Author Archive for
Peter Spiro

How the Recess Appointments Case Speaks to Foreign Relations Law

by Peter Spiro

Not much surprise that the Supreme Court’s ruling in the recess appointments case NLRB v. Noel Canning would draw on historical practice, since there wasn’t much else to draw on. Breyer’s opinion in the case sets out a notable defense of practice as precedent:

[I]n interpreting the [Recess Appointments] Clause, we put significant weight upon historical practice. For one thing, the interpretive questions before us concern the allocation of power between two elected branches of Government. Long ago Chief Justice Marshall wrote that

“a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819).

And we later confirmed that “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions” regulating the relationship between Congress and the President. The Pocket Veto Case, 279 U. S. 655, 689 (1929) ; see also id., at 690 (“[A] practice of at least twenty years duration ‘on the part of the executive department, acquiesced in by the legislative department, . . . is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning’ ” (quoting State v. South Norwalk, 77 Conn. 257, 264, 58 A. 759, 761 (1904))).

We recognize, of course, that the separation of powers can serve to safeguard individual liberty, Clinton v. City of New York, 524 U. S. 417–450 (1998) (Kennedy, J., concurring), and that it is the “duty of the judicial department”—in a separation-of-powers case as in any other—“to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803). But it is equally true that the longstanding “practice of the government,” McCulloch, supra, at 401, can inform our determination of “what the law is,” Marbury, supra, at 177.

That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madison’s view. E.g., Mistretta v. United States, 488 U. S. 361, 401 (1989) ; Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579–611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689–690; Ex parte Grossman, 267 U. S. 87–119 (1925); United States v. Midwest Oil Co., 236 U. S. 459–474 (1915); McPherson v. Blacker, 146 U. S. 1, 27 (1892) ; McCulloch, supra; Stuart v. Laird, 1 Cranch 299 (1803).

These precedents show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give meaning’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).

There is a great deal of history to consider here. Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.

Strike another blow against constitutional formalism. For proof, see Scalia’s dissent cum concurrence in the judgment, which plays heavily to Chadha. Scalia sees in the majority opinion’s use of history an “adverse possession theory of executive power” (though Scalia himself is forced to play on its turf and engage the practice, including modern practice). Perhaps, such is life.

The use of history is obviously prominent in the foreign relations context, given the dearth of judicial precedent for so many foreign relations law questions (though the courts have been busy trying to fill many gaps in recent years, there are still many left unfilled). Next year’s engagement with the recognition power in Zivitovsky will surely be looking to practice, including practice post-dating the founding era, and the Noel Canning methodology gives it a recent launching point. For those who need the Court’s imprimatur on what qualifies as constitutional authority, this decision reminds us that it’s on board with history-as-law, too.

Canada Citizenship-Stripping Law (Probably) Violates International Law

by Peter Spiro

Canada last week enacted a major amendment (Bill C-24) to its citizenship law. As a general matter it makes citizenship harder to get and easier to lose. Residency periods for naturalization are lengthened and physical presence requirements toughened up, English and civics tests will apply more broadly, and naturalization fees are tripled. This on top of the elimination of the “golden visa” program through which many (mostly Chinese) secured permanent residence through investment. These moves are all well within Canada’s sovereign discretion over its citizenship practices (whether they are good policy or not is another question – for an excellent critical analysis, see this from the Canadian Association of Refugee Lawyers).

But there are two provisions are at least problematic and may violate international human rights.

1. Naturalization applicants will now need demonstrate an intent to reside in Canada after naturalization. This is a response to the phenomenon of “naturalization as exit strategy” — one we are seeing in the U.S. as well. A growing number of long-term permanent residents are naturalizing only once they want to go back home to their countries of origin. With Canadian citizenship, they know they can freely travel back to Canada to visit friends and relatives, and perhaps also to take advantage of the social welfare net (remember: Canada has universal health care). Acquiring citizenship becomes a kind of insurance. This template for naturalization is the opposite of the traditional sequence, in which naturalization is the final act of commitment to the new community. The amendment means to end it.

Some fear that the new requirement will be used to de-naturalize anyone who moves abroad after naturalization (on the theory of fraudulent intent), and in any event the requirement is likely to have a chilling effect on those who would like to. It discriminates against naturalized citizens, since native-born Canadians are free to leave the country and keep their citizenship in the process. That’s in tension with an emerging norm under which naturalized and native born citizens should be equal before the law (see for example article 5(2) of the European Convention on Nationality).

Key to how this plays out: whether it is enforced (one can imagine not at all — in the way that the naturalized U.S. citizens are never held to the renunciation oath).

2. The government gets the power to strip individuals for convictions relating to treason, spying, or terrorism. Here Canada follows a British lead. But the Canadian measure may be the more problematic. The British law extends a very broad power to the Home Secretary to revoke citizenship where it is “seriously prejudicial to the vital interests of the United Kingdom.” That would seem worse than the Canadian approach, which at least requires a conviction. But because it requires a conviction, the Canadian measure is more clearly penal — expatriation is tied to the criminal activity. The result looks like banishment. The U.S. Supreme Court long ago found the penal use of expatriation to violate the constitution, in a 1958 decision (Trop v. Dulles) that drew extensively on international law norms prevailing even in the mid-twentieth century against the penal use of expatriation.

Moreover, this ground of revocation discriminates against dual citizens. The law does not apply where it would result in statelessness, so mono-nationals are insulated. This argument has had some traction against the UK measure, which until recently at least also discriminated against dual citizens. To the extent that maintenance of dual citizenship is framed as a human right, the new Canadian law burdens it.

Both elements are already being challenged in Canadian courts. It will be interesting to see whether international law enters into the constitutional equation. In any case forgive me for suffering just a touch of legal schadenfreude in seeing our usually internationally law-abiding northern neighbor push the envelope much harder than we are. This is one context in which the U.S. probably has it right in keeping expatriation out of the counterterror mix.

Bond Cheat Sheet

by Peter Spiro

As David Kaye notes, treaty-power advocates everywhere may be breathing a collective sigh of relief with the Supreme Court’s decision in Bond v. United States. I’m not so sure how big a difference it makes, given the Senate’s persistent refusal to put an expansive treaty power to work. From an academic perspective the decision is a big let-down. No big pronouncements on Missouri v. Holland, the treaty power, the future of federalism in a different world.

On the substance, we have Jean’s excellent post below as well as Curtis Bradley’s characteristically precise analysis on AJIL Unbound. As Curt points out, the straight-up application of the federalism clear-statement rule in the foreign affairs context is significant. Perhaps a little tension with Charming Betsy? But this is incremental stuff, not the kind of ruling that marks a major pivot on the Court’s part in foreign relations law. The money quotes in the majority opinion relate to domestic affairs of a decidedly mundane kind, as Roberts decries an application of the treaty that “would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room.”

The Court may have understood this to be too freaky a case on which to peg a major ruling (hence also the silence from the Left side of the Court). The parade of horribles may be theoretically long and broad when it comes to imagining the ways that treaties might subsume core state authorities. But when it comes to making that specter a little more concrete, Justice Scalia is left conjuring up a multilateral “Antipolygamy Convention” with which Congress then trumps state intestacy laws. Really? (Scalia is known to write his concurrences and dissents from scratch. That was once a good thing; now it may be a bad. His concurrence here has a sloppy feel to it.)

For his part, Justice Thomas walks us through the original understanding of the Treaty Power in calling for its limitation to international relations. With due respect to the many rigorous scholars of an originalist orientation, I must admit that I have less patience for this oracular stuff the older I get. It never coughs up determinate answers. (How could it, in this context perhaps more than any other.) In what should be a candidate for SCOTUS understatement of the year, Thomas concludes: “I acknowledge that the distinction between matters of international intercourse and matters of purely domestic regulation may not be obvious in all cases.”

As foreign affairs law becomes increasingly doctrinalized, with a slew of major cases over the last 15 years, this is one area that will now remain up for grabs (the persistence of the century-old Holland decision notwithstanding). Maybe that’s not a bad thing for methodological and pedagogical purposes. As the Court plays the Marbury card more frequently (Scalia does it here), a last-word mirage rises in which the Court seems to be calling all the shots. But the new global architecture is far too immense and intricate for the Court to stay on top of it. Better to stay attuned to non-judicial mechanisms of constitutional evolution.

Supreme Court Ducks Broad Treaty Power Ruling in Bond v. United States

by Peter Spiro

The decision is here. The Court found unanimously that the federal government overreached in prosecuting Carol Anne Bond under a federal statute implementing the Chemical Weapons Convention for what was otherwise a simple assault in a lovers’ quarrel. The six-justice majority decided the case on non-constitutional, statutory grounds — interpreting the statute (and the treaty) not to cover such conduct, but not addressing broader questions relating to the scope of the federal power to invade otherwise exclusive state authorities through the vehicle of international agreements.

So Missouri v. Holland stands. And it’s likely to stand for the foreseeable future. This was a freak case, a rare application of the treaty power cleanly posing the federalism question. Congress isn’t exactly free and loose in making use of its putatively limitless authority under the Holland opinion.

For those favoring national powers, this is probably the best that could have been hoped for. The Roberts Court has been ratcheting back the foreign affairs power on other fronts, and there was a wide expectation that this case would supply another important episode in advancing that agenda. The ruling is consistent with that agenda insofar as the Chief Justice’s opinion here treats the statute as it would any other. It’s not given a more expansive reading because it involves a treaty or foreign affairs. In that respect, Bond reflects the normalization of foreign relations law. But only in a small-ball kind of way. Constitutionally limiting (or affirming) the treaty power would have been much, much more significant.

We should have more soon on the ruling, the concurrences, and the future of the treaty power during the course of the week here at OJ.

More FATCA Follies: Do We Need an Anti-Passport?

by Peter Spiro

As my correspondent Victoria Ferauge points out in response to last week’s post on inter-governmental agreements implementing the Foreign Account Tax Compliance Act, the problem with FATCA for expatriate Americans is not so much the prospect of added accountant fees in tax preparation. It’s the prospect of being discriminated against as an American for all things financial. Faced with their own accounting hassles, some foreign financial institutions are refusing to deal with Americans at all. If they don’t have U.S. citizen account holders, they won’t have to comply with FATCA’s reporting requirements.

Problem is, how do you show you’re not an American?

If you are clearly an American (if, for instance, you were born in US territory), there is a definitive route to losing your citizenship and having it documented. You formally renounce your citizenship before a consular officer (or otherwise demonstrate that your citizenship has been relinquished). A Certificate of Loss of Nationality is your reward. That should do the trick with local bank officers on the lookout for US depositors.

But what if you’re not sure whether you are American in the first place?

Foreign banks are erring on the side of caution. Suspected Americans are to be avoided. Local bankers are assuming citizenship by association. Where they know one family member is a US citizen, they will assume the worst of others, especially parent/child. Banking in Europe remains a more personal, service-oriented business than in the States, so it will not be uncommon that the connections are made.

Individuals in these situations, unsure of their US citizenship status, are in a tricky position. One would expect some to seek out opinion letters from private counsel to the effect that, this person is not a US citizen. You would think that would do the trick with FATCA-shy banks. But perhaps the US government should make it official with the equivalent of an anti-passport, certifying non-citizenship in particular cases.

That an anti-passport is even plausible as a thought experiment shows how bad FATCA really is. Americans abroad are renouncing their citizenship in record numbers, and others will feel lucky not to have it in the first place. What a turn from an earlier era, in which US citizenship was a badge of honor and a shield against a brutish world.

Are Sole Executive Agreements Next on the Roberts Court Chopping Block?

by Peter Spiro

A constitutional challenge is in the works to Foreign Account Tax Compliance Act, the anti-offshoring tax measure that is the bane of ordinary US citizens worldwide. The law adds a burdensome layer of administrative requirements to longstanding citizenship-based tax liabilities. If you’re an American living in France, say hello to thousands of Euros in accountant fees.

Foreign banks are a key location for and target of FATCA enforcement, and the Treasury Department has been bringing them into FATCA’s orbit wholesale through bilateral executive agreements with industrial economies. These so-called inter-governmental agreements — “IGAs” in the FATCA glossary — facilitate FATCA compliance by allowing banks to report information to their own governments, who will pass it along to the IRS in turn. (For more on the IGAs, and to get a sense of how accountants and others will benefit, see fatca.thomsonreuters.com.)   IGAs have been controversial in other countries, not the least because the regime may override domestic privacy laws. But other governments have a reciprocal incentive to sign on: we report on offshoring that’s hurting you, you help us out with offshoring that hurting us.

In the US, FATCA (much less the IGAs) has hardly been a blip on the policy screen. The interests of external US citizens consistently fail to register in US politics. But the issue has now caught the attention of the GOP anti-tax crowd. Enter Jim Bopp with a constitutional argument that FATCA and the IGAs violate the Treaty Clause, the Fourth and Eighth Amendments.

I wouldn’t be taking this too seriously (the latter two arguments are not very credible), except that Jim Bopp was the lawyer behind . . . Citizens United.

The Treaty Clause argument is a plausible one, the doctrinal terrain at least unsettled. The FATCA agreements enjoy implied congressional authorization, at best, in the form of prior tax treaties. (McGill’s Allison Christians explains the argument — and its weakness — in this excellent piece for Tax Notes.) We have Dames & Moore taking a contextual approach to the legality of executive agreements undertaken without express congressional approval (before or after the fact). More recently, Justice Roberts adopted a constricted historical view of so-called sole executive agreements in Medellin.

There is a lot of history behind sole executive agreements but not much judicial precedent. Executive agreements have figured importantly in the Obama Administration’s muscular exercise of executive branch power (see this essay from then-Legal Adviser Harold Koh in defense). Could this be another platform for the Supreme Court to advance its formalist turn in foreign relations law?

Piketty/Davos/MayDay

by Peter Spiro

Before the Piketty bubble reaches stage six (at this rate, sometime later today), a few thoughts on the geosocial implications of his theory of inequality. That theory has been getting the lion’s share of the lion-sized attention showered on Capital in the 21st Century (Kindle edition available only). Those of you reading the reviews (if not the book itself) will know that r > g, the rate of return on capital increases more than the rate of economic growth, which means that the rich will get richer relative to the rest of us.

Historically the book points us to the Belle Epoque. What did it take to to dislodge that last era of concentrated wealth? A couple of world wars. War gave rise to social policies and economic growth that tamped down the level of retained “r” and fueled an anomalously high “g”. That evened things out quite a bit by mid-century, about which everyone has gotten so nostalgic.

But the social policies — and indeed the wars themselves — could only be built on high levels of national solidarity. Globalization at the turn of the last century turned out to be a false dawn. Economic interdependence wasn’t enough to prevent a bloodbath among the major economic powers. That was mostly downside, of course. The upside: the consolidation of community based on the nation-state, which in turn enabled thick redistribution.

This time around, globalization is for real. We’re not going to have a World War III to help reslice the economic pie. Transborder economic interdependence is exponentially higher. In social terms, that has consolidated a different kind of community: the transnational elites. They share more of an interest in protecting their collective wealth than in sharing it with their co-nationals. Davos doesn’t quite fit the argument, insofar as (at least nominally) it selects participants on the basis of social utility rather than wealth. But I’m willing to bet that Davos and/or its spin-offs and successors become playgrounds for the generations that inherit Gilded-Age wealth (“patrimonial capitalists,” in Piketty’s vocabulary). The Davos class is a new global community, with its own set of practices, beliefs, ideology, interests.

Since war is not a very plausible or appealing prescription, Piketty is left to press a global wealth tax. That makes sense in the face of higher transborder capital mobility. But it’s never going to happen so long as the Davos class is essentially unopposed. The current landscape looks neo-feudal, the elites moving in their global circles while the not-rich remain confined to their national spaces. (Immigration controls play a part in this, in contrast to free trade in goods.) I don’t have a sense of any real global class consciousness among non-elites. Jennifer Gordon presses conceptually interesting possibility of transnational labor citizenship, but that doesn’t seem to have taken hold on the ground. The Occupy movement hasn’t achieved enough of a critical mass to comprise a counterbalance.

Today is May Day. Can the workers of the world unite?

Supreme Court Takes Jerusalem Passport Case on the Merits

by Peter Spiro

NY Times dispatch here. The Supreme Court will now confront the question of whether Congress can force the Secretary of State to include the birthplace “Jerusalem, Israel” at a U.S. citizen’s option. This could be a huge case or a not-so-huge case. If the Court affirms the D.C. Circuit’s ruling below and strikes down legislation purporting to constrain the Secretary of State’s passport authority, the ruling would be important but hardly epochal. That would protect the president’s authority over foreign relations, and fit neatly into a doctrinal tradition dating back at least a century. It is something new for the Court to get to the merits of the question — that’s why the decision in Zivotofsky I itself marked something of a watershed. If the Court accepts expansive executive branch powers, the jurisprudential gun remains loaded but no shots get fired.

But if the Court upholds the law, it will be a major departure from that tradition. The passport case implicates a genuinely sensitive issue of foreign relations. If the Court forces the State Department into something like formal acknowledgement of Israeli sovereignty over Jerusalem, who knows what would follow on the ground. This isn’t a case like Medellin, which predictably upset Mexico at the same time that our relations predictably weathered any such upset. Nor would it play out like Bond, which even if it restricts the Treaty Power will hardly be noticed by foreign audiences. To use the vocabulary of the foreign relations canon, a Supreme Court ruling against the executive branch in Zivotofsky could severely “embarrass” the President in the conduct of foreign relations. Think unruly crowds outside U.S. embassies.

That would have been inconceivable 20 years ago. But foreign relations law is being normalized. (For an excellent take on the shift, see Harlan Cohen’s piece here.) Foreign affairs has long been immune to judicial activism; maybe no longer. The Court may still hesitate to the extent it sees some real, even uncabinable, damage to the Middle East peace process in siding with Congress on the question. The easier path would have been to duck the case altogether. By accepting review, it may already have tipped its hand in a new direction.

Russia’s Citizenship Power-Play in Ukraine is Pretty Weak

by Peter Spiro

Russian Prime Minister Dimitry Medvedev yesterday announced a legislative initiative to fast-track citizenship for non-resident native Russian speakers. He didn’t single out ethnic Russians in Ukraine, but the context says it all. The citizenship shift (variations of which have been floated since the Maidan erupted last month) would allow Russia to amplify its protective justification for the action in Crimea. It wouldn’t just be protecting co-ethnics, it would be protecting fellow citizens. Russia similarly put citizenship policy to use in the South Ossetia action in 2008.

Three thoughts:

1. The citizenship policy would be consistent with international law. The only constraint on the extension of citizenship after birth is that it be volitional on the part of the individual. Russia couldn’t simply impose Russian citizenship on Ukrainians en masse, for example. Otherwise, citizenship policies can be as relaxed as a country wants them to be (it’s when they are too tough that international norms come into play). Russia certainly has a closer link to Russian speakers in Ukraine than, for instance, most Sephardic Jews do to Spain, and yet nobody is complaining about the latter.

2. Protecting citizens abroad does not justify uses of force or other acts of aggression. Putin is working from the 19th/20th century playbook in framing military action in protective terms. That’s the irksome part: integrating citizenship policy into expansionist designs. (Spain is not going to use the pretext of protecting Sephardim as the basis for military operations in France.) Traditional international law accepted the use of force to protect nationals against foreign depredations — the U.S. justified scores of military actions on that basis (presidents still do, as a matter of domestic constitutional law, for purposes of constitutionally legitimating the use of force in the absence of congressional approval). Leaving aside narrow exceptions — military deployments should be consistent with international law where necessary to safely evacuate citizens from trouble zones — that’s no longer okay. In other words, the presence of even a large number of Russian citizens in Ukraine adds no weight to Russia’s case for military intervention.

3. Ukraine’s threatened criminalization of dual citizenship is more problematic. Ukraine prohibits dual citizenship, though the ban is apparently underenforced. By way of a counter-move to the Russian proposal, a bill before the Ukraine parliament would impose fines on dual citizens. Dual citizen voting and office-holding would be subject to prison sentences of up to 10 years. Other countries bar dual citizens from officeholding (many through constitutional bars); none bars dual citizen voting. Prison sentences for either would be without precedent. Ukraine would be on firmer ground stripping the citizenship of those having or acquiring Russian citizenship. But that move would create problems of its own, and would hand Russia an additional argument in the (largely false) narrative that Russians are being oppressed in Ukraine.

The bottom line: this is a nothing-burger. Probably the most important consequence of the new Russian policy would be to open the door for newly minted citizens to move to Russia. If Russia’s happy having them, that’s its business, not ours.

Presidential Authority for Visa Restrictions (for Ukraine and Otherwise)

by Peter Spiro

President Obama issued an executive order this morning imposing entry bans on those responsible for actions that “undermine democratic processes or institutions in Ukraine,” “threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine,” or involve “misappropriation of state assets of Ukraine or of an economically significant entity in Ukraine.”

Sec. 2. I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in subsection 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions).

The power to specify covered individuals is delegated to the Secretary of State.

Obama is acting under section 212(f) of the Immigration and Nationality Act, which gives the President a blank check when it comes to imposing entry restrictions:

 Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Obama has used this power at least twice, both in the summer of 2011. He used the authority to ban the entry of serious human rights abusers with this proclamation. In the proclamation referenced in today’s executive order, he banned the entry of individuals subject to UN sanctions regimes. The latter is particularly interesting insofar as it appears to delegate immigration policy to an international organization, directly incorporating UN decisions into US law. In any case, the use of the 212(f) power is consistent with Obama’s orientation to maximally exploit delegated powers.

Ukraine, International Law, and the Perfect Compliance Fallacy

by Peter Spiro

Eric Posner on international law and Ukraine (“exhaustively”, in his own description):

The international law commentariat has been pretty quiet about the most important geopolitical event so far this year. Hello? Anyone want to offer an opinion? Let me fill in the silence:

1. Russia’s military intervention in Ukraine violates international law.

2. No one is going to do anything about it.

International law is chimera, QED. (FWIW, the international law commentariat is starting to pipe up. In addition to Chris’ post below, see this primer from Ashley Deeks on Lawfare.) The move — a standard one among the anti-internationalists — implicitly idealizes other forms of law accepted as such. No system of law achieves perfect compliance; why should international law be any different?

Writing at the Monkey Cage, Eric Voeten finds the a tweeted version of the Perfect Compliance Fallacy

not terribly persuasive. Surely we would question a domestic legal system in which a select set of powerful actors can confidently and predictably ignore legal rules while insisting that these nonetheless apply to everyone else.

While pleading the 140-character defense, I take the point, at least as applied to common criminals who get away with it. But there are better analogies. I’m not in the corporate law world, but I’m willing to bet that there are some laws that big players get away with ignoring on a predictable basis. In the context of constitutional law, there are many contexts in which law isn’t enforceable against institutional players. One example: notwithstanding the Chadha decision, which declared the legislative veto unconstitutional, Congress and the President blithely persist with the practice. This 2009 Harvard Law Review article by Jack Goldsmith and Daryl Levinson does a good job exploding the argument that international law is somehow distinctive in facing an enforcement deficit.

Of course corporate and constitutional actors will never say they’re violating the law. They interpret it to achieve the appearance (plausible or not) of conformity with a set of norms that is accepted as law. Same with Putin, whose MFA will at some point offer a fuller-dress international law justification for its Ukraine moves. (Posner himself offers up some protips to the Russians here.) So it’s not like jaywalking. Russia will face penalties as a result of its illegal action here, penalties that themselves will be framed in law terms.

Survey Says: If You Want Solitary Confinement Reform, Talk Up Treaty Obligations

by Peter Spiro

Here is a timely piece from Adam Chilton on how treaty obligations may be experienced by the American public. He devised an experiment (using Amazon’s mTurk) to test the effect of a putative treaty violation on public support for reform of solitary confinement practices. The piece comes to us just as congressional hearings have focused policymakers on the issue as a matter (mostly) of domestic law.

The experiment framed comparative questions to control for the value of the treaty commitment itself, as opposed to that of unlegalized human rights norms. A statement that solitary confinement violates unspecified human rights didn’t move the needle at all, where an argument that it “violates human rights treaties that the United States has signed” did, in a statistically significant way. (Chilton carefully notes that “signed” was used to avoid confusion, consistent with the vernacular understanding of treaties.) Respondents were moved not by a sense that treaties should be honored or that violations are immoral but rather that U.S. practice should conform to international standards.

One unexpected finding:

Democrats in the control treatment group supported solitary confinement reform at a 4.45 rate. Information on international law increased support by 0.17 to 4.62, but this increase falls short of conventional levels of significance (p-value = 0.16). Republicans, on the other hand, were less supportive of solitary confinement reform overall—the control treatment group averaged 3.31. Information on international law, however, increased approval to 3.74. This was an increase of 0.43, which was both substantively and statistically significant (p-value = 0.05). This suggests that information on the status of international law on domestic human rights practices, at least with respect to solitary confinement, actually has a greater effect on Republicans than on Democrats.

Seems unlikely, but warrants further investigation. Maybe it plays into a “rule of law” mentality? In any case, the experiment seems well-constructed, so that there’s none of the garbage-in-garbage-out aura that one sometimes butts into as empirical legal studies begins to colonize international law, too.

As Chilton notes, “modest changes in public opinion do not automatically result in changes in public policy,” something of an understatement in the context of US treaty ratification and compliance (cue: the Disabilities Convention). But perhaps studies like this will help nudge policymakers in a more productive, international law-compliant direction.