As my time in France as a Fulbright scholar ends, I have given some thought to what a wonderful experience it has been; what I have learned, what my children have experienced, what observations I have gathered from my time abroad. I was in France during a particularly eventful period and witnessed the Arab spring, the killing of bin Laden, the “DSK” affaire, the Greek debt crisis, the American debt crisis, the Japanese earthquake and nuclear disaster, and war in Libya from abroad. I increased my knowledge of the French constitutional and political system and gained new perspective on the U.S. Constitution and political system. I made many new friends and colleagues, and was deeply grateful for the time, energy and enthusiasm they had for me and my work. I finished one book and started another; survived my daughter’s riding accident (yes, the French health care system IS better than the system in the US); reconnected with old friends and colleagues; and came away with many new ideas, colleagues and friends.
For the benefit of those who might follow me, here are some of the 7 “lessons learned” I took away from this experience. (Note: some are serious, others less so).
1. America and France have more in common than they sometimes realize. The “DSK affair” led to a great deal of comparisons (mostly negative) by the French of the American criminal justice system with their own. But what the discussion overlooked was that in both systems, the accused are presumed innocent, victims receive certain protections, and it is a lawyer’s job to aggressively promote the interest of his or her client. Tocqueville and Laboulaye loved America even though they saw her faults; both countries share a deep rights-based tradition, a profound commitment to democracy and faith in the rule of law.
2. Most “rules” about manners, ways of doing things and culture are just habits. But you need to learn them. It is perhaps irritating to think that folks will believe you are a boorish, uneducated savage if you don’t cut your melon with a knife and fork, and avoid grabbing the wine bottle off the table (if you are a woman) to douse your own glass. But, hélas, manners – while often completely arbitrary – matter. (This was something my kids didn’t like to hear). When in Rome, as they say, or in Paris, do as they do and everyone will at least not be so distracted by your doing things “wrong” that they may actually listen to what you say. Following the local customs anywhere helps enormously.
3. Don’t stress out if you make a mistake on Lesson number 2, and make a faux pas – everyone does, even the French! The hardest one for English speakers is when to use “tu” and when to use “vous”. The “rule” you learn in school is to just copy the French person to whom you are speaking – if they use “vous” so do you. The only problem with that as you get older, is that you become (in their system) the one that has to blink first in terms of the whole vous/tu thing. So, while those accustomed to dealing with Americans will immediately propose “tu” (knowing that you would never dare), bringing a smile of relief to everyone, sometimes they won’t and you are stuck in a conversation with 3 “tu” members, 2 “vous” members (and a couple of people you don’t know what to call – M. le Président/juge, etc. might work, or silence might be golden). Just make bold mistakes if you do, and keep smiling. After all, you are an American!
4. “Bureaucracy” is a French word. It’s not as if we don’t have red tape or civil servants in the United States, but in France, the notion of bureaucracy and paperwork is taken to a whole new level, and combating it is an extreme sport. After extraordinary efforts to get a visa, I then had to make extraordinary efforts to get something called a “titre de sejour” which supposedly entitled me to lots of things, except that I didn’t get it until I was almost ready to leave the country, had a chest x-ray, my origins re-examined (they didn’t like my birth certificate it seems, but were perfectly happy with an (unverified) certificate from the U.S. embassy that I was who I said I was). The only advice I have is that getting through the French paper mill is NOT for the faint of heart, and may cause you, once again to violate Lesson No. 2 about manners.
5. Eating inside at most cafés and restaurants will get you a smoke-free meal. You know all those cute little sidewalk cafés you saw in Midnight in Paris? They are now the smoking section for all those eating establishments, so if you don’t want the delicate aroma of someone’s Gaulloise in your salade nicoise or croque monsieur, eat inside!
6. Smiling really is the universal language. You may have heard that the French are often grumpy (well, maybe unpleasant is a better description). But what you haven’t probably heard is that this external grumpiness covers the most tender-hearted individuals you can imagine. A smile can do wonders as can an immediate admission of inferiority (“I’m sorry, I am American . . . . ); and if you have small children as I did while living there, the most disdainful Parisienne will often smile winningly at your offspring even if they won’t give you the time of day.
7. Paris really is one of the most beautiful cities in the world and you are lucky to be there. Sometimes the stress of Parisian life masks awareness of the extraordinary beauty around you. Bad day at the library? Eat amazing chocolate and visit the Rodin museum. RER commuter troubles getting you down? As you exit at the étoile, take in the view and pinch yourself – you really are an American in Paris. The art, the culture, the traditions, the history, the richness of France – all are there for you to take in and enjoy.
A couple of weeks ago I visited the eastern part of France — Lorraine — with my family. We were invited to stay with friends, in a home built during the war of 1870, and occupied in the other two wars with Germany in 1914 and 1940.
We visited the American Cemetary and the trenches in the forest, reminders of those terrible conflicts, and solemn testaments to the destructive tendancies of human kind. At the same time, given this terrible history, how astonishing it is that France and Germany cooperate more and more as European integration proceeds via the European Union, perhaps the most important and inspiring legal and political development of the twentieth Century.
I was living in Paris in 1990 practicing law when the first Gulf War broke out. President George H.W. Bush led a coalition, pursuant to U.N. Security Council Resolution 678, to repel Saddam Hussein’s invasion of Kuwait. Resolution 678 was adopted by a vote of 12-2 (Cuba and Yemen voting against, and China abstaining). I remember thinking then how interesting it was that the three television channels available to me on cable – CNN international, BBC and TF1 (the French station) carried the war “on TV” but the commentators presented the events quite differently. CNN had an all-star cast including Dan Rather and Christiane Amanpour who fascinated viewers worldwide. The BBC and French stations were more muted in their coverage.
Fast forward 20 years to the decision by the Security Council to empower UN Member States to pursue “all necessary measures” to protect civilians under threat of attach in their country embodied in Resolution 1973 – voted on March 17, 2011 — echoes very much Resolution 678. This time it was a case of intervention in a State’s internal conflict rather than the expulsion of an external aggressor. Perhaps that is why there were five significant abstentions: Russia, China, Germany, Brazil and India. This time, however, ike the last, the United States joined with European allies to press for Security Council authorization for the use of force. Hillary Clinton flew to Paris to exchange “bises” with French President Nicolas Sarkozy – France having decided to spearhead the operation ostensibly to save civilian lives as an example of the Responsibility to Protect in action. (The French press was not terribly enthusiastic about the whole matter and made fun of Sarkozy as “commandeur en chef”)
The Paris summit was carried live here, of course, but even more astonishing was that now it was carried not only on French stations and the BBC, but on CNN, Skynews, France 24, and, of course, Al Jazeera English (and Arabic). The presence of an Arab international television outlet is something one could not have imagined in 1990. What is quite interesting is that the differing perspectives actually seemed closer than they did in 1990 – that is, the multiplicity of media outlets seemed to be producing more convergence than divergence, although different issues were featured (and CNN International definitely does not seem to have the stars it had back in the good old days!). Perhaps they all keep each other honest? The one exception to this convergence is a channel called “Guysen TV” which offers a distinctive Israeli perspective on the Middle East. It was recently reported that China is going to start an English language (!) international station to offer a Chinese perspective on the world. In the immortal words of Tom Lehrer “who’s next?” (Better more TV than more nukes, anyway, seems like progress to me).
NATO began operations and the bombardments began. Many here in Paris have asked me about the legality of these operations. I personally don’t think there is any problem with them as they were authorized by the Security Council. Of course, the authorization is not a “blank check” and operations must be tailored to the aims of Resolutions 1973, which are quite limited. Moreover, all military operations must comply with the laws of war.
What of the wisdom of the intervention? That is a more difficult question. Even if protecting civilians immediately is the right thing to do, worries abound about what happens after Qaddafi is gone. Only time will tell. Others are now asking why there is no similar response to the Syrian situation. That is a good question. Finally, others worry about the deaths that the NATO bombardments could cause. They might take some comfort in the fact that the ICC had already been referred the situation before they began (see my earlier post). That means that the military operations on Libyan territory carried out by all ICC Party States are clearly potentially subject to the ICC’s jurisdiction. (The US managed to extract an exception for itself, which will unfortunately benefit all non Party States). This was true in the case of the 1999 intervention by NATO on behalf of Kosovo, versus the FRY, and while that campaign did result in civilian casualties and bombardment of arguably civilian objects, the casualties were in the order of 250-500 persons killed in 3 months of bombing according to the Report commissioned by the ICTY to investigate Serb allegations of war crimes. Compare those figures to the havoc and death wreaked by the “shock and awe” campaign of the US and the UK in Iraq in 2003, and I am left with little doubt that the presence of an active and functioning war crimes tribunal is a real constraint on the military operations of law-abiding governments and a true protection for civilians in a war. And that can only be a good thing.
French National Round Final Judges Leila Sadat, Nicola Bonucci and Jennifer Younan pictured with the winning team from the University of Paris I (Sorbonne)
I had the privilege to author the Compromis for this year’s Jessup problem, which you can find on the website of the International Law Students Association, here. The scenario resembles real life, involving the use of drone attacks against an ethnic minority, a ban against a particular garment worn only by women for religious reasons, and corruption and bribery. My primary responsibility was to write the drone attack and “Mavazi” ban portion of the problem, and to weave the OECD corruption and bribery issues in so the text formed a coherent whole. I was incredibly fortunate in this task to have Larry Johnson, Former UN Ass’t Secretary General for Legal Affairs, and Nicola Bonucci, OECD General Counsel, as my partners in this endeavor. The OECD celebrated it’s 50th anniversary this year, and thought that an OECD related Jessup problem would be a wonderful complement to the other activities it had planned.
My agenda was more perhaps subversive: to force a sophisticated conversation about the use of drones and targeted killing in war and peace time, as well as link those issues to human rights and especially women’s human rights (think US drone attacks in Afghanistan and Pakistan). (The Harris World Law Institute held a debate on this issue last fall).
The provocation for the problem was Harold Koh’s impassioned defense of US drone attacks at the 2010 Annual Meeting of the American Society of International Law, which seemed to gloss over some very fundamental questions, including the legality of targeted killings outside a theatre of war, and the application of international human rights law. The problem was designed, of course, so all sides of the issue would be explored and justifiable; as were the issues relating to the ban on the “Mavazi” a fictitious garment resembling a burka and the OECD corruption and bribery issues.
I think all three coauthors were thrilled by how the students brought the problem to life, which I witnessed first hand in judging the French National Rounds of the Competition held in Paris on February 19, 2011 as well as the semi-final rounds of the international rounds of the competition in Washington on March 26th, and in the wonderful questions posed by students at a “meet the authors” event sponsored by ILSA and the Fletcher School. I was particularly moved when a member of the the Israeli team spoke up at the Fletcher School event and said the problem had really “hit home” for her, and by the comment of a female student from Iran, who talked about her own frustration at garments imposed upon women.
There is never a “winner” or “loser” in Jessup in terms of the substance of the problem, and if the compromis sparks a real conversation and deep reflection about hard and current issues, it can be considered a success. Based upon what I saw and heard, this happened for the literally hundreds of teams from all over the world who worked on this year’s Compromis, including teams from Afghanistan, Israel, Pakistan, Iraq, Africa, Latin America, Europe, 120 U.S. teams, and even, for the first time, a team from the West Bank. These fine young people are the future!
The students crafted great arguments on all sides of the issues (including some we had not thought of when we wrote the problem), and the World Cup final rounds, between Columbia (USA) and University of Sydney (Australia) were nothing short of spectacular. All of us went away from this year’s Jessup season exhausted and elated.
After Jessup, though, comes real life. U.S. drone strikes continue in Pakistan and the Loi sur la dissimulation du visage just went into effect in France. Both controversies are likely to be with us for some time.
On February 11, 2011, I was asked to deliver the “Inaugural Colloquium” for the Tocqueville Chair. I was also asked to deliver it in French to make it more accessible to a French audience. I chose the above subject as a way of introducing students and colleagues to the work on the ICC and international criminal justice that I have been doing over the past nearly two decades of my academic career. The speech, adapted from a talk I gave at the Chautauqua Institution in 2009, is one that Tocqueville himself would have applauded, I believe, given his enthusiam for American ideas about law and democracy, which the ICC embodies (even though the US does not support the Court). (Leila Nadya Sadat, A Rawlsian Approach to International Criminal Justice and the International Criminal Court, 19 Tulane Journal of International and Comparative Law 261 (2010))
The day was beautiful, the first real sunny day since my arrival in Paris, and I was sure no one would come. Friday afternoon, after all, is not really a time to hear lectures! But the beautiful conference room at Cergy was absolutely full, and I was honored and privileged to be received so warmly.
The debates following my presentation were very interesting as well; perhaps the most interesting dimension wasn’t the critique of my use of Rawls to bolster theories about legitimacy and fairness in international law (I’m used to that critique), but the absence of attacks on the ICC and international justice system that I always receive when speaking before a US audience, which only went to show that in spite of the warm rapprochement of our two countries now in terms of action in the Middle East, on international institutions like the ICC, we remain oceans apart.
[view] Inaugural Colloquium (French translation)
[view] Inaugural Colloquium (English translation) coming soon
Last week I went to a very interesting program at the Collège de France on this little book by Edouard Laboulaye, celebrating the bicentennial of this lesser known luminary of France. The book Paris en Amérique itself appeared in 1863 and was well-received although it is difficult to find copies today. Laboulaye was a member of the Collège de France and the founder of the Société de Législation Comparée, a learned comparative law society still in existence today. Unlike Tocqueville, Laboulaye never visited America (although he did interview Tocqueville). But he was inspired by American democracy, so much so that he served as president of the Franco-American Union which raised the funds to erect the Statute of Liberty as a gift from France to the United States, and it was by virtue of his efforts that the donations were collected for its accomplishment. Walter Gray’s biography describes Laboulaye as “France’s leading Americanist [who] not only interpreted America for his countryment, but he also wished for and was partially succesful in establishing American democracy in France.”
The colloquium was a wonderful intellectual feast, presided over by Mireille Delmas-Marty, Professor of the Collège de France, with participation by Jean-Louis Halperin, from the Ecole Normale Superieure, Benedicte Fauvarque-Cosson, the brilliant Presidente of the Société de Législation comparée, and two dear American colleagues, George Bermann and Vivian Curran. Following the first half of the program, participants were treated to a wonderful intervention from Justice Stephen Breyer, who spoke about his new book. Additional participants were Senator and Judge Robert Badinter, Judge Guy Canivet, Mireille Delmas-Marty and Antoine Garapon, Secretary General of the Institute des Hautes études sur la justice. Justice Breyer spoke eloquently on the important role of the judiciary in preserving democracy.
Perhaps the most astonishing feature of the program was it’s extraordinary intellectual content, as well as the emphasis on Franco-American cooperation. No doubt Tocqueville would have been delighted! Paris in America indeed!
This week, unexpectedly, the Security Council voted unanimously to refer the situation in Libya to the International Criminal Court. That is cause for celebration; but celebration tempered with a strong dose of caution and even some real pessism about the future.
On the plus side, the ICC is now becoming an international institution that is increasingly seen as a real partner in the maintenance of international peace and security. Also, on the plus side, the U.S. voted for the Resolution, rather than simply abstaining from vetoeing it as the U.S. had done with Resolution 1593, referring to the Court the situation in Darfur. Finally, I entitled this blog entry after my book of the same name, because one sees in the Resolution glimmers of change — that war is not the only answer to international conflict, that law is a relevant consideration in its resolution and that justice may be a possibility. That would be cause for celebration indeed.
At the same time, there are many worrisome elements in the Resolution which bode ill for the Court and for the referral. The Resolution itself retains two outrageous Bush-administration provisions (while admittedly discarding a third). First, while deciding in paragraph 5 that the Libyan authorities “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor” (even though Libya is not a State Party to the Court) the paragraph continues that “States not party to the Rome Statute have no obligation under the Statute. . . ” and, in paragraph 6, “decides, that national, current or former officials or personnel from a State outside [Libya] . . . shall be subject to the exclusive jurisdiction of that State” for any acts they may commit relating to UN operations in Libya. What an extraordinary diplay of double standards, given that several members of the Council who voted for the Resolution are not parties to the Rome Statute! Can a rule of law be a rule of law if it applies to some but not all?
The Resolution also provides that the ICC, not the United Nations, shall bear all the expenses relating to the referral, apparently as a way of appeasing the U.S. Congress, many of whose members continue to threaten the Court. So the United States and other non-Party States (China, India, Russia) are using — but not paying for — the ICC as a tool of coercive diplomacy. This is not good news.
Finally, the ICC is already struggling to convince African States that it is not a Court directed at them. The first four referrals all seemed quite sensible; but the fifth, involving Kenya, was far more troublesome, given that the Prosecutor undertook the case on his own initiative, and at least some questioned whether it met the legal standards necessary in terms of subject matter jurisdiction, gravity and complementarity to be pursued at the ICC rather than in Kenya or otherwise. There were also serious questions raised at the ICC Review Conference at Kampala as to whether it would not be preferable to see a proprio motu referral of the Columbia or Afghan situations. A sixth referral involving an African State — even in a case involving the clear commission of atrocities — may encourage the ICC’s detractors in Africa and the double standards evinced by the Resolution’s text do not assist in this regard.
In the view of this writer, the Libya referral, in and of itself, is a good thing. The atrocities taking place as reported in the media seem clearly to warrant ICC intervention. But the failure of the great powers to fully support this Court, and to use it cynically when and as they please, rather than commiting their money, time, energy and political support to helping it grow strong and endure, feeds the perception that this Court is not about justice, but about power, undermining its legitimacy. Thomas Friedman recently opined that President Obama’s speech in Cairo strengthened the case for democracy in the Arab world as he led others through the salutary example of his own life. Would that he will find the same courage to champion the International Criminal Court, and show the world that Americans believe in accountability too.
We are now back from the period known in France as les vacances scolaires when everything, for anyone with (or even randomnly associated with) school age children stops dead. Being extremely organized, school holidays in France are all taken at the same time depending which of the three zones you live in, meaning that my older high schooler and younger elementary school child had the same school holidays. Hallelujah! In St. Louis I have sometimes had three different “spring breaks” for three children, not to mention the fact that Washington University’s Spring Break is, of course, not at the same time as the children’s, making planning family vacations something akin to managing complex litigation. Here that is “pas possible” everyone must have holidays at the same time. But of course, the astute reader will observe the problem with this situation immediately — everyone is also gone at the same time!
Well, when in Rome, as they say, so I have benefited from visitors, my son has spent a portion of his holiday in the Alps “improving his French” and trying to stay alive as he is dragged onto “red” slopes and encouraged to figure out how to make his way down(lucky guy!), and, not to be outdone, I braved Disneyland Paris with his two younger sisters (not for the faint of heart).
So everything slows down here, and everything has a seasonal feel to it. Is that so bad? Americans tend to hate it — inefficient, they say. But allowing the body to take a break during this period when winter begins to loosen its grip and spring flowers begin to peek through the snow and mud at the Parc Monceau is perhaps quite sensible. I know I returned to full time teaching this week with renewed vigor even though my U.S. based work never stopped; still, there was a respite there, and it would seem, as our doctor’s often tell us, that taking breaks is good not only for our health and the soul, but may even refresh our work!
The sun is rising earlier now and setting later; but the air remains cold, telling us that, after all, we are only in March and winter hasn’t given up his grip yet. Vivement les printemps!
This past Wednesday and Thursday, the Commission Franco-Américain brought together all the American Fulbrights and Chateaubriand Fellows working and studying in France so that we could learn about each other’s work, and share our research and our perspectives. The first day we were treated to a full day of visits at the Chateau of Chantilly, accompanied by the curators and docents who work at the Chateau preserving the Domaine’s stunning collection of paintings, drawings, books and objets d’art amassed by the Chateau’s owners over the years. This cultural and historic feast served as an extraordinary backdrop for the presentations of the Fulbright Exchange teachers and Exchange Assistants, who were in France either teaching or assisting with the teaching of English. A common theme was the differences between the French and the U.S. educational systems; but as we gazed out upon the grounds of the Chateau de Chantilly and exchanged experiences, it struck me that one element that will always separate France and the United States is the tremendous weight of history that exists in the former.
Several of us, including myself, swapped stories of our encounters with French primary and secondary education. We noted the use of fountain pens (required), the absence of computers (ubiquitous), the tradition of memorizing verse, long school days during which children return home, sometimes for one and one-half hours for lunch, paper with squares instead of lines, and cohiers (notebooks) of all kinds that needed to be signed by parents exactly comme il le faut. Things change much more slowly here than in the States; yes, French ados use facebook, and cell phones are everywhere, but traditional educational methods remain very near and dear to the French heart.
As a lawyer, this is important to understand for law, as Rousseau noted, is not just about rules:
“The most important law of all is engraved not on marble or brass but in the hearts of the citizens . . . It preserves a people in the spirit of their founding, and it imperceptibly substitutes the force of habit for that of authority. I am speaking of mores and customs, and above all of opinion, a subject which is unknown to our political theorists, but on which the success of all the other laws depends.”
This, Tocqueville referred to in Democracy in America as “habits of the heart.”
The past two weeks I took the train (RER) from Paris to Cergy-Pontoise where I will be teaching. Cergy is a new university, just celebrating it’s 20th year, that is located outside of the city. The suburban campus has the advantage of providing a more communitarian type of university life, but there are also many commuters. Cergy has undertaken to provide legal education in English as well as French, and is well-known as an up-and-coming French university with an excellent reputation in law as well as other subjects.
The last time I taught in a French University was in 1988 at the Sorbonne in the heart of Paris, a very different venue, and a different time. I was relieved to learn that students no longer smoke in the back of their classrooms which was a hazard I endured back then. (Now they just smoke outside of the classrooms and look intimidatingly cool). Of course, now there is the new challenge of the lap top computer inside the classroom, which is not, hélas, always used for strictly educational purposes! At a lovely dinner with some of my new colleagues and the sponsors of the Tocqueville chair at Le Procupe, to which I was treated by the Commission Franco-Americain, it was somehow comforting to know that my french colleagues and I struggled with the same issues of when/how/where to encourage or discourage lap top use in the classroom. Plus ça change, plus c’est la même chose !
I wonder what Alexis de Tocqueville would have thought of modern law studies!