I wanted to briefly point our readers to this smart oped in today’s NY Times from OJ’s own Peter Spiro on the constitutionality of Donald Trump’s proposed ban on Muslim immigration into the U.S. Peter argues that, contrary to many people’s expectations, such a ban would be constitutional. And that’s the problem. Read the whole thing!
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State Department Confirms that Senators Rubio and Cotton were Right, Professors Ackerman and Golove were Wrong
I can’t resist one final post to complete an earlier discussion between myself and professors Bruce Ackerman and David Golove on the legal status of the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran Nuclear Deal. As several others in the blogosphere have noted, the U.S. State Department has confirmed, in a letter to Congress, the following:
The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JPCOA reflects political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.
This letter confirms that, contra the argument advanced by Professors Ackerman and Golove in the Atlantic and on this blog, the JCPOA is NOT a congressional-executive agreement authorized by Congress when it passed the Iran Review Act last spring. Rather, the entire JCPOA is a “political commitment.”
As Professor Ramsey correctly notes, this means that Senator Marco Rubio was quite right in saying that, if elected President, he could withdraw the JCPOA without violating U.S. or international law. It also means that Senator Tom Cotton was quite right, as a practical matter, in his famous open letter saying that the next US president could withdraw the agreement. And it means (less importantly in the grand scheme of things but important for me), that I was right in saying that the JCPOA is not a congressional-executive agreement.
The larger issue is this: If the President is going to go around making political commitments, that’s fine. But he should be clear that this is what he is doing so that smart people like Professors Ackerman and Golove don’t get confused into thinking he is making a binding agreement.. As Dan Bodansky explains, the U.S. is going to make the Paris Agreement a political commitment (at least with regards to emissions reductions). As I’ve been arguing here and elsewhere, the U.S. should be clear about what it is doing in Paris, and what it is not.
Reports suggest that the Japanese government will resume whaling in the Southern Ocean near Antarctica early next year. This news is causing lots of teeth-gnashing and anger in Australia and New Zealand, whose governments had brought and won a recent International Court of Justice decision finding Japan’s previous whaling program in violation of the International Whaling Convention. The news also reveals (again) the limits of the ability of international dispute settlement system to change a country’s behavior.
Japan had previously said it would abide by the ICJ decision. It did so by canceling whaling for one season and ending the program that the ICJ had said did not satisfy the “scientific research” exemption. But Japan’s resumption of its whaling program signals that it believes its new program is consistent with the “scientific research” requirement. I believe that it has the right to resume a new whaling program under the scientific research exemption without violating the ICJ’s judgment.
Of course, it might turn out that the new program is also in violation of the IWC’s “scientific research” provision, but the ICJ decision from 2014 does not require Japan to completely give up all whaling. Indeed, although Australia sought a remedy from the ICJ requiring Japan to “refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII..,” the ICJ simply noted that Japan was already under this obligation (see para. 246). Therefore, the ICJ explained: “It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII of the Convention.” It looks like Japan has done so, and it has now granted more permits under Article VIII.
Australia’s Environment Minister has said that Japan cannot “unilaterally” decide that its new whaling program is in compliance with Article VIII of the IWC. Actually, legally speaking, Japan can do just that. The only legal remedy Australia is left with is another ICJ lawsuit. But that is going to be a problem since as of October 6, 2015, Japan has withdrawn from the compulsory jurisdiction of the ICJ with respect to “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.” I think Australia might simply argue that Japan is in violation of the previous ICJ decision, but this will be a tricky argument on jurisdiction (and will take another five years to resolve).
So what’s the lesson here? It is risky to place too many of your eggs in the “international court” basket, even when you are suing a liberal, generally international law-abiding country like Japan (Philippines, take note!). It is too easy to either ignore or simply work around the obligations of international courts in these types of cases. And, importantly, while the cost to a country’s reputation may be severe when it violates or works around an international court order, reputation costs are seldom high enough to actually change a country’s behavior. (For a very good summary of this whole saga, see Philip Clapham’s essay here). Australia and New Zealand should probably think about some other remedies besides international court litigation. And I guess the Whale Wars truce is over.
I’ve received some very good (though pretty much all critical) comments to my original post defending the consistency of the recently enacted U.S. Space Act with the Outer Space Treaty. I will concede that my reading of the statute and treaty is not exactly a cut and dried simple legal issue. But I think too much of the reporting on the Space Act has made it seem like it is a clear violation the other way. (See here, here, and here.)
One thing that few of these articles note is that the U.S. House of Representatives Committee on Science, Space, and Technology did study the question of the Outer Space Treaty when it reported out this legislation. They reasonably concluded that allowing private companies to exploit celestial bodies is not a “national appropriation” within the meaning of the Outer Space Treaty. Indeed, this has long been a position of the United States. For instance, the House Committee noted that in 1980, the U.S. State Department’s Legal Adviser explained that
`The United States has long taken the position that Article 1 of that treaty [Outer Space Treaty] . . . recognizes the right of exploitation. We were and are aware, however, that this view is not shared by all States or commentators, some of whom take the position that the nonappropriation provisions in Article [II] of the 1967 Treaty preclude exploitation of celestial natural resources and the reduction to private property.”
It is also worth noting that State Practice seems to lean in favor of allowing the use of materials from outer space. Again, from the Committee’s discussion:
State practice is consistent with finding that exploration and use of outer space includes the right to remove, take possession, and use in-situ natural resources from celestial bodies. The United States, Russia, and Japan have all removed, taken possession, and used in-situ natural resources. These activities have never been protested by a State party to the treaty or judged in a court of law to be in violation of the Outer Space Treaty.
Indeed, some moon rocks taken by the Russian government have actually already been sold to private parties at Sotheby’s auctions in recent years.
Finally, the Committee cites Article VI of the Outer Space Treaty as recognizing that non-governmental entities can carry on activities in outer space, as long states bear international responsibility for those private activities.
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
I will again note that this reading of the Outer Space Treaty is hardly slam-dunk, but I think it is a quite reasonable one that is at least as persuasive as the interpretation offered by the critics. I think it is worth noting that State practice leans in favor of the U.S. here, which is not decisive, of course, but it is helpful nonetheless. I also don’t think the U.S. ever would have committed itself to a flat out ban on commercial exploitation of outer space when it signed the Outer Space Treaty.
In any event, we will see how things spin out. As I noted, it is possible we will one day need an “Authority’ like that created for the international seabed, but not just yet.
Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources. Here is some key language from the bill, which President Obama is expected to sign.
“§ 51303. Asteroid resource and space resource rights
“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
There is also Article II, which seems to restrict claims of sovereignty in outer space.
Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.
I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.
On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same. Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.” Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations. Can the U.S. live with that result?
I think it can. In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible. We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject. There will be plenty of time for that.
I had the honor and pleasure of testifying today before the U.S. Senate’s Environment and Public Works Committee. The topic of the hearing was “Examining International Climate Negotiations” and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a sole executive agreement. I further argued that the Senate should require to the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments.
You can watch the oral testimony and the questions below on C-SPAN (my testimony starts around the 11’40” mark. Almost all of the testimony has to do with the substantive merits of such an agreement (about which I express no opinion), as opposed to the legal aspects. So I will go ahead and declare victory for my argument by default.
Ilya Somin has updated his post at the Volokh Conspiracy to include my critique, and his response to my critique. I just want to add two more points to our little debate on the domestic legal effect of the North Atlantic Treaty’s Article V collective self-defense clause before we put it to rest. (For those of you looking for a broader discussion on the Paris attacks than our legal parsing, I recommending joining this Federalist Society teleforum today here at 2 p.m. EST).
1) Ilya argues that “[w]hile the use of force is discretionary under Article 5, treating an attack on an ally within the designated area as if it were an attack on the US itself is not… And in the event of an enemy attack on the US itself, the president has the legal authority to use force of his own volition, without additional congressional authorization”.
This is an interesting point, and I agree with Ilya that the President can use military force to defend the U.S. without going back to Congress. So Ilya is reading Article V as a pre-authorization to the President to defend treaty allies with military force as if it were an attack on the United States.But this reading calls into question how much military force the President can use under this “pure” self defense rationale. Surely, President Bush was authorized to defend U.S. territory on 9/11 and its immediate aftermath. But did the 9/11 attacks also authorize the President to start bombing, and then to invade Afghanistan, without going back to Congress? In other words, does the self-defense rationale allow all offensive actions against the attacker up to and including invasion and occupation of another country?
Similarly, do the Paris attacks(assuming Article V were invoked) allow President Obama to launch military strikes (and maybe invade and occupy) Syria? Surely, the President could have ordered U.S. forces to defend France without Congress. But I’m just not sure the Article V self-defense rationale gets Ilya all the way to a full-scale war on ISIS.
2) On a historical note, Ilya takes issue with my characterization of the legal rationale for Article V as allowing the U.S. and its allies to comply with the UN Charter’s rules on the use of military force. He argues that “[t]he true main purpose of Article 5 is to commit the signatories to a system of collective defense against attack…”
I don’t disagree that this was Article V’s “main” purpose, but my original post was focused on the legal purpose of Article V. On that front, I think it is safe to say Article V was about ensuring NATO was in compliance with the then-new UN Charter, and much less about re-allocating war powers under the U.S. Constitution.
I should hasten to add that I am in favor of a robust military response to the Paris attacks (actually, I was in favor of a robust response before the Paris attacks too). And unlike Ilya, I think the President has broad powers under the Constitution to use military force without explicit congressional authorization. I just don’t think collective self-defense treaties like Article V are needed to authorize unilateral presidential action against ISIS.
Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law. Here is Ilya:
Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.
I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best. But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.
Here is the full text of Article V:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .
I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.” But I don’t think Article V requires the other NATO members to provide military assistance. Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).
I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.” But I don’t think it has to.
Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added). I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.” If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress. This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.
Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.
In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers. The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are). Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter. That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter. But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.
Simon Lester of Worldtradelaw.net and the Cato Institute offered a very interesting pro-free trade argument against the inclusion of investor-state dispute settlement (ISDS) in trade agreements like the TransPacific Partnership or the Transatlantic Trade and Investment Partnership. I disagree and we discussed and debated the issue today in a lively conversation hosted by Columbia University’s Center for Sustainable Investment.
U.S. commentary has largely celebrated the UNCLOS Arbitral Tribunal’s award finding it has jurisdiction to consider the merits on many of the Philippines’ South China Sea related claims against China. Perhaps the most positive note is found in Jill Goldenziel’s essay at the Diplomat entitled, “International Law Is the Real Threat to China in the South China Sea.”
But just by getting this far, the case already has important implications for the use of international courts to manage and resolve international conflicts. International law has become a weapon of the weak. Countries that cannot afford or have no chance of winning military conflicts have increasingly turned to courts to resolve territorial, economic, and human rights claims. Other countries are closely watching the Philippines as they consider similar options for asserting their own rights in the South China Sea and beyond. Vietnam, in particular, is considering filing a similar lawsuit. At the very least, the case may force China to engage in talks with its neighbors to resolve competing claims to the South China Sea. By doing so, China can save face and claim to resolve the disputes on its own terms. If law can bring China to its knees, cases involving the South China Sea will have ripple effects far beyond its shores.
For my own part, I am much more skeptical about the benefits of an arbitral award for the Philippines. As I argued last year, there is little reason to think China will suffer serious reputational consequences for defying the UNCLOS Arbitral Tribunal’s award on jurisdiction or on the merits. Why?
Because other cases involving “weak” nations using international courts against “strong” nations shows that “strong” nations suffer few consequences and rarely change behavior significantly. The most similar case to Philippines v. China is probably the 1986 ICJ judgment in Nicaragua v. United States. That case (also brought by the Philippines’ current lawyer Paul Reichler) resulted in the U.S. withdrawing from the compulsory jurisdiction of the ICJ, not showing up for the merits argument, and ignoring the ICJ’s final judgment on the merits in that case. While the U.S. suffered some negative votes in the General Assembly and had to veto several Security Council resolutions, it is hard to argue that the U.S. “complied” with the ICJ judgment as a result of the reputational costs it suffered by walking away. The U.S. never paid the compensation the ICJ held that it owed, and it stopped mining Nicaraguan harbors only years later.
Russia has also recently demonstrated the ability of a “Strong” state to ignore an international court ruling. After detaining a Dutch-flagged Greenpeace vessel and its crew in 2013, Russia faced a provisional measures proceeding in the International Tribunal for the Law of the Sea. That tribunal ordered Russia to “promptly release” the vessel upon the posting of a bond and to release the crew as well. Russia did not show up for the argument in court, and simply ignored the ITLOS order as well as a subsequent UNCLOS arbitral award.
Perhaps the Philippines will win some sort of leverage over China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either.
I have been curious to see how China would respond to yesterday’s UNCLOS Annex VII Arbitral Tribunal’s ruling finding it has jurisdiction to hear the Philippines South China Sea related claims. Well, the Chinese Ministry of Foreign Affairs was ready with this blistering response:
Q: The Arbitral Tribunal established at the request of the Republic of the Philippines rendered the award on jurisdiction and admissibility of the South China Sea arbitration. What is China’s comment on that?
A: The Chinese government will not accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. The Chinese Foreign Ministry has immediately released a statement to elaborate on China’s solemn position. The award is null and void, and has no binding effect on China. I would like to highlight three points.
First, China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. As a sovereign state and a State Party to the UNCLOS, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiations and consultations. China and the Philippines have repeatedly reaffirmed in bilateral documents since the 1990s and the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002 that they shall resolve relevant disputes through negotiations and consultations.
Second, disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures, misrepresented the law and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.
Third, as a State Party to the UNCLOS, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the UNCLOS, and calls upon all parties concerned to work together to safeguard the integrity and authority of the UNCLOS. China urges the Philippines to honor its own commitments, respect China’s rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations. That is the correct path with bright prospects.
The full MFA statement is here, and includes a swipe at the Philippines for using the “cloak of law as a political provocation.” It is worth noting that China is still aiming most of its rhetorical fire at the Philippines, but it has also now directly criticized the Arbitral Tribunal for “abus[ing] relevant procedures [and] misrepresent[ing] the law….” I also detect a slightly larger emphasis in China’s complaint about the “unilateral” nature of this arbitration.
I am also impressed by China’s willingness to just ignore the clear provisions of Article 288(4) of UNCLOS, and simply declare that the Tribunal’s ruling is “null and void” and has “no binding legal effect.” At some point, someone in China is going to have to gin up a legal argument to get past UNCLOS’ clear language giving the Tribunal the power to determine questions of jurisdiction. But for now, it looks like China is going to stick to its guns.
There is a lot of interesting material revealed in the Charlie Savage NYTimes article on the legal justification for the Bin Laden raid (including how the Attorney General and Office of Legal Counsel were kept in the dark and out of the loop). But I want to focus on one paragraph in the article, which explained the lawyers’ backup justification for their conclusion:
There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.
Deborah has done some very good analysis here on the CIA’s views on this question, as applied to non-self-executing treaties. I think that is a tricky question. But there is also an easier question that was also probably settled in the lawyers’ legal memos. Like the Bush administration lawyers, the Obama Administration lawyers concluded that the President can choose to violate that customary international law without violating the Constitution or other domestic law.
Although this may seem obvious, it used to be a highly contested question. I dug up this discussion from a 1986 panel between leading international law scholars Louis Henkin, Anthony D’Amato, Michael Glennon, Abe Chayes and others. Almost none (even President Reagan’s legal adviser Abe Chayes) would have openly admitted that the President could violate customary international law. The Restatement of U.S. Foreign Relations Law suggests, but does not completely endorse the view that the President can openly violate customary international law. Indeed, there used to be a fair number of law review articles explaining why the President’s obligation to “Take Care” that the laws are faithfully executed include customary international law. But, if Savage’s reporting is accurate, the U.S. government (under both George Bush and Barack Obama) is no longer troubled by this question, and has moved on. So should the rest of us, apparently.