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International Law in U.S. Courts

A Brief Rejoinder to Haque on the ICRC’s Interpretation of NIAC

by Kevin Jon Heller

My thanks to Adil Haque for his response to my post. Adil and I rarely disagree in any profound way about IHL, so it’s enjoyable to spar with him about whether a first-strike by government forces against an organized armed group automatically creates a NIAC — thus triggering IHL — or whether a certain intensity of hostilities between the two is required.

I will have more to say about Adil’s response soon, but I wanted to quickly address one particular implication in his post: namely, that the ICRC’s Commentary on AP II supports his claim that a single military operation by government forces or by an organized armed group is sufficient to trigger a NIAC because it is more than a “sporadic act of violence.” Here is what he writes:

In my view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a “sporadic act of violence” within the meaning of APII 1(2). On this point, I follow the ICRC Commentrary to APII, which negatively defines “isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups.” APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe “acts of violence against the adversary in offence or defence” (that is, attacks as defined by API).

With the exception of ambiguous quotes like the one above, there is little support in the ICRC’s Commentary on AP II or in any of the ICRC’s commentaries for Adil’s position. The ICRC clearly believes that any kind of NIAC — AP II or Common Article 3 — requires adequately intense hostilities.

Let’s start with the AP II Commentary Adil cites. The Commentary opens its discussion of AP II by emphasizing (p. 1343) that CA3 and AP II have the same structure — and that neither applies in the absence of sufficiently intense hostilities (emphasis mine):

The content and scope of all of these articles will be analysed in the respective comments on them. Before doing this it seems useful to have a closer look at the basic pattern of Part I, which reveals the similarity of the ideas which inspired Protocol II and common Article 3. To understand the scope of the Protocol one should indeed always bear in mind the fact that this instrument supplements and develops common Article 3; it is an extension of it, and is based on the same structure.l Their common characteristics find expression, explicitly or implicitly, in Part I. These can be summarized as follows…

The threshold where Protocol II becomes applicable is determined by the criteria expressed in Article 1 (Material field of application), which means that it is intended to apply only to conflicts of a certain degree of intensity.

Later, the Commentary discusses (p. 1355) what AP II means by “internal disturbances,” taking the position that such disturbances include situations in which military operations by government forces — even against an organized armed group — do not lead to sufficiently intense hostilities (emphasis mine):

[T]he ICRC gave the following description of internal disturbances during the first session of the Conference of Government Experts in 1971:

“This involves situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules.”

[snip]

In short, as stated above, there are internal disturbances, without being an armed conflict, when the State uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.

Finally the Commentaries specifically point out (p. 1356) that such “internal disturbances” do not create a NIAC and do not trigger IHL:

Internal disturbances and tensions are not at present within the field of application of international humanitarian law; the ICRC has carried out activities in this field on an ad hoc basis. However, this does not mean that there is no international legal protection applicable to such situations, as they are covered by universal and regional human rights instruments. 31 It is not within the scope of this commentary, however, to go into that subject.

The ICRC’s position on CA3 and AP II NIACs — as requiring hostilities of a certain intensity, and thus as not being triggered by “first strikes” — is an old one. Here is what Pictet said (p. 49) in the ICRC’s 1952 Commentary on the First Geneva Convention (emphasis mine):

[I]t was suggested that the term “conflict” should be defined or, which would come to the same thing, that a certain number of conditions for the application of the Convention should be enumerated. The idea was finally abandoned — wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list of those contained in the various amendments discussed; they are as follows:

(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

This statement only implicitly endorsed an intensity requirement, so Pictet clarified that the was talking about actual hostilities between government forces and an organized armed group in the ICRC’s 1960 Commentary on the Third Geneva Convention (p. 37):

Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities –conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.

And just in case that statement remained ambiguous (“both” would have been more precise than “either”), the ICRC clarified in its 2016 Commentary on the First Geneva Convention that of the various indicia of NIAC that Pictet discusses, intensity is one of the two most important ones (emphasis mine):

387  A situation of violence that crosses the threshold of an ‘armed conflict not of an international character’ is a situation in which organized Parties confront one another with violence of a certain degree of intensity. It is a determination made based on the facts.

421  Over time, of the criteria enumerated in the Pictet Commentaries, two are now widely acknowledged as being the most relevant in assessing the existence of a non-international armed conflict: that the violence needs to have reached a certain intensity and that it must be between at least two organized Parties/armed groups. The existence of a non-international armed conflict thus needs to be assessed according to these specific criteria.

422  The wording of common Article 3 gives some rudimentary guidance on its threshold of application: what is required is an ‘armed’ ‘conflict’ not of an international character, in which ‘Part[ies] to the conflict’ are involved. This indicates that for common Article 3 to apply, a situation of violence must have reached a certain level of intensity, characterized by recourse to arms by non-State armed groups that are capable of being Parties to an armed conflict.

According to the ICRC, in short, all NIACs require adequately intense hostilities. The difference between a CA3 NIAC and an AP II NIAC is one of degree rather than kind.

The ICRC Commentaries are only as good as the analysis they contain, so Adil is obviously free to defend an interpretation of Art. 1 of AP II and of Common Article 3 that reads the intensity requirement out of NIAC. In doing so, however, he is clearly breaking with the ICRC.

First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate

by Kevin Jon Heller

I have been following with great interest the debate at Just Security between Adil Haque and Jonathan Horowitz over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a “first strike” at an organized armed group or whether hostilities of a certain intensity between the two are required. Adil takes the former position (see here, here, and here); Jonathan takes the latter one (see here and here).

Though Adil’s posts exhibit his typical brilliance, my sympathies lie with Jonathan. To begin with, as a matter of the lex lata, I don’t think the argument is even close: the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).

Adil, it is worth noting, has a different interpretation of AP II, one that does not require intensity:

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict. The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

This is a difficult position to defend. The text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government? More importantly, despite some stray practice cited by Michael J. Adams and Ryan Goodman in this post, states have simply never interpreted the AP II standard to require only organization.

Even more problematic, though, is Adil’s argument that the “object and purpose” of IHL counsels against conditioning the application of IHL on adequately intense hostilities:

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

As regular readers know, whenever I see arguments based on the supposed “object and purpose” of a treaty, I reach for my pen. All too often, such arguments simply use object and purpose to justify interpreting a treaty in a manner that specifically contradicts the intention of the states that drafted and concluded it. And unfortunately I think that is what Adil does here. He defends applying IHL to first strikes by claiming that the “object and purpose” of IHL is “to protect human beings against dangers arising from military operations” (emphasis mine). But that is misleading: the object and purpose of IHL is to protect human beings against dangers arising from military operations in armed conflict. If there is no armed conflict, IHL has nothing to say about the danger of military operations — because IHL doesn’t apply. And as discussed above, states have always insisted that a first-strike military operation is not enough to create an armed conflict — IHL applies only once there are adequately intense hostilities between government forces and the organized armed group.

Adil is free, of course, to normatively argue that IHL should apply to first strikes in NIAC because doing so would better protect human beings. I would disagree, but the claim is coherent and deserving of discussion. What he can’t do is base that claim on the object and purpose of IHL, because that would be to use an object and purpose that only applies within armed conflict to justify changing the definition of armed conflict itself. The definition of when IHL applies cannot be determined by reference to what the goals of IHL are once it applies. That definition has to be sought outside of the IHL system — and again, it is clear that states do not want IHL to apply to first-strike military operations against organized armed groups.

There is, however, an even deeper problem with Adil’s argument that the need to protect human beings from military operations counsels a definition of NIAC that does not require adequately intense hostilities: if that is true, there is also no reason why the application of IHL should require armed groups to be organized. All of Adil’s arguments against the intensity requirement apply equally to the organization requirement. If we need to protect human beings from the dangers of first-strike military operations by states against organized armed groups, surely we also need to protect them from the dangers of first-strike military operations by states against unorganized armed groups. After all, Adil’s central argument is that the inherent danger of military operations means that IHL should apply to a first-strike regardless of whether that military operation leads to any kind of hostilities.

I see no convincing response to this criticism. It is tempting to argue that the organization requirement is important because a first-strike military operation against an organized armed group is much more likely to lead to actual hostilities than a first-strike military operation against an unorganized armed group. But Adil rejects the idea that hostilities are relevant to the application of IHL. He believes IHL should apply even if a first-strike military operation meets with no response whatsoever.

Another potential response would be to argue that first-strike military operations against organized armed groups pose greater dangers for innocent civilians than first-strike military operations against unorganized armed groups. But that would be a difference of degree, not of kind — and thus far from a convincing basis for applying IHL to the former and not the latter. I’m also not sure whether the claim is even empirically sound. It is at least equally plausible to assume that states are more willing to use military force against unorganized individuals whom they can assume will not fight back (or will not fight back effectively) than against an organized armed group with the capacity to respond to a first strike with military operations of its own.

Adil’s desire to protect human beings from the dangers of military operations is laudable, but his claim that IHL should apply to first strikes against organized armed groups cannot be sustained. Not only have states insisted that IHL applies only to hostilities that reach a certain level of intensity, the idea that protecting individuals from the danger of military operations requires eliminating the intensity requirement is underinclusive. Those dangers exist for all military operations, even those against unorganized armed groups. So the only consistent — if still objectionable — position is that IHL applies to any military operation launched by a state, regardless of its object. I’m curious whether Adil would be willing to take that position.

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

Would Secession by California and Oregon Be Legal?

by Julian Ku

imgresFollowing Donald Trump’s stunning election victory, ballot measures are already being proposed in California and Oregon to secede from the United States.  Ordinarily, one can just chuckle at these measures as the actions of a radical fringe, but it would be hard to overestimate the depth of anger and opposition to a President Trump in states like California, where he lost by probably 20 percentage points.  If such a measure got on the ballot, we might see a serious campaign akin to Scotland’s 2014 referendum on staying in the United Kingdom.

But it seems settled under US constitutional law that unilateral secession from the United States is unconstitutional.  In the 1869 case Texas v. White, the U.S. Supreme Court ruled:

When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Some might argue, however, that a unilateral secession by California is authorized by the international law right of self-determination.  This is a much more difficult point to analyze, but I think that neither California nor Oregon would qualify to exercise this murky international law right, at least with respect to seceding.  The Canada Supreme Court’s decision in the Quebec case is probably most on point here.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

In other words, international law guarantees to every state its “territorial integrity” and it can’t be overridden by “self determination” unless serious freedoms or discrimination against residents in the seceding region are being infringed.  Moreover, this right has generally only been exercised by states under colonization or foreign occupation.  The right might also exist if the state is facing the threat of egregious human rights violations (e.g. Kosovo), but the right in even that circumstance is controversial globally.

But I will admit I am not an expert on the international law of self-determination. If anyone has a good argument for why California or Oregon qualifies to exercise this right under international law, please feel free to share in the comments.

So I am going to go out on a limb here to say that a referendum to secede California or Oregon from the United States is both unconstitutional and unauthorized by international law.  Still, just getting such a measure on the ballot would be significant because they would force the U.S. government to take a position on the legality of such measures. This could affect US government positions on foreign self-determination movements in places like Hong Kong, for instance.

We live in interesting (and dangerous) times.

How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement

by Julian Ku

As regular readers of this blog probably guessed, I did not support Donald Trump for President (I didn’t support Hillary Clinton either, but that’s another story). I did, however, take the possibility of his election seriously and published a couple of posts (see this one here) analyzing the legal issues raised by his campaign promises to withdraw from existing U.S. international agreements such as the Iran Nuclear Deal, the Paris Climate Change Agreement, and the North American Free Trade Agreement.

In general, I concluded in my prior posts that President-elect Trump has the clear constitutional authority to withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement without seeking the approval of Congress.  It is somewhat less clear, but it is certainly possible that a President-elect Trump has the constitutional authority to withdraw from trade agreements like NAFTA without Congress, but that is less certain.

It is important to keep in mind that the reason a President Trump can unilaterally withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement is that President Obama chose to avoid submitting either agreement to Congress or the Senate for approval.  Indeed, President Obama’s lawyers went even farther to clarify that the Iran Nuclear Deal was a nonbinding political agreement and that the emissions targets in the Paris Climate Change Agreement were also legally nonbinding.

This important concession was made to avoid any need to submit these controversial agreements to approval by a (very) hostile Congress.  At the time, the legal sophistication and dexterity of the Obama team’s strategy was lauded, and I supported their legal position even though I disagreed with the policies embodied in the agreements.  But I warned that the cleverness of their legal positions came at a price: a future President could unilaterally undue both agreements without the approval of Congress and without even incurring US violations of those agreements since both are largely legally nonbinding.

Well, the day to pay the cost of this strategy is at hand.  Trump has won the presidency and there is no legal obstacle to his unilateral reversal of two of President Obama’s signature foreign policy achievements.  No filibuster will save them. And President Obama will have no one to blame but himself and his legal team for this fact.

The larger lesson from this saga is that legal rules and processes matter more than even we lawyers acknowledge.  A smart political achievement that cuts the corners on the law will come at a cost.  Past and future presidents should probably keep this in mind.

International Law and the U.S. Election: Trumpxit, Syria and State Marijuana Laws

by Julian Ku

Those of us here in the US are pretty obsessed with tomorrow’s U.S. presidential election (and from what I can tell, those of you outside the States are pretty interested as well). International law has not been a huge issue in the election, but I do think tomorrow’s result could have at least three big impacts on the international legal system.

Trumpxit

As I have noted in earlier posts, Republican nominee Donald Trump has been notable for pledging to renegotiate and possibly terminate numerous U.S. international agreements.  Most clearly, he has pledged to withdraw from the Paris Climate Change Agreement and the Iran Nuclear Agreement. He has also pledged at various times to withdraw from the North American Free Trade Agreement, the US-Japan Defense Treaty, and the North Atlantic Treaty Organization.

As a legal matter, there is no doubt in my mind that a President Trump would have the legal power to terminate the Paris Agreement and the Iran Agreement on his first day in office without any authorization by Congress.  Both of those agreements were concluded as sole executive agreements, and most of the provisions are also legally nonbinding political agreements.

I also think that under existing US precedent, a President Trump could unilaterally terminate US participation in NATO and the US-Japan Defense Treaty.  As I noted earlier, the US Supreme Court in Goldwater v. Carter refused to block a similar presidential termination of the US-Republic of China (Taiwan) Defense treaty and although that case is not entirely clear, it seems likely that the president can do this on his own.

As I also noted, however, it is much less clear if the President can unilaterally withdraw from NAFTA and other trade agreements because those agreements have been codified by statute.  This would raise the “Brexit” scenario currently embroiling the UK.

In any event, I think “Trumpxit” is probably one of the biggest consequences of electing the GOP nominee because his powers in this area are largely unilateral and do not require Congress.

US Military Action in Syria

As Deborah has explained on this blog in recent weeks, the US is currently engaged in some sort of “armed conflict” in Syria that doesn’t seem to clearly fit into the Geneva Convention’s categories for either international or non-international armed conflicts.  On a domestic legal front, the US Congress has not specifically authorized the action in Syria as well, making its domestic legality questionable at the very least.

The next President will have to decide how to frame the Syria conflict under international and US constitutional law. My guess is that both Clinton and Trump would follow the Obama approach of treating the conflict as a non-international armed conflict against the Islamic State that is authorized by the 2001 congressional authorization for the use of force.  But this is something the next President will have to engage with seriously, since there continue to be serious doubts about the legality of US actions in Syria.

More US Violations of Drug Control Treaty

Five more US states have referenda tomorrow to legalize recreational marijuana.  If approved, this would mean nine US states plus the District of Columbia have legalized recreational marijuana, and many more have legalized medical marijuana.

It seems clear that continued non-federal enforcement of marijuana prohibitions in these states would violate US obligations under drug control treaties.  There are at least three that arguably conflict with legalized marijuana: The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.  As this fine Brookings Institution report notes, the US is going to be in clear violation of these treaties soon and needs to renegotiate them to accommodate US state laws.  Presumably, this is on the agenda of the next President (low on the agenda, but on there somewhere).

Ratification of the Law of the Sea Treaty

Most projections indicate the US Senate will remain deeply divided (maybe even 50/50) between Democrats and Republicans.  If so, I don’t think there is a high likelihood that proponents of US ratification of the UN Convention for the Law of the Sea will have enough votes to push it over the 67 vote threshold.  We may see another effort, however, if the Democrats unexpectedly pick up a strong majority of seats (say in the 53 plus range).  There continues to be strong support in the US Navy and in US energy circles for US ratification so it is still on the agenda.

o o o

I am sure I am missing a few issues. Readers should feel free to add in the comments any other international law issues that are likely to be affected by tomorrow’s results.

How Dualism May Save the United Kingdom from Brexit

by Julian Ku

Early in my international law education here in the U.S, I learned that dualism was an unfortunate concept that led to the U.S. violating international law obligations by failing to enforce those obligations (usually treaties) domestically.  But today’s blockbuster decision from a UK court in Miller v. Secretary of State on Brexit should remind us that dualism can also work to protect international law. How?  Well, if a country has many international obligations but is now seeking to withdraw from those obligations, dualism makes it harder to withdraw from those obligations.

In Miller,  the court noted that although the UK Prime Minister usually has the unilateral authority to enter into and withdraw from treaties, that power cannot be used in anyway that would affect or change domestic UK law. Quoting an earlier decision, the High Court today noted that under the UK constitution, the Crown (through her ministers) has the sole and unreviewable power to make treaties. No Parliamentary assent or approval is needed. However,

[T]he Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.  Treaties, as it is sometimes expressed, are not self-executing.  Quite simply, a treaty is not part of English law unless and until it has been incorporated into law by legislation. 

(Citing J.H. Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 AC 418).

This basic principle seems to me crucial to the UK court’s holding today that the Crown (through her ministers) does not have the power to give notice under Article 50.  Although the Crown would ordinarily have this power, the fact that triggering Article 50 would alter the domestic law of the UK makes this a question for Parliament.

In the US system, the President holds similar powers as the Crown and has similarly exercised unilateral powers to withdraw from treaties.  But because treaties in the US have a vaguely monist character — they are self-executing and they have been approved by the Senate — it is harder to argue that the President cannot terminate treaties even if that termination would affect domestic US law. Why?  Because if the treaty was “monist” and self-executing when made, then it is less troubling to unmake that treaty without going back to Congress.  Unlike the UK, treaties are the supreme law of the land and directly preempt state law and earlier in time federal statutes.  The kind of argument wielded by the Court in Miller just wouldn’t have any purchase here.

In any event, I don’t want to stretch this argument too far.  The US may be facing its own Brexit moment soon if a President Trump makes good on his threat to withdraw the US from NAFTA.  And if that happens (god forbid), expect pro-NAFTA folks to raise the case for congressional approval of any termination.  But all in all, I think the dualist nature of the UK system aided the cause of the anti-Brexiteers in this case, which is a somewhat surprising result if you grew up learning that dualism was one of the great obstacles to a stronger international legal system.

Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

by Julian Ku

As we face the first U.S. presidential debate tonight (on my home campus of Hofstra University!),  the possibility of a President Trump seems more and more real.  Although U.S. election analysts all make Hillary Clinton the favorite, most of them continue to give Trump a very realistic chance of winning on November 8.  I am not a Trump supporter, but I think it would be irresponsible not to think seriously about the legal policy consequences of his election to the presidency.  In particular, candidate Trump has promised or threatened to withdraw the U.S. from numerous international treaties and agreements such as the North American Free Trade Agreement, the World Trade Organization, NATO, the U.S.- Japan Mutual Defense Treaty, the Paris Climate Change Agreement, and the Iran Nuclear Deal (I am sure I am missing a few more).  Unlike our friends in Britain who weren’t really planning for Brexit, I think those of us here in the U.S. should start planning, before it happens, for “Trumpxit.”

As an initial matter, we should consider to what extent a President Trump could unilaterally withdraw the U.S. from international treaties and agreements.  I notice that most commentary, including this scary piece by Eric Posner in the NYT from this past spring, assume the President has this unilateral power. But I do not think this issue is not entirely settled as a matter of U.S. constitutional law.

In the 1979 decision Goldwater v. Carter, the U.S. Supreme Court dodged the question of whether a President could unilaterally terminate the U.S.-Republic of China (Taiwan) mutual defense treaty without consulting or getting the approval of the U.S. Senate by invoking the political question doctrine and (in a concurrence) the judicial ripeness doctrine.  No U.S. court has, as far as I am aware, reached the merits of this question.  I think scholars are somewhat divided, and historical practice is mixed.

President George W. Bush did set a precedent in favor of presidentialism, however, by withdrawing from the Anti-Ballistic Missile Treaty in 2002 without getting the approval of the Senate and President Carter did likewise in the 1979 Taiwan defense treaty.    It seems likely that the president does have unilateral authority to withdraw the U.S. from treaties which specify terms for withdrawal and which don’t require further alterations or changes to domestic U.S. law.

Defense Treaties/Military Alliances

This suggests that a President Trump could terminate NATO and the US-Japan Defense Treaty pursuant to those treaties’ withdrawal provisions.  Interestingly, the NATO Treaty Article 13 specifies that “Any Party” can terminate their membership with one year’s notice.  That notice must be sent to the U.S. Government. So I guess a President Trump could give himself a one year’s notice?

Because the issue has not been settled by the U.S. Supreme Court, another Goldwater v. Carter type lawsuit could be brought.  It seems less likely that such a case would be dismissed on political question grounds given recent Supreme Court jurisprudence, but I think the smart money would be on a President Trump prevailing on the merits on a challenge to a presidential NATO or US-Japan Defense Treaty termination.

Nonbinding/Sole Executive Agreements

On the other end of the spectrum, I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.   This would be true, even if the agreements were treated as binding international agreements, since both agreements have withdrawal provisions.  Since the Senate or Congress never approved either agreement, there is no need to ask them for approval to terminate it either.

Trade Agreements 

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

For instance, in the most recent version of the “fast track” enacted by Congress to allow President Obama to finalize the TPP, Section 103(b) states:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

(Emphasis added).  This language means that there is at least a colorable argument in favor of requiring a President Trump to seek congressional approval before withdrawing from a trade agreement like NAFTA or the WTO.  To be sure, both trade agreements have specific withdrawal provisions similar to those found in the NATO treaty. But the fact that the president is acting pursuant to his congressional authorized “trade promotion authority” suggests that Congress did not necessarily delegate the power of termination to the President alone.

Moreover, the implementing legislation for some trade agreements further suggests Congress has reserved some residual “termination” power.  In Section 125 of the Uruguay Round Agreements Act, for instance, Congress may terminate U.S. participation in the WTO with a joint resolution of both Houses.  This does not necessarily mean the U.S. is automatically out, but since the President can’t (under the terms of the law) join the WTO until Congress approves, presumably withdrawing that approval terminates U.S. participation.  It is all somewhat uncertain, but again, I think there is colorable argument that a President Trump could not unilaterally withdraw the U.S. from the WTO,  NAFTA and other trade agreements.

O O O

None of this may matter, of course, if we get a President Clinton instead.  But as the possibility of a President Trump gets closer to reality, we need to start thinking about the legal authority he would have to fulfill his campaign promises, and the limits (if any) on that authority,

 

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

President Obama Calls out the Senate on Treaties

by Duncan Hollis

Earlier today, President Obama took time out during his commencement address at the Air Force Academy to make a pointed plea for the value of treaty-making.  Here’s the relevant excerpt from his remarks:

By the way, one of the most effective ways to lead and work with others is through treaties that advance our interests.  Lately, there’s been a mindset in Congress that just about any international treaty is somehow a violation of American sovereignty, and so the Senate almost never approves treaties anymore.  They voted down a treaty to protect disabled Americans, including our veterans, while Senator and World War II veteran Bob Dole was sitting right there in the Senate chambers in a wheelchair.

We don’t always realize it, but treaties help make a lot of things in our lives possible that we take for granted — from international phone calls to mail.  Those are good things.  Those are not a threat to our sovereignty.  I think we can all agree on that.

But also from NATO to treaties controlling nuclear weapons, treaties help keep us safe.  So if we’re truly concerned about China’s actions in the South China Sea, for example, the Senate should help strengthen our case by approving the Law of the Sea Convention — as our military leaders have urged.  And by the way, these treaties are not a new thing.  The power to make treaties is written into our Constitution.  Our Founding Fathers ratified lots of treaties.  So it’s time for the Senate to do its job and help us advance American leadership, rather than undermine it.  (Applause.)

Three paragraphs is not much to fully articulate U.S. interests in treaty-making (let alone give a balanced overview of the arguments over UNCLOS).  Thus, I think the more noteworthy thing here is the fact that the remarks are coming from the President himself.  It’s one thing to call out the Senate on a specific treaty like the Disabilities Convention, but this slap is more systemic. President Obama has not had a good record when it comes to making treaties through the Article II Advice and Consent process.  With the exception of the new START treaty, the Senate has refused to act on most treaties, including certain types of treaties (e.g., tax treaties, fish treaties) that in prior Administrations were entirely uncontroversial.  Thus, we might see this speech as a late shift in strategy, where the White House is moving off treaty-specific pro’s and con’s to reconstruct this issue in constitutional terms.  I’m not too sanguine that the move will be any more successful at getting votes on pending treaties, but the Senate’s response (if any) will bear watching.

What do others think?  Is there anything I’m missing here?

[UPDATE: An astute reader points out that I was incorrect to cite fish treaties as an example of Senate hostility to treaty-making.  In fact, all four treaties that have received Senate advice and consent since 2012 involved fish; in other words, fish treaties are the only treaties that have gotten through in the last four years.  Tax treaties and treaties on scientific cooperation and conservation, which in the past were, like fish treaties, non-controversial, are better examples of the ongoing hostility to treaty-making]

Stay in Your Lane! When Political Scientists Become Bad International Lawyers

by Julian Ku

Next month’s issue of Foreign Affairs, a leading journal of highbrow foreign policy in the U.S., features an important article on the United States as “The Once and Future Superpower” (subscription).  Based on their forthcoming book, professors Steven Brooks and William Wohlforth of Dartmouth College argue that China is not going to displace the United States as the world’s leading superpower in the near or even mid-range future.

As an article analyzing global power politics, it seems fairly (although not completely) persuasive.  But I was struck by how the otherwise carefully argued piece descends into complete gibberish when it tries to explain how “international law” can be a tool for the United States to constrain and manage China’s activities in the South China Sea.

And if Beijing tried to extract economic gains from contested regions [in the South China Sea], Washington could facilitate a process along the lines of the proportional punishment strategy it helped make part of the World Trade Organization: let the Permanent Court of Arbitration, in The Hague, determine the gains of China’s illegal actions, place a temporary tariff on Chinese exports to collect exactly that much revenue while the sovereignty claims are being adjudicated, and then distribute them once the matter is settled before the International Court of Justice.

Whaaaahhht?

In this one sentence, the authors propose that an arbitral tribunal convened under UNCLOS issue an award granting money damages to the Philippines. This is somewhat unlikely, but it is theoretically possible.  But who exactly is going to place a “temporary tariff on Chinese exports”?  The United States? A country that is not party to the dispute between China and the Philippines? And why exactly wouldn’t this cause a trade war with China and why wouldn’t it violate the WTO Agreement? And when exactly did the International Court of Justice get involved given that China has not consented to that court’s compulsory jurisdiction?  

Not only is this not a plausible mechanism for sanctions against China (the world’s second largest economy), but it is not a plausible mechanism for sanctions against almost any country in the world.  It has never been done before outside of the trade context, where every country specifically agreed to the trade sanction system in advance! 

The authors’ casual, offhand explanation of how “international law” is an asset that can be used for pursuing policy goals irrespective of existing legal institutional frameworks and legal principles is something I’ve noticed before in political science literature.  The “law” argument is not a bad one in principle, but it requires a deeper understanding of law as an independent analytical field than political scientists are willing to give it credit for.

As it stands now, this otherwise interesting article loses credibility with policymakers because the authors didn’t bother to try to understand how law and legal institutions are organized.  Maybe they should just skip over the legal stuff, and stay in their own lanes.  Or maybe they could find a reader up there in New Hampshire with a J.D. (I’m always available!).

Justice Scalia’s Rule of Law Efforts

by Duncan Hollis

Scalia photo

Justice Scalia’s passing comes as a shock and is generating tributes across ideological lines. Indeed, whether you agreed with his opinions or not (and I was not a fan of his thinking on cases like Sosa or Bond), Justice Scalia’s opinions deserved to be read.  Lines like “never-say-never jurisprudence” and “oh-so-close-to-relevant cases” are some of my personal favorites.  Readers should feel free to add their own in the comment section.

In the meantime, I wanted to pay tribute to a side of Justice Scalia that has garnered relatively little attention — his dedication to promoting the rule of law.  For the last sixteen years, Temple Law has run a rule of law program in Beijing hosted at Tsinghua University’s School of Law.  We offer an LLM to classes of 50 Chinese judges, prosecutors and lawyers, in an effort to acquaint them with the U.S. legal system and the rule of law more generally.  As part of the program, the Chinese students visit Philadelphia for the summer, which includes a day trip to D.C.  And nearly every year the highlight of that D.C. trip was an hour long private audience with Justice Scalia.  Justice Scalia would speak for a few minutes but most of the time was devoted to answering student questions. We conducted the sessions off the record, so I do not feel comfortable opining on who said what, but I always came away impressed by the honesty, vigor and intellectual quality of the exchange. I was universally impressed with Justice Scalia’s wit and candor.  He offered the students a true model of free speech in the U.S. legal tradition.  I don’t know if Temple’s China program was the only time he did this, or if this effort was one of many to expand the rule of law.  But I can say it was a highly effective one.  And so, as the nation mourns the passing of one of its most opinionated justices, I wanted to offer my own small tribute of appreciation to a man who, for whatever else he believed, was committed to the idea of democracy and the values of liberty and equality on which it stood.