Author Archive for
Peter Spiro

Obama Centers (Rohingya) Citizenship in Burma

by Peter Spiro

President Obama’s visit to Burma/Mynamar has centered the status of the country’s Muslim minority Rohingya community which has been denied Burmese citizenship notwithstanding their historical presence in the country. (The issue gets a lot more coverage in the Muslim world than in the West.) Obama’s speech today welcomed recent steps by the Burmese government “to address the issues of injustice and accountability, and humanitarian access and citizenship.” Obama then focused on citizenship at length:

Every nation struggles to define citizenship. America has had great debates about these issues, and those debates continue to this day, because we’re a nation of immigrants — people coming from every different part of the world. But what we’ve learned in the United States is that there are certain principles that are universal, apply to everybody no matter what you look like, no matter where you come from, no matter what religion you practice. The right of people to live without the threat that their families may be harmed or their homes may be burned simply because of who they are or where they come from.

Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country. But I have confidence that as you do that you can draw on this diversity as a strength and not a weakness. Your country will be stronger because of many different cultures, but you have to seize that opportunity. You have to recognize that strength.

I say this because my own country and my own life have taught me the power of diversity. The United States of America is a nation of Christians and Jews, and Muslims and Buddhists, and Hindus and non-believers. Our story is shaped by every language; it’s enriched by every culture. We have people from every corners of the world. We’ve tasted the bitterness of civil war and segregation, but our history shows us that hatred in the human heart can recede; that the lines between races and tribes fade away. And what’s left is a simple truth: e pluribus unum — that’s what we say in America. Out of many, we are one nation and we are one people. And that truth has, time and again, made our union stronger. It has made our country stronger. It’s part of what has made America great.

We amended our Constitution to extend the democratic principles that we hold dear. And I stand before you today as President of the most powerful nation on Earth, but recognizing that once the color of my skin would have denied me the right to vote. And so that should give you some sense that if our country can transcend its differences, then yours can, too. Every human being within these borders is a part of your nation’s story, and you should embrace that. That’s not a source of weakness, that’s a source of strength — if you recognize it.

He concluded: “we have an expression in the United States that the most important office in a democracy is the office of citizen — not President, not Speaker, but citizen.” (Though it got lost in the campaign, this picks up on Obama’s Democratic National Convention acceptance speech, which also included citizenship as a refrain.)

There is a very territorialist approach here (“every human being within these borders”), not so surprising out of the super-strong American tradition of jus soli. That’s also consistent with an emerging international law perspective on these questions, which sees habitual residence as giving rise to a right of access to citizenship. The Rohingya situation in Burma is exceptional in rejecting this norm (the Bedoons in Kuwait and Nubians in Kenya are other examples).

But Obama didn’t seem quite willing to turn to international law as the source of an obligation on this score.  “Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country.” That’s out of the old playbook in which nationality is a matter ultimately of sovereign discretion. He was more in a “leading by example” posture than a tougher one under which Burma has no choice but to fall in line. Leave the latter argument to the human rights heavyweights.

Petraeus Scandal and International Law: The Honorary Consul

by Peter Spiro

Everyone else has a piece of this reality show, so why not international law? It turns out that Jill Kelley (for those of you not keeping score, here’s the roster) is the honorary consul of Korea in Tampa. She’s now looking to use the status defensively. From USA Today:

Jill Kelley, the socialite whose complaint to the FBI began the unraveling of the David Petraeus affair, has called police several times in the last few days, trying to invoke purported “diplomatic protection” to keep the media and public away from her Tampa home.

“You know, I don’t know if by any chance, because I’m an honorary consul general, so I have inviolability, so they should not be able to cross my property. I don’t know if you want to get diplomatic protection involved as well,” Kelley told a 911 dispatcher, who agreed to pass the information along to police.

Guess again. The status of honorary consuls is governed by chapter 3 of the Vienna Convention on Consular Relations. Her property is clearly not inviolable; article 31 does not apply to honorary consuls. As for the host government’s duty to protect, article 59 provides:

Protection of the Consular Premises

The receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

Unlike other provisions relating to honorary consuls, this one isn’t limited to “official acts”, and having all those reporters on your lawn is certainly dignity impairing. But it’s unlikely that her house qualifies as “consular premises,” which the Convention defines in article 1 as buildings “used exclusively for purposes of the consular post.”

Kelley’s immunity under the VCCR is otherwise limited to official acts. Does that mean Kelley doesn’t have to answer for slip-and-falls during a cocktail parties hosted in her capacity as Korea’s envoy? I wonder if the case will cast a small spotlight on the status. There are scores of honorary consuls out there (here’s a list of a couple of dozen for Philadelphia). Maybe there’s something more to it than special license plates and social cachet.

The Oxford Guide to Treaties Symposium: Enter Non-State Actors

by Peter Spiro

I’ll join the chorus of praise for my colleague Duncan’s book. It will clearly become the standard reference work in the area. As IL scholarship proliferates, there is a lot of smart money in handbook volumes such as this one. The Oxford Guide to Treaties is a one-stop source for the best thinking on the subject.

Duncan is also to be congratulated for his forward-looking inclusion of a chapter by Kal Raustiala on NGOs and treaty-making. Kal’s entry represents the best kind of writing for the format. It gives the newcomer a parsimonious but informative survey of the subject. For those already engaged on the subject, it has an edge.

Kal argues that states have a self-interest in permitting NGO participation in treaty-making. NGOs provide information in both treaty negotiation and implementation. NGO inclusion pays domestic political benefits, helping to get NGOs on board during the negotiations who are then more likely to turn around and sell the deal back home. When it comes to delicate negotiations, states can have their cake and eat it too, by closing the door on NGOs in informal-informals and the like. Kal describes how NGOs have become more prominent in the treaty-making process. But in his view this rise

should not be viewed as necessarily antagonistic to State interests. Nor does it undermine the centrality of States in international law-making. The roles played by NGOs remain formally subject to State control. This control ranges from the accreditation process, which keeps out the overly radical or insufficiently organized (or just deeply disliked), to the use of informal negotiating venues and forums, which keeps out everyone. Yet this control is used sparingly and, I have argued, often strategically. The reality is that NGOs remain active in a wide range of treaty settings.

I agree that as a formal matter states are still in charge. In theory, they can reject NGO participation. In practice, however, no multilateral regime can succeed without a substantial NGO presence. That’s not just a matter of putting NGOs to work in the service of states. It’s about legitimizing global institutions. The results won’t always be to state liking, either: NGOs are influential in treaty-making, in a way that’s often consequential.

The treaty form works against NGO participation, at least for now. (There is an interesting chapter by Tom Grant on non-state treaty-makers, but his discussion focuses on other territorial creatures – subnational jurisdictions, external territories, and insurgent groups.) When NGOs get involved on the basis of something more like equality, it has made sense to take other institutional routes. Think the Kimberley Process or the Global Fund. There’s a selection error in focusing on treaties as a form of international agreement-making. As a legacy institution, treaties will reflect a lower level of non-state participation than more novel agreement forms. I understand that this is beyond Duncan’s brief. But it’s something to keep in mind as we think about the spectrum of international instruments.

As a bonus to Kal’s chapter, Duncan includes model clauses on the terms of NGO participation (see 673-75). I’m sure that’s something new in a treaty handbook. I expect that future editions of the book will be including more material relating to non-state actors as their power becomes more evident and as the treaty form adapts accordingly.

Truly Universal Franchise (Or, A World Wanting to Vote)

by Peter Spiro

As everyone gets a little weary from the blizzard of last-week polls in the lead-up to the election itself, it’s not surprising that pollsters have widened their scope to measure the preferences of non-Americans outside the United States. The result: overwhelming for Obama. (The only country in which Romney bests Obama is Pakistan.) Though perhaps not exactly rocket science, Joseph Stiglitz explains the lopsided numbers here.

But why should foreign preferences be limited to meaningless polls only? The rest of the world is deeply affected by who sits in the presidency after all. Basic democratic theory holds that anyone affected by governance should have a say in its making. As Frances Stead Sellers pointed out in an elegantly argued 2004 piece in the Washington Post’s Outlook section, there is an “irony inherent in a situation where the president of the world’s greatest democracy exercises so much power internationally and so few people have a say in choosing him.”

Not going to happen anytime soon, and not very practical (though one might play around with the notion of allowing foreigners to make campaign contributions, a practice permitted in Australia, Germany, France, and Israel). But the disenfranchisement of the world points to another pathology of state-based institutions.

Could Americans Abroad Decide the Election?

by Peter Spiro

I subscribe to the new conventional wisdom that Tuesday’s result won’t be close, but who knows? If it is, there’s always the chance that voters among the 6+ million U.S. citizens living outside the United States will decide the election.

Non-resident U.S. citizens are entitled under the Uniformed and Overseas Citizens Absentee Voting Act to cast absentee ballots in “the last place in which the person was domiciled before leaving the United States.”

That’s pretty noncontroversial with respect to citizens who are on active duty in the US armed forces outside the US or those temporarily resident abroad. But what about those who have permanently left the United States? They aren’t around to shoulder the consequences, the argument runs; why should they get a voice? To the extent they’ve transferred their loyalties elsewhere, moreover — many will have dual citizenship — they might actually vote against the interests of the US.

But of course most will have an interest in who is President. On tax policy, for starters, on which front Americans abroad have a lot to be worried about. As for loyalty, that doesn’t really compute any more — would it make sense for a dual citizen in, say, France, to vote for Romney because it would make France look better relative to the US? If the US gets a bad president, the whole world suffers for it.

External citizen voting is now becoming the norm in other countries as well, to the point that many have discrete legislative districts drawn for nonresidents (eg, the representative for North America in the Italian parliament). Constitutional path dependence keeps us from going down that road. In the meantime, it’s good that citizens abroad get to participate, and if their votes make the difference, we shouldn’t think of it any differently than Latinos or blue-collar workers or suburban moms tipping the balance one way or the other.

Global FEMA?

by Peter Spiro

As a thought experiment, prompted by this week’s experience with Hurricane Sandy: should management of disaster relief migrate to the supranational level?

There seem to be two major justifications for a national disaster relief apparatus (a surprisingly recent innovation — think Carter era, not New Deal). First are the economies of scale: money and expertise. A small state may not have enough to cover a major disaster. Nor does it make sense for each state to have the equivalent of the Army Corps of Engineers.

Second are what might be grouped as interdependencies. When bad stuff happens in New York and New Jersey, it’s going to have serious material spillover effects in Utah and California. Setting disaster relief at the national level facilitates optimal prioritization. But there is also social interdependency. When bad stuff happens to people in other states, we all feel it in such a way that makes us accept burden sharing.

Most of these justifications now map out globally. Economies of scale are no longer defeated by the friction of spatial distance. Economic interdependency is clear. But even social interdependence plays out transnationally. Natural disasters everywhere are absorbed and responded to by everyone elsewhere.

Long term (and I mean very long term), that should point to a global disaster apparatus. The emergence of some global norms relating to disasters (noted by Kristen below) is a starting point. The increase in private transnational disaster relief (which I suspect has been dramatic) is another. Transborder disasters (most are) are increasingly seen in global perspective. Some are noting that Sandy’s impact in Haiti has been much more grave than suspended subway service in Manhattan.

Of course, there’s a downside to scaling disaster up. There are greater possibilities for fraud (see today’s NY Times on endemic problems at FEMA on that score). There are also externalities in shifting costs away from those who cause them. Compensate folks for building houses on floodplains or sand dunes and they’ll just build them again. These problems would presumably be compounded at the international level.

So maybe the endpoint is more in the way of today’s state-federal partnerships than in the way of world-government FEMA. FEMA itself is starting to do some thinking vaguely along these lines; here is a news item from earlier this week about an EU-IOM-Namibia agreement that institutionalizes disaster relief in advance. Other such arrangements will surely follow.

The Election and International Law: Silence May Be Golden

by Peter Spiro

Let’s just say international law was not a fulcrum in last night’s debate. It’s not like the topic was being discriminated against — many important topics were ignored.  (Among them the Eurozone crisis, climate change, cyberwar, NATO, anything much of Asia beyond China, Mexico or Canada.)  Bob Scheiffer asked a question about drones, which Romney answered by agreeing with the Obama approach and which Obama answered not at all. The words “international law” were actually uttered by Obama in the context of “atrocities” committed by Iran, this after Romney suggested, somewhat implausibly, that Ahmadinejad be indicted for genocide. Strike a blow for universal jurisdiction! The only mention of the United Nations was an oblique one by Romney, favorably referencing a group of Arab scholars “organized” under its auspices.

Nor has international law made even cameo appearances elsewhere in the campaign. (Perhaps not systematic evidence, but there has yet to be a single post here on the subject, with only two weeks left to go.) Nothing about Law of the Sea or other international treaties, nothing much about Guantanamo and counter-terrorism policies, nothing much about the use of drones.

But things could be worse. International law has been Republican red meat in past campaigns. In the second debate between George W. Bush and John Kerry in October 2004, for instance, Bush took swipes at a range of international institutions. On the Kyoto Protocol: “It’s one of these deals where, in order to be popular in the halls of Europe, you sign a treaty. But I thought it would cost a lot — I think there’s a better way to do it.” On the International Criminal Court: “I made a decision not to join the International Criminal Court in The Hague, which is where our troops could be brought to — brought in front of a judge, an unaccounted [sic] judge.” And then there was the “global test” jab against Kerry and UN Security Council authorization for the use of force: “That’s the kind of mindset that said, ‘Let’s keep it at the United Nations and hope things go well.’”

So at least no one is bashing international law this time around. (Not that sovereigntists haven’t been expanding their target list, with the arms trade and disability conventions as new additions.) If Romney didn’t exactly trumpet the virtues of international law last night, some see a pivot away from the party’s anti-internationalists. The New Yorker’s John Cassidy describes a lonely John Bolton :

The hirsute and somewhat elderly gent keeling over in the G.O.P. green room was John Bolton, the Bush Administration hard-liner who, in 2005 and 2006, spent a year and a half camped out on the East Side trying to insult as many U.N. officials (and foreigners in general) as he could. In reaction to questions about why Romney had enlisted head cases like Bolton to his foreign-policy team, his flacks frequently pointed to the presence of less fearsome figures, such as Robert Zoellick, the former head of the World Bank. But who knew that Romney had also enlisted Katrina vanden Heuvel and Kofi Annan as advisers? Not I, anyway.

Romney could always pivot back if elected, so obviously there are no guarantees in his campaign agnosticism. But I sort of doubt it (or at least I sort of doubt he would make it a central agenda item, in the way that GWB did). President Obama hasn’t exactly been trumpeting international law, either, but as a Democrat there’s no percentage in it. A second Obama Administration would surely be better for those who see a national interest in bringing the US into line with international law. But the decline of IL as campaign-trail whipping post bodes well either way.

Remembering Abe Chayes on the Cuban Missile Crisis

by Peter Spiro

With all the 50th anniversary retrospectives, seems like a good time to revisit Abram Chayes’ foreign relations law classic, The Cuban Missile Crisis: International Crises and the Role of Law. Chayes was the State Department Legal Adviser in October 1962, on leave from Harvard Law School; though Chayes was a participant in deliberations around the crisis, the book wears its autobiography lightly.

It’s a slim volume, a good primer on the legal aspects of the crisis. The quarantine decision might seem legally anodyne to us (does it?), but it was controversial at the time. Quincy Wright, for instance, thought it clearly illegal. Of course the quarantine was less legally and otherwise aggressive than the alternatives of an air attack and/or invasion, both of which were on the table (scorecard here). Chayes describes how a self-defense rationale for the action was considered and rejected. OAS authorization for the response loomed large, in a way that brings NATO and Kosovo to mind. Forgotten fun fact: Adlai Stevenson floated a deal to the ExCom under which the US would have withdrawn from Guantanamo – think of future headaches averted!

But the bigger pay-off is found in Chayes’ global observations on how the law influences foreign relations. Chayes shows legal realist tendencies, highlighting the contingencies of personal relations (eg, the fact that the Attorney General was the President’s brother and “adjutant”) and other circumstances. He is also a legal realist in stressing international law’s indeterminacy, which must have been radical against the backdrop of the formalist tendencies of the day. (He is at the same time not at all a Realist in the IR sense, calling out the “anthropomorphic fallacy” and highlighting bureaucratic interests in the way of another classic out of the crisis, Graham Allison’s The Essence of Decision.)

But indeterminacy does not make international law epiphenomenal, in this crisis or others. Public legal justification is a predicate to public acceptance, both domestic and international (a proposition demonstrated some years later, as Chayes points out, with the bombing of Cambodia) – “‘mere’ justification carries greater practical importance for the success or failure of great decisions than is commonly supposed by the analysts.” And the need for the legal justification itself spawns internal accountability mechanisms:

[I]f there can be no determinate answer, analysis and criticism can nonetheless distinguish a persuasive from a specious rational, a responsible and serious performance from a trivial one. In this way, the requirement of justification provides an important substantive check on the legality of action and ultimately on the responsibility of the decision-making process.

This still seems fresh even if others have made similar arguments since.

The book, published in 1974, is now out of print. Calling OUP: how about a Kindle edition? This should be required reading for students of foreign relations law, young and old.

US Delegation to Dubai Internet Negotiations To Be Larded With (Dominated By?) Industry Reps

by Peter Spiro

In a development that sounds (at least obliquely) in informal lawmaking, this from the very informative blog at The Hill:

Representatives from Google, Cisco, Facebook, Microsoft and AT&T will join Obama administration officials at a December conference in Dubai to negotiate the terms of an international telecommunications treaty.

The industry members are part of the 95-person delegation representing the United States as it opposes potential efforts to expand a United Nations agency’s authority over the management of the Internet during the upcoming treaty talks. They will join a group of officials from the State Department, Department of Defense, Federal Communications Commission and other agencies, along with a team of telecommunications attorneys from Wiley Rein and representatives from advocacy groups and trade organizations.

Countries from around the world will convene in Dubai to update the International Telecommunications Regulations treaty for the first time since 1988. The treaty will govern how voice, video and Web traffic will be managed as it travels across international borders.

Amazon, Intel, Juniper Networks, PayPal, Sony, TMG Telecom, Verizon, Ericsson and Go Daddy also have representatives on the U.S. delegation, while consumer advocacy group Public Knowledge is sending two representatives.

The lead-up to the Dubai negotiations, under International Telecommunications Union auspices, is starting to have a very big deal feel to it (see this somewhat long read from the Guardian on its various dimensions — it’s much more complex and cross-cutting than some are making it out to be). Westphalian possibilities?

I see two possible models for the broad non-state representation, which is possibly unprecedented (although industry has always been heavily involved at the ITU). First would be talkshop, in which included non-state representatives get the extra status that comes with inclusion on an official delegation and some access to state representatives. That would be a bump for lesser known entities like “dotGay LLC” (also on the delegation). But the real dealmaking remains an exclusively intergovernmental undertaking.

The other would be along the lines of corporate sponsorship of Olympic competitors.  That would be much more robust kind of involvement – the state provides the nameplate but nonstate actors are more like partners than hangers-on.

Ultimately it may not make much difference. Power rises to the top. Google, Facebook, Microsoft & co. will have a lot of pull at these negotiations, state-centric procedures or not.  Perhaps it would make more sense (from a transparency perspective) just to give the industry giants their own nameplates, so that we know better who’s speaking for whom.

Kiobel Argument Goes Badly for Shell (FWIW)

by Peter Spiro

The transcript in the Kiobel case has been posted here.

Shell counsel/former Stanford dean Kathleen Sullivan seems to have been on her heels for much of her argument time. Big sticking point on her claim that the ATS was not intended to cover piracy or a “reverse Marbois.” (No, that is not a wrestling move; it’s the counterfactual in which the famous attack of a French diplomat by an American occurs in France, not Philadelphia). See pp. 25 and following.

Paul Hoffman, on the other hand, stood his ground pretty well, allowing for the possible interposition of procedural bars to the making of Alien Tort claims (as pushed by Sotomayor). He got in an effective IG Farben analogy and even a little human rights speechifying (see p. 55). Breyer gets the award for zinger of the day: “if Hitler isn’t a pirate, who is?” (Anyone want to do the legal math on that one?)

So predictions of the ATS (extraterritorial) demise may be premature. On the other hand, recent experience demonstrates that predictions based on oral arguments are not especially reliable.

We’ll be hosting guest posts here on the Kiobel argument through the middle of this week.

In Free Trade Move, Honduras Privatizes Three Cities, Extremely (A New Kind of Company Town?)

by Peter Spiro

Story here:

Investors can begin construction in six months on three privately run cities in Honduras that will have their own police, laws, government and tax systems now that the government has signed a memorandum of agreement approving the project. . . .

The “model cities” will have their own judiciary, laws, governments and police forces. They also will be empowered to sign international agreements on trade and investment and set their own immigration policy.

To make it even weirder, appeals from courts in the cities would be to Mauritius and then to the UK Privy Council (according to this earlier report).

This strikes me as the leading edge of a potentially huge development, in which private actors more formally get their own pieces of turf and the lines between sovereign entities further blur. This is by no means to necessarily to celebrate the development (science fiction suggests this dystopian destination). But it does deepen the challenge to received doctrine, and it will require legal innovation to situate the new, private city-state in the world of international law.

Libya Killings and Speech Labels: The First Amendment According to Google

by Peter Spiro

At risk of dipping back into this touchy subject, there’s this interesting development as reported in today’s NY Times: Google has blocked the film that has provoked embassy (and now KFC) attacks from youTube sites in Libya and Egypt:

Google said it decided to block the video in response to violence that killed four American diplomatic personnel in Libya. The company said its decision was unusual, made because of the exceptional circumstances. Its policy is to remove content only if it is hate speech, violating its terms of service, or if it is responding to valid court orders or government requests. And it said it had determined that under its own guidelines, the video was not hate speech.

Maybe the hate speech/offensive speech distinction can be elided by the smart folks in Google’s foreign ministry. If material is literally setting off global firestorms through its dissemination online, Google will strategically pull the plug. (You can bet, of course, that Google is consulting with official foreign ministries on this, in the way that diplomats do.)

Do people who have a problem with the hate speech ban have a problem with Google’s action here? Seems to me hard to argue with, at least as deployed in this targeted way, if it stops a lot of senseless violence and dangerous instability. Private actors, of course, aren’t subject to the First Amendment (or parallel international law constraints). Of course there is another side of the coin, as when internet companies more clearly do the bidding of anti-democratic authorities.