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The Death of Treaty Supremacy: An Invisible Constitutional Change–Introduction to Opinio Juris Book Symposium

by David Sloss

[David Sloss is a Professor of Law at Santa Clara University.]

I want to thank Opinio Juris for hosting a symposium on my new book, published last fall by Oxford University Press. I also want to thank the group of distinguished scholars who have agreed to offer their perspectives on The Death of Treaty Supremacy as part of this symposium. I very much look forward to their contributions.

The book’s central claim is that an invisible constitutional revolution occurred in the United States in the early 1950s. From the Founding until World War II, the treaty supremacy rule, codified in Article VI of the Constitution, was a mandatory rule that applied to all treaties. As originally understood, the rule consisted of two elements. First, all valid, ratified treaties are supreme over state law. Second, judges have a constitutional duty to apply treaties when a treaty conflicts with state law.

The Framers adopted the treaty supremacy rule to solve a specific problem. Before adoption of the Constitution, state governments refused to comply with U.S. treaty commitments. Treaty violations by the states created serious foreign policy problems for the nation. James Madison and others highlighted this problem as one of the primary reasons for adopting a new Constitution. The Framers designed the Constitution to ensure that state governments would not violate U.S. treaty obligations without express authorization from the federal political branches.

The treaty supremacy rule was a bedrock principle of U.S. constitutional law from the Founding until World War II. However, the advent of modern international human rights law sparked a process of invisible constitutional change. The United States ratified the UN Charter in 1945. The treaty obligates UN member states to promote “human rights . . . for all without distinction as to race.” Beginning in the late 1940s, litigants filed dozens of suits challenging discriminatory state laws by invoking the Charter together with the treaty supremacy rule. In the landmark Fujii case, 217 P.2d 481 (Cal. App. 2d 1950), a court applied the traditional treaty supremacy rule to invalidate a California law that discriminated against Japanese nationals. The court held that state law conflicted with the Charter and the Charter superseded California law under Article VI of the Constitution.

Fujii sparked a political firestorm because it implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives lobbied for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. Senator John Bricker, the leading proponent of the amendment, sought to prevent the United States from becoming a party to any human rights treaty. Although the Amendment never passed, Senator Bricker and his supporters achieved some of their objectives through a process of invisible constitutional change, which I call the “de facto Bricker Amendment.”

Bricker’s opponents resisted the proposed Amendment by reinterpreting the Constitution. Before World War II, a firm consensus held that the treaty supremacy rule was a mandatory rule that applied to all valid, ratified treaties. Controversy over the Bricker Amendment gave rise to a new constitutional understanding—that the treaty supremacy rule is an optional rule that applies only to “self-executing” treaties. Thus, modern doctrine holds that the treaty makers may opt out of the rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing” (NSE). In sum, the de facto Bricker Amendment converted the treaty supremacy rule from a mandatory to an optional rule by creating an exception for NSE treaties.

The lawyers who invented the NSE exception to the treaty supremacy rule in the early 1950s claimed that they were merely following nineteenth century precedent. That claim was patently false. Before World War II, self-execution doctrine and treaty supremacy doctrine were independent, non-overlapping doctrines. The treaty supremacy rule governed the relationship between treaties and state law. Self-execution doctrine addressed the division of power over treaty implementation between Congress and the President. In the 1950s, though, self-execution doctrine effectively swallowed the treaty supremacy rule, creating a novel NSE exception to the treaty supremacy rule. The NSE exception now controls the domestic application of human rights treaties in the United States.

The Supreme Court applied the NSE exception to the treaty supremacy rule in Medellín v. Texas (2008). The Court held, in effect, that a treaty that was admittedly binding on the United States was not binding on the State of Texas because it was not self-executing. Medellín was directly contrary to the original understanding because the Court permitted Texas to violate U.S. treaty obligations without authorization from the federal political branches. In contrast, the Framers adopted the Constitution’s treaty supremacy rule to prevent state governments from violating a valid, ratified treaty without authorization from the federal political branches.

The world has changed dramatically in the past 230 years. However, some principles endure. In a system that divides power between the states and the federal government, it is absurd to grant states the power to violate national treaty commitments. As James Madison said more than two hundred years ago, a constitutional system that grants such power to sub-national governments would be “an inversion of the fundamental principles of all government.” It would create “a monster, in which the head was under the direction of the members.” The de facto Bricker Amendment created Madison’s monster. It is our responsibility to tame that monster.

Symposium: The Death of Treaty Supremacy-An Invisible Constitutional Change

by Jessica Dorsey

This week, we are hosting a symposium on The Death of Treaty Supremacy: An Invisible Constitutional Change the latest book from David Sloss, Professor of Law at Santa Clara University. The book was published last fall by Oxford University Press and the American Society of International Law recently selected the book to receive the 2017 Certificate of Merit for a Preeminent Contribution to Creative Scholarship.

A short description:

This book provides the first detailed history of the Constitution’s treaty supremacy rule. It describes a process of invisible constitutional change. The treaty supremacy rule was a bedrock principle of constitutional law for more than 150 years. It provided that treaties are supreme over state law and that courts have a constitutional duty to apply treaties that conflict with state laws. The rule ensured that state governments did not violate U.S. treaty obligations without authorization from the federal political branches. In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights for all without distinction as to race. In 1950, a California court applied the Charters human rights provisions along with the traditional supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. Conservatives reacted by lobbying for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker’s supporters achieved their goals through de facto constitutional change. Before 1945, the treaty supremacy rule was a mandatory constitutional rule that applied to all treaties. The de facto Bricker Amendment converted the rule into an optional rule that applies only to self-executing treaties. Under the modern rule, state governments are allowed to violate national treaty obligations including international human rights obligations that are embodied in non-self-executing treaties.

In addition to Professor Sloss’ introductory and concluding remarks, there will be posts from Carmen Gonzalez, John Coyle, David Stewart, Tom Lee, John Parry, Peggy McGuinness and Paul Dubinsky. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

The Post-Election Crisis in The Gambia: An Interplay of a Security Council’s “Non-Authorization” and Intervention by Invitation

by Benjamin Nussberger

[Benjamin Nussberger is a PhD student and research fellow at the Institute for Peace and Security Law at University of Cologne. He is currently pursuing a LLM degree at Columbia Law School.This post is a response and addendum to Professor Helal’s post Crisis in The Gambia: How Africa is Rewriting Jus ad Bellum.]

The Security Council did it again. Intentionally? No answer. Striking? It seems so.

After famous resolution 2249 (2015) concerning the Syrian war, after under-the-radar-flying resolution 2216 (2015) concerning the Saudi military intervention in Yemen, the Security Council did it again responding to the constitutional crisis in The Gambia with its resolution 2337 (2017): it “non-authorized” the use of force. This however should not be equated with a prohibition of the use of force. Rather, it seems, the Security Council not only leaves open, but apparently also opens and encourages alternative avenues for States to legally resort to force – without the Security Council’s express authorization.

Accordingly, by analyzing resolution 2337 (2017) more closely and further scrutinizing the intervention by invitation doctrine against the facts of the post-election Crisis in the Gambia (which may be recalled here and here), I would like to take up and develop Professor Helal’s reflections on the role of the intervention by invitation doctrine. Professor Helal raises concerns about the ineffectiveness of Adama Barrow, concluding that the intervention by invitation is “at best questionable.” Moreover, I would like to interweave this with a response to Professor Hallo de Wolf’s fear that “this latest example of regional intervention [in The Gambia] will come to reside next to others in the unfortunate category of illegal, yet legitimate interventions (…)” and that “it would appear nobody cares for the legality or illegality of ECOWAS’s use of force as long as the bad guy was displaced.”

A “non-prohibitive non-authorization”

I agree with Professor Helal: An express authorization of any use of force cannot be deduced from resolution 2337 (2017), as none of the indicators generally accepted to signify the authorization of the use of force are present. The Council does neither act under Chapter VII nor Chapter VIII. The Council does not determine a threat to international peace and security. It does neither decide nor authorize. It does not use the key term “necessary measures”, and thus refrain from basing its language on the ECOWAS Authority’s 17 December summit and the AU Peace and Security Council’s communiqué of 13 December 2016. To scatter any doubt, members of the Security Council, e.g. Uruguay (as well as Bolivia, and Egypt), reaffirmed this conclusion underscoring that “nothing in resolution 2337 (2017) can be interpreted as express authorization of the use of force.” (emphasis added) While a previous draft had included the Council’s full support to ECOWAS’ commitment “to take all necessary means”, this had been apparently watered down to comfort Russian objections. Thus, there is nothing in resolution 2337 (2017), which may be read to constitute an express mandate or endorsement of military force.

The non-authorization, however, should not be interpreted as a prohibition of a use of force. As mentioned earlier, some States did favor an endorsement of military means in the earlier stage of drafting. And this may also be traced in the resolution: the Council “expresses its full support to the ECOWAS in its commitment to ensure by political means first, the respect of the will of the people of The Gambia as expressed in the results of 1st December elections” (para 6, emphasis added). What is more, the Council “welcomed” the ECOWAS’ and AU’s decisions, in which both organizations announced to take “all necessary measures to strictly enforce” the election results. Statements of Russia and Britain back this interpretation. Russia’s deputy ambassador Petr Iliichev was quoted later: “if diplomacy fails, Barrow can request military or other assistance.” and Britain’s deputy ambassador Peter Wilson was quoted: “it’s very clear that if president Barrow asks for assistance, then that’s something as the legitimate president of Gambia he’s perfectly entitled to do.”

Accordingly, viewed against the drafting history, this allows to conclude that the Security Council was aware of an eventual military solution – and by elegantly framing it as support for peaceful and political means of dispute settlement first, it left the door to the resort to force in accordance with the UN Charter ajar.

Intervention by invitation

So what might this mean for the only viable justification for a resort to military means – an intervention by invitation?

As a short reminder, the doctrine of intervention by invitation is firmly rooted in State practice and accepted by the ICJ (Military and Paramilitary Activities In and Against Nicaragua, Armed Activities on the Territory of the Congo Case). It assumes that if a State’s government has requested military assistance, the invited State(s) might use force on the requesting State’s territory – without violating Article 2(4) UN Charter. Admittedly, it remains unclear whether, and if so when, the new president, Barrow, had issued such an invitation or request for military help to put him into power. Assuming he did, could this justify a military solution of the conflict?

As a side note, it shall be mentioned that the ECOWAS intervention in the Gambian constitutional crisis does not constitute State practice, shedding light to the murky waters of an intervention by invitation in a “civil war situation”, which recently has been subject to much debate: For the simple, but – as, e.g., the US has rightly commented – commendable fact that The Gambia did not immerse in armed confrontations.

Hence, if the president’s consent enfolds justifying effect, (only) dangles on the fundamental question: who is president? Who may legitimately call for military support by a foreign State, where competing claims to the presidency, entitled to act and speak on behalf the State, are advanced?

I agree that it is essentially this question, which puts the intervening States’ reliance on the doctrine of intervention by invitation alone on shaky grounds. This, however, is nothing exceptional or new, but rather common in scenarios of intervention by invitation. Two criterions are discussed in State practice and literature for answering this question. Traditionally, the government’s effectiveness has been a decisive component. More recently, legitimacy aspects arguably play an increasingly important role for determining a government’s representativeness. In the Gambian post-election crisis, both criteria are not unproblematic. As regards the effectiveness criterion, and as Professor Helal has rightly pointed out, Barrow was trapped in exile in Senegal, unable to take office at that moment in time. So his effectiveness appeared basically limited to an external dimension when the use of force began. The international community virtually unanimously recognized him as president and maintained diplomatic relations with him, and no longer with Jammeh. On the other hand, Jammeh’s effectiveness may be reasonably challenged as well: only some paramilitary units expressly said to defend him. The Gambian army chief declared not to involve the army into the political dispute; the Gambian navy decided to side with Barrow. Jammeh stood in isolation in the international community. This leaves two persons without a clear preponderance regarding effective control. Regarding the latter aspect, one may however ask in how far Jammeh’s ineffectiveness would have an impact on ineffective Barrow’s capability to call for help?

The legitimacy criterion seems to be clearer. Barrow has been elected president. He can base his claim to presidency on the will of the Gambian people expressed in “peaceful and transparent” elections, as the Security Council has observed (SC Resolution 2337, preamble 4). Nonetheless, this strong legitimacy basis has some scratches as well. Jammeh invoked irregularities taken place in the elections and referred the issue to the Constitutional Court – an argument advanced and a process taking place, which is not unknown, uncommon and without acceptance in “world-leading” democracies as well. Moreover, Jammeh declared a state of emergency, reacting to “unprecedented and extraordinary amount of foreign interference in the country’s internal affairs.” The Gambian parliament extended Jammeh’s mandate for 90 days, until the Supreme Court decided upon the matter. In this respect, the parliament also attempted to change the relevant constitutional provisions. Obviously, the parliament’s argumentation may be contestable from a rule of law as well as a political perspective, especially if one takes the circumstances and timing into consideration. The Security Council’s reaction in resolution 2337 (2017) seems to aim to express these concerns: “strongly condemning (…) the attempt by the Parliament on 18 January 2017 to extend President Jammeh’s term for three month beyond his current mandate.” In light of international norms of democracy (e.g. Art. 23 (4) of the African Union Charter on Democracy, Elections and Governance, to which the Security Council refers to) this raises difficult questions, exhibiting the tension in which international norms on and international assessment of democracy operate: Does all this still constitute a legitimate democratic process or does it exceed the competency of the parliament? What standard should apply? Is the parliament prohibited to change its constitution? And who should have the last word in deciding on the electoral process and the Gambian constitution: the State’s elected people’s representatives or the international community? The Security Council responded only with deafening silence, announcing the outcome of its assessment: this attempt was strongly condemnable (and illegal?). With all this in mind, one may also want to raise one more question: if we are very strict on this – how to assess an inauguration procedure taking place in the State’s embassy within a foreign country?

Despite these issues, which are yet another example illustrating that a clear-cut assessment in contested situations remains utopian, the international community takes an unambiguous position: The ECOWAS and the AU recognize Barrow as President of The Gambia. The Security Council also makes it very clear that it holds Barrow to be president of Gambia from 19 January 2016 onwards. In this respect it is also interesting to note that the Security Council reminds Jammeh of his contradictory behavior, by calling upon him to keep to the letter and spirit of his concession speech delivered on 2 December 2016 (para 5).

As I have argued elsewhere, an unambiguous international assessment and determination of relevant legal facts (in the case at hand the presidency) constitutes an important facet and indicator for States’ assessment of the question whether an intervention by invitation is permissible. Particularly, the Security Council’s assessment bears relevance. This invites us to shortly recapitulate. In a nutshell, the Security Council says the following in resolution 2337 (2017): It does not authorize the use of force. It does not prohibit the use of force. It takes note of and even welcomes the ECOWAS plans to eventually solve the conflict by military means. And it draws a remarkably clear and unambiguous picture of the conflict and its understanding of the legal facts relevant for a justification of a use of force.

It is my submission that the Security Council thereby (indirectly) assesses the related and relevant legal and factual questions. It hints to its understanding that a use of force may be legal if based on the doctrine of intervention by invitation, and thus equips any legal argumentation of the State resorting to force with greater legitimacy, persuasiveness, strength, and legal value. The case at hand is particularly illustrative, as the Russian and Britain diplomats quoted above even expressly voice their opinion that a military solution to the conflict may be based on Barrow’s request.

This strategy of “non-prohibitive non-authorization combined with fact-clearing, strengthening of alternative avenues of justification” is not new. Lately, the Security Council seems to have increasingly applied this approach to address various conflicts. For example, resolution 2249 (2015) concerning Syria created a skillful constructive ambiguity, enabling and de facto strengthening States to rely on self-defense measures, as Paulina Starski has explained here. In the still ongoing Yemen conflict, the Council’s resolutions and presidential statements as well as resolution 2216 (2015) clarified substantial legal facts relevant for the justification of the intervening coalition (for a detailed account see here). In both cases, some States had initially called for a mandate, which the Council was not ready to grant. In both cases, these States were comfortable and pleased with the above-sketched outcome. In both cases, the Security Council was aware of the States using force and their respective justifications. In both cases, the Council clarified facts, assessed the underlying legal concepts, and opened up and strengthened legal avenues justifying a use of force – be it self-defense or the intervention by invitation doctrine. In both cases, States invoked the resolution in addition to the general justifications, such as consent or the right to self-defense. And in both cases, except for some scant protests, a big international outcry against the intervention’s legality was inexistent. To the contrary, especially in the case of Yemen, the international community was almost unanimously ready to accept the resort to force as legal. Finally, in this respect both cases resemble the crisis in The Gambia. It is not the place to revisit and critically assess this strategy in detail. Yet, it invites us to pose questions in how far it contributes to an evolution or even changes the contemporary system of collective security.

Accordingly, in line with these developments and lines of arguments, if there has been an invitation, an intervention by ECOWAS may be arguably seen to be in accordance with international law. Different reasons for this conclusion may be advanced. One could read the incident as an additional example of State practice heralding the farewell of effectiveness as decisive criterion and turning to the criterion of legitimacy. But this seems not to be the main motivation. Strikingly, the Security Council does use the word “legitimate” other than when determining that Jammeh is no longer the “legitimate president.” Unlike to comparable incidents (e.g. Yemen Res 2216 (2015)) Barrow is not explicitly endorsed as “legitimate president”. Hence, I submit that the best understanding of the Gambian crisis, avoiding difficulties of legitimacy and effectiveness, is the following: accepting the Security Council’s assessment as a decisive indicator (amongst others), the non-prohibitive non-authorization, indirectly opening and strengthening the alternative avenue of the doctrine of intervention by invitation, eventually leads to the international community’s acceptance of ECOWAS intervention being in accordance with international law.

So, yes, the justification of “intervention by invitation” alone may be seen to stand on shaky grounds. But, no, the international community does not “not care” about the legality. Rather, it provides a strategy to legally resort to military force if diplomatic means fail – yet, admittedly, only for the time after inauguration, leaving the problem of the threat to use force unresolved. It is another question though, whether this strategy is commendable.

Strangely Enough, President Trump Can Use His Executive Power Over Immigration to Advance Human Rights and Battle Corruption

by Julian Ku

statue-of-liberty-1210001__340The legal battle over President Trump’s recent executive order has cast a spotlight on the president’s broad and potentially abusive powers over U.S. immigration laws.  But it is worth remembering that this power can be used in many different ways, including in ways that the President’s critics would support.  This past December, Congress delegated to the president broad discretionary powers to use his executive power over immigration to protect international human rights and to battle against corruption. These powers could advance the protection of human rights far more effectively than any Alien Tort Statute lawsuit.  But a successful use of this new law would require President Trump and his critics to work together. And this prospect seems awfully hard to imagine right now.

Enacted as part of the FY 2017 National Defense Authorization Act and modeled on a similar law targeting Russia only,  the “Global Magnitsky Human Rights Accountability Act” delegates to the President broad powers to impose targeted sanctions on foreign persons who commit or materially assist the commission of “gross violations of internationally recognized human rights” or “acts of significant corruption.”  In particular, the President is authorized to deny or revoke visas to foreign “persons”, or simply deny them entry.  A foreign “person” is specifically defined to include dual nationals.  (The exercise of this power might sound familiar to those of us still wrestling with the impact of last week’s immigration order.)

The Global Magnitsky Act goes farther than visa denial, however, and also authorizes the President to block “all transactions in property” of a foreign person that are in the United States or are in the possession of a U.S. person.   “Blocking” means that the property is frozen so that the owner cannot exercise any power or control over it despite still retaining title.

In order to impose such sanctions, the President simply needs to determine, based on “credible evidence,” that a foreign person either is “responsible” for a “gross violation[]” of internationally recognized human rights or acted as an agent for that person.  The same “credible evidence” standard applies to sanctions for corruption, or “materially assisting” corruption.

Taken together, it is hard to read this law as anything other than a grant of highly discretionary or possibly unreviewable power for the President to block the entry and/or freeze the assets of any foreign national he thinks is connected to human rights violations or corruption.  It might be unreviewable because courts are hesitant to review presidential exercises of a delegated power to impose sanctions, and even if it did, it would be nearly impossible for a court to find the lack of “credible evidence”.

Thus, President Trump has a new sweeping, possibly unreviewable power to deny entry into the U.S. and/or freeze the property of foreign nationals on the basis of human rights violations or corruption.  Previously, the President would have had to invoke a “national emergency” under the International Emergency Economic Powers Act to impose such sanctions, and violations of human rights were not specifically authorized as the basis for imposing such sanctions.  The Global Magnitsky Act thus hands President Trump a pretty powerful tool to support and advance the cause of international human rights.   Will he use it?

It is hard to predict anything for certain about our new president, but the statute does build in some mild procedural encouragements for him to use this new power.  For instance, the President must issue a report to four congressional committees (Senate Banking, Senate Foreign Affairs, House Finance, and House Foreign Affairs) reporting on sanctions he has imposed within 120 days of the law’s enactment (April 7, 2017).  Moreover, the President must also respond within 120 days to any request by the chair and ranking member of one of the congressional committees to impose human rights sanctions.  If the chair and ranking member of one of the House committees and one of the Senate committees sends him a request to impose corruption related sanctions, he must also respond within 120 days.  The Assistant Secretary of State for Democracy, Human Rights, and Labor is authorized to submit the names of possible sanctions targets to the Secretary of State for review. Moreover, nothing in the statute prevents the President from acting on his own.  Human rights NGOs, many of whom are the Trump administration’s fiercest critics, could also submit lists if they choose.

Even if President Trump uses this power, will it have any effect? How many “gross violators” of human rights or corrupt foreign government officials want to enter the U.S. or have property or assets here?  It is hard to say for sure, but the number is probably more than zero.  It might even be a lot more than zero.  In any event, it is also worth noting that the sanctions imposed by the Global Magnitsky Act are almost as severe as any judgment that could be collected in a lawsuit brought under the Alien Tort Statute.  Will petitioning the White House to impose sanctions replace ATS lawsuits?  Probably not, but if used aggressively, the Global Magnitsky Act would have a much greater impact in support of international human rights than any five ATS lawsuits put together.

It is still too early to tell how this law will work in practice.  But human rights and anti-corruption NGOs should be dusting off their political lobbying skills and start approaching the State Department and the chairs and ranking members of the relevant congressional committees with names. Since Maryland Senator Ben Cardin sponsored the Global Magnitsky Act and is the ranking member of the Foreign Affairs Committee, I bet he would be more than happy to submit some names to President Trump.    Such lobbying is a lot easier than filing an ATS lawsuit, and has a much higher chance of having a real impact.   But it will also mean petitioning an unpopular president to exercise his much vilified executive powers on their behalf. Will a future photo from the Oval Office depict President Trump signing a Magnitsky Act executive order while officials from Amnesty International and Human Rights Watch stand beside him to applaud him?  As I said, this is awfully  hard to imagine today, but stranger things have happened.

The Important Role of International Law in Legal Challenges to Trump’s Anti-Refugee Order

by Jonathan Hafetz

[Jonathan Hafetz is Professor of Law at Seton Hall University School of Law.]

President Trump’s recent executive order temporarily barring the entry of refugees and others has provoked widespread protests, inflicted unnecessary suffering, and undermined the United States’ reputation across the world.  Several district judges have temporarily blocked its enforcement, at minimum preserving the status quo (by halting the removal of individuals who had traveled to the United States) until the legal challenges can be resolved.  The most recent ruling, issued by a federal judge in Los Angeles, went as far as to enjoin the federal government from denying entry into the United States to holders of valid immigrant visas from countries covered by Trump’s order.  I believe Trump’s order violates the U.S. Constitution, as I’ve briefly described here and Adam Cox has discussed at length here.  It also transgresses international law.  And while the international law violations may not alone trigger the order’s invalidation by a federal judges, they strengthen the domestic law challenges—statutory and constitutional—to the order.

Trump’s order suspends entry of all refugees to the United States for 120 days, bars Syrian refugees indefinitely, and blocks entry into the United States for 90 days of citizens from seven predominantly Muslim countries.  The Trump administration (via Department of Homeland Secretary John Kelly) subsequently sought to clarify that legal permanent residents (LPRs) from those seven countries were not categorically banned but would instead be issued waivers on a case-by-case basis. A more recent White House “clarification” states that the order will not apply to any LPRs. How much weight judges will accord these post hoc damage control efforts is another question, particularly given the continuing evidence of the order’s arbitrary enforcement and Trump’s own proven disregard for facts and for the truth.  Further, this clarification does not address claims by non-LPRs.

The order contravenes the 1951 Refugee Convention and 1967 Protocol by discriminating among refugees based on religion and country of origin.  The ban also violates applicable human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which prohibits non-discrimination across a broad range of state action, including entry decisions, and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which bars racial and religious discrimination in immigration decisions.  (See Jay Shooster’s excellent post here). Further, as Shooster notes, both the ICCPR and CERD prohibit laws with discriminatory effects and thus do not require proof of intent (although there is ample evidence of discriminatory intent behind Trump’s executive order, as noted below).  For example, a 2004 decision by the UN Human Rights Committee interprets the ICCPR’s anti-discrimination prohibition to encompasses action that has an “exclusive and disproportionate effect on a certain category of persons.”

The federal court rulings thus far show Trump’s order is vulnerable to anti-discrimination challenges based on national origin and religion.  The Trump administration’s claim that the order is not directed at Muslims is undercut by Trump’s repeated statements openly expressing disfavor of Muslims.  Indeed, in signing the order, Trump vowed to “keep radical Islamic terrorists out of the United States.”  And Rudy Giuliani stated that Trump wanted a “Muslim ban” and asked him to assemble a commission to show him “the right way to do it legally.”

Because the relevant treaties are non-self-executing, their bite in litigation over the executive order will be in their interaction with domestic law.  One statutory argument some petitioners will advance is that the executive order violates section 202(a) of the Immigration and Nationality Act (INA).  Enacted in 1965—and motivated by a long history of discrimination in immigration law—this provision bars discrimination in “the issuance of an immigrant visa” based, inter alia, on nationality, place of birth, or place of residence.  International law bolsters claims that section 202(a) should be interpreted to prohibit the type of national origin discrimination imposed by Trump’s order against those seeking permanent residence status.

The Trump administration is relying heavily on section 212(f) of the INA, which allows the president to suspend entry of any class of aliens where it would be “detrimental to the interests of the United States.”  But, although broad, this grant of authority should prove vulnerable where, as James C. Hathaway notes, there is no “serious data linking refugees to a terrorist threat” and where the evidence instead points to religious animus as the motivating factor.  Here again, non-discrimination provisions under international law will reinforce construction of federal law against the order’s validity.

International law also supports constitutional challenges, particularly the claim that removal without judicial review violates the Due Process Clause of the Fifth Amendment.  Under the Refugee Convention and international human rights law, individuals have a right apply for asylum, cannot be removed to a country where they face a risk of torture or persecution, and are entitled to a determination on their claims.   Federal law implements these non-refoulement obligations by providing for individualized determinations and judicial review.  A categorical ban that denies those fleeing persecution the opportunity to seek relief and review—as required under international law and provided for by federal statute—violates due process.

While constitutional arguments will remain front and center, the order’s incompatibility with international law—not to mention with U.S. international interests—should magnify judicial skepticism about the expansive readings of the plenary power doctrine and executive authority that Trump will advance in defending the order.

Why You Shouldn’t Panic Over President Trump’s Draft Executive Orders on Funding for International Organizations

by Julian Ku

Because I am on sabbatical this semester, I have been lying low during these first few (very busy!) weeks of the Trump administration.  But I have noticed that the sheer volume of Trump administration actions, and reactions to its actions, is confusing both its supporters and its critics.  While Trump has already taken actions that are worthy of severe criticism (see, e.g., his much-maligned immigration executive order), some of his other proposed actions are being overblown as further threats to the Republic.  This type of overstatement and mischaracterization is as damaging to Trump’s critics as they are to the Trump administration itself.

For instance, two draft Trump executive orders on international organizations and multilateral treaties leaked late last week causing a flurry of instant condemnation on social media and elsewhere.  The initial reports about these orders, especially on twitter and in headlines, suggested that Trump would by executive order “to dramatically reduce funding of United Nations.”  New York Magazine’s summary of the draft order is particularly sensational:

….Donald Trump is preparing to decimate this tool of American hegemony [the U.N.] — and global peacekeeping and poverty reduction — with a stroke of his pen.

The Trump administration has drafted an executive order that would radically reduce American funding of the U.N. and other international organizations. The order would terminate all U.S. funding to any international body that meets any one of a long list of criteria. Among other things, the order would bar American funding of any organization that gives full membership to the Palestinian Authority or Palestine Liberation Organization, supports programs that fund abortion, or that is “controlled or substantially influenced by any state that sponsors terrorism.” (Emphasis added).

The problem with this summary is that it is totally inaccurate.  The actual draft executive order simply forms a committee to study and provide recommendations on whether and how to cut U.S. funding to the U.N. and other international organizations.  The order does not “terminate” anything with “a stroke of a pen.” Its most aggressive section would simply require the Committee to “recommend appropriate strategies to cease funding” international agencies that grants membership to the Palestinian Authority or supports terrorism.  Funding for these agencies is already prohibited by U.S. statute, so this is really an order to think of ways to comply with U.S. law.  To be sure, the order takes a much harsher and negative view of funding international organizations than prior U.S. administrations, but the order is hardly the end of the United Nations as we know it.  This is especially true if we recall that Congress, and not the President, has the power to fund or not fund international organizations like the U.N..

The draft executive order on multilateral treaties is potentially more significant because the President has broad powers to withdraw from treaties.  But the order itself simply creates another committee to review U.S. participation in all multilateral treaties that the U.S. is negotiating, in the process of considering ratification, or already ratified and joined.  The committee is instructed to recommend whether the U.S. should continue negotiating, ratifying, or being part of those treaties.

The only unusual part of this process is to elevate treaty review to an interagency committee. But such a review process is reasonable for any new administration.  The only real action in the draft order is a moratorium on submitting new treaties to the President or the Senate absent a committee recommendation.  This might slow down the already slow treaty ratification process, but given the glacial pace of Senate consideration of most treaties, I doubt this “moratorium” will have much an effect.

There is plenty to criticize and even protest in the new Trump administration’s flurry of executive orders and statements.  But Trump’s critics need to carefully distinguish between what is truly troubling and what bears watching, and what is not really significant. Otherwise, they risk undermining their credibility and the effectiveness of their critiques.  These two draft executive orders bear watching as a signal of the new administration’s priorities.  But they are not a cause for panic.

So everyone take a step back, and read beyond the headlines or twitter summaries before reacting and overreacting.  There is and will be plenty to criticize in the new administration.  Save your ammunition for when it is truly needed.

Crisis in The Gambia: How Africa is Rewriting Jus ad Bellum

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]

Academic writing and political commentary on jus ad bellum are overwhelmingly focused on the policies, practices, and positons of major military powers. Countries such as the five Permanent Members of the UN Security Council, and regional pivotal states that have been belligerents in major armed conflicts, such as India and Pakistan, Iran and Iraq, Israel and its Arab neighbors, Turkey, Ethiopia, Indonesia, and a few others, have attracted the most attention in scholarship on the law governing the use of force by states. One region that has received lesser attention is Africa.

This is unfortunate because recent developments in Africa are challenging some of the cardinal principles of jus ad bellum. The unfolding crisis in The Gambia is one example. Adama Barrow, a real estate developer, defeated long-term incumbent Yahya Jammeh in the presidential election held on December 1st, 2016. Unexpectedly for an eccentric Gaddafi-like authoritarian leader, who vowed to rule The Gambia for a billion years and claimed the ability to cure AIDS and infertility, President Jammeh conceded defeat and promised a peaceful transfer of power. However, on December 9th, in an equally surprising volte-face, Jammeh declared that he was rejecting the election results citing what he called “serious and unacceptable abnormalities.”

President Jammeh’s power-grab was roundly condemned by the international community. In addition to the customary criticism and expressions of concern from international and regional organizations, a summit of the leaders of the Economic Community for West African States (ECOWAS) adopted a resolution on December 17th recognizing the results of the December 1st election, pledging to attend the inauguration of President-elect Barrow on January 19th, 2017, and deciding to take “all necessary measures to strictly enforce the results of the 1st December 2016 elections.” The phrase: “all necessary measures,” is universally recognized as international law-speak for the authorization of the use of force.

After mediation efforts failed, ECOWAS issued an ultimatum to President Jammeh: either relinquish power by midnight on January 19th, or ECOWAS will forcefully intervene to install President-elect Barrow. Signaling that it meant business, ECOWAS forces from Senegal and Nigeria were mobilized on the border with The Gambia, and warned that they will intervene if President Jammeh failed to comply with the organizations’ ultimatum. On December 21st, a statement by the President of the Security Council noted that the Council welcomed and was encouraged by the decisions of the ECOWAS summit. Similarly, the African Union Peace and Security Council endorsed the election results and announced that it would not recognize Jammeh as President of The Gambia after January 19th.

As the January 19th deadline elapsed, events kicked into high-gear. Adama Barrow was sworn into office in The Gambia’s Embassy in Dakar, Senegalese forces crossed into The Gambia to enforce the ECOWAS resolution of December 17th, apparently pursuant to a request by-now President Barrow, and the UN Security Council unanimously adopted Resolution 2337, its first for 2017. The resolution, tabled by Senegal, does not authorize the use of force by ECOWAS. Rather, acting under Chapter VI, the Council endorsed the decision of ECOWAS and the AU to recognize Adama Barrow as President, welcomed ECOWAS’ decisions of December 17th, and expressed support for ECOWAS’ commitment to “ensure, by political means first, the respect of the will of the people of The Gambia.” With ECOWAS troops already in his country, on Saturday January 21st President Jammeh left The Gambia, apparently after shipping a number of his luxury cars and pocketing $11 million from the treasury.

The situation in The Gambia and international reactions to the crisis challenge certain aspects of jus ad bellum. Because Opinio Juris readers are probably familiar with the basic contours of jus ad bellum, suffice it to say that the UN Charter establishes a blanket prohibition on both the threat and use of force by states. The Charter does, however, admit two exceptions to this general prohibition: force used in self-defense against an armed attack, and forceful action authorized by the Security Council under Chapter VII of the Charter.

If based on a request by President Barrow, the Senegalese-led ECOWAS intervention beginning on January 19th fits – albeit imperfectly – within the established rules of jus ad bellum. As the International Court of Justice (ICJ) confirmed in the Armed Activities on the Territory of the Congo Case, jus ad bellum permits governments to invite foreign states to militarily intervene on their own territory. In fact, previous ECOWAS interventions, such as in Sierra Leone and Liberia were justified on requests by the governments of those states. The potential trouble with ECOWAS’ ongoing intervention in The Gambia, however, is that it was undertaken pursuant to a request from what is essentially a government-in-exile. In fact, Adama Barrow probably does not even qualify as a government-in-exile, but rather, should be considered a president-in-exile. The right of a president-in-exile, who has never exercised governmental authority or effective control over the territory of the state, to authorize foreign armed intervention is, at best, questionable and unsupported by ample precedent. (See: Intervention by Invitation).

Moreover, the run-up to ECOWAS’ intervention in The Gambia also challenges the prohibition on the threat of the use of force. Ian Brownlie defines a threat of force as “an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.” Accordingly, the decision of the ECOWAS summit on December 17th, which demanded that President Jammeh relinquish power and authorized the use all necessary measures to enforce the election results, combined with the mobilization of ECOWAS forces in the weeks before January 19th, constitutes a threat of force. As the ICJ opined in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the test of the legality of threats of force is: “if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.” The problem here is that enforcing election results or installing a democratically elected leader into office are not legitimate grounds for the use of force according to jus ad bellum. Despite attempts by a few governments and some scholars to advocate the so-called doctrine of pro-democratic intervention, which permits the resort to force to promote democratic government or prevent illegitimate takeovers of power, the overwhelming opinion is that this practice violates the UN Charter. Interestingly, however, the UN Security Council appears to have endorsed this threat of force by ECOWAS against President Jammeh. As aforementioned, the Presidential Statement of December 21st welcomed the actions of ECOWAS, and Resolution 2337, while falling short of authorizing the use of force and expressing its preference for the use of political means to settle the conflict, welcomed the decisions of the ECOWAS summit.

The chain of events and outcomes of a single conflict probably do not suffice to fundamentally alter rules as foundational to the international legal order as the prohibitions on the threat and use of force. The ongoing crisis in The Gambia does, however, pose some difficult legal questions and challenges certain aspects of jus ad bellum. Moreover, ECOWAS’ willingness and preparedness to threaten and use force to promote democracy is only one example of African practice that challenges the traditional rules of jus ad bellum. Another interesting development in Africa that has attracted limited academic attention (See here) is the ability of the African Union to authorize armed intervention to prevent genocide, war crimes, and crimes against humanity. This right, enshrined in Article 4(h) of the AU Constitutive Act, is essentially an African version of the Responsibility to Protect. What is notable, however, is that the African Union is not required to seek Security Council authorization before approving such an intervention. This directly challenges Article 52 of the Charter, which obliges regional arrangements to acquire Security Council authorization before engaging in enforcement action.

As Jeremy Levitt noted, “most policymakers, international lawyers, and legal academics outside of the continent consider African states to be objects rather than subjects of international law … The geopolitical, Eurocentric, and linear bias in Western legal academia, among others, is truly unfortunate.” Events in The Gambia and other developments in Africa suggest that African practice in jus ad bellum, and indeed in all fields of international law, deserves greater scholarly and policy attention.

International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

by Simon Chesterman

[Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Simon’s teaching experience includes periods at Melbourne, Oxford, Columbia, Sciences Po, and New York University.]

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1. Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian.

Professor Antony Anghie also makes an important point about power in his historical survey. The Asian states that fought for the New International Economic Order (NIEO), he argues, had a vision but no power; by contrast, the Asian states that have power today lack any comparable alternative vision. Professor B.S. Chimni similarly suggests that the lack of a regional organization in Asia may be attributed to the fact that no Asian state has had the combination of material capability and legitimacy necessary to lead the formation of such an entity.

These observations about power go beyond the standard challenge to international law of its claim to being “law”. They recall far older critiques of the rule of law even in its domestic context: that it reifies power relations and thus is naturally embraced by whoever benefits most from the system. (It does and it is.) Nevertheless, as even the Marxist historian E.P. Thompson recognized, the rule of law remains an “unqualified human good” for its ability, nonetheless, to impose effective inhibitions upon power and defend against power’s all-intrusive claims.

So it is, I would contend, at the international level. Smaller states (like Singapore) are naturally most enthusiastic about the rule of law, but even larger ones (like China) are progressively seeing that it is in their enlightened self-interest to embrace such a world order, much as the United States did following the conclusion of the Second World War — a moment when its relative power was, arguably, at its greatest.

2. History

Turning to history, Professor Anghie rightly notes the incompleteness of my account of the achievements and failures of Asian states in their efforts to engage with international law. I concede that I do not do this rich history justice — though blame surely lies also with EJIL’s word limit. Some of this deficiency will be remedied in a forthcoming Handbook of International Law in Asia and the Pacific that I am editing for Oxford University Press together with Judge Hisashi Owada and Professor Ben Saul (and to which Professor Anghie is contributing a chapter).

As Judge Jin-Hyun Paik emphasizes, that history continues. It would be a mistake, for example, to assume that Asian states’ attitudes towards international law are static. As he shows in his own survey of international adjudication, those attitudes are clearly evolving. From relative non-engagement with the Permanent Court of International Justice, the movement has been from infrequent respondents to occasional applicants before the International Court of Justice and other tribunals, with important recent instances of Asian states consenting to litigate sovereignty disputes. Though Asian states remain the least likely to accept compulsory jurisdiction or appear in international tribunals, he demonstrates that the willingness to do both is increasing.

3. Method

The article attempts to downplay any grand claims about “Asia” and “international law” that might be inferred from the title. Nevertheless, such work is intended to be examined for its method as well as its conclusions.

Professor Chimni rightly warns of the dangers of cultural essentialism, geographical determinism, and materialist reductionism. (He generously gives me a pass on a fourth pitfall of orientalism.) His point that Asian states’ economic interactions play an important role in constructing their world view is well taken. He also emphasizes that reluctance to sign onto a given international regime need not imply opposition to its objectives, giving the example of Asian states’ treatment of millions of refugees.

Professor Robert McCorquodale queries the use of “Asia” as a category, in particular the relative absence of the Pacific and the Middle East from my analysis. Judge Paik also stresses the diversity of Asia, highlighting in particular the relative openness of East Asia to international cooperation. These are fair observations and the attitudes of the various sub-regions of Asia would bear further study. (For my own views on Southeast Asia, see this recent work on ASEAN.) Professor McCorquodale also suggests that the role of non-state actors might be a fertile line of inquiry — particularly the role played by business entities, given the relative willingness of Asian states to accept binding agreements in the area of trade and investment.

At a more fundamental level, Judge Xue queries whether the premise of the article — that Asian states benefit most from a world ordered by law — is properly made out. Claiming that the economic success of Asian states is due to international law and institutions may be a bit “self-conscious of the discipline”. She is surely correct that internal as well as external factors were responsible, but I would still argue that international law was necessary if not sufficient for the prosperity and stability that Asia now enjoys.

4. Futures

Judge Xue concludes that, while Asia should not be expected to carry on the role of “rule-taker”, there is some way to go before it becomes a meaningful “rule-maker”. In particular, she questions my declinist account of the United States, writing that it “is and will continue to be the dominant Power in the region.” On the issue of whether international law will become more representative and more democratic, she proposes that this challenge needs to be directed at the West as much as at the East.

On this last point, Professor Benvenisti suggests that President-elect Trump (who takes office shortly after this post goes live), embraces a conservative view of international law that is consistent with the Five Principles embraced by China and India for half a century, recently reaffirmed in the joint declaration by Russia and China. I suspect he is correct, but President Trump has routinely contradicted previously articulated positions and I am wary of joining the ranks of those who predicted what he would do and failed.

Though it is often invoked, there is no Chinese curse that means: “May you live in interesting times”. Provenance notwithstanding, there is no doubt that the coming years will be interesting. It is my hope that my article and this symposium will encourage greater analysis of how power is shaped by law and vice-versa, how history influences the present, and how research can better prepare us for whatever the future may bring.

Thank you, once again, to the organizers of this symposium and to Judges Xue and Paik, and Professors Anghie, Benvenisti, Chimni, and McCorquodale for taking the time to offer their thoughtful and thought-provoking responses. This is clearly not the end of this conversation, or even the beginning of the end. But it is, perhaps, the end of the beginning.

An Asian Perspective

by Xue Hanqin

[Judge Xue Hanqin is a judge on the International Court of Justice. This post is part of a joint Opinio Juris/EJIL:Talk! symposium. For the latest symposium post on EJIL:Talk!, click here.]

The rise of the new economies, particularly those in Asia, has caused considerable apprehension in the West. The concern is not just about shift of wealth to the East, but more about their increasing balancing power and influence in international affairs. It is against this background that the topic of Asia’s attitude towards international law has attracted relatively wide attention.

Professor Chesterman starts his article with a “paradox” as a basic proposition of his analysis, namely, while Asia enjoys most the benefits of the security and economic dividends secured by international law and institutions, it has the least participation and representation in international treaties and structures; Asian States in general are not willing to delegate sovereignty; far fewer of them have accepted the compulsory jurisdiction of the International Court of Justice and the Statute of the International Criminal Court. Above all, Asia has the least prospect for regional integration. Before proceeding to consider the reasons he has outlined, it is worthwhile to address this proposition first.

Undisputedly, in the past decades Asia has witnessed the fastest growth of economic development in the world, with China and India in the lead. But to credit Asia’s development to international law and institutions may be a bit self-conscious of the discipline. As is well known, the driving forces for Asia’s economic development come from both internally and externally. At the regional level, economic reforms in China and India and the economic integration process of ASEAN are among the decisive factors that ensure the world the widest possible access to the Asia’s markets and the best possible investment and labor conditions. Internationally, economic globalization in the wake of the Cold-War not only provides more opportunities for international cooperation with the developed countries, but also lends a propitious international environment for the promotion of regional cooperation. However, international trade and investment based on international rules and agreements can never be a one-way street; rights and obligations always go hand in hand. Faster growth does not mean more benefit from the system. Economically speaking, the majority of Asian States are recipients of foreign investment. On what basis can we claim that international law provides better protection to these countries than it does to foreign investors?

The implication of the paradox is that Asia so far has been a free-rider, taking advantage of the existing rules and institutions that were formed and maintained by the West. If not for the security guarantee underwritten by the Western States, particularly the United States, Asia would not have been able to long enjoy a peaceful and stable environment for economic development. Notwithstanding its underlying tone of encouraging Asia to be active in international law and institutions, the message, unfortunately, could be easily misunderstood by the listener, a point to be addressed later.

On the reasons for the current state of affairs of international law in Asia, Professor Chesterman’s survey is succinct and perceptive. With regard to Asia’s historical experience of international law, a few words should be added. Historically, Asia was subjected to an entirely different world order by force. China, India and Japan, the three major Asian nations, reacted to the change in different ways. Apart from what they each experienced in international law in the past, their attitude to international law today is still largely dictated by where they are positioned in the contemporary world order. Authoritarian or liberal, the type of national political system does not determine how a State treats international law; it is only relevant when ideology and international law are tangled.

It is true that, compared with other regions, Asia is not so active in international law and institutions. However, the data and statistics listed in Professor Chesterman’s article are largely taken through the lenses of the Western institutions. Their selection of the legal institutions and treaties, by itself, demonstrates their ideological preference. Legally speaking, Asian States’ “under-participation” in these regimes and treaties cannot be characterized as “being wary” of international law because, by virtue of the provisions of each legal instrument concerned, States have the right to opt out of them if they consider that they are not yet ready to take part. In the EU’s practice, the purpose to impose such participation as a condition for new membership is primarily to promote the basic values of the EU. Given its historical origin, international law is understandably embraced in these values.

Asia’s inability to promote regional integration is often attributed to its diversity. Indeed, Asia is very diverse in terms of culture, tradition, and religion. However, such diversity may not be the main, and crucial, reason for Asia’s failure to establish any comparable regional institutions as the ones in Europe, Africa and Latin-America. Geopolitical division of the region that reflects the world order lies at the heart of the matter. The loose structures of the regional institutions in Asia, to a large extent, bear the attributes of the region, as well as its relations with the outside Powers.

Regional grouping may inspire common aspirations and regional identity of States, but integration is not a matter of law, but policy. Notwithstanding its impact on the rule of law, regional integration, first and foremost, serves in a collective manner the interests of the sovereign members. Take Brexit, for example. Although some may not like the decision to leave the EU, Britain has not been perceived due to that choice as becoming wary of international law . While a regional grouping may enhance the collective voices and influence of its member states in international law and institutions at the global level, membership in a regional organization is not a necessary element to assess one’s participation in international law.

Asia’s growth, and particularly the growth of China and India, is unprecedented in human history. The West’s apprehension shows that such growth may likely produce substantive effect on the existing geopolitical structures, and hence its legal institutions and constructs. From a “rule-taker” to a “rule-maker,” Asia only seems to be asking what is justified for itself, if democracy has any real meaning at all in international relations. But that is not at issue. What is at issue is where this “substantive effect” would lead.

Asia’s attitude to international law, if deemed ambivalent, is deeply rooted in its history. As is rightly pointed out, that only offers a partial explanation. More relevant is the contemporary practice of international law, particularly of the Western world. Asian States are more sensitive of delegating sovereignty, not because they are ambivalent of international law, but because they do not believe that international law as thus advocated and practiced would protect their fundamental rights and interests. In many a case, their under-participation is not a matter of willingness, but capacity to influence. To be a meaningful rule-maker, Asia still has a long way to go.

The tone may sound a bit cynical when it says that as the existing Powers, particularly the U.S., may no longer be able to underwrite for the security guarantee of the Asia-Pacific region and that Asian States must undertake their own responsibility for the region. The United States is and will continue to be the dominant Power in the region. There is no doubt about it. Whether the region will remain peaceful and stable very much depends on its policy and on its adherence to the principles of international law that it has committed itself, particularly with China. The future of international law and institutions very much depends on the cooperation of these major players, on the mutual understanding of the East and the West. To take away Asia’s “ambivalence,” the current practice of international law and institutions first needs to be reviewed. For a more representative and democratic legal system, the focus perhaps is not on the East, but the West. In that sense, we can say “it takes two to a tango.”

Asia, International Law and International Institutions: A Comment

by B.S. Chimni

[B.S. Chimni is Professor of International Law at Jawaharlal Nehru University, New Delhi.This post is part of a joint Opinio Juris/EJIL:Talk! symposium. For the latest symposium post on EJIL:Talk!, click here.]

In the current issue of European Journal of International Law Professor Simon Chesterman has written an important essay on the Asian approach to international law and international institutions, addressing in particular the subject of its under-representation and under-participation. He has also explored therein the possible convergence of the Asian view of international law and institutions with that of other regions of the world.  In what follows a few general reflections are offered on these themes.

In considering the question of a distinctive Asian approach to international law and institutions it is important to avoid above all the three pitfalls of cultural essentialism, geographical determinism, and materialist reductionism. On the cultural plane Asia represents a complex configuration of diverse and multiple cultures and untold interpretations of it. It is also shaped by millennia of interaction with other geographical regions of the world, lending and borrowing ideas. In fact the very idea of “Asia” is a product of that relationship. Therefore it would be erroneous to argue that cultural or geographical factors by themselves shape the attitudes of Asian States. The Asian approach is also mediated by deep material structures that include global capitalism and the sovereign state system. It has been especially impacted by colonialism whose lasting contribution includes the embrace of Westphalian logic and the transformation of the legal systems of many Asian nations. The political ecology of the times, constituted by historical developments like the October Revolution and the Cold War, have had their own role to play in shaping the response of Asian nations to international law and institutions. Besides these factors the national interests of individual Asian nations, determined by a range of internal factors, have a direct bearing on the question.  In view of these complexities Professor Chesterman has wisely attempted to strike a balance between offering cultural, material, geographical, and historical explanations for understanding the state of representation and participation of Asia in international law and institutions. However, while he does well to avoid ‘the risk of gross generalizations’ and to accept that ‘states choose whether to participate in particular international regimes for a wide variety of reasons’ the range of factors indicated could have received more consideration.

A growing international relations literature is today grappling with the question whether there is a distinctive Asian approach to world politics. These can be sampled in collections like International Relations of Asia and the Oxford Handbook of the International Relations of Asia. This literature raises among other things the question whether standard western international relations theories allow us to capture the essential features of the Asian approach to international relations. For instance, does the realist approach help us explain Asian international relations? Or can a combination of realist and constructivist approaches, with the latter placing emphasis on ideational factors, help produce a viable explanation of Asian international relations? Or is a uniquely Asian theory needed to explain its international relations? I believe that this international relations literature can be productively mined to deepen thinking on the Asian lack of engagement with international law and international institutions.

Be that as it may, in attempting to understand the relative under engagement of Asia with international law Professor Chesterman rightly recognizes that the signing of treaties is a crude measure of its commitment to progressive normative developments and international rule of law. A good example is the Asian approach to the legal status and rights of refugees. While Asia has hosted millions of refugees only few Asian states (Afghanistan, Cambodia, China, Japan, Philippines, Korea, and Japan) have ratified the 1951 UN Convention on Status of Refugees. A whole range of historical, material and cultural factors possibly account for Asian nations refusing to become party to the 1951 Convention even as they have shown willingness to respect the status and rights of refugees. These factors may be worth studying in a bid to understand and explain the Asian approach to international law. It may also help to identify the reasons for the lack of a regional human rights convention on the lines that have been adopted in Africa, Europe, and Latin America.

What however explains the absence of a regional organization in Asia? The factors of diversity, plurality, and power disparities in the region have been aptly viewed by Professor Chesterman as crucial in this regard. There is however the historical factor as well. As Jawaharlal Nehru observed at the Asian relations Conference (1947), “a notable consequence” of the European domination of Asia was the isolation of its nations from one another. Consequently, the Bandung Communique (1955) called upon countries to ‘the acquisition of knowledge of each other’s country, mutual cultural exchange, and exchange of information’. Subsequently, the Cold War created its own divides. Amitav Acharya, a leading international relations expert on the Asian region and regionalism, offers another explanation (.pdf). He speaks of the decoupling of material capability and legitimacy among leading Asian nations as an important reason for absence of a regional organization. Thus, Japan has the capability to lead the way but lacks legitimacy for having been a colonial power. China on the other hand lacks legitimacy because of the absence of internal democracy. India has legitimacy but not as yet the material wherewithal to lead the region.

In understanding the converging approach of the Asian region to international law and institutions it may be useful to turn to the history of the development of capitalism in the region.  It is the development of capitalism, be it in the form of market socialism or neo-liberal capitalism, which explains why major powers like China, India or Indonesia, are today committed to the extant liberal international legal order. The increasing number of free trade agreements (FTAs) signed in the region, albeit with different elements, is a pointer in this direction. The Trans-Pacific Partnership Agreement (TPP), for the present rejected by U.S President-elect Donald Trump, and the Regional Comprehensive Economic Partnership (RCEP) also manifest the greater acceptance of the liberal order. Leading Asian powers also have faith, as John Ikenberry of Princeton University notes in his writings, that the liberal international system can be incrementally reformed to address their concerns (John Ikenberry, ‘The Future of the Liberal World Order: Internationalism after America’, Foreign Affairs, May-June 2011, pp.56-68).  In short, the increasing convergence is a function of the trajectory of development of capitalism in Asia in the era of accelerated globalization. This factor deserves more attention.

In projecting the possibilities of convergence it may also be worthwhile to pay attention to cultural factors like the creation of national and international societies of international law in Asia. The national societies of international law (for example in India, Japan, Korea and Philippines) have existed for decades. Recent years have also seen the founding of international societies like the Development of International Law in Asia (1989) and the Asian Society of International Law (2007) to promote international law in the region. These developments are to be read in conjunction with the view that Asian practices have contributed to the evolution and development of modern international law. The relevant historical practices are documented in the writings of scholars like C.H. Alexandrowicz and R.P. Anand and in the judgments of, among others, Judge Christopher Weeramantry. The use from colonial times of western textbooks to impart international law has also socialized diplomats and scholars into sharing its current liberal worldview.

All in all Professor Chesterman has made a significant beginning in understanding and explaining the Asian approach to international law and international institutions. It is hoped that others will join, debate, and enrich his contribution.

Comment on Simon Chesterman, `Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’

by Antony Anghie

[Antony Anghie, National University of Singapore. Tony Anghie has written on various aspects of globalization, human rights, and the history and theory of international law. He is a member of the TWAIL network of scholars. This post is part of a joint Opinio Juris/EJIL:Talk! symposium. For the latest symposium post on EJIL:Talk!, click here.]

Simon Chesterman’s article displays a customary rigor and thoughtfulness. As I understand it, Simon’s broad argument is that Asian states have not engaged with the international system as much as their counterparts in other regions-Latin America and Africa, for instance. Simon views this situation as anomalous suggesting that Asia has `arguably’ benefitted the most from the current international order-of which international law is a part-and yet remains reluctant to participate fully in the system. The question then arises of whether Asia will be engage more deeply as its power increases, and whether such engagement will lead to a different sort of world order. He concludes that international law will remain much the same.

This is a rich and far reaching article and I can comment on only a few aspects of the many issues it raises. I agree in large part with Simon’s historical analysis; but I think he glosses over important aspects of that history which help us understand how Asian states did attempt to engage with international law, and why that experience led to a failure which further estranged them from a system of international law about which they always felt ambivalent. Simon assesses Asian engagement with international law principally in two ways. First, by the extent to which Asian states have signed on to various treaties and regimes(such as the ICJ, the ICC, international human rights treaties); and second, by the extent of legal integration within Asia itself. ASEAN for instance, is far less `legalized’ than corresponding regional organizations What he mentions but glosses over in one sentence at footnote 102 (perhaps ironically, a generous reference to my own work) is my concern here: the “Third way”-the efforts Asian states made to develop an anti-colonial internationalism and use it as a basis for changing international law-an initiative that began at Bandung in 1955 and extended through the Non-Aligned Movement to the New International Economic Order (NIEO).

Asian states realized that they were excluded by the new UN system from any meaningful decision making power. (See R.P. Anand, `The Formation of International Organizations and India: A Historical Study’, Leiden Journal of International Law 23 (2010) pp. 5-21. ) Concerned about this predicament, various Asian states held conferences, in Delhi 1947 and Colombo 1954 to explore Asia’s role in the emerging world order. These were preludes to Bandung in 1955. (Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.) Bandung, Global History and International Law: Critical Pasts and Pending Futures (CUP forthcoming))

I agree with Simon that the Bandung communique and its version of sovereignty expressed in the “Five Principles” reflects norms that are found in the UN Charter. This is entirely understandable, however, given Asia’s experience under colonialism that Simon covers well in his article, the effect of which was to deride and subordinate any other version of sovereignty. Sovereignty after all was indispensable for participation in the system. Most importantly, however, the Asian states at Bandung, rather than simply accepting wholesale a Western international law, or acting in a suitably modest “regional” manner, attempted to forge a global movement, with states from Africa that, in time, evolved into the Non-Aligned Movement that represented the vast majority of countries in the world. This was an internationalism based on the powerfully felt needs of the time by the vast majority of the world’s states engaged in an anti-colonial campaign and attempting to assert their sovereignty, ensure their security and promote development. This contrasted with an internationalism based on liberal abstractions-regarding the state, society, personhood itself-that presented themselves as universal and that animated the normative claims of a Western international order that was still based on power relations now unassailably entrenched in the UN system. Most significantly, Asian states had an agenda that was directed very explicitly at reforming the international legal system. The organization that was to become the Asian-African Legal Consultative Organization (AALCO), still functioning actively and based in New Delhi, was established after Bandung to achieve this task.

The third world states-Asian, African, Latin American-launched the NIEO, a massive campaign to change international law. This attempted to establish, among other changes, a different regime of international trade and investment, and of the law of the sea and the resources of the deep sea bed. It is difficult now to imagine that the UNCTAD version of trade was a real rival to the GATT in the 1960s. The NIEO was immediately denounced by Western lawyers and states as unrealistic and anarchical. The battle for international law was a bitter one and the Third World lost. The point then is that Asian states, together with their African and Latin American allies, attempted to do what Simon argues they must do, which is assume greater responsibility for global governance. At the risk of generalizing, disillusion and wariness set in again as a result of the failure of the NIEO. Asian states had ignored the hard lessons of nineteenth century colonialism in the dazzle of independence, lured by the false promise of international law; and resolved not to be fooled again. In more recent time the blatant hypocrisy of the United States and United Kingdom in claiming to promote accountability and human rights in Asia and other parts of the world after the illegal war they waged in Iraq, only confirmed this vision of an unequal and power driven international law.

Asian states, then, failed in their efforts to create a different world order. Equally, however, their efforts to participate more fully in existing structures of governance have been regularly thwarted. Simon points out that, given its size and power, Asia is under-represented in international institutions. He does not really elaborate on why this is the case, and indeed seems oddly coy about this issue, even in his conclusion where he almost seems to suggest that it is Asian reticence that has led to this situation; he refers to Asia’s under-participation and under-representation as being due to historical factors and also to “the diversity of power dynamics of the continent as well as the absence of push factors to bring about change.” This is odd given, again, the many ongoing, if unsuccessful, battles waged by Asian states to win more say in the international system. Simon mentions India’s campaign to gain a seat in the Security Council almost in passing. China’s creation of the Asian Infrastructure Bank was surely influenced by the frustration it felt as its efforts to play a larger role in the global economic system through the established institutions, the IMF and the World Bank were blocked and delayed.( See The Economist, `The infrastructure of power’, June 30th 2016.) In a different context, Asia’s economic success has been remarkable. Some Asian states at least have used international law strategically and successfully. Indeed, Asian states may have succeeded despite and not because of international law. But Japan’s efforts to question neo-liberal economics and the orthodoxies of the Bank and the IMF in explaining and understanding the so called ”East Asian miracle” were also frustrated, diffused and diminished, as scholars such as Alice Amsden point out. (Alice Amsden, `Why Isn’t the Whole World Experimenting with the East Asian Model to Develop?: Review of The East Asian Miracle’, World Development Report, Vol. 22 No. 4 pp. 627-633, 1994.)

In conclusion, my argument is that Simon, in glossing over these aspects of the Asian experience, fails to recognize the ways in which Asia has attempted to influence international law. Perhaps more broadly, in overlooking the power struggles that have caused this marginalization of Asia, Simon adopts a rather sanguine view of international law and its openness to change which is somewhat strange given that in other respects his approach is so keenly aware of power politics.

My second point is to agree with Simon that it is unlikely that the “rise of Asia” will witness a major shift in international law. Rather, convergence will be likely. For me, this is simply because the largest Asian states which are in the best position to propose new initiatives, are unlikely to do so; it is surely no coincidence that much of Simon’s more detailed analysis focuses on the great powers of Asia: China and, to a lesser extent, India. A different sort of analysis would have emerged if the focus had been on the jurisprudence of Judge Weeramantry (for example, on his separate opinion in Gabcikovo-Nagymaros Project (Hungary/Slovakia) (.pdf)) or on non-state actors in Asia. (For example, see Balakrishnan Rajagopal, `The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’, Leiden Journal of International Law 18(2005) pp. 345-387 and Prabhakar Singh, `Indian International Law: From a Colonized Apologist to Subaltern Protagonist’, Leiden Journal of International Law, vol 23 (1), March 2010, pp. 79-103.)

History suggest that states that wield great power develop imperial tendencies. International law as it is currently configured readily lends itself to economic- and hence political- domination, and India and China, founded in many ways on ancient Empires, are now in a position to deploy for their own purposes those instruments of which they had previously been victims. The major difference between China and the United States of course is that when the former engages in economic relations with smaller states it does not claim to further a specific model of governance, of rights, of political institutions that are universal in character. Its use of economic mechanisms to expand its influence is likely to be even more effective as a result, as Asian states struggle to achieve development and now turn to China increasingly as a vehicle of growth. It is now China that is eager to enter into investment and trade agreements as Simon points out. In many respects, further, a sort of reversal has taken place: it is Western states, especially after 9/11, that have converged towards Asian ideas regarding sovereignty and security. It is Western international lawyers who have very capably and expertly provided additional and helpful justifications for expanded violence in the form of drone attacks and broad concepts of self-defense (see, for example, Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors’, 106 American Journal of International Law 1) that may in time prove useful to rising Asian states. And a Trump presidency could mean that the illiberal attitudes usually associated with authoritarian Asian states – having to do with sovereignty, nationalism, protectionism, indifference to human rights-will be the driving forces of US foreign policy. In their unassailably assured efforts to create a liberal world order, the United States and Europe misunderstood or overlooked developments not only in Afghanistan and Libya, but their own heartlands.

For Simon, the NIEO was too “radical” to succeed; the emergence of Asia as a real power, however, is in his view, unlikely to bring about major changes to the system. The Asia which fought for the NIEO had a vision but no power; some Asian states in the present have power but no distinctive vision. If this is indeed the case, the tragedy inherent in the situation must surely be appreciated. The broad conclusion appears to be that those who acquire power simply seek to preserve the system that enables and legitimizes its exercise. The theme is a familiar one: as Asia’s own history, the rise of Japan, suggests, it is only by making war, by becoming imperial, that a state becomes civilized, a proper Great Power. The cycle repeats, the difference perhaps being that rising Asian states will attempt to marry their imperial compulsions with the rhetoric of Third World solidarity, Bandung principles and non-intervention. Simon has written a fine piece exploring large themes and raising many challenging questions that will surely provoke more research.

Asia’s Ambivalence About International Law & Institutions: Introduction to Opinio Juris and EJIL:Talk! Mini-Symposium

by Simon Chesterman

[Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Simon’s teaching experience includes periods at Melbourne, Oxford, Columbia, Sciences Po, and New York University.]

A decade after moving from New York to Singapore, I began work on this article in the hope of understanding what seemed to me a paradox. Well into the much-vaunted “Asian century”, the states of this region arguably benefit most from the security and economic dividends of a world ordered by international law and institutions — and yet those same states are the least likely to subscribe to such norms or participate in the bodies they create. Regionally, there is no counterpart to the continent-wide organizations in Europe, Africa, or the Americas; individually, Asian states are most reluctant to sign onto most international regimes and underrepresented in the entities that govern them.

The article opens with a brief history of Asia’s engagement with international law. The focus is on three aspects that continue to have resonance today and contribute to the wariness of international law and institutions. First and foremost is the experience of colonialism by India and many other countries across the continent: for centuries international law helped justify foreign rule, later establishing arbitrary standards of “civilization” that were required in order to gain meaningful independence. Secondly, and more specific to China, the unequal treaties of the nineteenth century and the failure to recognize the Communist government in Beijing for much of the twentieth encouraged a perception that international law is primarily an instrument of political power. Thirdly, and of particular relevance to Japan, the trials that followed the Second World War left a legacy of suspicion that international criminal law only deals selectively with alleged misconduct — leaving unresolved many of the larger political challenges of that conflict, with ongoing ramifications today.

It should not be surprising, therefore, that some Asian states take the position that international law is of questionable legitimacy, can be used for instrumental purposes, and is necessarily selective in its application.

Part two assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant. It is, but history offers at best a partial explanation of the current situation. Ongoing ambivalence towards international law and institutions can also be attributed to the diversity of the continent, power disparities among its member states, and the absence of “push” factors driving greater integration or organization.

Finally, part three attempts to project possible future developments based on three different scenarios. These are referred to as status quo, divergence, and convergence. The article argues that the status quo — in which the most populous and (increasingly) powerful region on the planet has the least stake in its rules and governance structures — is unsustainable. A crucial element of that argument is that the rise of Asia is today complemented by the decline of the West, in particular a decline in the willingness and the ability of the United States to play its role as both a shining “city upon a hill“ and an enforcer of global norms.

Arguments about Asia’s rise and America’s decline are hardly new. Yet the current assertiveness of the Chinese government with respect to its perceived interests in the South China Sea — including the recent deployment of its only aircraft carrier — may herald a strategic inflection in international relations, with inevitable consequences for the form and the content of international law. Still more striking was the victory of a wildcard candidate in the US presidential election who campaigned on an explicit message of American decline and neo-isolationism, peppered with anti-establishment and illiberal rhetoric, who takes office at the end of this week on 20 January 2017. (The European analogue is, of course, the existential crisis of a plurality of the British public voting to express their own ambivalence about international law and institutions.)

A more nuanced example may be found in the Chinese white paper released last week (11 January 2017) on Asia-Pacific Security Cooperation. The paper reiterates China’s commitment to the Five Principles of Peaceful Coexistence, but also draws a distinction between large states and small ones. Major countries, the white paper notes, should treat the strategic intentions of others “in an objective and rational manner”; small and medium-sized countries, for their part, are enjoined to avoid “tak[ing] sides among big countries.” On the broader question of international law, the paper states that “[i]nternational and regional rules should be discussed, formulated and observed by all countries concerned, rather than being dictated by any particular country. Rules of individual countries should not automatically become ‘international rules,’ still less should individual countries be allowed to violate the lawful rights and interests of others under the pretext of ‘rule of law.’”

With regard to the South China Sea issue, China reaffirms in the white paper its commitment to the UN Convention on the Law of the Sea (UNCLOS), but states that disputes over territories and maritime rights should be resolved through “respect[ing] historical facts and seek[ing] a peaceful solution through negotiation and consultation”. Interestingly, the document makes no reference to the infamous nine-dash line, though it does state that China has “indisputable sovereignty over the Nansha [Spratly] Islands and their adjacent waters”. Any effort to “internationalize and judicialize” the South China Sea issue, the paper goes on to say, will “only make it harder to resolve the issue, and endanger regional peace and stability.”

Such developments are, I think, broadly consistent with the argument put forward in my article. The rise of Asia in general and China in particular will see changes in the form and the content of international law — the white paper refers multiple times to a “new model of international relations” — but this will be an adaptation of existing norms and structures to a new reality rather than a rejection of those norms and structures. Evolution, then, rather than revolution.

* * *

Academic writing generally seeks to take the long view. If there is a virtue to a profession sometimes said to exist in an ivory tower, it is that one hopes to offer some perspective beyond what is in the current news cycle — a respite from the relentless presentism of the “new”. I can therefore take no credit for the fact that well after my piece for the current EJIL was completed — and even after this generous symposium had been prepared by Opinio Juris and EJIL:Talk! — there would be such a confluence of genuine news events that resonate with arguments put forward in the article. It is a sad coda that the symposium also follows soon after the passing of one of the truly great international lawyers from Asia — Christopher Weeramantry, a Sri Lankan scholar who served as Vice President of the International Court of Justice.

The full article is available here in draft form, the final version appearing later this month in EJIL. I am enormously grateful to the convenors of this symposium and the distinguished jurists who have agreed to participate. I look forward to their responses, from which I know I will learn much.