So says the WSJ’s account of today’s hearing on US ratification of UNCLOS. I still haven’t found the 193 minutes I would need to watch today’s UNCLOS hearing, but it seems like there is still some Republican opposition (remember it only takes 34 votes to block the treaty).

Wednesday’s hearing demonstrated the continued skepticism among Republicans toward the treaty. Sen. Robert Corker (R., Tenn.) said he hadn’t made a decision on ratification, but questioned how the Obama administration, which has been critical of the oil industry, could cite oil exploration in support of ratification. “My antennae are up,” he said.

Other Republicans said they suspected the treaty would impinge on American sovereignty, for instance, by forcing the U.S. to agree to international emissions controls to comply with treaty provisions on pollution over the oceans.

Sen. James Risch (R., Idaho), argued the treaty’s royalty-sharing provisions would essentially tax companies exploring the seabed, sending proceeds to developing nations and ceding American taxing authority to the United Nations. “My problem is with sovereignty,” he said. “If we give up one scintilla of sovereignty the country has fought for… I can’t vote for it.”

Sen. Jim Inhofe (R., Okla.) predicted the U.S. would have to give up more than $70 billion in royalties. “For the first time an international organization, in this case the United Nations, would have taxing authority over the U.S.,” Mr. Inhofe said.

Here is the website for the U.S. Senate Foreign Relations Committee with a (very long) video of the hearings on UNCLOS and the written testimony of Secretary of State Clinton, Defense Secretary Panetta, and Gen. Dempsey.

I am in grading hell right now, so I haven’t had time to go through the hearing video.  It looks, from my quick glance, to be the same exact arguments that have been made over the past 20 years on UNCLOS. (Did Sen. Lugar give that same statement back in 2002? Hard to say).   To move the ball along, we are organizing (for mid-June) an online debate on US ratification of UNCLOS between experts on the treaty.  Stay tuned!

Walter Olson at Cato has a sharp observation here at the Daily Caller, on the revolving door between U.S. international law professoriate and various UN bodies.

Mr. Anaya, the U.N. rapporteur, was sent on his mission by none other than the U.N. Human Rights Council, notorious, as Doug Bandow has written, for being “dominated by human rights abusers and their enablers.” (Fidel Castro has a seat, as did Libyan dictator Moammar Qaddafi until his overthrow.) What you wouldn’t have realized from most of the news reports — an exception was Claudia Rosett’s — is that Anaya is not just parachuting in from some U.N. redoubt in Geneva or the Hague. He’s an American law professor based at the University of Arizona and active in particular in the school’s Indigenous People’s Law and Policy Program, which he drew on to support his U.N. probe (he’s due to report to the Council itself this fall).

There’s a wider story here, which I told at some length in Chapters 10 and 11 of my book “Schools for Misrule” last year. In the 1970s, with inspiration from the law schools and backing from the Ford Foundation and other liberal funders, some advocates began a sustained effort to resuscitate old Indian land claims (often in the process casting a cloud on the title of European-descended occupants who have farmed or ranched the land for one or even two centuries). After years of havoc and uncertainty of rights, the U.S. courts in the past decade came down against the tribal claims, ruling that they are grounded neither in the Constitution nor in applicable statutory law. As it became clear that the land-claim litigation would fail in U.S. courts, advocates launched a new strategy of involving the U.N. system and other international organizations on the grounds that to deny the tribes the right to reoccupy old lands would be to violate their international human rights. Very helpful in this process has been the advance of a document called the U.N. Declaration on the Rights of Indigenous Persons (UNDRIP), which the U.S. long opposed and then, in an Obama turnabout last year, decided to support.

I think Olson is on to something here. First, he is undoubtedly right that various UN human rights bodies have become a court of last resort for advocates who have failed in domestic U.S. proceedings. (See, e.g., the NAACP’s failed effort to block voter ID laws). Second, he is also right that U.S. law professors, and indeed other law professors, often have a deeply intertwined relationship with UN Bodies, like the UN Human Rights Commission, that appoint them to various positions.  I’m not sure there is anything nefarious about this, but I think he is right that the standards for recognizing particular legal claims are different, and much more generous, in an international forum than in a domestic one. And that the aura of international objectivity that some might accord to a UN probe is largely undeserved.

My friend at the American Enterprise Institute, Michael Rubin, offers a fairly convincing critique of the effectiveness and efficiency of the U.S. Agency for International Development as its budget is taken up this week by Congress.

Take branding: Throughout the Middle East, especially in areas where anti-American sentiment is especially strong, the USAID refuses to put the USAID logo on its projects. To do so might lead insurgents to target USAID-funded schools, wells, or medical clinics. The problem is that skipping branding reduces to almost zero the benefit of the project. The goal of U.S. aid should not altruistic, but rather to bolster U.S. interests and influence. Diplomats talk about the need to win hearts and minds, but the multibillion dollar organization at the forefront of the battle too often surrenders before the fight. Nothing is more frustrating than to drive around Iraq and Afghanistan, seeing signs crediting Japan, Kuwait, the Badr Corps’ Shahid al-Mihrab Foundation or the Imam Khomeini Relief Committee for visible projects—gardens in traffic circles; housing projects; clinics; and electrical substations—but see no branding for USAID.

Compounding the problem is the fiscal irresponsibility of USAID. In Afghanistan, USAID would hire three times the local staff—drivers, cooks, and cleaners—instead of NGOs or contractors performing the same functions, and would spend more money on furniture, televisions, and equipment for offices. Rather than abide by the local market, USAID often would try to outbid contractors by offering landlords 300 percent more rent—a waste of taxpayer money that compounded itself as other U.S.-funded projects would have to keep up. Then, again, when the metric is money spent rather than results achieved, it’s easy to throw money around.

Rubin is not arguing against foreign aid, he is arguing against doing it through USAID.  Is it possible that the US is both cheap (in the amounts of foreign aid) and massively inefficient? Unfortunately, yes.

The standoff between China and the Philippines over the Huangyan Island/ Scarborough Shoal (see the island marked 黄岩 on the Chinese map to the right) has continued to fester over the past few weeks. CFR’s Asia Unbound blog has a nice summary here of the latest. The bottom line: The Philippines has been calling for restraint in recent days, but the Chinese seems to be escalating the rhetoric.

On Monday, He Jia, an anchor on China’s state-run CCTV, mistakenly declared that “China has unquestionable sovereignty over the Philippines” rather than just over the disputed island. On Tuesday, Chinese Vice Foreign Minister Fu Ying warned a Philippine diplomat that China was fully prepared to do anything to respond to escalation. Deep-water drilling has begun near islands in the South China Sea and Chinese travel agencies have reportedly suspended tours to the Philippines.

The Chinese Embassy in the Philippines is warning Chinese nationals to stay indoors during expected anti-China protests this weekend and most ominously, the Chinese military has been making bellicose noises:

“We want to say that anyone’s attempt to take away China’s sovereignty over Huangyan Island will not be allowed by the Chinese government, people and armed forces,” read the article in the official PLA Daily newspaper.

Finally, CFR notes that the dispute has also included Chinese hacking attacks on Philippines government websites, as well as Filipino retaliatory hacking.  This too is a front that could escalate since the Chinese government has shown no signs of trying to tamp down its own very nationalistic citizenry on this issue.  Things are not yet really bad, but, ominously, they are not getting better either. The U.S. should be thinking again about its obligations under the Mutual Defense Treaty. It is no longer a purely theoretical obligation.

U.S. Secretary of Defense Leon Panetta kicked off the U.S. Senate’s forthcoming debate on the UN Convention on the Law of the Sea yesterday with a speech pushing for ratification.  His comments were reinforced by General Martin Dempsey, chairman of the Joint Chiefs of Staff.  I am agnostic on whether the U.S. should join UNCLOS and the Panetta speech didn’t offer any particular reason for me (or anyone else) to get off the fence.

Essentially, Panetta (and the military) argue that UNCLOS “locks in” a system of territorial delimitation and maritime governance that benefits the U.S.  Without participating in UNCLOS, the U.S. rights to its continental shelf, its freedom of navigation, the Arctic, etc. would rest only on the foundation of customary international law.  And the U.S. would be unable to shape the development of the law without “a seat at the table.”

I guess I don’t really find this all that compelling.  As I understand it, if the U.S. stays out of UNCLOS, it could still assert all of the same rights that nations in UNCLOS could assert, albeit based on CIL, not treaty law. It seems to me the real disadvantage in staying out of UNCLOS is that the US loses access to UNCLOS procedures and UNCLOS entities.  For instance, it could not participate in the delimitation of the continental shelf under the Arctic.  But I don’t think a UNCLOS entity could force the U.S. to accept its determinations.  The U.S. could negotiate bilateral agreements with UNCLOS members to settle continental shelf delimitations.  It would be harder, but not impossible.

The bottom line for me is that I don’t find the need for the U.S. to join UNCLOS all that compelling.  On the flip side, I have never found the scary stories about the downsides of UNCLOS all that compelling either.  Joining will subject the US to binding arbitration, but that’s not a dealbreaker for me. The U.S. is stuck in binding arbitration in many different contexts. The concerns about funneling revenues derived from seabed exploitation through the UNCLOS Authority are real, but also relatively minor. This is not an “internal” tax on US domestic activities. It’s an external tax on US companies acting outside U.S. territory.

My main complaint about UNCLOS is somewhat more technical.  The provision obligating the U.S. to essentially give full faith and credit to judgments of the Seabed Disputes Chamber is of highly questionable constitutionality.  The State Department’s view that this is simply “non-self-executing” could be easily overturned in court, given the very clear language of the provision.  To be honest, this is still a mostly theoretical issue, since the Chamber has yet to even hear a single case, but it annoys me that this issue is being ignored and glossed over by both supporters and critics of UNCLOS.

In any event, expect lots of noise and grumbling this summer over UNCLOS. Like all debates, there will be lots of hype on both sides, and I will try my best to ignore it.

According to the Philippines Department of Foreign Affairs, the U.S. government has recently re-affirmed its obligations to defend the Philippines under the 1951 Mutual Defense Treaty.  This is a particularly sensitive time to re-affirm this commitment, given the ongoing tensions between the Philippines and China in the South China Sea.

But what exactly is the U.S. committing to here? Would the U.S. actually feel obligated to defend Filipino claims to disputed islands and territories in the South China Sea? Let’s go to the text of the treaty:

Article IV

Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Article V

For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.

This seems to include any attack on Filipino vessels in the South China Sea.  I don’t think there is a clear obligation to intervene, but it could certainly help legalize US intervention (under international law) in favor of the Philippines.  Notice how the U.S. is committed only to “act to meet the common dangers in accordance with its constitutional processes.”  I think that could mean a unilateral presidential action, depending on your reading of the US Constitution’s processes for warmaking.  In any event, it is a non-trivial guarantee, if a bit fuzzy, and China should beware.

The Chen Guangcheng saga is not yet completed, and indeed, as the NYT puts it, “what briefly looked like a deft diplomatic achievement for Secretary of State Hillary Rodham Clinton [has] turned into a potential debacle.”  I do hope Mr. Chen will find safety and justice soon, but I am not optimistic.

Until we discover his final fate, I thought I’d comment on one of the most curious parts of the Chen saga, especially to many average Chinese citizens.  Here we have the government of the United States bargaining round-the-clock with the Chinese government to guarantee the protection and rights of a Chinese national who lives in China and, who further, has no connection whatsoever to the United States.   In the eyes of many Chinese citizens, this is almost unbelievable (so unbelievable that some suspect a CIA conspiracy).  And for traditional international law, this is exactly the opposite of how things are supposed to work.  The human rights revolution has certainly had an impact in this respect, by focusing countries on the rights of non-citizens in their home countries.

But the human rights revolution has some serious institutional weaknesses.  One notices that Mr. Chen did not sneak into the U.N. mission in Beijing or call upon protection from a still abstract “international community.”  He went to the United States, which is considered one of the few powers  that would not be cowed by the Chinese government, and which is committed enough to human rights that it would not simply sell him out for their national interests (whether this is still true about the U.S. remains to be seen).

President Obama went to Afghanistan today to sign The U.S.-Afghanistan Strategic Partnership Agreement. The Agreement is a classic agreement to have further agreements, but doesn’t really commit either side to many specifics.  The most important thing they agreed to do is to negotiate a Bilateral Security Agreement within a year.  But other than agreeing to seek funds in Congress for further support for Afghanistan, this agreement doesn’t commit the U.S. (or Afghanistan) to do much of anything (even seeking funds is a future commitment, not a guarantee). So this is purely symbolic agreement that commits neither side to do much of anything in particular.  That hardly seems to justify a state visit by the President (unless the symbol of his visit itself is the purpose).

Is it a treaty? Nope, there is no prospect of it being sent to the Senate. It is, the White House says, an executive agreement.  And given the fuzzy nature of its commitments, I doubt anyone in the Senate would object.  But what about the Bilateral Security Agreement? That will also probably be concluded as an executive agreement.  But that agreement could have some serious obligations attached to it, and it would be an obvious candidate for treaty status.  But I’m betting that the Obama Administration will follow the example of their predecessors, and bypass the treaty process to conclude a sole executive agreement in that context as well.  Duncan’s post here on similar Iraq agreements suggests that this would probably somewhat questionable, as a legal matter. I am guessing Congress has no stomach for weighing in here, but that doesn’t mean they shouldn’t do so.

As far as I can tell, the NY state court reached the right conclusion by rejecting former IMF Chief Dominique Strauss-Kahn’s claim for immunity under customary international law.  It is also worth noting that the Court wisely dodged the tricky question of whether and how customary international law would affect the state case. The Court noted that some scholars (e.g. Curtis Bradley and Jack Goldsmith) have the view that customary international law must be congressionally or constitutionally authorized in order to be applied in U.S. court, while others (e.g. Bill Dodge) see it as a general federal common law applicable in all cases.  It is worth noting that the Court does not read Sosa as necessarily resolving this question, and simply holds that a congressional statute would override any customary law anyway, which he found was the case here.

This seems like a sensible way to proceed, and the judge should get credit for not being wowed by the unusual customary law claim.  In theory, DSK could appeal to a federal court on the theory that customary international law creates a federal question.  But I doubt very much that would succeed, or even be tried.

China’s famous human rights activist Chen Guangcheng (who even Christian Bale was beat up when he tried to visit) has somehow managed to escape from his two-year house arrest*  and may have made his way to the U.S. Embassy in Beijing.  Chen has released a powerful web video detailing the physical abuse he and his family have suffered during his house arrest and demanding that the Chinese government act.

If Chen truly has made it to the U.S. Embassy, he is hardly home free.  If, for instance, he seeks political asylum, he is out of luck.  I will let either Duncan or Peggy correct me on this if I am wrong, but I believe as a matter of policy, the U.S. does not consider asylum requests at their consulates and embassies.  As a matter of law, the U.S. does not view itself bound by the Refugee Convention to do so.  Of course, Chen may seek “sanctuary” but the U.S. has no obligation to give him such sanctuary and will only do so in exceptional or extraordinary circumstances.  Nor does China have any obligation to allow the U.S. to spirit him out of the country.  (I’ve been the U.S. Embassy in Beijing several times and I am a little surprised that Chen could have gotten past the Chinese guards who surround the place without the assistance of U.S. embassy personnel).

I should add that Chen’s public statements suggest he is NOT seeking asylum and he does not want to leave China (his family is still in house arrest).  But with Secretary Clinton headed to Beijing for a few days, this will no doubt become an issue in the already uncomfortable U.S.-China Strategic Economic Dialogue. And perhaps she can chat with Mr. Chen when she gets a snack at the Embassy kitchen. Mr. Chen may be a houseguest for a while.

*originally, the post read “six year” house arrest, but Mr. Chen was actually in prison for four years prior to his two-year house arrest.

I don’t have much to add to Peter’s pithy and insightful take on the Supreme Court’s oral argument today in Arizona v. United States.  I just wanted to emphasize the difficulty the federal government had in advancing, even rhetorically, its view that the federal government has an “exclusive” role in the management of immigration policy and foreign affairs.  Solicitor General made this argument several times, including here:

GENERAL VERRILLI: Well, what I think they are going to do in Arizona is something quite extraordinary, that has significant real and practical foreign relations effects. And that’s the problem, and it’s the reason why this power needs to be vested exclusively in the Federal government.

What they are going to do is engage, effectively, in mass incarceration, because the obligation under section 2(H), of course, is not merely state, and we don’t like it. They are sorts of problems. So we’re going to help Federal law. We’re not going to do anything to enforce section 2 to the fullest possible extent at the — at the risk of civil fine, but to enforce Federal immigration law, which is what they claim they are doing in section 3 and in section 5. And so — so, you’re going to have a  situation of mass incarceration of people who are unlawfully present. That is going to raise — poses a  very serious risk of raising significant foreign  relations problems.

And these problems are real. It is the problem of reciprocal treatment of the United States citizens in other countries.

JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?

I just don’t think, taken as a whole, that the Court showed any deep concern with the threat to foreign affairs or to the federal government’s control of foreign affairs.  The Court was focused like a laser beam on the language of the statute and how it would work in practice in tandem with existing federal law.  Broad claims that Arizona was interfering with foreign affairs, and that foreign affairs are exclusively vested in the federal government, were pretty much ignored and brushed aside.

In our book Taming Globalization, John Yoo and I argue against a broad foreign affairs preemption power, especially a dormant preemptive power.  While we accept that the federal government can preempt most state activities, we would require some explicit statutory intent to do so, or an unmistakeable executive policy or agreement.  My bet is that, even if Arizona “loses”, an exclusive federal foreign affairs power will not emerge in this case.