telman]

Government Owes $1.1 Billion for Breach of Contract

The Blog of the Legal Times, BLT for short (cute, non?) reports that the U.S. Court of Appeals has affirmed a judgment of the Court of Claims that the U.S. government breached its lease agreement relating to oil exploration off the California coast and awarding $1.1 billion to eleven oil and gas companies.

Apparently, the government entered into 35 such leases between 1979 and 1984. The oil companies then discovered oil fields that the government estimates contained over one billion barrels of oil. However, 1990 amendments to the 1972 Coastal Zone Management Act statutorily barred the oil companies from drilling in the region. The $1.1 billion, which BLT reports is one of the largest awarded in the 150-year history of the Federal Circuit, represents the amount paid under the leases. And a good thing too. They oil and gas companies can really use the money!!

I'm surprised this isn't bigger news, given that offshore drilling is a campaign issue.

[Jeremy Telman]

Government Contracts: Are They Sui Generis?

Over at the Commercial Law Blog, Jennifer Martin reports and comments on a recent discussion of the nature of government contracts.  We have recommended Professor Martin's writings on the subject of wartime contracts before here.  For those interested in the subject, Professor Martin has a new article on the treatment of wartime contracts in connection with the UCC's doctrine of impracticability.

[Jeremy Telman]

Secret Contracts for 50 U.S. Military Bases in Iraq?

As reported in the Asian Times Online, various representatives of the Bush administration have been saying for some time that the United States has no interest in "permanent" military bases in Iraq.  Whew.  That's a relief.  However, according to an editorial in Saturday's New York Times, Still President Bush is "insisting on keeping more than 50 long-term [military] bases in Iraq." 

But the Bush administration has reached an impasse with the Iraqi government, according to a report in The Telegraph.  Iraqi Prime Minister Nouri al-Maliki said that negotiations over future U.S. operations in Iraq were at a stalemate because the United States was making demands that he regarded as an intrusion on Iraqi sovereignty.  The matter needs to be settled before a U.N. resolution authorizing the presence of the U.S. military in Iraq expires at the end of the year.  The administration has not shared details of the negotiations with Congress because, as innumerable news organizations have reported, it's a secret.  Shhhhhh!

[Jeremy Telman]

Congress May Close Loophole for Defense Contractors

According to the Associated Press, as reported in the Orlando Sentinel, Congress is moving to close a loophole that until now has permitted military contractors to avoid paying taxes and evade the strictures of U.S. employment law by setting up off-shore shell corporations. 

According to the report, U.S.-based military contractors have been setting up subsidiaries in places like the Cayman Islands.  These subsidiaries then employ U.S. citizens who provide support services for the U.S. military abroad.  As foreign corporations doing work abroad, these subsidiaries do not pay social security or medicare taxes for their workers and need not abide by federal labor and anti-discrimination laws.  The A.P.'s investigation suggests that the off-shore subsidiaries exist only on paper, without an address or phone number. 

The House passed tax legislation two weeks ago that would treat  foreign subsidiaries of U.S. government contractors as U.S. corporations.  The Senate is now considering the measure.  Today's New York Times features an editorial urging passage of the legislation. 

[Jeremy Telman]