Recent Posts

Research Bleg!

by Kevin Jon Heller

Does anyone out there in OJ-land know of a good book about the re-establishment of diplomatic relations? Ideally it would focus on the US (such as with Vietnam in 1995), but one discussing any country will do. I’m particularly interested in a book that describes the nuts and bolts of re-engagement: how the decision was made, how they selected the location of the new embassy, what the Ambassador and his staff did when they first arrived in-country, etc.

Any suggestions would be most appreciated…

Israel’s “Defenders” Show Their True Colors Regarding Academic Freedom

by Kevin Jon Heller

From April 17-19, the University of Southampton is scheduled to host a conference entitled “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism.” As the title indicates, the conference was always going to be controversial. (Full disclosure: I was originally scheduled to present at the conference, but pulled out a couple of weeks ago because I simply didn’t have time to prepare anything.) Indeed, the conference webpage contains the following statement by the organisers:

The conference “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism” at the University of Southampton on April 17-19th will engage controversial questions concerning the manner of Israel’s foundation and its nature, including ongoing forced displacements of Palestinians and associated injustices. The conference will examine how international law could be deployed, expanded, even re-imagined, in order to achieve regional peace and reconciliation based on justice.  The conference is intended to broaden debates and legal arguments concerning historic Palestine and the nature, role, and potentialities of international law itself.

Participants will be a part of a multidisciplinary debate reflecting diverse perspectives, and thus genuine disagreements, on the central themes of the conference. Diligent efforts, including face-to-face meetings with leading intellectuals in Israel, were made to ensure the widest range of opinions possible. Those who chose to abstain, however, cannot derail the legitimate, if challenging, academic discussion the conference will inspire.

The conference organizers are grateful to the University of Southampton for ensuring academic freedom within the law and for taking steps to secure freedom of speech within the law. The conference organizers accept that the granting of permission for this event does not imply support or endorsement by the University of any of the opinions to be expressed at the conference.

The final paragraph is more than a little ironic — because earlier today the University of Southampton caved to pressure from self-appointed right-wing “defenders” of Israel and withdrew its permission for the conference. To be sure, the University did not have the integrity to admit the real reason why it was withdrawing permission. Instead, it fell back on that time-worn excuse, “security.” (Read: Israel’s right-wing “defenders” promised to disrupt the conference if the University didn’t cancel it.) The organizers’ statement in response makes clear just how pathetic that excuse really is:

A number of risks have been identified by the police but it is very clear from the Police’s report that they are more than capable of policing the conference and ensuring the safety of university staff, speakers, delegates, students and property. However, instead of accepting this at face value the University decided to focus on the risks identified by the Police and ignore their statement about their ability to police the event – we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to that extent it should be able to resort to police assistance in order to curb security risks to enable it to fulfil its legal obligation to uphold freedom of speech. If this is not done, if commitment to safety is not undertaken by the police, freedom of speech becomes an idle worthless notion. At no point were we given an indication that the University has indeed allowed itself the time to seek viable police assistance to supplement its own resources. Additionally, and unconvincingly, the University claims that it is now too late to put proper security arrangements in place. We do not accept that in any way as there are still 18 days left before the conference.

It will be a great shame if the conference does not go ahead as planned, whether at Southampton or at another venue. But the University’s decision does have a silver lining: it makes clear the contempt that Israel’s right-wing “defenders” have for academic freedom. They love to invoke academic freedom in the context of academic BDS, where the freedom in question is that of Israeli academics. (Regular readers know that I oppose academic BDS, and I voted against it recently at SOAS.) But when academic freedom means permitting criticism of Israel — well, then censorship is just fine. Consider the following…

Symposium on Palestine and the ICC at Justice in Conflict

by Kevin Jon Heller

Just in time for the activation of Palestine’s membership in the ICC, over the next few days Mark Kersten’s blog, Justice in Conflict, will be featuring posts by all of the people who participated in last week’s roundtable at the LSE — Mark, me, Kirsten Ainley, Dov Jacobs, Chantal Meloni, Leslie Vinjamuri, and Michael Kearney. Mark’s introductory post can be found here. I will post a link to a podcast of the LSE event as soon as it’s available. My contribution to the symposium should be up tomorrow or the next day.

Also, a hearty congratulations to Dr. Kersten, who has just been awarded a two-year SSHRC postdoc at the University of Toronto! London will miss him.

Weekly News Wrap: Monday, March 30, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

  • Kenya’s government said it was “shocked and concerned” over the latest travel warnings issued by the UK and others and said security conditions in the east African country were improving.
  • Islamist Boko Haram insurgents launched two deadly attacks on voters in northeast Nigeria on Saturday, police and a security source said, killing six people in an election in which insecurity is a major issue.
  • In Sudan, Reuters covers an unlikely path to jihad for students.
  • The number of people in northern Cameroon who have fled their homes fearing the violence in neighboring Nigeria and cross-border raids by Islamist sect Boko Haram doubled in March to 117,000, a United Nations survey showed.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: March 29, 2015

by An Hertogen

Calls for Papers

  • Opinio Juris’ own Peter Spiro will be the keynote speaker at the Skilled Migration Conference on Unravelling the Talent Tale: Skilled Migration Policies between National Images, Membership Bonds and Economic Priorities on September 15, 2015 at Sheffield University School of Law. The organizers are calling for paper considering a range of questions targeting the interrelation between attracting skilled migrants and redefining community boundaries and membership bonds. Abstracts of no more than 500 words are due by April 30, 2015. More information is available here.
  • The Utrecht Journal of International and European Law is issuing a Call for Papers on ‘General Issues’ within International and European law. The Board of Editors invites submissions addressing any aspect of International and/or European law. All types of manuscripts, from socio-legal to legal technical to comparative, will be considered for publication. The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online via the website and should conform to the journal style guide (See here for full details). Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult the website or e-mail. Deadline for submissions is April 30, 2015.
  • On June 26, 2015, a conference will investigate the relationship between hybrid warfare and minority rights from three perspectives: 1. Protection of Minority Rights and Hybrid Warfare; 2. Freedom of Expression in the Media and Cyberspace; 3. Hybrid Warfare and the Threshold for Armed Attack and State Responsibility. The organizers welcome abstracts for papers of no more than one page from both established researchers and early career academics. Please send your proposals to Dr. James Summers. The deadline for abstracts is May 1, 2015. Further details can be found here.
  • The Journal of International Peace and Organisation (“Die Friedens-Warte”) is calling for papers for its upcoming issue of volume 90 (2015). The Journal adapts an interdisciplinary approach to all matters relating to peace research, with international law and political science as lead disciplines. All submissions are assessed through double-blind peer review by two experts in the field. The topic of the upcoming issue’s focus section is ‘Intelligence! – Conflict and Conflict Avoidance through Information Gathering’. Abstracts may be submitted until 4 May 2015. For more detailed information, please see the Call for Papers here or the Journal’s website.
  • The Journal on the Use of Force and International Law is now calling for submissions for the next issue 2(2). The deadline is June 30, 2015. More information can be found here.

Events

  • The Centre for International and Public Law (CIPL), Brunel University London announces its annual guest lecture followed by an in-depth discussion, entitled “The Economic Crisis and The Failure of Human Rights”, to be held on Tuesday 21 April 2015, from 2:00 pm to 5:00 pm in the Moot Court, Elliott Jacques Building, Brunel Law School, Brunel University London, Uxbridge, UB8 3PH. Guest Speaker: Professor Aoife Nolan (University of Nottingham); Chair: Professor Manisuli Sssenyonjo (Brunel University London). A reception will follow at 5.00 pm by serving free refreshment. More information is here.
  • The Faculty of Law, University of Ljubljana is organizing its second conference in a series of biannual international interdisciplinary scientific conferences entitled Responsibility to Protect in Theory and Practice Conference on April 23-24, 2015. The aim of the conference is to provide an opportunity for scholars and practitioners from around the word to engage in an interdisciplinary academic debate on the theoretical and practical implications of the concept of Responsibility to Protect (R2P). The program is set up to present both the theoretical issues related to the understanding of the concept, its implementation in crisis situations and its importance in relation to conflict prevention and rebuilding, as well as practical issues by presenting case studies of the crisis situations with the potential for R2P consideration.  Participants of the conference will receive also a book entitled Responsibility to Protect: Where Do We Stand Ten Years After? Forty presenters at the conference include distinguished internationally renowned experts from around the world, among them Jennifer Welsh, Ruth Wedgwood, Judge Awn Shawkat Al-Khasawneh, Vladimir Kotlyar, Aiden Hehir, James Pattison, Enzo, M. Le Fevre Cervini and William R. Pace. A special R2P Song by a Slovenian rap duo Murat&Jose will be performed live in English at the conference gala dinner. The keynote speaker at the conference gala dinner will be Professor Dr Danilo Türk, Former President of the Republic of Slovenia. For more information about the conference and to register, please visit the conference web page.
  • The Academy on Human Rights and Humanitarian Law is pleased to announce that the Program of Advanced Studies on Human Rights and Humanitarian Law is now accepting applicationsThe program will take place from May 26 to June 12, 2015. This Program offers 18 courses in English and Spanish lectured by over 39 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 150 participants from more than 25 different countries and with different levels of professional experience. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission on Human Rights and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance for lawyers, law students and HR professionals of any country, ABA Credits for U.S. students and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. The application form for this program will be available here. For more information please contact the  Academy.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information. 

Weekend Roundup: March 15-26, 2015

by Jessica Dorsey

In the last fortnight at Opinio Juris, we saw Julian critique M. Cherif Bassiouni on his take on the Amanda Knox case in Italy, arguing that she would indeed be extraditable to the US.

Peter analyzed whether the Republican presidential candidate Ted Cruz is in fact a natural-born citizen (spoiler alert: he is).

Kevin posted his thoughts on the two-year anniversary of the death of Chinua Achebe and a response to a Just Security post from Blank, Corn and Jensen on the assessment of proportionality and finally a response to Bartels (also posting on Just Security) on perfidy.

We received a guest post from Sonya Sceats on China as a shaper of international law, in conjunction with a series of meetings at Chatham House. And finally, An posted on events here, I did here, and I added two weekly news wraps (here and here).

Thanks to our guest contributors and to you for following us on Opinio Juris. Have a great weekend!

M. Cherif Bassiouni Weighs In on the Amanda Knox Extradition, and Gets It Wrong

by Julian Ku

I have been feeling a little guilty for blogging about the Amanda Knox case since it is more of a People Magazine topic than an Opinio Juris one.  But just today, I realized that even someone as respected in the international law field as M. Cherif Bassiouni has opined on her extraditability in this OUP blog post from last April.  So maybe it’s OK after all, especially since Bassiouni’s view that she is not extraditable is (in my view) flatly wrong.

Bassiouni, a giant in the field of international criminal law and the author of the leading treatise on the international law of extradition, argues that Amanda Knox is not extraditable to Italy because of the admittedly unusual Italian criminal procedure that seems to subject defendants to convictions, acquittals, and then conviction again in violation of the rule of ne bis in idem (double jeopardy).

As I have explained, no US court has held that the double jeopardy protection of the Fifth Amendment would prevent an extradition because no U.S. court has applied that Fifth Amendment protection to actions by a foreign government.  In other words, no U.S. has held that a U.S. citizen can invoke the Fifth Amendment against the prosecution of a foreign government.  It is possible a court might do so, but there has been no signs of that so far.

But what really bothers me is that Bassiouni makes the same mistake that many other (far lesser in stature) legal commentators have made when he suggests that Article VI of the US-Italy Extradition treaty imposes a double-jeopardy requirement on the Italian government.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text).

With all due respect to Professor Bassiouni, this is not quite right. I point him and others to my first post on this subject and I re-do the discussion below.   Here is Article VI:

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

(Emphasis added.)

I don’t think it is possible to read this language as imposing a non bis in idem requirement on Italy, since Italy is not the “Requested Party” in the Amanda Knox case.  The only way Amanda Knox could invoke Article VI is if she has been “convicted, acquitted or pardoned,or has served the sentence imposed” by the United States, which is the “Requested Party.”  But Knox has not been charged or punished for this crime in the United States, so she can’t invoke Article VI.

As Bassiouni points out, the complexity of Italy’s criminal procedure could possibly violate the prohibition on non bis in idem contained in the European Convention on Human Rights.  I don’t know enough about Italy’s criminal procedure or the ECHR’s jurisprudence in this area to know if he is right, but I do know that this issue is not something that would be considered in the “extraditability” analysis by a U.S. court.  Knox could (and probably has) raised this argument in Italian courts, or directly before the ECHR. But it should not affect her extraditability.

Because of Bassiouni’s stature, his blogpost will be (and already has been) repeated by media reports for the proposition that Knox has a credible double-jeopardy defense to extradition.  But although they are right to cite Bassiouni as a leading authority on international extradition, he’s wrong on this one.

So How Do We Assess Proportionality? (A Response to Blank, Corn, and Jensen) (UPDATED)

by Kevin Jon Heller

Just Security published a post by Laurie Blank, Geoffrey Corn, and Eric Jensen yesterday criticizing two surveys that are interested in how laypeople think about IHL’s principle of proportionality. Much of what the authors say is absolutely correct, particularly about the need to recognize that assessing ex post the ex ante decision-making process of military commanders is fraught with difficulty and likely to both overemphasize actual civilian casualties and underemphasize anticipated military advantage. But the post is still problematic, particularly the following claims:

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.

[snip]

Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

I can’t speak to one of the surveys, because the authors don’t provide any information about it. But I am aware of (and have completed) the survey they do link to, which is conducted by Janina Dill, an excellent young Oxford lecturer who is the Associate Director of the Oxford Institute for Ethics, Law and Armed Conflict. The authors caricature Dill’s survey when they claim that it is based on the “flawed assumption” that “public perception” is “the ultimate touchstone for compliance with the proportionality rule.” Dill does not suggest that the legality of a particular attack should be determined by public perception of whether it was proportionate; she is simply interested in how non-military people think about proportionality. Like the authors, I don’t believe Dill’s questions capture the complexity of the military commander’s task. But neither does Dill. That is not the point of the survey.

Dill, however, is more than capable of defending herself. I am more interested in the first paragraph quoted above, because the authors come perilously close therein to claiming that it is per se illegitimate for anyone — or at least individuals who are not soldiers themselves — to second-guess the targeting decisions of military commanders. I suppose they leave themselves a tiny escape from that position by implying (obliquely) that “you, or I, or anyone” could assess ex post a military commander’s ex ante proportionality calculation as long as we had “full knowledge of the circumstances at the time of the attack.” But the authors make no attempt whatsoever to explain how the decision-makers involved in any ex post “compliance assessment” could ever take into account everything the military commander knew about the circumstances of the attack — from “the enemy’s center of gravity and the relationship of the nominated target to that consideration” to “the exigencies of the tactical situation” to “the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences.” Some information about the objective circumstances of the attack may be available in written reports and through the testimony of the military commander’s superiors and subordinates. But those objective circumstances are only part of the story, because IHL proportionality requires (as the authors rightly note) assessing the reasonableness of the attack “through the lens” of the commander herself — what she actually knew about the objective circumstances of the attack. And that information will be located solely in the mind of the military commander. Perhaps some commanders are so honest and so mentally disciplined that they will provide a court-martial or international tribunal with an accurate assessment of what went through their mind before the attack. But most commanders faced with discipline or prosecution for a possibly disproportionate attack will either lie about their proportionality calculation or unconsciously rewrite that calculation after the fact to justify killing innocent civilians.

In most cases, therefore, the decision-makers involved in a compliance assessment will have no choice but to rely on circumstantial evidence — including, yes, an attack’s actual consequences — to infer what went through the mind of a military commander prior to launching an attack. Such inferences will always be, for all the reasons the authors note, complex, fraught with difficulty, and prone to error. But unless we are going to simply defer to “the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat,” we have no choice but to ask people to draw them. I doubt that any of the authors think that uncritical deference is appropriate; more likely, they think that although compliance assessment is necessary, no civilian should ever be permitted to sit in judgment of a soldier. If so — or if they think that civilian assessment is possible in the right system — the authors need to do more than just complain about how difficult it is to be a military commander and dismiss as irrelevant how civilians think about fundamental principles of IHL. They need to tell us what a properly-designed system of compliance assessment would look like.

UPDATE: Janina Dill has posted her own response at Just Security. It’s excellent; interested readers should definitely check it out.

Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.

Weekly News Wrap: Tuesday, March 24, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

RIP, Chinua Achebe (Updated)

by Kevin Jon Heller

I just learned — much belatedly — that Chinua Achebe, the great Nigerian novelist, died two years ago today at 82. Here is a snippet from his 2013 obituary in the New York Times:

Nadine Gordimer, the South African novelist and Nobel laureate, hailed Mr. Achebe in a review in The New York Times in 1988, calling him “a novelist who makes you laugh and then catch your breath in horror — a writer who has no illusions but is not disillusioned.”

Mr. Achebe’s political thinking evolved from blaming colonial rule for Africa’s woes to frank criticism of African rulers and the African citizens who tolerated their corruption and violence. Indeed, it was Nigeria’s civil war in the 1960s and then its military dictatorship in the 1980s and ‘90s that forced Mr. Achebe abroad.

In his writing and teaching Mr. Achebe sought to reclaim the continent from Western literature, which he felt had reduced it to an alien, barbaric and frightening land devoid of its own art and culture. He took particular exception to”Heart of Darkness,”the novel byJoseph Conrad, whom he thought “a thoroughgoing racist.”

Conrad relegated “Africa to the role of props for the breakup of one petty European mind,” Mr. Achebe argued in his essay “An Image of Africa.”

“I grew up among very eloquent elders,” he said in an interview with The Associated Press in 2008. “In the village, or even in the church, which my father made sure we attended, there were eloquent speakers.” That eloquence was not reflected in Western books about Africa, he said, but he understood the challenge in trying to rectify the portrayal.

“You know that it’s going to be a battle to turn it around, to say to people, ‘That’s not the way my people respond in this situation, by unintelligible grunts, and so on; they would speak,’ ” Mr. Achebe said. “And it is that speech that I knew I wanted to be written down.”

Chinua’s passing fills me with great sadness, because I had the honour of getting to know him quite well in the late 1980s — just before the car accident that left him paralyzed — when I was a graduate student at the New School for Social Research. He was a dear friend of the anthropologist Stanley Diamond, for whom I did research and whose journal, Dialectical Anthropology, I edited. I will long treasure the memories of Chinua’s kindness and warmth. He would always go out of his way to include me in conversations, and to ask me — a lowly graduate student, barely 21 — what I thought about things. And his terrible accident did not dim his spirit in the slightest; he was just as kind and warm the first time I saw him after the accident, when he was still recovering.

Chinua was also, needless to say, a remarkable novelist. I just wish he had written more — his two-decade-long writers block, which he attributed to the trauma of the Nigerian civil war (as the obituary notes), cheated us all out of so many great novels that will now never be written. I plan to re-read “Things Fall Apart” in his honour as soon as I can. It remains one of the great novels written by any writer — not just by an African one. Chinua’s fiction, though so inextricably tied to his country and to his continent, always transcended the limits of geography. I still get angry when I think about Saul Bellow’s profoundly racist comment concerning the supposed non-existence of great African literature: “When the Zulus produce a Tolstoy, we will read him.” I don’t know about the Zulus, but the Ibo certainly produced one. His name was Chinua Achebe.

Requiescat in pace, Chinua. You will be missed — and remembered.

UPDATE: I have updated the post to reflect that I only found out today about Chinua’s death. I hope these thoughts are better late than never.

Is Ted Cruz a “Natural Born Citizen”?

by Peter Spiro

cruz imageShort answer: yes. Ted Cruz is constitutionally eligible to run for President. As he moves to announce his candidacy tomorrow, the question is sure to flare up again. As most will know, Cruz was born in Canada. He had U.S. citizenship at birth through his mother and the forerunner to section 301(g) of the Immigration and Nationality Act. He also had Canadian citizenship until he formally renounced it only last year.

The constitutional terrain is covered in this 2013 post and an essay of mine in the online Michigan Law Review on the question as presented in the context of John McCain’s Canal Zone birth. This is a terrific case study for demonstrating constitutional evolutions outside the courts. No court will ever touch the question at the same time that particular cases show us where the law is.

One recent addition to the mix: Neil Katyal and Paul Clement have this piece on the Harvard Law Review Forum arguing that Ted Cruz qualifies as “natural born”. If Katyal and Clement say he is natural born, then he is natural born, merits aside. Bipartisan pronouncements from legal policy elites become a source of the law. The Katyal-Clement offering echoes a similar effort by Larry Tribe and Ted Olson with respect to McCain’s eligibility, which was also the subject of a consensus U.S. Senate resolution.

Who can’t love that the question is being raised? Birthers who have challenged Barack Obama’s constitutional eligibility (on the basis of a fictitious birth in Kenya or a lame claim that he is a dual citizen) will have to eat their words now that they have a candidate whose foreign birth/dual citizenship is documented fact. But those ironies shouldn’t distort the answer. There are lots of reasons to oppose a Ted Cruz candidacy, but his citizenship status isn’t one of them.