For the last few weeks, popular culture has become reaquainted with the less romantic side of piracy. (For the romantic side, picture my 2 year old running around my living room — yes, this Thanksgiving morning — dressed with eye patch, bandana, “puffy pants” and a plastic sword yelling “arrgh” at the top of his lungs.)   But, with seizures of Ukranian weapons ships and Saudi supertankers, piracy has become serious business once again. For an image of how serious, consider the fate of the Thai fisherman killed by an Indian navy vessel that engaged their ship thinking it was a pirate mother-ship, but which may have only been recently the victim of piracy itself. 

So, what to do?

As was widely reported, the United States and Iraqi negotiators (finally!) concluded negotiations last week by signing the text of a U.S.-Iraq Status of Forces Agreement (SOFA).  Both sides now need to go through their respective domestic approval processes before exchanging the necessary notifications to bring the SOFA into force.  In Iraq, that process includes parliamentary approval, which is not a slam dunk if yesterday’s parliamentary brawl is any indication.  In the United States, the path appears a bit easier, although there’s still tension between the Executive Branch, which is insisting it can conclude the SOFA as a sole-executive agreement, and various members of Congress who insist the SOFA’s more unusual provisions require legislative involvement. 

As I noted a few weeks back, the threshold problem on the U.S. side is the information deficit, given executive reluctance to fully share the text publicly and perhaps even with Congress directly (there are news reports of classified briefings to Congress, and perhaps the text has been provided to certain committees or the leadership, but I’ve yet to see evidence that the document is available to members of Congress generally).  Of course, the Case Act requires the White House to report the whole agreement to Congress within 60 days of its conclusion, whether publicly or in classified form.  At that point though, it will already be an international obligation of the United States.  What’s more, the two sides reportedly signed a separate Strategic Framework Agreement at the same time as the SOFA signing.  This is likely a political commitment, which means, among other things, there’s no obligation to report it under the Case Act.  And I’ve found no one who can tell me what this Strategic Framework Agreement actually says, other than it purportedly would, according to Ambassador Ryan Crocker, “define the countries’ ties for years.” 

For readers interested in getting into the weeds here, McClatchy has an English translation that purports to be from a leaked Arabic version of the SOFA.  I haven’t had time to peruse it closely, but would like to start a comment thread so readers can offer their thoughts about the international and domestic legal implications of the SOFA text.  I’d also welcome more information on the Strategic Framework Agreement, especially whether it contains the security commitments and assurances originally envisioned when this process started a year ago. 

Hat-Tip:  World Politics Review Blog

Back in 2005 when Jack Goldsmith and Eric Posner published their book, The Limits of International Law, they garnered a lot of attention for promoting the application of rational choice theory to international law (IL), and, equally importantly, suggesting that this method showed IL to have much less influence than conventional wisdom suggested.  And the critics and commentators came out of the woodwork.  Georgia had a symposium on the book (contributions are listed here); AEI had a panel discussion with a slightly different bent; not to mention the dozens of book reviews written in response.

The reaction might lead one to believe that rational choice theory and IL-proponents are doomed to conflicting positions.  Not so, says Joel Trachtman, who has a new book out, The Economic Structure of International Law (Harv. Univ. Press, 2008).

Friends often ask me what my favorite treaty is (OK, none of my friends ask me this, but they should).  I’d have to say the 1909 U.S.-Canada International Boundary Treaty (BWT) ranks right up there — for nearly a century it has dealt, mostly successfully, with all sorts of questions relating to the shared water resources of the U.S. and Canada, whether as a matter of irrigation, power, pollution, or environmental protection.  Much of that success can be attributed to the International Joint Commission (IJC) set up under the BWT.  The IJC has two sections, one American and one Canadian, comprised of three “Commissioners” each, plus various expert staff members.  Each section also has legal counsel, done most ably for the last several decades on the U.S. side by Jim Chandler.  Which brings me to the IJC’s need for a new treaty lawyer.  I understand that Jim is retiring and the U.S. government is seeking a replacement (details here).   Applications will be accepted through December 8.  So, if you’re a U.S. citizen and have always wanted a job where you could actually practice international law–interpreting treaties and dealing with the various legal issues that arise under the operation and activities of an international organization, this is your chance.  Apply today.

Mohamed Nasheed was sworn in as the archipelago’s new President, ending the thirty-year rule of Maumoon Abdul Gayoom.  In doing so, the Maldives is now being cited as an example for how a predominantly Muslim nation can make the transition from autocracy to democracy, albeit with a few bumps along the way (Violent protests in 2003 precipitated Gayoom’s willingness to develop democratic institutions, including the legalization of political parties in 2005, but Gayoom only conceded defeat after losing a highly-contested October run-off election against Nasheed.).

Nasheed’s ascension to the presidency, moreover, provides a new datapoint for those who study transitional justice.  Nasheed had been a political dissident, jailed dozens of times, and allegedly beaten and tortured in the process.  But Nasheed’s administration appears to favor peace over justice going forward.  He’s asked Maldivians to avoid retribution, saying, “We have the latitude to remove anyone from government and prosecute them. But I have forgiven my jailers, the torturers. They were following orders … I ask people to follow my example and leave Gayoom to grow old here.”  Thus, at a time when other amnestys are fraying and a justice-model for redressing political crimes holds sway in the international context, the Maldives marks a different direction for dealing with past atrocities and repression…

Since the founding of our nation, the United States has championed international law because we benefit from it. Promoting - and respecting - clear rules that are consistent with our values allows us to hold all nations to a high standard of behavior, and to mobilize friends and allies against those nations that break the rules. Promoting strong international norms helps us advance many interests, including non-proliferation, free and fair trade, a clean environment, and protecting our troops in wartime. Respect for international legal norms also plays a vital role in fighting terrorism. Because the Administration cast aside international norms that reflect American values, such as the Geneva Conventions, we are less able to promote those values abroad.  

Looking for a break from the round-the-clock U.S. election coverage today?  Then, check out the news stories coming out of Taiwan this morning.  The head of the highest-level PRC delegation to visit Taipei since 1949 has signed a series of instruments with his Taiwanese counterpart on a range of economic topics: 

Taiwan and China signed a range of deals on Tuesday that are aimed at bringing the two sides closer economically, after almost 60 years of hostilities that often took them to the brink of war.  Officials signed four agreements that are potentially worth billions of dollars, after talks that marked a significant warming of ties between the former bitter enemies.  The two sides agreed to introduce direct cargo shipping and postal services, to add passenger flights and shorten existing routes, and to discuss food security in the wake of scandals involving poisonous Chinese food imports.

Tourism also featured at the talks, which took place Tuesday morning in Taipei’s Grand Hotel between Beijing’s envoy Chen Yunlin, head of China’s Association for Relations Across the Taiwan Strait, and Chiang Pin-kung, his local counterpart as head of the Strait Exchange Foundation.  They discussed cooperation on issues related to the current global financial turmoil, and agreed to meet again in Beijing early next year. The two men shook hands as they held copies of the signed agreements bound in red silk brocade and exchanged gifts.

The two sides have agreed to triple direct passenger flights to 108 per week and expand services to a total of 21 Chinese cities, up from the current five.  The deals will introduce cargo flights, with up to 60 round trips per month crossing the 180-kilometre (112-mile) Taiwan Strait separating the island from China.

For the most part these stories have focused on the economic and political aspects of these deals, i.e., looking at how business pressures moved the two sides together, the thawing of relations this signals, and the backlash within Taiwan that’s emerged to what some perceive as capitulation to the PRC by Taiwan’s government. 

I’m interested, however, in the legal implications of these deals.  I haven’t been able to locate copies of the agreement texts, let alone English translations.  When they do become available, however, I’ll be looking to see if they have any new signals about the legal status of Taiwan vis-a-vis not just the PRC, but international law.

The last few weeks have seen a flurry of news stories on Iraqi political resistance to the “final” text of a U.S.-Iraqi status of forces agreement (”SOFA”).  Last week, the main storyline was that the Iraqi Parliament had better accept the agreed text or else, while the Iraqi Parliament gave every indication they would delay any decision till after U.S. and Iraqi elections.  This week the new storyline revolves around Iraqi proposed changes to the agreement, purpotedly to reflect Iraqi objections to U.S. forces attacking Syria from U.S. bases in Iraq.  Meanwhile, today brings news of a “confident” President Bush who somehow still envisions the deal getting done on his watch. 

Others have more expertise than I do on the Iraqi internal machinations over any SOFA with the United States, but I want to focus on the lurking U.S. domestic process question, assuming U.S. and Iraqi negotiators eventually agree on a new “final” text.  Bruce Ackerman and Oona Hathaway recently argued that Congress must approve the SOFA since its terms and surrounding circumstances exceed the conditions and terms of standard status of forces agreements that the Executive has concluded on its own in the past.  Michael Glennon has taken a similar stance.  For the most part, these objections are substantive; i.e., the obligations undertaken fall beyond existing Executive authorities.  In contrast, I’m more hung up on a process problem that needs resolving before we can fully engage with the substantive questions over the scope of the President’s powers.  Specifically, I’m troubled by the fact that Congress may still not know what the old “final” agreement was, let alone what it might look like in a revised form.  Neither side has released the existing “final” text, although copies of it have leaked in Arabic and a rough English translation.

I’m just back from 9 days in Madrid — my first visit, and it was great.  Of course, while there I couldn’t ignore the international law-related story of the day.  Judge Baltasar Garzón (of Pinochet, al Qaeda, and Eta fame) is at it again.  This time he’s agreed to open a criminal investigation into thousands of disappearances and executions surrounding Spain’s half-century old civil war.  It is a move that has some significant political support; it comes on the heels of recent legislative efforts to offer symbolic reparations to Republican victims of Franco-era atrocities. But Garzón’s inquiry has generated a firestorm of controversy in Spain, threatening the ”pact of forgetting” that formed a pillar of the transition to democracy after Franco’s 1975 death.  On Monday, Javier Zaragoza, the National Court’s chief prosecutor, appealed Garzón’s move, arguing that it is barred by a 1977 amnesty law passed to help Spaniards put the war behind them.  Garzón, however, contends that since the crimes he’s investigating are crimes against humanity, no amnesty law can override the search for justice in such cases. 

I suspect that Spanish law will ultimately dictate how this case gets resolved (whether through some interpretation of the existing 1977 amensty law or through the application of a newly enacted law ala Chile and Pinochet).  But looking at it from an international perspective, a few interesting questions loom.

Sir Eli

 So, how much of a public international law wonk are you?  If, like me, you are fascinated not only by the structure and substance of international law, but also the personalities that helped shape it, then you need to check out this oral history done by the Squire Law Library of Cambridge University with Sir Elihu Lauterpacht QC.  There are six interviews from January to May 2008 that you can listen to (or read the transcripts here if you prefer) devoted to a variety of topics (e.g., Early Years, Professional Career, Scholarship, Personalities).  Obviously, Sir Eli’s own contributions to the practice and study of international law are enormous–he served as Australia’s legal adviser, founded the Lauterpacht center at Cambridge, and along the way appears to have litigated nearly every major ICJ case from Nottebohm to the Nuclear Test Case.  But, for me, the more fascinating parts of the interviews are the personal recollections–recounting the story of how his father–the giant of international law, Sir Hersh Lauterpacht–found his way into the field at the urging of Dr. (later Lord) McNair (who also apparently chided a young Sir Eli for literally wanting to have his cake and eat it too while having tea together at the Lauterpacht home).  Listeners will learn how Sir Eli and Sir Gerald Fitzmaurice shared a flat together for a brief period, or how a young Steve Schwebel and Sir Eli started a life-long friendship.  And, along the way, there’s mention of a vertiable who’s who of public international law from the last hundred years, including such luminaries as Waldock, Jenks, O’Connell, Jennings, McDougal, Lachs, and Weil. 

Along with my co-author, Joshua Newcomer, I’ve posted a new article on SSRN — “Political” Commitments and the Constitution.  It’s forthcoming in the Virginia Journal of International Law, so I expect readers will get a chance to comment on it here at Opinio Juris once it’s in print as part of our regular VJIL symposia.  But, we’d also welcome comments now, while we’re still early in the editing process.  Here’s the abstract:

This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political - or, non-legally binding - commitments as alternatives to its treaties, but the Executive’s authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.

This paper challenges such views. We contend that the Constitution regulates the President’s ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive’s use of political commitments while guiding decisions on when Congress must require information about-or even approval of-them. We conclude by applying our framework to the Iraqi security agreements.

Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution’s basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.

With all the attention to the bailout legislation last week, few noticed how much the Senate did on the treaty front.  But, as I suggested in my recent post, the Senate had an opportuntity to set a record in terms of its treaty actions and it easily did so, passing resolutions of advice and consent for some 78 treaties (the whole list can be found here).   The resolutions are printed in the Congressional Record, starting here, here, and here.  For those looking for further details, Jacob Cogan over at the International Law Reporter has done a nice job compiling the treaty transmittal packages and Senate Foreign Relations Committee (SFRC) reports as well (see here, here, and here). 

With the expected exceptions of UNCLOS and its Part XI Amendment along with the Protocol to the London Dumping Convention, the Senate essentially cleared the floor of all the treaties reported favorably to it by the SFRC this Congress.  There was debate and little attendant controversy over any of these treaties.  It looks like all the resolutions of advice and consent came via division votes, which has become the norm of late; I don’t think the Senate has actually had a floor debate or anything resembling a real vote on a treaty since the failed effort involving U.S. ratification of the Comprehensive Test Ban Treaty back in 1999 (readers should feel to correct me if I’m wrong here). 

Still, whether the Senate closely considered them or not, the resolutions themselves are quite novel in two respects.  First, although I’ve not looked at every resolution, those I have reviewed follow the SFRC-recommendations, including declarations of self- or non-self-execution.  As I suggested last week, the idea that a resolution will be made for each treaty marks a new practice.  And to the extent these declarations are part of the instruments of ratification, I wonder how other nations will react?  Although one might argue that they should not care so long as the United States complies with the treaty in question, if foreign reaction to U.S. human rights treaty RUDs (i.e., reservations, understandings and declarations) is any guide, some states may well object (e.g., making the argument that the declarations actually constitute inadmissible reservations or are otherwise unacceptable). 

Second, from a U.S. law stand-point there’s the question of the Senate’s ability to make a declaration of self-execution, which I don’t think it has ever done before, at least not in the resolution of advice and consent itself (past SFRC reports have, of course, expressed opinions on whether the SFRC understood the treaty to be self-executing in one or more senses of that term, or otherwise dependent on ex-ante or ex-post legislation in some way).  At a workshop at Duke this past weekend, a number of academics I highly respect raised questions about whether the Senate specifically (or the U.S. treaty-makers more generally) could issue declarations of self-execution regardless of the treaty’s terms, in the same way as many assume that they can when it comes to non-self-execution.  I’m not sure if this is a real, or merely a theoretical problem; indeed, I’d expect U.S. courts will welcome anything resembling clear statements on a treaties’ justiciability from the treaty-makers rather than having to find their own way.  But, I would be interested in reader reaction to the Senate declarations.  Are they problematic?  Or, is the Senate appropriately exercising its own constitutional powers here?

[Update:  Blog in haste, regret at leisure.  So, it turns out the SFRC made it clear that the declarations of self- and non-self-execution were not to be included in instruments of ratification; the new practice, rather, is the inclusion of those declarations in the Senate's Resolution of Advice and Consent, whereas previously the topic was usually left to the SFRC reports themselves (and even then addressed only occasionally).  I expect that this will make it less likely (and harder) for other nation states to oppose these declarations.  Finally, at least one reader has suggested that the Senate has done some declarations of self-execution in the past, but I can't think of an example where it has done so.  Readers -- do you have any examples to offer where the Senate issued a declaration of self-execution?]

We’ve spent a lot of time here at Opinio Juris on the implications of the Supreme Court’s Medellin decision.  Very little of that discussion, however, has considered the decision’s impact on the Senate’s role in U.S. treaty-making.  That may be because the Court itself spent so little time on the Senate.  It did recognize that the intent of the Senate, together with the Executive, could factor into giving a treaty self-executing status.  But, for the most part, the decision focused more on how treaty text would determine a treaty’s self- or non-self-executing status, and, more importantly, how non-self-executing (NSE) treaties could only be made judicially enforceable by Congress as a whole, not via an Executive memo.  Certainly, in doing so, the Court clarified some important questions about treaties in U.S. law (i.e., dispensing with the multi-factored test for self-execution favored by Justice Breyer in dissent and several lower courts; distinguishing self-execution questions from those involving private rights of action).  But, the Court also left open significant questions about treaties in U.S. law; i.e., how exactly courts should decide when a treaty is self-executing; and whether a NSE treaty is simply not justiciable, or if it lacks the force of domestic law entirely (which, in the latter, case, might mean, for example, the President has no “take care” duties with respect to NSE treaties). 

It turns out, however, that the Senate may have strong views of its own on these questions that do not coincide completely with the Court’s pronouncements.  In the recent SFRC reports recommending Senate advice and consent to a slew of treaties, the SFRC has included “declarations” of self-execution, accompanied by an interesting explanation of the SFRC’s view on where treaties fit within the U.S. legal order.  Here’s what the Court had to say with respect to the 49 treaties included in the package of agreements involving the EU and its member states on extradition and mutual legal assistance:

A couple of years ago, I examined whether popular conceptions of the current Bush Administration’s disdain for treaties had quantitative support.  I found to my surprise that the Bush Administration did not appear to be concluding significantly fewer treaties (whether solely pursuant to Article II or to all forms of U.S. agreement-making combined).   Looking just at Article II treaty activity in the current Congress, however, I might have to amend those remarks; the Bush Administration appears to now be enthusiastic about Article II treaty-making in a wide range of areas (e.g., armed conflict, intellectual property, law enforcement, maritime, nuclear, tax, telecommunications, counter-terrorism).  As a result, for all its anti-internationalist credentials, the current Administration may actually end up setting a record in terms of the number of Article II treaties receiving Senate advice and consent in a single Congress.

Of course, if it does so, the Senate Foreign Relations Committee (SFRC) staff will share a large part of the credit.  Just as my former colleagues at the State Department have been hard at work getting treaties transmitted to the Senate, the SFRC has worked vigorously to get those treaties before the full Senate for votes on advice and consent.  Just look at what the SFRC and the Senate have already done during the 110th Congress:

I’m up for tenure this year, which helps explain (I hope) in part my lighter-than-usual blogging of late.  One of the things that has come up in the process is how my home institution (Temple) compares to other law schools in terms of the timing at which tenure and promotion are offered.  Temple hires folks starting out in law teaching as Assistant Professors, with promotion to Associate Professor (without tenure) considered in year 3 or 4, tenure consideration coming in year 5 or 6, and then full professor a couple of years after tenure.  To try and see how this track compares with other schools, Dave Hoffman (of Concurring Opinions fame) and I conducted an informal survey of colleagues at other law schools to see when and how they make these decisions.  

We obtained data on 41 law schools from the top 100 in US News & World Reports.  We found that tenure and promotion timelines could be divided into two broad categories:  1) the 25 schools that link tenure with promotion to full professor; and 2) the 16 schools that don’t.  We also found that 18 of the 36 schools where we obtained timelines allow a new hire to be considered for full professor one way or another in year 5, while 26 out of 36 allow it by year 6.  More specifics (and a question for international law professors) after the jump.

The Supreme Court’s Medellin decision has generated lots of academic attention (Julian and I, for example, are both participating in a joint ASIL-ABA Task Force on Treaties developed to address the future status of treaties in US law, which I’m sure will generate blog posts from one or both of us in the months ahead). This past week also saw the DC Circuit rely on Medellin explicitly in an August 26 opinion in the long-running case of McKesson v. Iran (this was not the first Appellate decision re treaties post-Medellin though, the Fifth Circuit, for example, took up that topic back in June).

McKesson was returning for its 5th visit to the DC Circuit, still plugging away at a claim originally made in 1982 against the Iranian government for taking a U.S. company’s holdings in an Iranian dairy interest post-Revolution.  McKesson has long argued that the 1955 Treaty of Amity prohibitions on expropriation without just compensation entitle it to relief in U.S. courts.  Ignoring the irony of a Treaty of Amity with Iran today, the D.C. Circuit disagreed; holding that even though the treaty was self-executing, and thus part of the supreme Law of the land, its provisions failed to overcome a standing presumption against private rights of action…

The State of Texas carried out its execution of Jose Ernesto Medellin late Tuesday night.  It did so following the Supreme Court’s denial of a stay, 5-4.  The split is unsurprising, with the majority focused (accurately I suspect) on the fact that a legislative fix was unlikely, and reading DOJ’s silence on the stay request as consistent with a larger pattern of Executive hostility to the ICJ ruling itself.  In terms of dissents, Justice Stevens moved from concurring in the original Medellin decision to dissenting on this one, having wanted to require the reluctant Solicitor General’s Office to provide views (the other dissenters echoed the call for paper from the S.G.).  Separately, I was disappointed to see the majority did little to qualify the confusion its Medellin decision caused over the domestic legal status of U.S. treaties.  The Majority simply noted that the treaty does “not itself have the force and effect of domestic law sufficient to set aside the judgement or ensuing sentence.”  That still leaves me wondering whether the court’s denial of domestic law status to non-self executing treaties means that they are not domestic law in any sense or only that they’re not judicially enforceable domestic law.

So, now what?  The United States has breached its obligation to comply with the ICJ’s Avena decision (not to mention the more recent provisional measures order).  But what exactly will that mean here?  Can Mexico now legally engage in reprisals or retorsion against the United States or (to take up Peter Spiro’s idea of targeted retaliation) against Texas specifically?  Even if it can, will it do so?  To date, Mexico has appeared content to employ the ICJ to amplify its rhetorical opposition to its citizens’ fate.  As yet, it’s taken few concrete actions to actually force a change in the U.S. position (i.e., doubling the time it takes US trucks to cross the border; suspending mutual legal assistance or extradition with the United States, etc.).

I’ve been spending more time than is probably healthy over the last year researching the Compact Clause. Article 1, Section 10 of the Constitution prohibits U.S. states from entering into any “treaty, alliance or confederation” and bans them “without the consent of Congress” from entering “into any agreement or compact with another state, or with a foreign power.” The Supreme Court has had its way with these provisions in the context of interstate compacts, interpreting “any agreement” to only mean “some agreements”, namely those that threaten the unity or supremacy of the federal government. And most (with a few notable exceptions like Ed Swaine and his dormant treaty power thesis) have assumed that the Court’s rationale extends to compacts or agreements with foreign powers. That might explain the results of my own research, where I’ve only found 5 instances in which Congress has specifically consented to a foreign compact…