Author Archive for
Duncan Hollis

A Friendly Request for Paul Clement, the Solicitor General, and the Supreme Court — Please read up on what it means to sign a treaty!

by Duncan Hollis

Lots of commentary today here and elsewhere on yesterday’s oral arguments in Bond v. United States, with vote-counters quick to predict the Court will retreat from Missouri v. Holland and the question is only how much.  I have views on the merits, but, frankly I’m having trouble getting passed the fact that two Supreme Court justices, the Solicitor General, and one of his predecessor’s, Paul Clement, seem to not understand how treaty-making works.

Simply put, throughout the argument, there were statements indicating a real misunderstanding of what it means for the United States to sign a treaty like the Chemical Weapons Convention.  To be clear, sometimes U.S. signature of a treaty can have immediate legal effect — what’s known as definitive signature — which is most often witnessed in bilateral agreements on topics within the President’s executive powers.  But for centuries now (actually as a byproduct of the U.S. revolution itself), the general rule for multilateral treaties is that a State signing a treaty does not bind the State to the treaty’s provisions; a further act of ratification is required.  It is the State’s deposit of this instrument of ratification for a treaty that’s in force which triggers the obligation to comply with the treaty’s requirements.  Signing treaties subject to ratification — what is known as “simple signature” serves several useful purposes — it signals the conclusion of negotiations, the signing State’s intention to commence domestic procedures to join the treaty, and the identify of those who can participate in preparatory meetings.  But it does not obligate the State to implement, observe or otherwise comply with any, let alone all, of the treaty’s articles.  The only international legal obligation a signatory State assumes is one not to defeat the treaty’s object and purpose pending its consent to the treaty (in which case it is bound to comply with it) or an indication that it does not intend to ratify the treaty.

But no one yesterday showed any sign that they understood the way treaty signature operates. Take Chief Justice Roberts opening inquiry to Solicitor General Verrilli (see transcript p. 27):

General, let’s suppose there’s a multilateral treaty, the — the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power.  And Congress passes a statute saying we have the authority to prosecute local crimes pursuant to this international convention that the President has signed.  Any problem with that?  (emphasis added)

Well, yes.  If the President had merely signed the treaty and not actually ratified it, the treaty power would not afford any basis for Congress’ legislation and this would be a straight-forward Article I case.  Indeed, it would be like Congress deciding to pass legislation implementing the Kyoto Protocol or the Rome Statute to the International Criminal Court — two treaties a U.S. President has signed — without any further approval by the Senate, let alone ratification by the President (a ratification which, I’d note, the President is not required to do even if the Senate gives its advice and consent to ratification).

Of course, the Chief Justice probably meant a treaty that the President had “ratified” — and Verrilli certainly took the question that way.  But I’m worried that both were a bit oblivious to the distinction. I can only imagine what people would say if a Supreme Court Justice has posed a hypo that confused a bill with a statute during an oral argument.  And if that’s not OK, why is it OK to make such a simple mistake about treaty-making?

Now, if this were an isolated incident, I’d be willing to write it off as simply a shorthand-error that both sides ducked around to get at the real — and certainly important — issues at the heart of the Bond case.  But, this wasn’t the only misuse of treaty signature yesterday. More details, after the jump . . .

U.S. Treaty Practice Does Not Have to Be a Zero-Sum Game!

by Duncan Hollis

November 5, 2013 is U.S. National Treaty Day.  Well, not really, but it might as well be given how much treaties are going to be in the news tomorrow.  For starters, the United States Supreme Court hears oral argument in the case of Bond v. United States (for the pleadings, see SCOTUS blog’s as-always-excellent round-up).  As we’ve blogged previously (a lot), the case challenges the scope of the U.S. treaty power as the basis for implementing legislation in areas where Congress otherwise could not legislate.  In this case, there’s some salacious facts leading to a rather unlikely prosecution under the implementing legislation for the Chemical Weapons Convention (let’s just say the case is a far cry from the scenario that won the OPCW this year’s Nobel Peace Prize).  In the process, Bond questions the continued precedential value of one of the most discussed (and read) cases in U.S. foreign relations law — Justice Oliver Wendell Holmes’ opinion in Missouri v. Holland.

Then, in the afternoon, the U.S. Senate Foreign Relations Committee takes up the UN Disabilities Convention . . .  again (here’s the line-up for those testifying).  The Convention got a lot of attention the last time it reached the Senate floor, with Senate Republicans voting it down despite the poignant appearance of former Senate Majority Leader Robert Dole, who came to support advice and consent to the treaty. U.S. Senators John McCain and Robert Menendez have an op-ed in USA Today taking their case for Senate advice and consent to the general public.

Of course, the Chemical Weapons Convention and the Disabilities Convention are not the only two treaties to have garnered media attention in recent weeks.  U.S. Secretary of State Kerry’s signature of the U.N. Arms Trade Treaty promoted a rather furious domestic back-lash about whether the United States should join that treaty (At present, it sure looks like there’s easily enough Senate votes to oppose it).  And, that’s not to mention the 1982 U.N. Convention on the Law of the Sea (UNCLOS).  It continues to be supported by a large majority of business and national security interests but remains stymied by Senate opposition from a very vocal minority who fear the loss of “sovereignty” that would come with U.S. consent.

I could easily write one (or more posts) on each of these treaty issues.  For now, though, I want to call attention to a common theme that runs through all the on-going debates.  In each case, the treaty fight ends up being framed as a fight between those who would situate U.S. treaties (and with them, U.S. law) within a larger community — international communitarians if you will — versus those I’d call autonomists — who seek autonomy from any international regulation whether in defense of national law, states’ rights, or individual liberties.  Thus, opponents to UNCLOS want the U.S. to be able to regulate its own maritime environment just as those who oppose the Disabilities Convention oppose its potential to go beyond the Americans with Disabilities Act.  Of course, the Disabilities Convention also raises the specter of further intrusions into U.S. state regulations akin to the fears of internationally-based prosecutions that lie at the heart of the Bond case.  And all of this is not to mention the NRA and their (rather unrealistic) charges that the Arms Trade Treaty would require the United States to violate the Second Amendment and the constitutional liberties individuals enjoy to bear arms.

This division between communitarians and autonomists helps explain how treaty debates are now almost always framed in all-or-nothing terms. The decisions on whether to join or enforce U.S. treaty commitments become zero-sum games; only one side can win and the other must lose. That narrative certainly makes for good media stories.  But, I wonder if playing the game this way is truly in the nation’s interests.  It seems we end up with some examples where communitarians can claim complete victory (see, e.g., the new START treaty or the gold standard of an international engagement — the Montreal Protocol) while autonomists have equally compelling winning claims on their side (see, e.g., Medellin). Citing such divergent results, however, only seems to inflame the passions of the “losing” side and risk entrenching no-compromise strategies that seem a recipe for disaster (see, e.g., this October in Washington).

So as the Chemical Weapons Convention and the Disabilities Convention take center stage, I’d like to flag a simple point: U.S. treaty-making and implementation is a much more flexible and nuanced practice than the existing debates suggest.  There are not just some, but many, potential outcomes in these cases that would not require the definitive death of the treaty power OR states’ rights.  Indeed, as Peter’s most recent post suggests and as I’ve written previously, looking at the history of U.S. treaty-making post Missouri v. Holland, it’s pretty clear that the United States regularly accommodates state interests/rights in entering and implementing U.S. treaty commitments.  Thus, a win for the United States in Bond is unlikely to mean states rights get overridden by all future treaty-making.  Similarly, there are ways for Ms. Bond to win this case (think, creative statutory interpretation) that don’t necessarily mean we all get to stop reading Holmes’ opinion.  One could make a similar point about the Disabilities Convention.  The Senate doesn’t have to give unconditional advice and consent — it has a long history of RUDs (reservations, understandings, and declarations) that might be used to mitigate the scope of U.S. commitments to that treaty regime.  Even federalism interests writ large can be protected (see, e.g., the RUDs included in U.S. ratification of the Organized Crime Convention or the UN Corruption Convention).

Now, there will be those who say RUDs are inadmissible and run counter to the object and purpose of one or more of these treaties, just as there will be those who say joining any treaty will lead to some impermissible sacrifice of U.S. “sovereignty.”  My point (hope) is that Senators (and Supreme Court Justices) don’t have to always accept these cases as they are characterized at the poles. There are plenty of precedents that may be brought to bear balancing competing interests such as federalism and international engagements at the same time.  We’ll see if any such hybrid results appear possible in the coming days.  I’d hope so, but given current trends in American politics, I’m not sure I’d bet on it.

Interpretation isn’t just Meaning! The Existential Function of Interpretation in International Law

by Duncan Hollis

Looking back at all the debates over whether the United States could have legal authority to use force in Syria, I was struck by the presence of two very different types of arguments about the Responsibility to Protect (R2P).  For some, the R2P questions were interpretative in nature — what did R2P mean (i.e., does it require Security Council authorization) and how does its meaning apply in the Syrian context?  Obviously, different interpretative methods and techniques could generate different answers to what R2P meant, and, with them, different outcomes for the Syrian intervention question. Many others, however, never made it to this interpretative stage.  For them, the R2P questions were existential — did it even exist within the corpus of international law in the first place?

Looking at R2P in Syria provides a paradigmatic example of how international legal interpretation can do more than simply explain what a legal concept “means”.  It shows that the interpretative project is not just an expository process but an existential one. The very act of interpreting validates the legal existence of that which is being interpreted. Interpretations of R2P with respect to the legality of a Syrian intervention necessarily accepted the existence of R2P within international law.  At the same time, deciding whether or not R2P exists itself constitutes a particular form of interpretative process, or what I call an existential interpretation.  I’ve written a paper about these existential aspects of international legal interpretation that’s now available on SSRN (I also presented it at this fabulous conference on interpretation in Cambridge).  Here’s the abstract:

For most international lawyers, interpretation involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of interpretation to give meaning to international law.

Notwithstanding the value in focusing on interpretative methods and techniques, the concept of interpretation they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about what “exists” to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as “State practice” for purposes of identifying customary international law. Interpreters who only count what States “do” may generate different content for a claimed rule than those who also consider what States “say” about the rule, even holding constant the method and technique employed. Similar existential questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes.

This paper seeks to uncover the “existential function” of interpretation in international law. It explains how all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources.

Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. Existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right). The paper concludes with a call for further study of existential interpretation given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.

I’d welcome feedback if any of you find the paper is worth a read.

What’s the Object and Purpose of the Arms Trade Treaty?

by Duncan Hollis

I’ve been surprised how quiet the Obama Administration has been in terms of treaty actions in its 5 years in office — you can pretty much count on one hand the number of treaties that have gone through the Senate Advice and Consent process (and nothing at all has happened this Congress). Now, some of the blame for this certainly rests with a recalcitrant (some might say new-sovereigntist) minority of U.S. Senators (see, e.g., UNCLOS and the UN Disabilities Convention fights).  Still, the reality of the last few years has been that major U.S. treaty actions by the Executive are also fairly uncommon occurrences.  So, the news today that John Kerry will sign the UN Arms Trade Treaty (ATA) for the United States is quite noteworthy given the paucity of such signatures of late.

The mainstream news media attention on the U.S. signing has (understandably) focused on the domestic opposition to the ATA, most notably the hostility of the National Rifle Association.  As a result, the legal issues associated with treaty signature have gotten sparse attention.  Indeed, in looking at today’s Washington Post, readers get no real sense that U.S. signature of the ATA will not actually commit the United States to comply with its provisions, nor the fact that the ratification which would involve such a commitment requires the advice and consent of the U.S. Senate (something that seems very unlikely at present).  This is not to say that signature has no real world effects — it does.  But the media has done little to explain them so I’ll flag the two that are most important.  First, U.S. signature of the ATA serves a signaling function, letting the world know that the United States supports the treaty and will look to begin the domestic processes necessary to join the ATA (although I can tell you from my former life in the State Department that those processes can take years without anyone really batting an eye).  Second, signature has one major legal consequences for the signing State as described in Article 18 of the Vienna Convention on the Law of Treaties:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty …

Now, the United States is not a party to the VCLT, but the VCLT is widely accepted within the U.S. Government as codifying customary international law.  Article 18 in particular has been specifically treated as customary by the likes of former Secretary of State Colin Powell and John Bolton, most visibly in U.S. attempts to indicate an intention not to become a party to the Rome Statute or the Kyoto Protocol (see also Treaties and Other International Agreements, 2001 Digest of United States Practice in International Law 212-213 for more on Powell’s views).

If, as I believe, Article 18 is customary international law binding on the United States, that raises the interesting question of what obligations exactly will the United States assume by signing the ATA? Simply put, what acts by the United States would defeat the ATA’s object and purpose?  Is there any content to Article 18 in this context — which may then legitimate the NRA’s very vocal objections to U.S. signature — or is the signature limited to its signaling value without any real restrictions on U.S. behavior going forward?  I’d welcome reader input on one or more examples of things that would clearly cross the Article 18 line or thoughts on what acts the ATA does regulate but which cannot be said to trigger the object and purpose requirements associated with treaty signature.

Can the Offenses Clause save Missouri v. Holland?

by Duncan Hollis

Things are continuing to gear up here in the United States for the big foreign affairs law case of the year – U.S. v. Bond, which, among other things may allow the Supreme Court to revisit one of its most significant foreign affairs law cases ever - Missouri v. Holland.  Bond asks two questions: (1) whether the Constitution limits Congress’s authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question — the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the “scope and continuing vitality of . . .  Missouri v. Holland“.  Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.

So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress’ authorities under Article I.  That, after all, was the central holding of Holmes’ opinion in Missouri and it’s the one that most scholars fear — or, hope, depending on their disposition — may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh).  But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause.  The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute.  This is not a surprising argument.  The Commerce Clause’s expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes’ impassioned assertion of a dynamic reading of the treaty power.

Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority — the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser’s Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They’ve now posted a scholarly exposition of their argument on SSRN.  Here’s the abstract:

The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.

The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.

I find myself fairly convinced of the paper’s historical claim — that the reference to the law of nations at the time of the Framing included U.S. treaty obligations.  Thus, I think their argument is one the Court can (and should) consider in the Bond case.  In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition.  Let me highlight three after the jump.

What’s Wrong with International Human Rights Law?

by Duncan Hollis

I’ve long admired Oscar Schachter’s idea that there is an ‘invisible college’ of international lawyers operating across the globe, all of whom share a common culture of professionalism and purpose in advancing international law.  Of course, with fragmentation the unity of that profession is more overtly stressed now than in the past (which, I suppose, should not be all that surprising since anyone who’s spent time within a “college” can attest to the occasionally sharp divisions that emerge among faculty and/or their students).

There is one area, however, where the unity of the international legal profession has, to date, appeared unchallenged — international human rights law.  To be sure, there are frequent debates over what this law contains, who has a voice in its interpretation and application, and how effective these rights may be in practice.  But, it’s almost taboo to challenge the concept of international human rights itself.  After all, since we’re all humans, who could oppose the idea that we all have (and are entitled to) certain universal rights?  Well, my colleague Jaya Ramji-Nogales has actually launched just such a challenge as part of a new research agenda, seeking to examine critically the concept of international human rights.  Her first step is a new draft article, ‘Undocumented Migrants and the Failures of Universal Individualism‘.  In it, she actually does something I don’t think I’ve seen an international lawyer do before — identify multiple conceptual problems with the very idea of a universal, international law of human rights.  It’s sure to be a controversial thesis.  But I also think it’s not one to be shouted down, but rather engaged with openly, especially by those who identify themselves as international human rights lawyers.  Here’s her argument in abstract form:

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The article demonstrates through a careful analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically innovative approach to protecting undocumented migrants and other vulnerable populations.

 

For those interested in reading further, the paper is up on SSRN here.

Rapid Response Seminar: Humanitarian Intervention, International Law and Syria

by Duncan Hollis

Normally, we post our conference announcements weekly, but we just got word of one tomorrow that’s worth flagging.  The British Institute of International and Comparative law (BIICL) will be holding a Rapid Response Seminar tomorrow, September 11, from 4-6 pm to discuss ‘Humanitarian Intervention, International Law and Syria’.  As the title suggests, the conversation will discuss whether humanitarian intervention falls within the corpus of international law and, if so, whether it can be applied to the current Syrian situation.  Robert McCorquodale (BIICL) will chair the panel, with scheduled speakers including Dapo Akande (Oxford), Sigrun Skogly (Lancaster), Guglielmo Verdirame (King’s College) and Marc Weller (Cambridge).  The seminar will take place in the Senate Room, Senate House, Malet Street, London WC1E 7HU.   For more information see here.

Treaties on Espionage — A Strange Pairing?

by Duncan Hollis

I’ve spent a lot of time thinking about treaties. And I’ve read lots and lots of them over the years. From time to time, however, I encounter something I find truly novel on the treaty front. A case in point, was this story in IT World yesterday.  It refers to pending negotiations between the United States and Germany on an agreement not to spy on each other:

The U.S. has verbally committed to enter into a no-spying agreement with Germany in the wake of disclosures about the U.S. National Security Agency’s secret surveillance programs.

The verbal commitment was given in talks with the German Federal Intelligence Service (Bundesnachrichtendienst, BND), the sole foreign intelligence service of Germany, the German government said in a news release on Wednesday. This means that there must be no governmental or industrial espionage between the two countries, it said . . . No further details about the agreement were given. The German Federal Ministry of the Interior reached on Monday could not immediately respond to a request for comment.

I’ve never encountered such a treaty commitment before and I wonder what the proposed agreement will look like (and even if it’ll be a treaty at all — perhaps a political commitment is more likely?).  Have astute readers encountered similar types of “no-spying” arrangements in the past?  If so, I’d love to hear about them, not to mention any comments or expectations for compliance if the United States and Germany do conclude a non-spying treaty. For my part, I’ve always assumed spying is by its very nature the sort of thing you do after promising not to do it, but I also assume the United States generally tries to honor its treaty commitments too, suggesting any future deal won’t end well one way or another.

Federalist Society Teleconference on a Cyber Jus Ad Bellum

by Duncan Hollis

For readers interested in cyber issues, I wanted to briefly note a Federalist Society Teleconference I was invited to participate in tomorrow at 2 pm (John Yoo is the other panelist).  The session is titled, “Attacks, Exploits and Intrusions: When Is a Cyber Incident an Act of War? What Responses Are Warranted?”

Generally, Federalist Society Telefora are open only to its members.  However, in this case, they’ve kindly invited interested readers of Opinio Juris to dial in as well.  For more details on the event, see here. The call-in number is 888-752-3232.

 

The Costs of Diplomatic Immunity

by Duncan Hollis

International lawyers are used to explaining to skeptics the functional case for diplomatic immunity by emphasizing the benefits it provides.  Here’s the 5 second version: we want our diplomats to be able to communicate with their host States since the alternative to communication is often (and certainly used to be) conflict.  To ensure open communication we need diplomats who feel free to operate without fear of being coerced, pressured, extorted, etc., So, we grant diplomatic immunity to ensure freedom of communication and do so reciprocally as a check against abuses, with the only remedies being waiver or a declaration of persona non grata.

Of course, these benefits do not come without costs.  And the British Government at least has been keeping a ledger of such costs.  In particular, the City of London would like diplomatic missions to pay London’s congestion charges.  It looks like a large number of governments, including my own, have decided not to pay.  The running tally of unpaid charges? 67 million pounds!  That’s quite a sum, but, it doesn’t even attempt to monetize the costs of the criminal offenses committed (or alleged to have been committed) by diplomats.  Here’s how the BBC summarizes that sort of bad diplomatic behavior from 2012:

[T]he Foreign Office was informed of 12 “serious offences” committed by people with diplomatic immunity in 2012.

These are defined as offences which could carry 12 months or more in prison, as well as drink-driving and driving without insurance.

He said 10 of the alleged offences were driving-related, including six for drink-driving – three by Russians.

The non-driving offences alleged were abuse of a domestic worker and causing actual bodily harm.

In the “most serious” cases the UK asks foreign governments to waive immunity to allow prosecution, or to withdraw an accused diplomat.

About 22,500 people get diplomatic immunity in the UK and Mr Hague said “the majority” abide by UK law.

To my mind, none of this outweighs the substantial benefits of diplomatic discourse I referenced above.  Still, I do think it’s important to appreciate the costs of doing diplomacy.  What do others think — should governments have to pay congestion charges (let alone parking tickets?).  More importantly, is 12 serious offenses out of a population of 22,500 a good number or a bad one?  And if you think it’s bad one, is there a way to fix the diplomatic immunity cost-benefit calculus without throwing the whole system under the bus?

2012 U.S. Digest on International Law Now Available

by Duncan Hollis

Today, the U.S. Department of State released the 2012 edition of its Digest of U.S. practice in international law (for a brief history of these Digests see the accompanying press release here).  Under the editorship of CarrieLyn D. Guymon, the Digest addresses a number of key international legal developments from 2012, including the U.S. response to the crisis in Syria and the (failed) attempt to get Senate Advice and Consent to the Disabilities Convention and UNCLOS among other treaty action.  In addition, there was plenty of activity on the litigation and arbitration front:

U.S. government involvement in litigation and arbitration also contributed to the development of international law in 2012. In U.S. courts, the United States filed amicus briefs in two Hague Abduction Convention cases; opposed petitions for certiorari in two extradition cases; participated in litigation challenging the constitutionality of statutes implementing treaty obligations; and filed statements of interest and suggestions of immunity in several cases involving foreign sovereigns and heads of state. State and federal courts issued important decisions with international law implications, including: the Nevada Supreme Court’s remand of the death penalty case of Carlos Gutierrez due to the lack of consular assistance; the Fourth Circuit’s opinion that the definition of piracy under the law of nations is the definition contained in Article 15 of UNCLOS; and U.S. Supreme Court decisions that most of Arizona’s state immigration law provisions are preempted by federal law, and that only individuals—not corporations—can be liable under the Torture Victim Protection Act. The United States also made submissions to arbitral bodies, including a voluminous submission to the Iran-U.S. Claims Tribunal in Case B/1, several submissions to NAFTA and CAFTA tribunals, and submissions in arbitral proceedings initiated by the Republic of Ecuador against the United States which resulted in dismissal of Ecuador’s claims for lack of jurisdiction.

For a fuller summary of the Digest’s contents see here.  And go here if you want to see the Digest publication in its on-line form (chapter by chapter links are also available).

Diplomatic Immunity . . . For a Dog?

by Duncan Hollis

Article 37(1) of the 1961 Vienna Convention on Diplomatic Relations (VCDR) provides that a diplomat’s immunity extends to cover “[t]he members of the family of a diplomatic agent forming part of his household … if they are not nationals of the receiving State.”  As the Ottawa Citizen reports, the question is whether Canadian courts applying the VCDR should take the term “family dog” literally:

A lawyer representing the German Embassy is raising the diplomatic immunity flag over a carpenter’s plan to sue the ambassador and his wife after their dog bit him at their official residence last November…. [E]mbassy lawyer Kurt Anders says any such lawsuit would fail in court because Mark Liboiron and his lawyer, Howard Yegendorf, do not have a case against [Ambassador] Werner and Eleonore Wnendt….

Anders states Liboiron was “the author of his own misfortune” when he was bitten by Milou, a golden retriever, on Nov. 29. “The act of keeping a dog unleashed or uncaged was not the cause of your client’s alleged damages. Rather, it is your client’s provocation of the dog that led to any alleged harm. In fact, but for your client’s particular act of calling and taunting the dog, there would not have been any harm.” . . . .

Anders also takes exception to the pending legal proceedings against the Wnendts. “I am positive that a Barrister and Solicitor with your experience is aware of the Foreign Missions and International Organizations Act. … This statute provides for absolute immunity from criminal and civil liability in this situation. Since you must be fully aware of this fact, we wonder why the threat of legal proceedings is contained in your letter.” …

In a Public Citizen story last January, Liboiron said he had a calming influence on Milou, who often growled and snarled at his co-workers, and even at residence staff. Liboiron says the ambassador’s wife was impressed by the way Milou responded to him. But on Nov. 29, he says, after extending his right hand to Milou as the dog approached him, tail wagging, things went terribly wrong. The dog sniffed his hand and then suddenly chomped on it and wouldn’t let go. The carpenter says he furiously swung his arm back and forth several times, eventually smashing Milou into a wall before the dog released his hand. Beside the bite, Liboiron says he suffered damage to his arm, shoulder and neck from swinging the dog. He was on painkillers and underwent therapy for several weeks. He figures he lost about $8,000 in wages….

That the embassy would go [the diplomatic immunity] route, even before there was any threat of a lawsuit from Liboiron, was emphatically denied in January by former German press attaché Peter Finger. When Dolyn Developments, Liboiron’s employer at the time, could not get the German mission to reimburse it for about $5,000 in wages it paid the carpenter while he was recovering at home, it accused the embassy of abusing diplomatic immunity. Finger told The Public Citizen that the refusal to compensate Dolyn had nothing to do with diplomatic immunity. He said it was the embassy’s belief that Dolyn should recover the money it paid Liboiron from the WSIB [Ontario’s Workers Safety and Insurance Board]. Dolyn stopped paying Liboiron about two weeks into his recovery after he decided he was going to sue….

[Liboiron's lawyer] Yegendorf says that if the Germans present a motion that the lawsuit be dismissed due to diplomatic immunity, he will get a chance to cross-examine in trying to convince the court the lawsuit should proceed based on what Finger told the newspaper in January. “Finger clearly, in speaking, was speaking as a representative of the German government … and I think his statements bind the German government.” Yegendorf says Finger’s remarks played a part in his client’s decision to sue for lost wages as well as pain and suffering….

Meanwhile, Liboiron says he ate into his savings after he missed another three weeks or so of work to recover, without pay. “Pile of BS. I wish it had never happened. It’s not like I asked the dog to bite me.”

OK.  So, it’s not actually a case of diplomatic immunity for a dog; the immunity to be invoked will be that of the Ambassador and his wife.  Still, there’s some interesting questions here.  Does the German press attaché’s statements constitute a waiver of immunity?  I’m guessing it’s not express enough to do so.  In addition, in the United States, a plaintiff might have tried for the non-commercial tort exception under § 1605(a)(5) of the 1978 Foreign Sovereign Immunities Act (which, of course, requires a suit against the sovereign — Germany). I wonder if there’s a Canadian equivalent provision that could play in here?  I’d welcome comments from those with more knowledge of Canada’s approach to diplomatic immunity.  Any dog lovers out there should feel free to weigh in as well.