Author Archive for
Julian Ku

Why Professors Ackerman and Golove Are Still Wrong About the Iran Deal

by Julian Ku

I thank Professors Ackerman and Golove for taking the time to respond to my earlier post on whether a future President could unilaterally withdraw from the Iran Nuclear Deal.  But I remain unconvinced by the claims they made in their original Atlantic essay that a future President’s unilateral withdrawal from the Iran Deal would be “lawless”. Here’s why I still think they are wrong:

1)  Ackerman and Golove argue that the Iran Nuclear Agreement Review Act “authorizes” President Obama to enter into binding congressional-executive agreement with Iran.  In their sur-reply, Professors Ackerman and Golove cite two pieces of statutory text from the Iran Nuclear Agreement Act which they say is congressional authorization for the President to conclude the Iran Deal (the JCPOA).  They point out that the act “specifically defines ‘agreement’ to include any accord with Iran ‘regardless of whether it is legally binding or not.’ § 2610e(h)(1).” They then point out that the Act “authorizes the President to implement sanctions relief unless Congress enacts ‘a joint resolution stating in substance that the Congress does not favor the agreement.’ 42 U.S.C. § 2610e(c)(2)(B).”

For the purpose of this argument, it doesn’t really matter whether the agreement is legally binding or not.  The real problem is that Professors Ackerman and Golove do not (and cannot) cite statutory text “authorizing” the President to enter into an agreement with Iran.  They can’t cite this text because that language does not exist in the Act.  The Act defines an “agreement” broadly because Congress wants the President transmit everything, including supporting materials and annexes, to Congress.  The Act suspends the President’s pre-existing power to suspend or terminate sanctions on Iran while Congress “reviews” the agreement.  Congress may vote a resolution of disapproval, which would prevent the President from lifting or waiving sanctions, but it doesn’t say he can’t enter into the Agreement.  But Congress may also simply do nothing (which is what it has done), which would also allow the President to lift the sanctions after 90 days.  Nothing in the Act says the President can’t enter into the Agreement. It just says, once he does so, he has to disclose that agreement to Congress and hold off on implementation.*

Professors Ackerman and Golove somehow read this framework as an authorization of the President’s power to conclude an agreement, but a more plausible reading of the Act as a whole sees it as a suspension of the President’s pre-existing power to implement an agreement.  If you think (as I do) that the President has broad powers to conclude international agreements (especially nonbinding ones) without Congress, then this law makes a lot of sense since it requires the President to suspend implementation of the agreement for 60 or 90 days and disclose all information about the agreement.

Under the Ackerman/Golove reading of this language, Congress has authorized the President to enter into whatever agreement with Iran he wants, and the only condition it places on it is that Congress gets 90 days to review it before it automatically goes into effect. Why would  Congress bother to give the President the power to enter into an agreement without reserving for itself the power to approve it?

It is worth noting that Congress knows how to specifically authorize an executive agreement, and require its approval before going into effect.  In Section 103(b) of the Trade Promotion Authority Act (enacted about the same time as the Review Act), Congress states that:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

[Emphasis added].

Moreover, the trade agreements require approval by a separate Act of Congress.  As the TPA bill makes clear in Section 106, no agreement “entered into under section 103(b) shall enter into force with respect to the United States if (and only if)—” among other requirements — “(F) the implementing bill is enacted into law.” [Emphasis added).  Again, Congress is making clear that it ( and not the President) is the one who has authorized the agreement and that the agreement cannot have any force until Congress acts to approve and implement it.

It bears repeating: there is no language even remotely like this in Iran Nuclear Agreement Review Act. There is no language saying the President can enter into an agreement, nor is there language explaining when that agreement has “entered into force.”  Congress knows how to authorize an international agreement, and the most natural reading of the Iran Nuclear Agreement Review Act is that it didn’t do so there.

2) Professors Ackerman and Golove also argue that a future President cannot legally (under U.S. law) terminate this agreement without either approval from Congress or without undermining U.S. credibility in trade agreements like NAFTA or the WTO.

I find this argument lacking for at least two reasons.

First, as I stated above, the Iran Nuclear Agreement Review Act doesn’t follow the pattern of trade promotion authority laws  in any way so it is highly unlikely that any trading partners will worry about a President Rubio pulling out of the WTO because he pulled out of the JCPOA. (Simon Lester makes that point here)

Moreover, the Review Act does not in any way prohibit a future President from withdrawing from the JCPOA, nor does it prohibit the President from reimposing sanctions on Iran. He is perfectly free to put them back on without violating the Review Act or any other U.S. statutory law.

The contrast with trade agreements is again instructive because Congress knows how to reserve to itself the power to terminate an agreement.  Under Section 125 of the Uruguay Agreements Implementation Act, Congress can vote every five years on whether to pull out of the WTO. This suggests that Congress has reserved for itself some power to terminate the WTO agreement. And because the laws implementing the WTO agreement change all sorts of other U.S. laws, it makes sense for Congress to supervise how and when the U.S. gets out. (It bear repeating: terminating the JCPOA does NOT violate or change any U.S. domestic law).

Second, as I noted in my original post, even if the Iran Deal was a treaty approved by the Senate, there is good reason to think the President could withdraw from the Iran deal-treaty without going back to the Senate for approval.  President Bush withdrew from the Anti-Ballistic Missile treaty without going to the Senate, President Carter withdrew from the U.S.-Taiwan defense treaty without going to the Senate, etc.  For this reason, a future President could withdraw from the JCPOA (even if the JCPOA is legally binding) without going back to Congress, especially where the Review Act does not reserve to Congress any termination rights.  Thus, even if Professors Ackerman and Golove are right that the Review Act authorizes the President to enter into an agreement, it doesn’t REQUIRE him to do so or REQUIRE him to stay in the JCPOA. (And he can withdraw via the JCPOA’s provisions if he chooses).

In conclusion, I am back where I started.  Professors Ackerman and Golove use the thinnest of statutory language to claim that Congress “authorized” the President to make an agreement, and further, that Congress has also prohibited the President from withdrawing from it.  That’s a lot of work for a mere definition of the word “agreement” to carry. It’s far too much, especially when one considers the way Congress goes about its business in the trade agreement context.  The next President can unilaterally withdraw from the JCPOA. And, with all due respect to Professors Ackerman and Golove, such a withdrawal will be the opposite of “lawless.”

 

*As a side note, the fact that the definition of an agreement includes non-binding political commitments suggests that Congress is really after review and disclosure, not authorization and approval.  Could Congress authorize the President to enter into a non-binding political commitment? And then require him and future presidents to stick to such a commitment?

President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”

by Julian Ku

Professors Bruce Ackerman and David Golove argue in this Atlantic essay that the next President cannot withdraw from the Iran agreement because it is a “congressionally authorized executive agreement.” They argue that Senator Marco Rubio’s pledge to terminate the Iran Deal on day one “would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization….The President can no more walk away from them than he can from any other law or treaty.”

I am sorry to say that this article, which comes from two super-respected legal scholars, is deeply and badly mistaken.

This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.

But this premise is wrong.  The U.S. government has repeatedly stated (see here)  that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here).   Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).

Nor does the Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments. The Review Act simply sets up a disclosure and timetable regime for the President’s disclosure of his foreign affairs activities that he wouldn’t otherwise have to disclose to Congress.

It is nothing like the Trade Promotion Authority that the President has received to conclude trade agreements like NAFTA or the WTO. While the Review Act discusses agreements that were already made and sets out disclosure and timing requirements, Trade Promotion Authority laws (like the most recent one) say things like: “the President— (A) may enter into trade agreements with foreign countries before” certain dates and then cannot afterwards.”  This is explicit authority, and no similar language can be found in the Iran Nuclear Agreement Review Act.

In any event, Ackerman and Golove are also mistaken on a more mundane point. Even if the Iran Deal is a binding congressionally authorized international agreement, a future President could withdraw from such an agreement unilaterally.  This is true because: 1) the JCPOA itself has an “exit ramp” under Paragraph 36 which allows the U.S. to terminate its participation after 35 days if its concerns about Iran’s compliance are not satisfied; and 2) the President appears to have broad constitutional powers to unilaterally terminate treaties without Congress or the Senate’s approval.  Surely, the President could terminate a nonbinding voluntary “plan of action” without going back to a Congress that didn’t really authorize him to make an agreement in the first place.

Even though I am increasingly convinced that the Iran Nuclear Deal is a bad deal for the U.S. and Europe (not to mention Israel), I have publicly defended the legality of President Obama’s decision to conclude a nuclear “agreement” with Iran without going to Congress to get approval. But the decision to bypass Congress has got to have a price for the President.  And that price is that the Iran Deal does not bind his predecessor either as a matter of constitutional or international law.

The Difference Between the British and American Debates Over the Legality of Drone Strikes: The Brits Seem to Care About International Law

by Julian Ku

Earlier this week, British Prime Minister David Cameron announced that the UK had conducted a lethal drone strike against one of its own nationals (affiliated with ISIS)  in August and that the British government was confident of the strike’s legality under international law.

As an outside observer, I am fascinated at how important the drone strike’s legality under international law seems to be for UK policymakers and commentators.  The BBC’s useful analysis of “Who, What, Why: When is it legal to kill your own citizens?” is exclusively focused on the legality of the strike under international law.  So is this editorial from the UK newspaper The Independent.

To be sure, the US debate over drone strikes also dealt seriously with international law.  But the most powerful legal arguments against drone strikes were those made on the basis of the U.S. Constitution’s Due Process Clause and U.S. statutes criminalizing murder of U.S. nationals abroad. International legality has not played a big part in this litigation, nor even in its broader public debate. Senator Rand Paul of Kentucky famously filibustered for a whole day against targeted killings but his legal complaint was wholly constitutional.

But as far as I can tell, there has been little discussion of whether the UK government’s killing of a UK national abroad violates the UK Human Rights Act (incorporating the European Convention on Human Rights) or UK statutory law more generally.  I may be missing something, but it does seem a telling difference in the nature of public and legal discourse in the two countries.

 

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

Podcast Special! Why the Iran Deal is Constitutional, But Could Still End Up in U.S. Court

by Julian Ku

Due to my typical mid-summer lassitude (and a family vacation among the redwoods in California), I have not participated in the excellent legal blogosphere debate over the constitutionality of the Iran Nuclear Agreement which has included contributions from Jack Goldsmith, John Yoo, Michael Ramsey, John Bellinger, David Rivkin and many others.  Luckily for me, Prof. Jeffrey Rosen and the good folks at the National Constitution Center allowed me to share my thoughts in a podcast discussion with David Rivkin, who with his co-author Lee Casey, has argued in the WSJ that the Iran Deal is unconstitutional unless submitted as a treaty under Article II of the U.S. Constitution.  The 45-minute or so podcast can be found below, and I think it is worth listening in full.
But because I may not have made myself fully clear in the podcast, I try to summarize my thoughts here on why:  1) the Iran Deal does not have to be submitted as an Article II treaty; 2) the Iran Deal may allow individual U.S. states to impose sanctions on Iran which would likely lead to U.S. litigation.  David Rivkin does a great job explaining his views on the podcast, which are worth listening to in full as well.

A) In my view, the Iran Deal (or JCPOA) does not have to be submitted as an Article II treaty for at least two reasons.

First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”.  Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).

To be sure, there are indications that Iran itself doesn’t think the agreement is nonbinding and it does seem odd for the U.S. administration to make all this fuss over a 10 year agreement that is not binding, but (as Duncan has explained here and elsewhere), nonbinding political commitments are not unknown in diplomatic practice.

One example that I have been studying recently is the 1972 Shanghai Communique between the U.S. and China.   This seems a classic nonbinding diplomatic agreement which nonetheless had enormous consequences for US-China and global politics.  This and two later communiques remain crucial issues with respect to U.S. “promises” about the status of Taiwan and US promises to reduce arms sales to Taiwan.  It is not exactly the same as the Iran Deal, which purports to require its parties to take certain specific actions on certain dates, but it has some of the same flavor.

For this reason, I don’t think a promise by the President to commit the U.S. to do something beyond his term of office changes this analysis much (contra Mike Ramsey).  Presidents often promise on behalf of the U.S. to do things beyond his term, but as long as they are clear that these are political commitments, not legal ones, I don’t think a treaty is required.

Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers.  Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval.  That is by far the most important U.S. obligation under the JCPOA.  The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.

There is a cost for the U.S. government in going the nonbinding route.  It means that Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution.  For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law.  A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.  (Actually, the JCPOA itself makes it pretty easy for the U.S. president to terminate the agreement according to its own terms).  This seems only fair, however, and the administration clearly seems that this is a price worth paying to avoid the Article II treaty process.

B) State-level Sanctions on Iran Are Most Likely to End Up in Court

The individual states (e.g. New York or California) could impose certain sanctions on Iran after the deal goes into effect.  Such sanctions will probably face litigation from the U.S federal government which will claim that any state-level sanctions are preempted by the JCPOA.  But because the JCPOA is a nonbinding agreement, the preemptive effect of the JCPOA is weaker than of a full-scale treaty or executive agreement.  The outcome of such a case against state-level sanctions is far from clear and may require the federal court to consider the nature of the JCPOA more carefully. My guess is that they would find it constitutional, but might be inclined to uphold the state-level sanctions. That last finding is a close call and I would love to see that case, which could very well happen in the near future.

In short, although I don’t think the Iran Deal is a very good deal for the U.S. and I hope Congress blocks it, I don’t think the JCPOA is unconstitutional.  We will hopefully get some litigation on this point in the near future when some state rolls out its anti-Iran sanctions.  But opponents of the deal should focus on the politics (getting to 67 votes in the Senate and/or a Republican President) rather than the law.

Touchy, Touchy. What China’s Sensitivity About the Philippines Arbitration Reveals About the Strength of Its Legal Position

by Julian Ku

While I was on (my completely undeserved) vacation in California recently, I noticed more evidence that China’s government is becoming hyper-sensitive about criticism of its non-participation in the Philippines-China arbitration at the Hague.

First, a top U.S. government official stated at a conference on July 21 that, among other things, “…[W]hen they became parties to the Convention, both the Philippines and China agreed to its compulsory dispute settlement regime. Under this regime, the decision of the arbitral tribunal is legally binding on the parties to the dispute. It’s a treaty. In keeping with the rule of law, both the Philippines and China are obligated to abide by whatever decision may be rendered in the case, whether they like it or not. ”

On July 17, the New York Times published a rather bland staff editorial on the China-Philippines arbitration gently chiding China for failing to participate in that arbitral process.  Noting that China was likely to ignore the arbitration’s outcome, the NYT opined: “[China] should participate in the tribunal process if China wants to be recognized as a leader in a world that values the resolution of disputes within a legal framework.”

Both statements are pretty gentle, in my view, and Russel’s point about China’s obligation to abide by the arbitral tribunal’s rulings on jurisdiction is quite correct as a matter of law.  But it is China’s rather vociferous response that is more striking.

First, the Chinese Foreign Ministry sharply rejected Russel’s remarks.  Most curiously, it charged that the U.S. was, by “[a]ttempting to push forward the arbitration unilaterally initiated by the Philippines, [acting] like an ‘arbitrator outside the tribunal’, designating the direction for the arbitral tribunal established at the request of the Philippines.”  The spokesperson went on to say “This is inconsistent with the position the US side claims to uphold on issues concerning the South China Sea disputes.”

Second, the Chinese Ambassador to the U.S. wrote a letter to the editor of the NYT, calling its editorial “unfair.”  It also concluded that  “we do not believe that the arbitration court has jurisdiction, and as a member of United Nations Convention on the Law of the Sea, China is entitled to exclude any third-party compulsory settlement.”

I am sympathetic to China’s position that compulsory arbitration is not the way to go here, but as a legal matter, their views are hard to understand.  The UNCLOS does NOT give China the right to exclude any “third-party compulsory settlement.”  It does the opposite, and allows very limited exceptions to compulsory dispute resolution which may or may not apply here.  Furthermore, as numerous commentators have explained but which China continues to ignore, Article 288 of UNCLOS plainly gives the UNCLOS arbitral tribunal the final say on jurisdiction.  Russel was only repeating what is in the plain text of the treaty (UNCLOS) that China signed and ratified.

China’s sharply worded but legally incoherent responses are a sign that it is more nervous about the Philippines arbitration than it has let on in the past. China should just stop complaining about the arbitration and move on. It should have enough diplomatic, military, and political leverage to get past this.  It will get nowhere with its legal arguments.

Those “Snap-Back” Sanctions in the Iran Deal Have a Pretty Big Loophole

by Julian Ku

I don’t have a profound take on the Iran Deal (full text here) announced today between Iran and the P-5+1 leading world powers. From my understanding of this agreement, I am doubtful it will work out to benefit the U.S. and the E.U., but I don’t feel particularly strongly on this point. There are more than enough commentators out there who have strong opinions on the merits, a few of whom are even worth reading!

Here at Opinio Juris, we have concentrated on the key legal aspects of the Iran Deal in previous posts.  As Duncan has explained, the Iran Deal is not a binding international agreement.  As I have noted, the Iran Review Act does not actually require Congress to vote in order to approve the deal, and it allows the President to veto any congressional vote of disapproval.  Additionally, I think a future president could withdraw from the Iran Deal without violating either international law or the Constitution. (It’s nonbinding under international law and it’s not a treaty nor an congressional-executive agreement for U.S. constitutional purposes).

In this post, I would like to focus on another interesting legal quirk. In order to sell the bill to Congress and the U.S. public, the Obama Administration has insisted on some provisions to re-impose sanctions if Iran is caught cheating.  In earlier discussions, the President has called for “snapback” provisions in the Iran Deal.  In other words, if Iran is caught cheating, the prior UN Security Council Resolutions would be “automatically” re-imposed without going back for a new vote of the Security Council.

I have been skeptical about how this would work, as a legal matter. But the Iran Deal does indeed contain language calling for something like a “snapback” sanction.

37. Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise….

I suppose it is theoretically possible for this mechanism to work, as long as the UN Security Council resolution lifting sanctions on Iran contains language incorporating this “snapback” process.  The Iran Deal, we should recall, is not a binding agreement and cannot bind the Security Council. I am not aware of similar instances where terminated UN Security Councils could be automatically revived upon a finding of non-compliance, but I am hardly an expert on this subject so I would welcome any readers who can offer some examples.

In any event, there is one more rather large loophole. Paragraph 37 goes on to insulate contracts with Iran that have already been made from whatever “snapback” sanctions that are imposed:

…In such event, these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

Since there is likely to be a “gold rush” of business rushing to sign deals with Iran upon lifting of sanctions, this exception might prove a pretty big hole in the “snapped-back” sanctions.   The expected Chinese and Russian deals with Iran for arms sales and oil purchases could survive any snapback, even if Iran was caught cheating.

So even if “snapback” works legally, it would have pretty limited impact practically.Or am I missing something?

Farewell to Professor Michael Lewis: A Tireless and Important Voice on the Law of Armed Conflict

by Julian Ku

I want to join the others in the legal blogosphere in expressing my shock and sadness at the loss of Professor Michael Lewis.  Mike and I were fellow travelers on many legal and political issues, and I learned long ago that I would learn more from him on the law of armed conflict than he could learn from me.

As Professor Tom Lee of Fordham notes in his comment to Chris’s post below, Mike was an experienced naval aviator who overlapped in his time of service in the Navy with Tom.  Mike brought operational insights to the law of armed conflict, as his article on aerial bombardment during the First Gulf War in the American Journal of International Law showed.  But his background in the Navy was only a part of his identity as a legal scholar.  Mike was steadfast in working to develop a workable approach to the law of armed conflict that would satisfy both operational concerns and also strategic policy goals.

Mike was truly indefatigable. He would go anywhere, or take to any venue, to debate or discuss his views on LOAC and drone strikes in particular. Of course, he did not find many folks who agreed with him, but he always treated his interlocuters with respect and dignity. He wanted to debate, argue, and continue to debate and discuss.  He would do this for even the most sensitive and controversial issues.

Indeed, I first met Michael when he recruited me to speak on a panel he organized at the annual meeting of the American Association of Law Professors on one of those topics:  U.S. interrogation policies and torture.  I was not exactly excited to be on the panel, given the reaction I was sure we would receive, but Michael worked hard to keep our discussion civil and useful.  I was impressed with his willingness to tackle this topic, and his willingness to take a controversial and unpopular approach.

Michael was an important and thoughtful academic voice on some of the most important legal questions facing us today.  I will miss him.

 

The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs

by Julian Ku

I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts.  That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs.  I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.

Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.

To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress.  This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today.  Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power).  Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.

I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly.  That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power.  Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.

In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power.  Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President.  I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon.  Justice Thomas was getting lonely, so I suppose he will be glad to have the company.

 

China Defends Itself on South China Sea: “We are against the arbitrary distortion of the international law.”

by Julian Ku

There is no shortage of commentary on the growing US-China tensions over China’s land reclamation activities in the South China Sea. I’ve already added my two cents on the legal aspects here, but it’s worth trying to understand China’s defense of its actions.  Here is China’s Foreign Ministry spokeswoman at a press conference responding to comments from US and Japanese leaders that China should abide by international law.

The international law has been constantly brought up by some countries when it comes to the South China Sea issue. If they did read closely the international law, then please tell us which article in the international law forbids China to carry out justified construction on its own islands and reefs? Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom? We are against the arbitrary distortion of the international law. If it is not a practice of double standard, then it must be driven by some hidden motives.

Let me take the two (rhetorical) questions in order:

1) “[W]hich article in the international law forbids China to carry out justified construction on its own islands and reefs?

China has a point here. There is no explicit prohibition under international law on construction on a country’s own “islands and reefs.”  That is why the US calls on China to stop land reclamation don’t have a strong legal basis, especially since it appears most of the other South China Sea claimants have also engaged in some (smaller scale) land reclamation.

On the other hand, it is far from clear China is building out on “islands”. It is likely that it has possession only of “rocks” or maybe even just “reefs.” And it is far from clear that China has title to whatever land features it is using.  But land reclamation alone isn’t a violation of any international law that I am aware of.

2) “Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom?”

Here, China is on much shakier ground. As I explained at too much length here, UNCLOS is probably best interpreted to allow surveillance and monitoring by foreign military vessels and aircraft up to 12 nautical miles of a country’s territories, and within those 12 nm if the territory is only a rock or a reef.  China doesn’t agree with this interpretation, and this is the crux of the dispute with the U.S.

Overall, I think China has a strong legal point on land reclamation, but a weak legal point on surveillance and freedom of navigation.  The obvious “compromise”  (or maybe the word is “standoff”) here is for the US to tacitly accede to China’s land reclamation, and for China to tacitly accede to US military surveillance up to and perhaps within 12 nautical miles.  Since the US can’t actually stop China from continuing its land reclamation, and China can’t stop US surveillance, this “compromise” seems like a safe bet. I will note, however, that China’s actions have unleashed the hawkish wing of the China-watching establishment in the U.S. and, over the long term, this may be the most important outcome of this standoff.  The US is taking off the gloves against China and a containment strategy with our new best friends in Vietnam and India  is becoming increasingly likely.

Inter-temporal International Law? Or How Would Modern International Law Have Treated “Unconditional Surrender”?

by Julian Ku

Seth Tillman of Maynooth University has a clever “parody” letter (scroll to the bottom) in the most recent Claremont Review of Books.  I can’t really do it justice here, but it is an amusing take on how modern international law might have critiqued the relentless Allied demands for unconditional surrender by Germany and Japan in 1945.  Also, I particulalry appreciate his efforts to reproduce mid-20th century typography.

Don’t Cry for Sovereign Debtors: Why Argentina’s Defeat in U.S. Courts Does Not Justify a Sovereign Debt Treaty

by Julian Ku

The Argentina sovereign debt mess is still not resolved, but already folks are debating its larger consequences for international economic governance. In particular, there continue to be calls for a new international sovereign debt mechanism to prevent another Argentina-style U.S. litigation. But although I agree that there are decent arguments for some sort of international treaty-based mechanism for sovereign debt restructuring, I disagree that the Argentina-debt litigation in the U.S. is one of them.  You can read a fuller (much longer) version of this argument in  the just posted issue of the University of Pennsylvania Journal of International Law.