Author Archive for
Peter Spiro

Is Another Treaty Question Headed to the Supreme Court?

by Peter Spiro

Is there a private right of action under the Hague Convention on the Civil Aspects of International Child Abduction? The Fourth Circuit said no in 2006, the Second Circuit now says yes, in an opinion released on Monday (the case is Ozaltin v. OzaltinReuters recap here).  Sounds like SCOTUS will have to take the question. Attention student note writers!

This may be a matter of small-bore treaty interpretation — how to apply implementing legislation in light of the treaty text, particulars good for this train and time only. But one might wonder if recent history makes it a little more freighted than that, after the Court skipped around the private-rights issue through the VCCR litigation in Sanchez-Llamas and Medellin. Could this be yet another vehicle for the Court in its campaign to obstruct the insinuation of international law?

Obama’s New Citizenship (Is Anyone Listening?)

by Peter Spiro

From the closing of last night’s State of the Union:

We may do different jobs, and wear different uniforms, and hold different views than the person beside us. But as Americans, we all share the same proud title:

We are citizens. It’s a word that doesn’t just describe our nationality or legal status. It describes the way we’re made. It describes what we believe. It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations; that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter in our American story.

This now qualifies as a refrain, in the DNC acceptance speech, the second inaugural, and now this. Has Obama arrived at a theme for his second term?

Let’s call it the New Citizenship.

Great stuff, if anyone were buying. But there isn’t enough solidarity on the ground for even so thoughtful and impassioned an exponent as Obama to pull this off. Americans are migrating away from this sense of mutuality (at least specially with other Americans), and no leader is going to be able to reverse the trend. That may be too bad, but that’s probably just the way it is.

Obama Citizenship Discourse Watch (Second Inaugural Edition)

by Peter Spiro

It was a liberal speech, but also a nationalist one. Obama returned to the citizenship theme of his DNC acceptance speech:

My oath is not so different from the pledge we all make to the flag that waves above and that fills our hearts with pride. They are the words of citizens, and they represent our greatest hope. You and I, as citizens, have the power to set this country’s course. You and I, as citizens, have the obligation to shape the debates of our time, not only with the votes we cast, but the voices we lift in defense of our most ancient values and enduring ideas.

This speech was inward-looking, situated in the task of a particular state, defining responsibilities and rights in a nationally bounded fashion. There was no “global citizen” vibe in the way of candidate Obama’s Berlin speech in July 2008. More “We the People,” as in the people of the United States. Equality, yes, but in a national frame.

The domestic editorial response will be positive, in a measured way. I wonder if international opinion will be more tepid (even with the big shout-out to climate change initiatives). This wasn’t a speech that had much for an international audience. That’s probably too bad, since I’m sure there was a big one.

Jon Stewart Takes Down Treaty Rejectionists: “Please Tell Me This Is Rock Bottom”

by Peter Spiro

In case you missed it, Jon Stewart at his best on the Senate’s rejection on Tuesday of the Disabilities Convention:


The floor debate on the CRPD can be found in the Congressional Record here, starting at page S7365. Not very edifying reading on either side. Here’s a sample from Senator Inhofe:

It seems as though most of the time when the U.N. conventions or treaties come up that I have been opposed to them, and my concern always has been that of sovereignty. I do oppose the United Nations Convention on the Rights of Persons with Disabilities because I think it does infringe upon our sovereignty, establishing an unelected United Nations bureaucratic body called the Committee on the Rights of Persons with Disabilities and a Conference of State Parties. These unelected bureaucratic bodies would implement the treaty and pass so-called recommendations that would be forced upon the United Nations and the United States if the United States is a signatory. . . .

We don’t need the United Nations bureaucrats changing it in our country in the name of worldwide advocation. . . . I know a lot of people feel that no idea is a good idea unless it comes from an international organization. I kind of fall at the other end of the spectrum.

Yes, kind of at the other end of the spectrum. For their part, proponents bent over backwards to stress the lack of any effect of the convention on U.S. law, as if to concede, any human rights treaty that did actually require changes to U.S. law would be a non-starter.

Senate Rejects Disabilities Treaty (Sovereigntism Lives, or Does It?)

by Peter Spiro

Story here on how the CRPD went down. The tally was 61-38, five votes short of the two-thirds necessary for approval.

On the one hand, the defeat demonstrates sovereigntism’s staying power. The anti-internationalist Right has been energized by a flight of treaties baring the putative menace of global governance — the Law of the Sea, the Arms Trade Treaty, and the Convention on the Rights of Persons with Disabilities.   Alarmists at Heritage and elsewhere have had a lot of fodder to work with in calling fellow travelers to the virtual barricades. Rick Santorum will surely claim responsibility for the CRPD’s defeat in trying to revive his political fortunes.

On the other hand, it’s only because of the treaty clause’s supermajority rule that their veto is worth anything. Anti-treaty forces clearly no longer represent a majority of the American people.

Might the second term present an appropriate juncture for a constitutional gambit? Assuming that 15 Republicans could be brought across the aisle, any of these or other agreements (eg the Children’s Rights Convention) could be submitted and approved as congressional-executive agreements, that is, with simple bicameral majority support. The US failure to sign on to broadly subscribed multilateral agreements is making us look stupid. Let’s update our constitutional mechanisms (a continual process with many, many examples in the realm of foreign relations) to better serve the national interest on the global stage.

Sephardic Jews Get Right of Return – To Spain

by Peter Spiro

Spain is now granting citizenship automatically without any residency requirement to those who can demonstrate descent from those Jews expelled from Spain more than 500 years ago. The rule could make as many as 3 million Sephardic Jews worldwide eligible for Spanish citizenship (600,000 of them in the United States, including a number who identify as Hispanic). The details remain a little sketchy, but assuming no costs and minimal bureaucratic hoops one can expect a good subscription for the offer (Spanish citizenship may not be so valuable these days, but EU citizenship is).

The rule has some superficial similarity to Germany’s approach to Holocaust survivors stripped of German nationality under the Nazi regime. German law provides for the “restoration” of citizenship to survivors and descendants, with no residency, language facility or other requirements.

But count me a skeptic on the Spanish measure. Unlike the German situation, we’re talking way distant past. The Sephardic diaspora has no relationship with the modern Spanish state in the way that Holocaust victims do; it would be a messy world if all ancient wrongs had to be made right. Of course doling out citizenship is cheap. Could it be that Spain is using redress as an economic recruiting tool? It is perhaps not a coincidence that Spain also announced last week an offer of immigrant visas (the equivalent of a US green card) to those who buy houses worth 160,000+ Euros.

Meanwhile, 750,000 Moroccan migrants in Spain have to satisfy a ten-year residency requirement for naturalization. The Inquisition also resulted in the expulsion of their ancestors, the Moors. Why aren’t they getting a new citizenship deal, too? Incongruous that someone whose family hasn’t lived in Spain for half a millennium can sign up for citizenship when someone living there today can’t.

University of Michigan Seeking Assistant Dean for International Affairs

by Peter Spiro

Job posting here. This would be a fabulous opportunity for someone with an international law background. Michigan of course has one of the country’s top international law faculties and led the way in requiring transnational law as part of its first-law curriculum.

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.