Author Archive for
Julian Ku

Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration

by Julian Ku

One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis.  In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.

But neither the government nor Chinese scholars have offered much flesh to this argument.  The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter  released by Professor Stefan Talmon of the University of Bonn.  From his abstract:

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction.  I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

Registration Deadline for This Year’s Joint ILA/ASIL Annual Meeting

by Julian Ku

[I am passing along this reminder of the upcoming registration deadline on behalf of ILA President Ruth Wedgwood since many of our readers are likely to attend this meeting.]

Register by February 7, 2014 to snap up the advantageous “Early-Bird Rate”– saving $160 over the walk-up rate– for the historic joint meeting between the 150-year-old global International Law Association and the American Society of International Law, running April 7-12, 2014.  The festivities will take place at the International Trade Center, next to the Washington Mall, during the height of Washington’s lovely Cherry Blossom Season.   Family members will enjoy the trip too, since the Trade Center is  close to all the best tourist stops in the nation’s capital, including the National Gallery, the Air and Space Museum, the Lincoln Memorial, the Washington Monument, the Spy Museum, the Kennedy Center and the list goes on.  Incredible program of public and private international law debates is described at  www.ila2014.org  or www.asil.org/annualmeeting.  Adjacent J.W. Marriott Hotel at 1331 Pennsylvania Avenue has conference room rates that are well below market for Cherry Blossom Time.  Notables including judges of the International Court of Justice, the International War Crimes Tribunals, and Supreme Courts around the world will be at the ILA-ASIL Joint Meeting to engage in our robust debates.

So How’s the Media Doing on Amanda Knox Reporting? Much Better Once They Started Quoting Me

by Julian Ku

Last March, I took the world media (and Alan Dershowitz) to task for some pretty poor reporting on the extradition issues raised in the Amanda Knox case.  Based on the reporting from yesterday’s conviction (again) of Amanda Knox in an Italian appeals court in Florence, I’m glad to report that the news coverage of the extradition issue (as well as Dershowitz’s analysis of it) has improved a great deal. I’ll admit I’ve been co-opted by the media a little, since I have given quotes to several publications about the case (click here for obnoxious self promotion).

What bothered me about the reporting last year was the insistence by news outlets and even several legal commentators that Amanda Knox was facing double jeopardy because she was facing a conviction for the same crime for which she was previously acquitted (see this quote here from CNN’s legal analyst Sonny Hostin as an example of this confusion).   There are three problems with this argument:

1) The US Italy Extradition Treaty does not actually bar extradition for double jeopardy in the U.S. Constitutional sense. All it does is bar extradition if the person being extradited has already been charged for the same crime in the state doing the extraditing.  For instance, the treaty would bar extradition to Italy for Knox only if the U.S. had prosecuted her for the Kerchner* murder.  Judge Friendly’s discussion in the 1980 Sindona v. Grant case of a similar provision in an earlier US-Italy Extradition treaty focuses solely on whether the US charges were the same as the Italian charges.  See also Matter of Extradition of Sidali (1995) which interpreted an identical provision of the US-Turkey extradition treaty.

2) The US Constitution’s double jeopardy bar does not apply to prosecutions by the Italian government (or any foreign government).  This seems pretty unobjectionable as a matter of common sense, but many commentators keep talking about the Fifth Amendment as if it constrained Italy somehow.  For obvious reasons, the fact that the Italian trial does not conform in every respect to US constitutionally-required criminal procedure can’t be a bar to extradition because that would pretty much bar every extradition from the U.S.  The U.S. Supreme Court decision in US v. Balsys seems to have settled this question with respect to the Fifth Amendment self-incrimination rule, and it should apply to double jeopardy as well.

3) In any event, the conviction, acquittal, and then conviction again is almost certainly not double jeopardy anyways.  Knox was convicted in the first instance, than that conviction was thrown out on appeal.  That appellate proceeding (unlike a US proceeding) actually re-opened all of the facts and is essentially a new trial.  But it is still an appellate proceeding and in the US we would not treat an appellate proceeding that reversed a conviction as an acquittal for purposes of double jeopardy.  Moreover, it would essentially punish the Italian legal system for giving defendants extraordinary rights of appeal and tons more due process than they would get in the U.S.  If Knox had been convicted in the U.S, she could not have re-opened all of the evidence the way she did in Italy, and probably would have had a harder time getting her original conviction overturned.  So it seems crazy to call “unfair” a legal system which actually gave Knox a completely new chance to challenge her conviction.

Most media coverage seems to get these points (sort of).  I think they have done so because folks like Alan Dershowitz have finally read the treaty and done a little research (he now agrees with this analysis of the treaty above, more or less), and because the magic of the Internet allowed my blog post from last March to be found by reporters doing their Google searches.  So kudos to the Opinio Juris!    Improving media coverage of international legal issues since 2005!

One final note:  the only way this “double jeopardy” argument matters is if this gets to the US Secretary of State, who has final say on whether to extradite.  He might conclude that the trial here was so unfair (because it dragged out so long) that he will exercise his discretion not to extradite.  But this would be a political judgment, not a legal one, more akin to giving Knox a form of clemency than an acquittal.  I would be surprised if the State Department refuses to extradite Knox, given the strong interest the U.S. has in convincing foreign states to cooperate on extradition.  But Knox appears to have lots of popular support in the US. This may matter (even if it shouldn’t).

 *The original post incorrectly called the murder victim “Kirchner”.

U.S. Funds Effort to Gather Evidence For Syrian War Crimes Prosecutions That Will Probably Never Happen

by Julian Ku

Jess Bravin has an interesting report out in Thursday’s WSJ (subscrip. req’d)  detailing U.S., UK, and EU support (and funding) for a team of investigators to gather evidence of war crimes by Syrian government and military officials.

For nearly two years, dozens of investigators funded by the U.S. and its allies have been infiltrating Syria to collect evidence of suspected war crimes, sometimes risking their lives to back up promises by Western leaders to hold the guilty accountable.

As Bravin notes, the U.S. government has issued several high profile statements warning that any war crimes committed in Syria would be punished and Syrian government officials and army commanders would be held accountable.  Gathering this evidence fulfills part of this pledge to hold war criminals accountable.

What is sad about this exercise, however, is that there is little evidence that the threat of eventual criminal prosecution (issued back in 2011 by Hillary Clinton) has deterred the commission of serious atrocities by the Syrian government.  The WSJ report suggest that the evidence being gathered is growing at depressingly fast rates (and this NYT report adds more horrific detail). Frankly, the threat of prosecution is either not credible, or less threatening to the Syrian army and government leaders than defeat in this increasingly desperate civil war.  (Professor Jide Nzelibe and I predicted this pattern of behavior by desperate dictators long ago in this article).

Moreover, as Bravin also notes, several diplomats have suggested that amnesty for some or all of the Syrian government’s leaders would have to be considered for any successful peace deal.  Since the U.S. military option to remove the current government is off the table, and since the civil war seems headed for a stalemate, it would be irresponsible of the U.S. to demand full accountability for war crimes as a condition of any peace deal.  To do so might just lead to more atrocities, and still no punishment.

Which means that there is not much chance that the evidence gathered by these brave and dedicated individuals described by Bravin will ever be used in a criminal prosecution.  Sure, it will be leverage during peace talks, but not much more than that.

Post-Kiobel, Are We All Ready to Move On From the ATS?

by Julian Ku

The American Journal of International Law has posted electronic excerpts from its “Agora: Reflections on Kiobel”, which will be published in its next issue.  As a contributor to the AJIL Agora myself, I was fascinated to see the different takes that everyone had on the decision.  For the most part, contributors seem to read Kiobel the same way: as sharply cutting back or even eliminating the vast majority of Alien Tort Statute claims that are based on overseas conduct.  In general, the Agora seems to signify that the international legal academy is ready to move on from the ATS: to other jurisdictions like the Netherlands or Europe, to new statutory amendments to the ATS, to other non-litigation based mechanisms, or perhaps to state courts in the U.S.

As for my contribution, I was more interested in taking apart Kiobel’s resounding, unanimous, and surprising rejection of universal civil jurisdiction under the ATS.  I am in partial sympathy with the take of Professor David Moore, another Agora contributor who is more focused on US domestic law aspects of the ATS.  I think scholars and advocates have underestimated the importance of plain-vanilla separation of powers concerns in leading to the Court’s refusal to read the ATS as granting universal jurisdiction to federal courts.  Here is the opening from my essay (and make sure you check out the whole Agora):

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS).2 But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

In this short essay, I argue that the surprising death of universal jurisdiction reflects the triumph of the “separation of powers” critique of the ATS, which casts a skeptical eye on giving federal courts an independent role in the administration of both ATS lawsuits and cases involving international law more generally. I argue that this separation of powers critique of the ATS, which has found relatively little academic support, is a crucial reason why the Court unanimously rejected universal jurisdiction in Kiobel and why the Court may further restrict the ATS in future cases.

Will Ratifying UNCLOS Help the U.S. Manage China? I Doubt It

by Julian Ku

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

Why the U.S. State Department Deserves an “F” on their Handling of the Indian Consul Flap

by Julian Ku

It looks like the U.S. and India have worked out a sort-of deal to end the battle over visa-fraud charges brought against India’s deputy consul-general in New York Devyani Khobragade.  Yesterday, a U.S. grand jury indicted Khobragade on the visa-fraud charges, and shortly thereafter, Khobragade was allowed to leave the U.S. for India.  India is now retaliating by demanding the U.S. withdraw a U.S. diplomat from India.

From a purely legal perspective, this is a smart move by the U.S. since even if it had continued with the prosecution, Khobragade would be able to raise a variety of defenses based on her possible status as a diplomat accredited at India’s UN Mission at the time of her arrest, or at least her status at the Mission now.  I think those defenses are decent (though hardly slam-dunk) and, if rejected, would further inflame India as well as create unwelcome precedents for US consuls and diplomats abroad.

Of course, from a diplomatic perspective, it seems clear to me that this prosecution should never have been brought, or at least there should never have been an “arrest” (much less the strip-search).  Why couldn’t the U.S. have indicted her without arresting her, or even just demanded her withdrawal without indicting her?  That is effectively what has happened anyway, except that we also get a crisis in US-India relations like we haven’t had in decades.

I’m putting the blame here almost completely on the U.S. State Department. They (supposedly) had notice that this arrest was going to happen, and they did not take steps to head off a pretty serious diplomatic incident.  Dealing with foreign diplomats is at the heart of what they do.  And they couldn’t have predicted what happened here?  C’mon Secretary Kerry, hold someone responsible!

I’ve just finished my grades from last semester (yes I know, I’m late!).  But I have no problem giving the U.S. State Department an “F” here.

Could the India-US Diplomatic Incident Be Resolved in the ICJ?

by Julian Ku

I’ve been working hard this break teaching in Hofstra’s winter program in Curacao. But I couldn’t resist stepping away from the beach and posting on the India-US flap over the arrest of an Indian diplomat in New York. Dapo Akande at EJIL Talk! has two great posts on the consular and diplomatic immunity legal issues.  I have nothing to add, but wanted to focus on how the ICJ could actually play a role in resolving (or not resolving) this dispute.

As those following the incident may know, Devyani Khobragade, India’s deputy consul-general in New York, was arrested and charged with lying on her visa applications about the salary she was paying the maid she had brought from India.  As a consular official, Khobragade could only assert functional rather than absolute immunity. Most of the outrage in India is about her treatment after arrest (which does seem excessive to me as well), but the legal issues mostly have to do with her immunity from arrest.

As Dapo points out, India may now be asserting that at the time of the arrest, Khobragade had already been transferred to India’s U.N. Mission.  This might entitle her to the broader protections of U.N. diplomatic immunity as oppose to mere consular immunity. According to Dapo, Section 11(a) of the Convention on the Privileges and Immunities of the United Nations may grant her absolute immunity from arrest (but not from prosecution).  India may also argue shifting her to the UN mission now gives her immunity from arrest going forward, even if she wasn’t a UN diplomat at the time of her arrest. Thus, on this theory, Khobragade could at least leave the U.S., or even wander New York free from the possibility of arrest or detention, even though the criminal prosecution would go forward.

Much of this would turn on whether Khobragade would need U.S. consent to acquire diplomatic status within the U.N.  Again, I am far from expert on this but it seems a murky legal issue at best with plausible arguments for both sides based on  the U.S./UN Headquarters Agreement and the Convention on Privileges and Immunities of the United Nations.

Sounds like a case for international dispute settlement! It turns out there are mandatory dispute settlement procedures under both agreements.  The U.S./UN Headquarters Agreement allows the U.N. to take the U.S. to compulsory arbitration pursuant to Section 21. This would require the U.N. to side with India’s view on Khobrogade’s diplomatic status, but this is hardly impossible or even improbable that they would support a broad view of UN diplomatic rights and immunities.

Interestingly, India could also take the U.S. to the ICJ under Article VIII, Section 30 of the Convention on Privileges and Immunities of the United Nations.

SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement.

Somewhat surprisingly, both India and the U.S. have signed on to the Convention without trying to limit the effect of this provision through a reservation (as China and others have done).  Such a reservation may be of little effect anyway, but at least it would be an argument against ICJ jurisdiction.   So I think that India could bring an ICJ case seeking a provisional measure guaranteeing Khobragade’s immunity from arrest under Article 11(a).

It is possible the U.S. would simply ignore any ICJ order, but this is not quite the same as the Medellin cases.  First of all, it is the federal government rather than the state governments involved here, and the President probably has authority to order federal agents NOT to arrest Khobragade.  Furthermore, the U.S. interest here is far weaker than in the Medellin case, which involved individuals who had been convicted of murder.  In this case, the U.S. may be upset over allowing an alleged visa-fraudster to walk, but it is of a completely different magnitude than giving a new hearing to a convicted murderer.

In my view, it would be a perfectly legitimate exercise of presidential power to order executive branch officials to refrain from further action in this case. An ICJ provisional measures might provide a clearer justification for the President’s decision, although I think he probably has the authority right now to stop all of this.  But the ICJ might provide a face-saving way for both sides to resolve this deeply fractious incident.

In any event, it will be interesting to see if India chooses the ICJ route. Or if the US even invites an ICJ resolution of this conflict. Indeed, if India goes to far in its retaliations against US diplomats, the U.S. might take India to the ICJ under the Vienna Convention on Diplomatic Relations!

The current ICJ even has one Indian judge, and one U.S. judge. One problem for India is that its legal position is hardly flawless, and it could very well fail in the ICJ.  But if India thinks it has strong legal arguments (and they do look fairly strong to me), it seems like a textbook case for the ICJ. Indeed, since neither side shows any sign of backing down, I think the ICJ might actually be useful here.

Breaking News: U.S. State Department Grants Santa Claus a Visa Waiver

by Julian Ku

A nice light-hearted exchange at today’s U.S. State Department media briefing, which shows some folks in government like Jen Psaki still have a sense of humor.

Reporter: “So has the U.S. already issued a visa to Santa?”

Psaki: Santa does not need a visa. He has a visa waiver in the United States. (Laughter.) So he can get to every house, and I assume that’s the case around the world as well.

Reporter: Except if he flies over China.

Discussing Argentina’s Debt Litigation and Sovereign Immunity at the Cato Institute

by Julian Ku


I had the pleasure of participating in a very interesting discussion yesterday of Argentina’s debt litigation at the Cato Institute in Washington D.C. Richard Samp offered a useful overview of this litigation, and my own talk focused on the strange (and in my view inappropriate) way that the U.S. legal system allows sovereigns to waive immunity from courts, but continues to protect them against most judgments.  Other panelists, including an economist from Moody’s, offered a very interesting set of slides explaining why Argentina’s treatment of its creditors is substantially harsher than almost all other sovereign defaulters in recent decades.I also would recommend watching the video from about the 57th minute to see Arturo Porzecanski of American University criticize the overall policies of the Kirchner government.

I think Argentina is in a bad spot right now and it is possible they will end up losing their final appeals in the U.S. Supreme Court. Indeed, it is possible the Court will not even hear their petition (although hiring former U.S. Solicitor General Paul Clement will no doubt help Argentina).  Still, I doubt the Court will rush to hear this case and if they do, any final resolution might have to wait quite a bit longer. This case has quite a ways to go.

How Would the U.S. and Canada (Legally) Merge?

by Julian Ku

I love Canada, and I have long been intrigued by plans to unite the U.S. and Canada in deeper political and economic integration (See this post from 2005(!)). So I have been excited to see the idea getting some mainstream media love with discussions of Diane Francis’s new book  Merger of the Century: Why the U.S. and Canada Should Become One Country.

I haven’t read the book, but judging from the zillions of media excerpts, her argument appears pretty straightforward.  The U.S. and Canada should merge, largely on economic grounds, so that the two countries can compete with rising economic powers controlled by state-owned enterprises (e.g. China) and with growing military power (China and Russia).  I am not sure merger is really needed here, and I am also unsure what the Canadians get out of merger since they already get U.S. military protection and seem to move in and out of the U.S. in large numbers at will.  But whatever, I love this idea.

Still, how exactly would such a “merger” work legally? Francis suggests either the Germany 1990 model (would Canada be East Germany?) or some sort of European Union-type treaty.  Let’s put aside the “merger” idea because unless Canada just entered the U.S. as a gigantic state, or even several states, any merger would require a U.S. constitutional amendment. And bringing in Canada as states would make the Democratic Party the governing party in the U.S. for the rest of my lifetime and my daughters’.  Republicans know this, and would never agree.

An E.U.-style customs union would be much more realistic.  The U.S. and Canada could create by treaty a common external trade policy, and work to eliminate restrictions on the freedom of movement, goods, investment, and services within North America.  NAFTA is sort of halfway there, actually, without the common external trade policy.

The U.S. and Canada could also unify their external foreign and military policies (much harder, I admit), again on the EU model. With respect to North American domestic defense, the US and Canada are already kind of there with a joint Air Defense Identification Zone.  Naval cooperation would be pretty easy too.  Now about foreign policy, though.  That would be really hard.  We don’t like killing baby seals, and Canadians are not psyched about invading Middle Eastern or Central Asian countries.

In reality, I think Francis might be satisfied with a U.S.-Canada customs union (Mexico might have to be left out for now). She is mostly making her case on economic grounds, and I think a customs union would accomplish most of her goals. It is not legally that hard, and it is politically plausible. The only downside is that we wouldn’t get to design new flags or new country names.  The United States of North America (USNA)?  The North American Union?  Camerica? Americanada?…