Author Archive for
Duncan Hollis

What if Everyone Thought Congress Could Expand its Powers in Implementing Treaties?

by Duncan Hollis

Things are starting to heat up around the pending U.S. Supreme Court case Bond v. United Stateswhich will test the scope of Congress’s power to implement U.S. treaties.  The case is a big one — challenging as it does the holding of the most famous of U.S. foreign affairs law cases — Missouri v. Holland and Oliver Wendell Holmes’ wonderfully written (if somewhat ambiguous) opinion.  The amicus briefs are pouring in.  And with lots of lurid facts regarding affairs, revenge and chemical weapons, I assume the case will garnering increasing interest from the main stream media.

There’s already plenty of scholarship on (a) the scope of the treaty power (I’m a fan, if not always a follower of, the work of Curt Bradley, David Golove and Ed Swaine on this topic) as well as (b) Congress’s power to implement U.S. treaties (jump-started by Nick Rosenkranz).  Most of that work employed originalist research along with textual and structural arguments (my own contribution was to note the Executive’s self-regulation with respect to relying on Missouri).

Amid the many many pages of treaty power-related research, however, there’s been remarkably little academic attention to subsequent historic practice — how the implementing power was perceived after the framing and before Holmes’ opinion in Missouri v. Holland.  So, it’s with great interest that I read Jean Galbraith‘s new article — Congress’s Treaty-Implementing Power in Historical Practice.  It examines that history and comes to a somewhat surprising conclusion:  prior to Missouri v. Holland, both those who favored and those who opposed expansive uses of the U.S. treaty power believed Congress had authority to implement otherwise valid U.S. treaties.  That’s a finding that clerks and others working on the Bond case might want to investigate and think about a bit more.  Obviously, it’s not going to be determinative, but I’d assume the historical practice should be referenced and incorporated into whatever outcome the Court reaches.

For those interested in a more nuanced summary of Jean’s article, here’s her abstract:

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.

Ratify the VCLTIO Now!

by Duncan Hollis

There’s lots of serious international and national security talk to be had today following yesterday’s NDU address by President Obama.  But, as part of my continuing quest to track international law in popular culture, I offer readers a bit of Friday afternoon levity:

9 Photos of Jennifer Lawrence that will make you Reassess the Scope of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations.

No, I did not make up that title.  The Onion did via an author(s) who clearly knows far too much about the law of treaties.  After all, a neophyte might poke fun at the paradox of Article 6’s assertion of general treaty-making authority for IO’s in a treaty.  But not the Onion.  They tackle larger issues such as was “the ILC’s decision to model the VCLTIO provisions as closely as possible on the structure and terminology of its mother treaty really wise, considering the vastly different characteristics of international organizations?”

Truly inspired.  And although one could take offense at the juxtaposition of photographs of a famous female actress with descriptions of international law, I’d think the Onion could have posted 9 photographs of anything from naval vessels to Frank Lloyd Wright homes and captions like this one would still be funny:

Hold on just a sec here. She’s beautiful, witty, down-to-earth, AND she reminds you that the Conference was unable to resolve the question of the rights and/or obligations that might arise for states’ members of an international organization from a treaty to which that organization is a party? Is this girl actually real?

In any case, I’m now drafting a petition to the White House urging President Obama to support quick Senate action on the VCLTIO, and maybe, just maybe, they’ll take a look at the little treaty that preceded it — the 1969 VCLT.

P.S.  I really hope whoever authored this got high marks on their international law exam — or at least now appreciates how such knowledge can come in handy in the unlikeliest of scenarios.

Cyberwar Games . . . In High School

by Duncan Hollis

I got my first taste of international law some 25 years ago when I joined my high school’s model UN team.  So, what does it says that today’s high school students have model cyberwar teams?  The link’s a bit short on details, but, I wonder whether they have a student playing the lawyer on each team?  I’d imagine any cyberwar scenario must trigger serious legal questions (e.g., the rules for active defense, distinction, and proportionality). Still, I’m guessing the answer is “no”.  Indeed, I’d bet the cyberwar gaming model has yet to integrate legal rules let alone norm entrepreneurs to advocate for them.  Readers with more info are welcome to weigh in.

Hat Tip:  Eugene Hsue

HILJ Symposium: Consent to the Use of Force, Jus Cogens, and Manifest Violations of Domestic Law

by Duncan Hollis

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

In my previous response to Ashley Deeks’ article, “Consent to the Use of Force and the Supremacy of International Law,” I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent.

Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.

This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context. (more…)

HILJ Symposium: International Versus Domestic Law: Supremacy, Surrender, or Co-existence?

by Duncan Hollis

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Ashley Deeks’ Article, “Consent to the Use of Force and International Law Supremacy,” is a deeply provocative and thoughtful work that makes two very important contributions to international legal scholarship. First, she exposes and explores a latent ambiguity in the role consent plays in the use of force context. Second, and more ambitiously, Deeks proposes invalidating consensual agreements to uses of force (and other security, intelligence, and law-enforcement activities) where the acting State did not inquire and ensure that its activities comported with the host State’s own laws. In doing so, she argues that international law no longer needs – or deserves – the supremacy it claims when it conflicts with certain domestic laws. In this post, I want to take up this second, larger, claim about international law supremacy (in a second post, I’ll offer my reactions to her proposal to have international law invalidate consensual agreements that do not comport with the host State’s domestic law).

Let me begin by emphasizing that I’m persuaded by Deeks’ descriptive claim that cases of “unreconciled consent” (where a host State consents to foreign State uses of force, drone deployments, renditions, etc., which the host State couldn’t perform under its own domestic laws) are occurring with increasing regularity. I’m also persuaded that unreconciled consent is a problem, particularly where the “permission” is granted in secret among executive agents who all have an interest in greater flexibility to operate free from any legal constraints. (more…)

Welcome Back IntLawGrrls!

by Duncan Hollis

Back in December, Peggy noted with sadness the shuttering of IntLawGrrls and the wonderful insights and coverage it had brought to the field of international law during its five-plus year run. Happily, it seems reports of IntLawGrrls’ death were a bit exaggerated.  Beginning this Sunday, IntLawGrrls will return to full activity, albeit with a new editorial structure (including my friend and colleague Jaya Ramji-Nogales) and a new site — www.ilg2.org.  The “official launch” is appropriately scheduled for next Friday, March 8 (International Women’s Day).   Check it out and be sure to welcome them back to the blogosphere!

 

An EJIL Symposium on Treaty Reservations

by Duncan Hollis

Last fall, I was very pleased that, in conjunction with the publication of my book — The Oxford Guide to TreatiesOpinio Juris was able to host an interesting (and I hope useful) discussion of the current state of international law on treaty reservations, including some prominent reactions to the ILC’s recent Guide to Reservations by Harold Koh, Marko Milanovic, David Stewart and Ed Swaine.

For those who are interested in the subject, I’m pleased to see that EJIL is preparing to publish a volume dedicated to the ILC’s reservations work, and, even better, that EJIL Talk! is making drafts of these papers publicly available while the editorial process is on-going.  Here’s how Marko describes it:

I am happy to announce that the EJIL will be publishing a symposium on the International Law Commission’s Guide to Practice on Reservations to Treaties.  The symposium was edited by Linos-Alexandre Sicilianos and myself, and features contributions from Alain Pellet, Michael Wood, Daniel Mueller, and Ineta Ziemele and Lasma Liede. It will most likely be coming out in issue 3 of this year’s volume of the Journal, but because of the symposium’s topicality we have decided to post the unedited drafts online in the meantime, as part of NYU’s Jean Monnet Working Papers Series.  Comments are of course welcome, and we will likely be hosting a further discussion on the symposium on the blog once the final papers come out in the Journal.

For a summary of each of the contributions, see the rest of Marko’s post here.   You can get copies of the current papers themselves here.

 

A Native American Mutual Defense Treaty Against Tar Sands Projects

by Duncan Hollis

Last week, a Ceremonial Grand Council was held on Ihanktonwan homelands (located within the boundaries of the U.S. State of South Dakota) which concluded and negotiated the “International Treaty to Protect the Sacred from Tar Sands Projects”.  I can’t find a specific list of participants, but news reports suggest signatories included representatives from an array of U.S native American Tribes and Canadian First Nations.  The treaty (see here for the text) is seven articles long, most of which involve establishing the authority of indigenous peoples’ over their remaining land, including the authority to oppose tar sands oil projects (tar sands are unconventional oil deposits in sand and sandstone that are saturated with a particular form of petroleum; oil is produced from these deposits either by strip mining or using wells that inject steam, solvents and/or hot air into the sand).  The treaty signatories oppose oil work on tar sands for manifold reasons, including their degradation of the “the soil, the waters, the air, sacred sites, and our ways of life”.  In Article VI, the signatories

[A]gree to mutually and collectively, as sovereign nations, call upon the Canadian and United States governments to respect our decision to reject tar sands projects that impact our sacred sites and homelands; to call upon the Canadian and United States governments to immediately halt and deny approval for pending tar sands projects because they threaten the soil, water, air, sacred sites, and our ways of life; and, confirm that any such approval would violate our ancestral laws, rights and responsibilities.

Article VII then goes on to establish a mutual defense commitment of sorts, wherein the signatories

[A]gree to the mutual, collective, and lawful enforcement of our responsibilities to protect our lands, waters, and air by all means necessary, and if called on to do so, we will exercise our peace and friendship by lawfully defending one another’s lands, waters, air, and sacred sites from the threat of tar sands projects, provided that each signatory Indigenous Nation reserves and does not cede their rights to act independently as the tribal governments see fit to protect their respective tribal interests, further provided that each signatory Indigenous Nation reserves its inherent sovereign right to take whatever governmental action and strategy that its governing body sees fit to best protect and advance tribal interests affected by the pipeline project consistent with the agreements made herein and subject to the laws and available resources of each respective nation.

I find this treaty enormously interesting from a constitutional and international law perspective.  Of course, the treaty implicates other issues as well — environmental degradation, indigenous peoples’ rights, Canadian law, etc., but I’m not enough of an expert to opine on such questions.  Whatever its merits, though, I wonder what legal authority U.S. Native American tribes had to consent to conclude this treaty, let alone consent to be bound by it in the future (which the treaty says will occur via ratification by the “governing bodies of the signatory nations”).

[Update: Stephanie Farrior writes in with an important clarification.  Although the United States, Canada, New Zealand and Australia all initially opposed the the UN Declaration on the Rights of Indigenous Peoples, all four states have since formally expressed their support for the Declaration: Australia in 2009, and Canada, New Zealand and the United States in 2010]

Ps&Is for DWIs – What should the Public Know?

by Duncan Hollis

In order for diplomatic missions to function, international law has long accorded diplomats and their families immunity from all local criminal laws.  And when a major crime occurs involving a diplomat, there’s often a lot of press attention on the case by virtue of the privileges and immunities (Ps&Is) involved.

But Ps&Is aren’t limited to allegations of rape or manslaughter, they extend to ALL local laws, often posing problems for the host State as it tries to police dangerous behavior while also complying with its international law obligations.  So, how do States deal with day-to-day misdemeanors or mid-level criminal activities?  In Australia, they write letters.  As this story in ninemsn notes:

More than two dozen foreign diplomats and consular officials have been warned about repeated or serious driving offences on Australian soil over the past three years.

The offences include drink driving, speeding more than 30km/h over the limit, running red lights, driving while talking on a mobile phone and not wearing a seat belt. But none of the offenders can be prosecuted or even lose their driving licence because of diplomatic immunity.

The offences are outlined in 26 warning letters sent by the Department of Foreign Affairs since 2010 to the heads of various foreign embassies and consulates about members of staff who had lost seven or more demerit points on their licence or who were involved in a serious driving incident that came to the attention of police.

One letter describes a diplomat who lost 15 demerit points from 11 speeding fines in just 15 months. Another refers to a diplomat who was deemed too drunk to continue driving after being intercepted by police on Canberra’s Commonwealth Avenue Bridge at 1am on a Sunday. Police only agreed to release him when one of his own passengers agreed to get behind the wheel and take him home.

The story links to the actual letters sent out by the Australian Foreign Ministry – see here.  I found the extensive redactions especially interesting — looking at the documents, you don’t know who did what or what government she or he represented.  The Australian Chief of protocol explains that disclosing such details could damage Australia’s good relations with foreign governments and “their willingness to cooperate and communicate with Australian government officials in the future.”

Hmmm.  Now, I’m a supporter of P&Is for their functional value — I truly believe they are a key cog in diplomatic machinery.  But, I’m less sanguine about the lack of transparency the Australian letters suggest.

Supreme Court decides to revisit Missouri v. Holland after all!

by Duncan Hollis

Just a quick entry (it’s late here in Tokyo) to note that the Supreme Court is going to hear the case of U.S. v. Bond, which, in effect, revisits the question of Missouri v. Holland and the scope of Congress’s power to implement U.S. treaty obligations.  Over at Volokh this past week, Nick Rosenkranz and Rick Pildes have been debating that constitutional question in some detail (see here for links to all their posts in one place).  I’ll have more to blog on this later, but for now, my plea is an editorial one.  I think Holmes’ opinion in Missouri is one of the most well-written in the pantheon of the Court’s great cases.  So, if the Court’s going to mess with it — and as I’ve said before I don’t think they should — I’d hope that the current Court can adjust Missouri with something of equal eloquence.

Hat-tip — SCOTUS blog

Still Waiting to Revisit Missouri v Holland?

by Duncan Hollis

I’m in Tokyo for the Spring semester teaching in Temple Law’s semester abroad program.  But that hasn’t stopped me from watching the Supreme Court, particularly its decision on whether or not to revisit Missouri v Holland via the case of Carol Anne Bond and the question of the scope of Congress’s power to implement U.S. treaty obligations (SCOTUS blog has many, if not most, of the relevant pleadings on-line here).

When I blogged about it last October, I’d assumed we’d know by now whether the Court was going to take up the case, or as I thought, decline certiorari.  Well, it’s now mid-January and we’re still waiting.  As John Elwood notes over at SCOTUS blog, the Bond case was relisted again this week — making it six times now for those of you keeping count.  I guess the best we can say about the continued delay is that it’s hard to imagine the Court continuing to relist it much longer (although who am I to say that they won’t go for lucky number 7 next).  In any case, it’s probably worth keeping a closer eye on the Court in the weeks ahead to see if it decides to grant or deny cert.  The latter decision could have especially large foreign affairs law implications in theory, if not in practice.

China invokes UNCLOS in claiming sovereignty over the Diaoyu/Senkaku Islands

by Duncan Hollis

I’m gearing up for a Spring Semester teaching at Temple’s Tokyo campus.  As part of my preparations, I’ve begun to read-into some of the maritime boundary disputes between China and Japan that have caused so much friction between the two nations of late.  Recent news reports have emphasized (i) China’s moves by air and sea to challenge Japanese control over waters surrounding what the Japanese refer to as the Senkaku Islands (or the Diaoyu Islands if you’re on China’s side) and (ii) how the new Japanese government may be more hawkish in responding to such measures.  So, perhaps it’s not surprising that China’s now also beginning to push its case legally, invoking UNCLOS’s provisions on delineating continental shelf rights beyond its 200 nautical mile Exclusive Economic Zone.

Specifically, UNCLOS Article 76 provides in paragraphs 7-9:

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

China submitted its initial continental shelf claim in 2009.  This past Friday, December 14, China provided an additional “partial submission” on its claims to the East China Sea.  Here’s the key take-away from that submission:

The geomorphological and geological features show that the continental shelf in the East China Sea (hereinafter referred to as “ECS”) is the natural prolongation of China’s land territory, and the Okinawa Trough is an important geomorphological unit with prominent cutoff characteristics, which is the termination to where the continental shelf of ECS extends.  The continental shelf in ECS extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of China is measured.

You can access the full text of China’s submission here (and, if you’re interested, you can also read  Japan’s earlier submissions or see here for the Japanese Foreign Ministry’s take).

I don’t hold out much hope that UNCLOS or the Continental Shelf Commission will actually determine a resolution to this on-going dispute.  But, I am hopeful that China’s move to legal argumentation may give both sides a forum in which cooler heads can prevail, in stark contrast to other existing fora where things have gotten quite heated (see, e.g., the Japanese government’s move to buy the islands, or the scrambling of military aircraft to respond to Chinese vessels transiting the territory).  In any case, the legal and political ramifications of this dispute clearly will bear close watching.