Author Archive for
Peter Spiro

Disabilities Treaty Committee in the Crosshairs (LawProf to the Rescue)

by Peter Spiro

Very interesting hearing yesterday before the Senate Foreign Relations Committee on the UN Convention on the Rights of Persons with Disabilities. C-Span video here.

Treaty opponents are focused on the associated Committee on the Rights of Persons with Disabilities (charged with considering state-party compliance) and the risk of evolving treaty meanings. It’s perfect terrain on which to transpose longstanding anxieties regarding activist judges onto even more freighted, counter-majoritarian-challenged international institutions. In yesterday’s hearing, treaty opponents pushed the line that the committee would end up interpreting the the CRPD, for example, to find a right to abortion (and, of course, to prohibit home schooling).

Enter University of Georgia law professor Timothy Meyer. As a witness, Tim offered up a way to switch some votes: beef up an understanding making clear that treaty committee interpretations would have no consequence. In the last attempt at Senate approval, the resolution package included an understanding to the effect that “The United States of America understands that the Committee on the Rights of Persons with Disabilities has no authority to compel actions by states parties, and the United States of America does not consider conclusions, recommendations, or general comments issued by the Committee as constituting customary international law or to be legally binding on the United States in any manner.”

To this, Tim would add:

The United States further understands that the Committee’s interpretations of the Convention are not entitled to any weight apart from that given to them by States Parties to the Convention.

Moreover, the United States understands that no interpretation of the obligations of the Convention issued by the Committee or any other international institution can have binding legal effect with regard to the United States unless the United States consents to such an interpretation in accordance with its constitutionally required procedures.

Who knows, maybe this is the path to ratification. Ranking member Bob Corker seemed to be buying, and there was an unusually high level of genuine engagement with Tim as a witness (another way of saying that he was very effective). He urged Tim to work with treaty foes Michael Farris and Susan Yoshihara to work out a RUDs package that “fully inoculates” the US from the parade of putative CRPD horribles. (All very well for US ratification purposes, but would seem to invite international hackles that US RUDs are getting even more inconsistent with the objects and purposes of the treaty.)

The hearing is worth a background listen. A number of (misplaced) allusions from treaty skeptics to the Bond argument taking place across the street at the Supreme Court, of the “fool me once, shame on you, fool me twice, shame on me” variety (see, for instance, Jeff Flake at 1:34, persuasively rebutted by Dick Durbin at 1:42). Supporters stressed how acceding to the treaty would bolster US leadership globally on disability rights (and how it would incidentally benefit disabled Americans travelling abroad). The overriding concern was with insuring with triple redundancy that the treaty could never force the US to change its way of doing things — as if the US can sustain some sort of splendid isolation from international law.

Bond v. United States and the Non-Use of the Treaty Power

by Peter Spiro

Has the federal government ever put Missouri v. Holland to work? I don’t think so, though I always hesitate to state it categorically. The Supreme Court’s 1920 decision in Holland squarely held that the Treaty Power adds something to other enumerated federal authorities. But there appears to be no instance in which the federal government has actually used a treaty to do something that it couldn’t do under some other power, other than in the (putative) controversy implicated by Bond itself. (The Supreme Court hears arguments in Bond tomorrow.)

I thought for a moment I was nailed on this point reading through the amicus brief submitted by John Bellinger and other former State Department Legal Advisers. The brief highlights the Controlled Substances Act and its status as implementing legislation for the 1961 Single Convention on Narcotic Drugs. (Well, that would be a big one!) The Act does put the treaty to work in interesting ways, including as a kind of international delegation under which domestic procedures for drug classification can be ignored if a drug becomes controlled under an international agreement. See 21 U.S.C. 811(d). Very interesting, but somewhat beside the point. As the Supreme Court recently held in Raich, Congress has the power to regulate controlled substances under the Commerce Clause.

The same goes for other agreements discussed in the Legal Advisers’ brief, including agreements relating to environmental protection, diplomatic immunity, and international driver’s licenses. In other words, the U.S. could enter into those agreements — and implement them — even if Missouri v. Holland were overruled.

The non-practice under Holland cuts both ways. As those supporting the government point out, it shows that political process works to protect state interests. The Treaty Power as interpreted by Justice Holmes looks pretty scary in theory, from a states rights perspective, to the extent it could swallow up all constraints on federal power. But in practice it’s been toothless.

On the other hand, complete non-use by the political branches might evidence that Missouri v. Holland doesn’t reflect constitutional norms on the question, that the Treaty Power has fallen into a kind of constitutional desuetude. In other words, Missouri v. Holland may have been overruled by nearly a century’s worth of subsequent contrary practice.

Either way, the lack of any real practice (and the anomalous circumstances of Bond itself) cautions against a merits ruling on the Treaty Power issue, in the spirit of judicial minimalism and constitutional avoidance. Who knows, there may come a time when the political branches are interested in intentionally asserting a more robust Treaty Power. That world would almost surely be a different one than we find ourselves in today (different enough to overcome the longstanding refusal to use the Treaty Power to expand federal authorities). Better to wait to see what that world looks like before deciding so important a question.

The Improbable Bond v. United States

by Peter Spiro

As foreign relations law wonks gear up for next Tuesday’s argument in Bond v. United States, I wanted to ask, how did we end up with this case, anyway? The small-time, slightly sordid facts are (for classroom purposes) a lawprof’s dream. For those of you who haven’t been following along, the case involves a love triangle in which a wife attacks her husband’s lover, now pregnant with his child. Instead of attacking with a tennis racket or small appliance or some kitchen crockery, she more imaginatively sprinkles toxic chemicals on the woman’s car door, doorknob, and mailbox (the backstory is nicely recounted here).

Instead of pursuing the case under state assault and/or harassment laws, the government prosecuted Bond under 18 U.S.C. 229(a)(1), which criminalizes the use of chemical weapons and was enacted pursuant to the Chemical Weapons Convention.

My question: how did the government decide to pursue the case under the CWC? A case that would otherwise have sleepily played out in a local DA’s office may have come to federal attention through postal inspectors. After that, was it some enterprising young prosecutor who couldn’t seem to shoehorn the case to fit any other federal crime? One can almost imagine an a-ha moment for some newly-minted, hard-working AUSA, late night, deep into the books — “we can nail her for chemical weapons!”

Can we just admit, then, that this is a freak case? The background doesn’t affect the affect the legal analysis but it sure will affect the atmospherics. One can hardly imagine a worse case from the government’s perspective for defending an expansive Treaty Power. I wonder if that AUSA got kudos for creativity. Why didn’t State and/or Justice make this case go away? Why fight so significant a battle on such insignificant terrain? It’s not as if the government is pressing and protecting a clear policy agenda here. Our CWC treaty partners would hardly be offended if Carol Anne Bond were sprung.

Given that the federal government has made very, very little use of the Treaty Power (possibly never) to enlarge its constitutional authority, maybe it would serve everyone better if the Court dodged the broad issue and ruled on a narrow one. The case could be dispatched on narrow statutory interpretation grounds: the provision should not be read to cover the conduct involved. But maybe that’s more than we can hope for from this Court, which looks increasingly intent on asserting itself in the realm of foreign affairs. 

NSA Files: An Emerging Human Right to Privacy?

by Peter Spiro

Josh Gerstein has this interesting piece at Politico on how the citizenship divide is breaking down as a defensible perimeter in the legal justification of electronic surveillance. It’s clear where the old reflex is coming from: lawyers steeped in a constitutional tradition that distinguishes citizens from foreigners (and US territory from foreign territory) in the application of constitutional rights. (The key cases are Reid v. Covert and US v. Verdugo-Urquidez.) But that’s not going to fly any more in the face of globalized rights consciousness.

The concern is general publics, not foreign government leaders. The latter should know how to protect themselves. I sure hope that the German government has Angela Merkel on a very secure phone now — the US government may no longer be eavesdropping, but lots of others, including sophisticated nongovernmental persons, may be. As Ian Hurd puts it with respect to the promise not to eavesdrop on foreign officials, “Breaking news: 35 people won’t be spied on, 7,119,999,955 will.”

Maybe not forever. We’re already seeing efforts to universalize data protection efforts against security surveillance. There’s this report from FP of a UN initiative:

Brazil and Germany today joined forces to press for the adoption of a U.N. General Resolution that promotes the right of privacy on the internet, marking the first major international effort to restrain the National Security Agency’s intrusions into the online communications of foreigners, according to diplomatic sources familiar with the push. . . .

Brazilian and German diplomats met in New York today with a small group of Latin American and European governments to consider a draft resolution that calls for expanding privacy rights contained in the International Covenant Civil and Political Rights to the online world. The draft does not refer to a flurry of American spying revelations that have caused a political uproar around the world, particularly in Brazil and Germany. But it was clear that the revelation provided the political momentum to trigger today’s move to the United Nations. The blowback from the NSA leaks continues to agonize U.S. diplomats and military officials concerned about America’s image abroad.

Expect to see more of this kind of activity in places like the treaty committees and among special rapporteurs, as well as on a bilateral/regional basis (think TPP and and TTIP) and in domestic legislation. Article 17 of the ICCPR supplies a basic hook by prohibiting “arbitrary or unlawful interference” with privacy. No way that this ends up as a specified hard norm any time soon, but an accretion of steps may well add up to an international norm against blanket data collection. Obviously you can’t simply transpose domestic requirements (warrants and the like) for enforcement-related surveillance against private persons, but going forward governments may have to satisfy some sort of individualized thresholds for listening in.

Anyone Else Wistful for the Good Old Days, in Which Presidents Went It Alone?

by Peter Spiro

You never know, President Obama might turn things around. On the other hand, things sound bad on the Hill. The Administration would have to run the table to get a yes-vote from both houses of Congress (it’s uphill even in the Senate). It may not be too early to start writing the post-mortems.

The key mistake Obama made was going to Congress for approval. The disaster that has followed shows why presidents have (or now, perhaps, “used to have”) the power unilaterally to initiate limited uses of force.

If Obama had last Saturday gone ahead and announced that a limited strike was underway against select chemical-weapons sites in Syria — the sort of announcement everyone in the Administration thought he was going to make –, and that it would be over in 48 hours, he would have accomplished everything that he’s still looking to accomplish.

Yes, there would have been political backlash — there would have been, just as there has always been, Monday-morning quarterbacking on limited uses of force. But presidents always weathered that kind of backlash. Op-eds are written, a Dennis Kucinich lawsuit is dismissed (who will play his role in future episodes?), calls are made for reining in the imperial presidency. Then everything subsides back to the constitutional mean, in which Presidents are expected to make these decisions without putting them through the hall of mirrors that is Congress. (Real wars are different — the stakes are high but the objectives tend to be clearer, much clearer, in a way that focuses the legislative mind and incentivizes approval.)

Where we are in fact: if Obama loses the vote that he requested he will have two very bad options.

If he then goes it alone, there will be a domestic firestorm, framed not just in political but constitutional terms. At the very least I think we would see the House formally condemn the action (something not witnessed in the war powers context since the House censured President Polk in 1848 over his provocation of the Mexican-American War). As Sandy Levinson suggests, there would also “certainly be (reasonable) calls for impeachment.”

If, on the other hand, Obama backs down in the face of a legislative defeat, he’ll look fatally weak, something on which almost everyone seems to agree. He would that he still had the constitutional authority to conduct the operation notwithstanding the absence of authorization, and that the backing down was at his discretion. But in this context, actions speak louder than words. Asking for the authorization effected a constitutional giveaway; there’s no chance of a constitutional clawback, at least not for now.

This is of course not to say that a Syria strike on unilateral presidential authority would have solved the Syria situation. But it would have left the US in a far better position internationally than we’re likely to find ourselves a couple of weeks from now.

Corker’s Revenge (The War Powers Resolution Lives!)

by Peter Spiro

The Senate has a draft resolution authorizing the use of force in Syria up for mark-up today, which you can find here. In its key operative provision, the resolution authorizes the use of force to 60 days only, subject to a 30-day extension upon a presidential certification of “extraordinary circumstances.” If Congress doesn’t extend the authorization, it is thereafter terminated.


The authorization in section 2(a) shall terminate 60 days after the date of the enactment of this joint resolution, except that the President may extend, for a single period of 30 days, such authorization if

(1) the President determines and certifies to Congress, not later than 5 days before thedate of termination of the initial authorization, that the extension is necessary to fulfill the purposes of this resolution as defined by Section 2(a) due to extraordinary circumstances and for ongoing and impending military operations against Syria under section 2(a); and

(2) Congress does not enact into law, before the extension of authorization, a joint resolution disapproving the extension of the authorization for the additional 30 day period . . .

Sound familiar? The resolution in effect smacks the War Powers Resolution framework onto the Syria action in a way that would be much more effective than the Resolution itself.

We all remember how President Obama evaded the WPR 60/90-day limitation on the non-authorized use of force with respect to the Libya operation. In that case, the Obama Administration made the somewhat implausible (on the face of it) claim that the Libya action did not qualify as “hostilities” for purposes of the WPR. That argument incensed many on the Hill, who thought they were being taken for fools. Bob Corker was particularly unhappy (check out his testy exchange with Harold Koh around time stamp 57:00 in the June 2011 SFRC hearing on Libya and war powers).

Looks like Corker is settling that score here. By applying the WPR timeline specifically to Syria, it almost certainly will stick. It is highly unlikely that Obama would in this case continue a Syria operation beyond the 60/90-day limit.

So the Administration in effect would finds itself bound by the WPR framework that it and all other prior Administrations have rejected. Doesn’t sound like a result that Obama should be happy about, a far cry from the open-ended broad authorization he requested over the weekend.

Jack Goldsmith disagrees. He highlights the “whereas” clause under which Congress would recognize that the President “has authority under the Constitution to use force in order to defend the national security interests of the United States.” I agree that this is a broad, possibly unprecedented articulation of presidential power. But Obama would still have a hard time putting that finding to work by way of extending the use of force beyond the 60/90-day window (the defiance of which would put the episode squarely in Jackson’s category 3, not category 1, as Jack argues).

And we’ll see whether the preambular recognition of broad presidential authority makes its way into the final bill in this form. Jack’s post itself makes that less likely (he is being widely read on legal developments relating to Syria), as Congress stands on guard not to cede constitutional turf. Obama has a glimmer of an argument for action beyond 60/90 days insofar as the resolution speaks of the authorization being terminated rather than requiring that the use of force be terminated (the latter being the WPR’s approach). But that argument would look as lawyerly as the Obama argument on Libya, in a context in which institutional sensitivities are even higher.

If the core of this draft is enacted, one could imagine it becoming a template for specific authorizations of limited uses of force in the future, including those beyond Syria-specific parameters. That would mark a historic shift in the balance of war powers, much more so than the War Powers Resolution itself ever did.

Syria Insta-Symposium: Did Obama Consult His Lawyers Before War Powers About-Face?

by Peter Spiro

Doesn’t sound like it, if you read between the lines of this AP account. Until Friday, everyone was assuming that congressional pre-clearance was not constitutionally required or otherwise warranted.

Obama’s national security team was in agreement that while consulting with Congress was critical, there was no need for formal approval, officials said. Seeking a vote in Congress to authorize a strike wasn’t even an option on the table.

You have to guess there were memos to that effect bouncing around State and Justice. Obama turned around on a dime after a long walk with Denis McDonough. No lawyers anywhere in this photo. Smart money also says that nobody outside the White House scrubbed the draft authorization the President sent over to the Hill. [I’m making a process point here – I’ll hold off for the moment responding to the substance of Marty and Deborah’s excellent posts below, but I think even they would concede that a credible-enough argument could be made to back up a decision not to seek congressional assent.]

Does it make any difference that the lawyers weren’t in on it? Not necessarily, of course. Everyone likes to point out that Obama is himself a constitutional lawyer who advocated robust congressional war powers as a member of the Senate.

But you have to wonder if he wouldn’t have provoked some stiff resistance from OLC and the Legal Adviser’s Office if the option had been vetted below.

It also raises the odds of unintended consequences down the line. Bad things happen when the lawyers are called on to reverse-engineer decisions taken above their heads. (Quite a contrast to the Libya encounter with the War Powers Resolution, in which Harold Koh, OLC acting head Caroline Krass and DoD general counsel Jeh Johnson brought their disagreement to Obama in full dress argument.) Another reason to think this may play out in unexpected ways.

UPDATE: An informed reader tells me that that new NSC Legal Adviser Brian Egan is in the Oval Office meeting (seated second from the left, between Brian McKeon and Tony Blinken); apologies for the error. So there was at least one lawyer participating in the deliberations. Still a completely different story than the battle of legal titans over Libya.

A couple of others have responded along the lines of, what difference does it make. As I say above, it’s possible that it doesn’t make any difference at all. But the lack of full legal vetting does raise the risk of error. One manifestation: there seems to be some confusion about whether Obama is claiming that he could proceed with the strike even if he doesn’t get the thumbs up. Does it also mean we will have no formal OLC opinion on the question? If not, the precedent is less easily cabined in the way that Marty, Jack, Deborah, and others assume it will be.

Syria Insta-Symposium: Obama’s Constitutional Surrender?

by Peter Spiro

President Obama’s decision to seek authorization for military intervention in Syria is a watershed in the modern history of war powers. At no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force. Foreign Policy’s David Rothkopf gets it exactly right:

Whatever happens with regard to Syria, the larger consequence of the president’s action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval. . . .

Obama has reversed decades of precedent regarding the nature of presidential war powers — and whether you prefer this change in the balance of power or not, as a matter of quantifiable fact he is transferring greater responsibility for U.S. foreign policy to a Congress that is more divided, more incapable of reasoned debate or action, and more dysfunctional than any in modern American history. . . .

Will future offensive actions require Congress to weigh in? How will Congress react if the president tries to pick and choose when this precedent should be applied? At best, the door is open to further acrimony. At worst, the paralysis of the U.S. Congress that has given us the current budget crisis and almost no meaningful recent legislation will soon be coming to a foreign policy decision near you.

The request makes all the difference. Just compare this episode to Kosovo, in which Congress tried and failed to get its act together to agree on an institutional position on the NATO bombing. But President Clinton had not requested authorization, and so there was no concession that congressional approval was needed. So he left himself free to ignore Congress’ failure to approve the action.

Obama will have no such out. (He claimed authority to go it alone in his statement today, but this is a context in which actions speak louder than words.) If Congress doesn’t authorize the use of force in Syria, his hands will be tied. The request shifts the default position.

In the past, presidents have been able unilaterally to initiate uses of force short of real war so long as Congress doesn’t formally disapprove. Institutional incentives have always pointed away from such disapproval. In fact there are only two partial examples of Congress limiting presidential uses of force in the modern era — Lebanon (Reagan) and Somalia (Clinton) — and that happened only after unilateral presidential actions had headed south. But of course those incentives also point against formally approving these sorts of lesser operations. Kosovo proved both sides of the coin, as measures both to approve and disapprove went down in defeat.

Over at Lawfare, Jack Goldsmith congratulates Obama for the move. Future presidents will not be so thankful, and maybe the rest of us shouldn’t be, either. Assuming a limited operation with no American casualties, Obama could have sweated the political heat just like he did during Libya. Through Democrat and Republican administrations presidents have for the most part used the power to initiate lesser uses of force in ways that served the national interest. American power would have been embarrassed by the requirement of congressional approval, which in many cases wouldn’t have been forthcoming.

The rest of the world can basically forget about the US going to military bat in these kinds of situations if congressional action is a precondition. This is a huge development with broad implications not just for separation of powers but for the global system generally.

International Law on Twitter (Looking for Follower No. 5000)

by Peter Spiro

Just a note to highlight OJ’s Twitter feed, which you can find here.  We link to posts on the blog, but there’s added content in the form of pointers to other items that might be of interest to OJ readers.

For those of you that haven’t taken up the habit, some serious material is floating around the Twitterverse at the same time that it’s easy to avoid the dreck.  If you’re looking for a starter package in international law, check out feeds from Ryan Goodman, Rob Howse, Blake Hounshell, David Kaye, David Bosco, and  Dan Drezner.  Most major NGOs, IOs, and governmental entities now have multiple feeds (the Department of State has dozens).  And don’t forget personal (opinionated!) feeds from OJ bloggers Kevin Heller, Julian Ku, and Ken Anderson.

Lots of interesting exchanges this week on legal aspects of the prospective Syria intervention. Updates from the 100th Anniversary Peace Palace gathering that Chris Borgen is reporting from are going up with the hashtag #peace100.

OJ is following 200+ accounts, which you can find here.  Thanks to the almost 5000 of you who are following us.

Eyal Benvenisti’s World Is Already Here (Even in the United States)

by Peter Spiro

Eyal Benvenisti’s excellent piece sets the stage for a substantial research agenda (hence the need for a major project to pursue its many possible applications). Benvenisti considers aspects of his trusteeship norm largely in the realm of international tribunals. There is also the possibility of direct internalization. I read the piece through the optic of US decisionmaking.

My first thought was, in effect, it’s not going to happen here. Take Benvenisti’s procedural duty to account for the interests of foreign stakeholders. That could readily map out in a cognate to the environmental impact statement, the longstanding requirement that the federal government analyze the environmental consequences of a broad range of government projects. The EIS process does not impose substantive constraints; it simply requires that environmental implications be brought to the table. By way of implementing the Benvenisti duty, the federal government could be required to undertake international impact statements for certain types of activity that are likely to have nontrivial impacts outside of the United States.

On the legislative side, one might imagine the emergence of practice under which Congress would invite foreign stakeholder testimony at legislative hearings, in something of the same way that committees will typically divvy up witness choices between the two parties. Committee reports could be required to assess the foreign impact of legislation in the the way that, for instance, Senate Standing Rules require reports to include cost estimates.

Neither kind of innovation sounds very plausible, though. The executive branch is loath to adopt extra bureaucratic requirements (which, even if only procedural, can result in significant administrative costs, direct and indirect). The locus of likely impacts would further complicate the adoption of some sort of IIS. Many executive branch activities with likely international impacts would be lodged in the Departments of State, Homeland Security, and Defense, activity that has historically been sheltered from such administrative requirements as the EIS and the Administrative Procedure Act. There is something cognitively dissonant about the concept of an International Impact Statement for, say, sanctions on Iran or the withdrawal of troops from Afghanistan.

It’s even less likely that Congress would adopt a practice under which foreign stakeholder interests became a routine part of legislative business. The costs wouldn’t be a hurdle so much as the culture is, one ostensibly resistant to foreign views. It’s part of sovereigntist dogma that the legislature represents the American people and only the American people, and that everything else is alien in an almost literal sense of the term.

So on first inspection the Benvenisti approach would not be very promisingly pressed in the US.

But scratching the surface only lightly, one can see that US decisionmaking already accounts for the interests of foreign stakeholders. Three agents — foreign corporations, foreign governments, and NGOs — do a pretty good job at making sure that foreign voices are heard in US decisionmaking.

Foreign corporations press their interests through lobbyists, an effective channel to the ears of both executive and legislative branch decisionmakers. Benvenisti recognizes the clout of foreign corporations, but only in the North/South context (at pages 303-04). That may present a possible pathology of trusteeship (multinationals dominating weak developing-country governments). But among developed states, it may be a part of the answer. Of course, even against the North/North landscape, lobbying is subject to all the ordinary pathologies of domestic governance, which Benvenisti acknowledges — lobbyists aren’t generally welcomed as the part of any answer. But their use is a way that foreign stakeholders can press their voices effectively within the imperfect confines of domestic governance.

Ditto for foreign governments, which also engage lobbyists in Washington. Foreign governments have always been a mouthpiece for foreign stakeholder interests. Historically it was through diplomatic channels only. Today, foreign governments work various channels on US policy. In addition to hiring lobbyists, they interact directly with decisionmakers at all levels. Where their interests are at stake, they try to advance them as political actors.

Finally, NGOs will take up other interests. On any issue implicating significant individual rights, it will almost always be the case that some NGO will adopt the cause — it’s a feature of the non-governmental ecosystem that empty niches get filled. Where such major NGOs as Human Rights Watch or NRDC pick up the ball, foreign stakeholders can be assured that their interests will be taken seriously in Washington.

There are issues of representativity in each context (not the least with NGOs). But that will always be the case in any context requiring agency relationships. Distortions tend to be self-correcting, as nonstate actors police state actors and each other. Some issues will have more traction with NGOs than others, but that typically reflects a judgment as to the probability of ultimate success (a problem corporations and foreign governments don’t have, since they are free to spend their money on losing causes).

There may also be questions about why these voices are being heard. When it comes to lobbyists material incentives are in play (though not directly, since foreign entities are barred from campaign contributions). With NGOs there may be votes at stakes from sympathetic domestic constituencies (a kind of proxy representation), though the kind of norms that Benvenisti articulates may also be in play, giving rise to a sense of proto-obligation among decisionmakers to consider foreign interests.

In any case, significant foreign constituencies are one way or another having their voices heard in domestic US institutions.

The Benvenisti program thus looks conservative rather than revolutionary. In Benvenisti’s apartment building of states, how could they not already be hearing each other, in the lobby and the hallways at least, if not through the walls? Of course, recognition is a major function of the development of international law, nudging holdouts and correcting anomalies, facilitating institutionalization. So the piece is a major contribution to the extent it systematizes and justifies developments that are taking hold on the ground in any event.

This July 4th, Exploring Paths Away From Citizenship

by Peter Spiro

As July 4th approaches, get ready for stock-in-trade accounts of uplifting naturalization ceremonies conducted in dignified settings and presided over by distinguished persons. That’s a nice thing for those who see citizenship through a traditional lens and who should be getting better value for an $800 naturalization fee (never mind that most naturalization ceremonies occur in DMV-like conditions in local Homeland Security offices).

What’s new this Independence Day is the growing number of US citizens who are looking to shed their citizenship. Until recently there hadn’t been much incentive to lose US citizenship (the burdens being negligible) and some reason to keep it (mostly, a passport and the right of entry into the US). But that has changed as non-resident citizens are hit with burdensome new tax filing requirements under the Foreign Account Tax Compliance Act (FATCA). For a growing number of external Americans, FATCA appears to have shifted the balance away from maintaining the citizenship tie.

There is only one clear-cut path to losing your US citizenship: through express formal renunciation at a US consular facility outside the United States. More are taking that route (Facebook co-founder Eduardo Saverin is a notable example). Renunciation involves multiple interviews, an oath, and a $450 filing fee. Renunciation can also implicate a hefty tax obligation. Individuals have to pay an exit tax on unrecognized capital gains (expatriation is treated as a tax event) and any back taxes owed (external citizens have always been required to file).

A more novel escape route (rediscovered, really) is through “relinquishment”. Under section 349 of the Nationality Act, naturalization in a foreign state will result in loss of US citizenship if accompanied by an intent to relinquish. In the past, it was the Government that asserted the existence of such intent. The Supreme Court constrained the practice in a series of mid-20th century decisions, and since 1990 at least, the State Department as a matter of administrative practice has assumed that an individual never intends to relinquish citizenship except where expressly renounced.

But now that there are reasons to lose citizenship, some will argue that, yes, in fact they did intend to relinquish citizenship when they naturalized elsewhere. The DC Circuit overturned the State Department’s refusal to accept such an argument (on somewhat anomalous grounds in a case involving naturalization under Israel’s Law of Return) in its decision last year in Fox v. Clinton.

For the moment, relinquishment triggers the same exit tax as renunciation – the IRS computes tax due as of the delivery of the notice of relinquishment, not the date of the expatriating act. I wonder if there isn’t a case against that, in support of backdating. In any event, relinquishment reduces bureaucratic hassle, eliminates the oath requirement (no good feeling there!), and saves the $450 fee, so I imagine its popularity will increase.

In the meantime, my correspondent on expatriate matters, the very well informed and thoughtful Victoria Ferauge (resident in Versailles), tells me that many nonresident US citizens are getting tax compliant precisely in order to cut the citizenship cord without the IRS getting in the way.

That’s too bad. The US is the only OECD country to tax non-resident citizens. Most are getting caught in a dragnet aimed at much bigger fish and the different problem of asset offshoring. Just as other countries are looking to cement ties with non-resident citizens, the US seems to be scaring its away. The better fix for all of this would be to roll back FATCA as it applies to ordinary Americans overseas, eliminating the need to become un-American. In the meantime, we will almost surely see more fellow citizens heading to the exits.

Sovereigntist Alarm-Ringing in Foreign Affairs

by Peter Spiro

John Kyl, Douglas Feith, and John Fonte have this offering in the July/August edition of Foreign Affairs. It’s a strong restatement of the sovereigntist position on the incorporation of international law from a powerful trio – Kyl, the sovereigntist legislator par excellence; Feith, the veteran executive branch point-man; and Fonte, the house intellectual. But the piece feels tired from the title (“The War of Law”) on down.

If there’s anything new, it’s in a more explicit rhetorical acknowledgement that international law isn’t all bad, to the extent it supplies “useful rules of the road” (an “accommodationist” move also made by Julian Ku and John Yoo in their recent book Taming Globalization). Beyond that, the anti-internationalist tone plays along familiar chords. Though the piece concedes that treaties can sometimes become part of domestic law (“After all, the U.S. Constitution specifies that treaties, together with the Constitution itself and federal statutes, are ‘the supreme law of the land’”), it doesn’t cite a single specific example of a “good” one.

The UN treaty committees are now clearly on the sovereigntist threat list (mandating day care in Slovenia!). Down with universal jurisdiction (Dick Cheney in a foreign dock)! “[T]he transnational law movement is creative, determined, and championed by prestigious figures. It has already altered the legal landscape and could inflict further harm on federalism and democratic accountability.” Cue attack on Harold Koh as ringleader.

Customary international law remains the prime target, in its “new” and “instant” versions, as incorporated not only by activist judges but also by the transnationalist Obama Administration (taken particularly to task for accepting the CIL status of Additional Protocol I). The piece calls on Congress to “counter this affront to the Constitution” with new legislation that “could help ensure that there are authoritative, proper, and constitutional means in place to incorporate new norms or new customary international law into U.S. law.”

I don’t see that bill getting very far (how would it be framed?). The proposal shows a nagging insecurity among the sovereigntists. At one level, what have they got to worry about? If a disabled rights convention can’t get through the Senate, nothing can. Contrary to the activist judge trope, the Supreme Court is resisting international law at every turn.

But international law is more insinuating than that. Chapter 3 of Katerina Linos’ book on policy diffusion, the subject of our excellent symposium this week, supplies some interesting support: even — perhaps especially — Republicans are more inclined to support policies endorsed by the United Nations. That points to a socio-cultural shift on international law, one that sovereigntists are powerless to stop.