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International Law in U.S. Courts

Chevron and the Rise of Arbitral Power: A Comment by Muthucumaraswamy Sornarajah

by Muthucumaraswamy Sornarajah

[Muthucumaraswamy Sornarajah is the CJ Koh Professor of Law, National University of Singapore and a Visiting Professor, Centre for the Study of Human Rights, London School of Economics.]

Michael Goldhaber’s well-argued piece on the extent of the powers that investment arbitration tribunals are arrogating to themselves is evidence of a general malaise that afflicts investment arbitration. The arbitrators have assumed powers far in excess of what states intended them to have when they made investment treaties and created a unilateral power in the investor to arbitrate disputes. Consistent with prevailing ideas generated by the Washington Consensus and its desire to bring about standards of global governance, arbitrators promoting their own self-interest went on a rampage of expansionist interpretation of treaties. Goldhaber highlights one of the most glaring instances of this neoliberal expansionism, the making of interim orders restraining a respondent state from enforcing judgments of their domestic courts made in cases involving third parties.

This phenomenon is but an aspect of a project to build up a neoliberal regime of inflexible investment protection. In the aspect of this project that Goldhaber describes, there has been an assiduous effort made by leading members of the “college of international lawyers”, entrusted the task of being bulwarks against injustice, promoting sectional interests of investors to the detriment of other values such as the protection of human rights and the environment.

The downsizing of the notion of denial of justice so that it could accommodate lesser standards enabling easy review of domestic judicial orders is a definite project that arbitrators and “highly qualified publicists” embarked upon. Arbitrators, whose legal competence is not tested or uniform, embarked on a course of review of domestic decisions. Golhaber describes these processes with competence. As he points out, while purporting not to act as appellate courts, this is precisely what the tribunals were doing. (more…)

Chevron and the Rise of Arbitral Power: A Comment by Anthea Roberts–Arbitral Power Over Domestic Courts or Arbitral Power Dependent on Domestic Courts?

by Anthea Roberts

[Anthea Roberts holds a joint appointment as a Professor of Law at Columbia Law School and a Senior Lecturer in Law at the London School of Economics and will be in residence at Columbia Law School from 2013-2015.]

Michael Goldhaber has written an interesting and timely article charting the rise of international arbitrators exercising power over and with respect to domestic courts. He gives examples ranging from Chevron to Saipem to White Industries. This is an important and growing phenomenon that has not yet received adequate attention. I believe that the rise of arbitral power over domestic courts that Goldhaber describes is the first stage in what will ultimately become a longer and more contested saga about the respective powers of arbitral tribunals and domestic courts. That is because arbitral tribunals not only exercise power over domestic courts, but their own power is also dependent on domestic courts.

The power of arbitral tribunals ultimately comes down to whether their decisions will be enforced by domestic courts. While Goldhaber charts the first stage in the battle between arbitral tribunals and domestic courts where arbitrators are in the position of authority, we are likely to witness a second stage when domestic courts are asked to pass judgment on whether arbitral tribunals have exceeded their jurisdiction or violated public policy by hearing these sorts of cases or ordering certain relief. Arbitral tribunals will sit in judgment of domestic courts and domestic courts will sit in judgment of arbitral tribunals. Neither reigns supreme.

BG Group v Argentina represents an early example of this type of phenomenon. The tribunal in that case chose not to enforce the requirement in the treaty that the investor resort to the domestic courts for 18 months prior to bringing an arbitral claim. Many other tribunals adopted the same approach, often painting the issue as one of admissibility rather than jurisdiction or viewing domestic remedies as futile rendering resort to them unnecessary. But when the Court of Appeals for the District Court of Columbia was asked to enforce the resulting award, it refused to do so on the basis that the tribunal had exceeded its jurisdiction because Argentina had only consented to arbitration on certain conditions, one of which was not met.


The Nationalists Strike Back: The “No-Spy” Agreement Solution to the NSA Spying Scandal

by Julian Ku

I agree with Peter that there is a move to universalize (through accretion) a norm against spying via Article 17 of the ICCPR.  But unlike Peter, I think it will get nowhere.  Instead, I was struck by how the German complaint against the NSA program has not really been phrased in terms of how it violates international norms or laws.  Rather, it seems that the Germans (and French) are really hurt because they don’t have a “no-spy” agreement with the U.S. like Canada, the UK, Australia, and New Zealand do (The so-called “Five Eyes” or AUSCANNZUKUS)

In other words, the problem is not that spying itself is illegal or morally wrong, but that it is illegal and morally wrong to spy on your allies and friends.  Spying on other countries might very well be morally and legally justified (e.g.: North Korea, Iran, China, Russia).  A universal anti-spying norm could very well be the opposite. Indeed, it seems unlikely that Germany and France would seriously support a universal anti-spying norm that would constrain their own very robust spying efforts.

With this in mind, it is worth considering whether and how the U.S. should adopt new “no-spy” agreements, something President Obama seems willing to consider.   I actually think a “no-spy” agreement is a better approach than unilaterally disarming in the spy wars.  Do we really think the French will stop trying to spy on the U.S. once the U.S. pledges to stop spying on France?  Better to at least commit the French to a deal.

From a foreign relations law perspective, “no spy” agreements are curious.  They are sole executive agreements and they may or may not have a binding character under international law. Certainly, they are not formal treaties.  The U.S. Congress probably has incomplete knowledge of exactly what is in these agreements and how they are operating.

Stewart Baker is already up with congressional testimony (dated today) on criteria for any new “no-spy” agreements.  Interestingly, the main thrust of his testimony is that Congress should start exercising a little oversight, at least if the U.S. starts buying off allies with new “no spy” agreements.  He has some pretty stringent requirements (a cooling off period for any new agreements that must all be submitted to Congress for review, a report on compliance,etc).  He doesn’t go so far as to require Congressional approval for any new no-spy agreements, but he might as well.  I doubt Congress would go that far, and I think there will be some questions over whether Congress has the legal authority to constrain these kinds of executive agreements.

In any event, my prediction is that the fallout from the latest NSA scandal will be a flurry of “no-spy-on-you” promises and then a series of new “no spy agreements” for certain favored “allies”.  I think Germany will talk about a universal anti-spying norm, but this initiative will eventually die largely because no large nation really wants it.

Chevron and the Rise of Arbitral Power: A Comment by Christoph Schreuer

by Christoph Schreuer

[Christoph Schreuer is a Professor at the Department of European, International Law and Comparative Law, University of Vienna] 

Michael Goldhaber’s erudite and well-researched article examines an important aspect of the many-sided relationship between domestic courts and investment tribunals. Other facets of this diverse relationship include the review of arbitral awards by domestic courts, anti-suit injunctions by domestic courts, the need to pursue remedies in domestic courts prior to international arbitration, the division of competences under the label of treaty claims and contract claims, fork in the road provisions, interim measures by domestic courts in support of arbitration and enforcement of awards by domestic courts. This complex relationship of courts and tribunals shows elements of competition, of obstruction, of mutual control and of support. It is startling and paradoxical because it defies any notion of a hierarchy of decision makers.

Goldhaber’s excellent analysis concentrates on two issues: antisuit injunctions by arbitral tribunals and denial of justice by domestic courts. But the potential for infringements of the international rules on investor protection by domestic courts is much wider. Practically each of the typical standards of protection contained in BITs can be violated by domestic courts and each of these violations is subject to the scrutiny of investment tribunals.

From the perspective of international law, an international review of domestic court decisions is neither new nor unusual. International judicial control over State activity has always included courts. The State’s responsibility for all types of the exercise of public authority is uncontested and is reflected in Article 4 of the ILC’s Articles on State responsibility.[1] There are good reasons for not differentiating between the different branches of government when it comes to State responsibility. This lack of differentiation is not merely designed to prevent states from hiding behind ‛independent’ organs. In real life the courts and other elements of the government interact in a way that defies the application of a separation of powers doctrine to questions of State responsibility. For example, court action to the detriment of foreign investors is often mandated by legislation.[2] Decisions of domestic courts are sometimes prompted by executive insinuations.[3]


Chevron and the Rise of Arbitral Power: An Introduction by Michael D. Goldhaber

by Michael D. Goldhaber

[Michael D. Goldhaber serves as Senior International Correspondent and "The Global Lawyer" columnist for The American Lawyer and the ALM media group. His writes widely on human rights and corporate accountability, international arbitration, and global multiforum disputes. His e-book on Chevron will be published next year by Amazon.]

The ongoing media circus surrounding the Chevron v. Donziger trial in New York federal court makes it easy to forget that the arbitration between Chevron and Ecuador may be the main event in resolving the $19 billion environmental judgment entered against Chevron in Lago Agrio.

The unique willingness of arbitrators to check the power of a foreign judiciary came into sharp relief on Jan. 25, 2012, when the Chevron v. Ecuador tribunal issued interim orders that the Republic (including its courts) take all measures at its disposal to suspend enforcement of the judgment. The very next morning, the U.S. Court of Appeals for the Second Circuit vacated a worldwide injunction against enforcement of that same judgment by the Ecuadorian plaintiffs. In a striking choice of words, the Second Circuit declined to serve as “the definitive international arbiter of the fairness and integrity of the world’s legal systems.”

Early this year, I had the privilege of moderating an NYU Law School panel titled “Arbitrators v. Judges: The Latent Tension of Investor Arbitration Rises to the Surface,” featuring some of the world’s leading arbitrators. Two weeks later I attended a Stanford Law School conference titled “Lessons From Chevron.” The Stanford Journal of Complex Litigation has published a magnificent set of conference papers — including Judith Kimerling on indigenous rights, Stacie Strong on 1782 discovery, Howard Erichson on forum shopping, Manuel Gomez on international enforcement, Chris Whytock on transnational litigation, and Catherine Rogers on global legal ethics. Full text may be found online here.

I was struck at Stanford by how odd arbitration appears to U.S. scholars, who are mostly stunned by powers that arbitrators take as elemental. I was struck at NYU by the lack of a framework, within the arbitration community, to analyze the growing exercise of authority over national courts by investment arbitrators.

My resulting article — “The Rise of Arbitral Power Over Domestic Courts – will be the subject this week of an Opinio Juris mini-symposium. As geography is no object online, the three distinguished commenters represent three continents and an equally wide range of opinion. Christoph Schreuer of Vienna is an eminent arbitrator, perhaps best known for the Chevron precursor of Saipem v. Bangladesh, and a prolific scholar, perhaps best known for the definitive commentary on the ICSID Convention. Anthea Roberts of Columbia Law School, by way of Australia, is widely hailed as one of the brightest young stars in arbitration scholarship. Muthucumaraswamy Sornarajah of National University of Singapore is among the most eloquent and radical critics of investor-state arbitration. I am honored by their participation…

Guest Post at Just Security About “Belonging to” and Associated Forces

by Kevin Jon Heller

Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction:

In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.” According to Ryan, the US is involved in a NIAC with al-Qaeda’s associated forces because they “belong to” al-Qaeda for purposes of the rules of IHL governing targeting and detention. Here is what he said, nominally in response to Christof Heyns’ assertion in his recent UN report on extrajudicial killings that an associated force must “form part” of al-Qaeda for its members to be targetable and detainable:

Nevertheless, the law of armed conflict stipulates that members of armed groups (e.g., AQAP) with a particular relationship to a party to a conflict (e.g., al-Qaeda) are legitimate targets. Specifically, Article 50(1) of Additional Protocol I states that a person cannot be considered a civilian (e.g., for the purpose of lethal targeting) if he is a member of an organized armed group with such an association. That association is defined in Article 4(a)(2) of the POW Convention: “members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.”

In short, “belonging to” a party to the conflict is a form of an associated group, which renders its members subject to lethal force and detention.

I disagree with Ryan that the concept of “belonging to” can be applied in non-international armed conflict (NIAC). In this post I explain why.

Because Just Security does not have a comment system, interested readers should feel free to leave comments here.

Guest Post: SCOTUS Oral Argument in Daimler v. Bauman

by Adam N. Steinman

[Adam N. Steinman is Professor of Law and Michael J. Zimmer Fellow at Seton Hall Law]

Cross-posted at Civil Procedure & Federal Courts Blog

This week the Supreme Court heard oral argument in Daimler AG v. Bauman (covered earlier here and here). Daimler resembles last Term’s Kiobel case, in that it involves claims against a foreign defendant (Daimler) for human rights and other violations committed abroad (in Argentina, during the “dirty war” of the 1970s and 1980s) under the Alien Tort Statute (ATS). But the question for which the Court granted certiorari in Daimler involves personal jurisdiction and is not limited to ATS cases: “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”

During the argument, plaintiffs’ counsel acknowledged that their ATS claims faced an “uphill struggle” in light of Kiobel, but they are also pursuing state law and foreign law claims – for which personal jurisdiction would remain a live issue. Given the question presented, the more significant SCOTUS precursor may be the 2011 Goodyear decision, not Kiobel. Writing for a unanimous Court, Justice Ginsburg wrote in Goodyear that general jurisdiction over corporations is proper “when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” She cited (1) a corporation’s principal place of business and (2) its state or country of incorporation as “paradigms” for general jurisdiction; but it remains unclear what else could render a corporation “essentially at home” in a particular forum. In particular, Goodyear acknowledged – but did not address – the argument that distinct corporate entities might be treated as a “single enterprise” for jurisdictional purposes. In Daimler, the Ninth Circuit found that California had general jurisdiction over Daimler based on the activities its American subsidiary, Mercedes Benz USA (MBUSA).

The most common reaction to this week’s oral argument has been that the Justices were quite skeptical of the idea that Daimler was subject to general jurisdiction in California. That may be so, but several interesting issues came up during the argument, and there are still a number of different ways the Court could ultimately dispose of the case (some of them quite narrow).

One topic of discussion was whether state law or federal law governed the extent to which MBUSA’s contacts could be attributed to Daimler. Under Federal Rule of Civil Procedure 4(k)(1)(A) –the basis for personal jurisdiction in this case – a California federal district court can exercise personal jurisdiction if a California state court could exercise personal jurisdiction. Thus, jurisdictional restrictions in state long-arm statutes can confine federal courts as well. California’s long-arm statute, however, extends as far as the 14th Amendment allows. It would seem, then, that personal jurisdiction ultimately hinges on the federal question of whether, on these facts, the 14th Amendment permits a state court to assert general jurisdiction over a foreign parent based on the activities of its subsidiary. Questions by Justices Sotomayor and Alito suggested that this was indeed a federal issue. Justices Scalia and Breyer, however, inquired repeatedly about state law. One line of questioning by Justice Breyer suggested the view that, just as state corporations law defines when a parent company can be liable for a subsidiary’s conduct, so too would state corporations law define when a parent can be subject to jurisdiction based on a subsidiary’s activities.

Another significant issue in Daimler is whether Daimler waived or forfeited certain arguments against personal jurisdiction. (more…)

Four Thoughts on Koh’s Defense of Unilateral Humanitarian Intervention

by Kevin Jon Heller

At Just Security today, my friend Harold Koh has mounted a typically masterful defense of the legality of unilateral humanitarian intervention (UHI) in Syria and other places. I wish all advocates of UHI were as thoughtful. Not surprisingly, though, I’m not convinced by Koh’s argument. Let me offer four (disconnected) thoughts on his claims below.

A “per se illegal” rule would overlook many other pressing facts of great concern to international law that distinguish Syria from past cases: including the catastrophic humanitarian situation, the likelihood of future atrocities, the grievous nature of already-committed atrocities that amount to crimes against humanity and grave breaches of the Geneva Conventions, the documented deliberate and indiscriminate use of chemical weapons against civilians in a way that threatens a century-old ban, and the growing likelihood of regional insecurity.

It is difficult to disagree with this statement, but I think it’s important to reiterate a basic truth: the US has made inordinately clear that it does not intend to end the humanitarian crisis in Syria. The proposed UHI would deal with chemical weapons — and only chemical weapons. It would not attempt to oust Assad. It would not be massive enough to completely disable Assad’s ability to kill innocent civilians with conventional weapons. Indeed, a strong case can be made that the US desire to attack Syria is largely self-serving, motivated by a desire to ensure that chemical weapons are never used against US interests, not to protect Syrian civilians from chemical attacks that have always seemed unlikely to be repeated.

To be clear: I am categorically opposed to any UHI by the US. But it seems to me that, at a minimum, any defense of UHI must require the intervention in question to be designed to actually end a humanitarian crisis, not simply nibble around its edges…

Ryan Goodman Responds to War/Not War

by Kevin Jon Heller

Ryan has kindly responded to my post commenting on his claim that “arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict.” Unfortunately, our conversation has something of a Pinteresque quality: in claiming that I mischaracterized one of his central claims, he mischaracterizes my central claim. Ryan’s reply is predicated on the idea that I’m defending specific scholars against the idea that they have flip-flopped opportunistically regarding whether the US is involved in an armed conflict with al-Qaeda. I don’t know why he thinks that: he provided no examples of specific scholars flip-flopping in his post, and I did not defend any specific scholars against the claim of flip-flopping in mine. My primary point was simply this: because the existence of armed conflict, particularly non-international armed conflict, is fact-specific, context-dependent, and fluid, it is problematic to assume — as Ryan does, and as the USG alway has — that (in Ryan’s words) it would have been ”a better path over the past twelve years” to take “a consistent position that one legal situation (war) or the other (not a war) exists” between the US and AQ than to take different positions on different aspects of that supposed “armed conflict” at different points of time. My secondary point, which built on the primary one, was that Ryan’s commitment to a unitary view of the supposed “armed conflict” between the US and AQ blinded him to the fact that it was impossible to infer anything untoward or opportunistic — “flip-flops” is obviously a word with negative connotations — from the fact that different scholars have taken different positions at different points in time on different aspects of that conflict. I stand by both points, and unfortunately, because of the misunderstanding between us, Ryan’s post addresses neither of them.

I also want to briefly address Ryan’s dismissal of my claim that, with regard to 9/11, “[o]ne attack, no matter how horrible, does not a (non-international) armed conflict make.” He disagrees, citing a 2003 article by Derek Jinks in which Jinks claims (1) that “the laws of war apply to all acts committed in an armed conflict even if committed prior to the point at which the ‘protracted’ threshold was crossed,” and (2) that NIAC exists even if the hostilities are not adequately organized and intense as long as “the state party to the hostilities interprets them as an ‘armed conflict (a subjective standard).” I have great respect for Derek’s work, but both points are well outside of the IHL mainstream. (And note that Derek repeated the second point today.)

I will try to write in more depth about Derek’s points soon. Suffice it for now to say that the only cite he provides for his first point does not actually support his argument. Here is what he says in the footnote, citing paras. 619-27 of the Trial Chamber’s judgment in Akayesu:

The jurisprudence of the ICTR is instructive on this point. The relevant “armed conflict” in Rwanda lasted a total of six months. Applying the ICTY definition, the tribunal held Common Article 3 applicable to the conflict, finding that the “armed conflict” existed from the initiation of the hostilities even if the existence of an armed conflict could only be discerned after the violence had become “protracted.”

That is not what the Trial Chamber held. It held only that “[i]n the present case, evidence has been presented to the Chamber which showed there was at the least a conflict not of a international character in Rwanda at the time of the events alleged in the Indictment” (para 627; emphasis mine). The events alleged in the indictment with regard to war crimes began on 7 April 1994, one day after President Habyarimana’s plane was shot down. By that time, the conflict had already begun between the RPF and FAR (see para. 109 of the judgment), justifying the Trial Chamber’s conclusion that a NIAC existed. More importantly, the Trial Chamber neither suggested nor implied that the attack on the plane — the Rwandan genocide equivalent to 9/11 — was itself part of the NIAC that began the next day. That was simply not an issue in the case.

Finally, it’s also worth briefly noting that Akayesu also contradicts Derek’s second point — that a state’s subjective belief a NIAC exists means that a NIAC exists even if the hostilities do not objectively qualify as armed conflict. The Trial Chamber specifically noted (para. 624) with regard to both Common Article 3 conflicts and Second Additional Protocol conflicts that “these criteria have to be applied objectively, irrespective of the subjective conclusions of the parties involved in the conflict.” But I’ll have more to say about that issue later.

BREAKING: Bashir Problem Now a Non-Problem

by Kevin Jon Heller

For the non-twitterati, Omar al-Bashir has — unsurprisingly — cancelled his trip to the UN. That decision reflects an underappreciated “soft power” aspect of the ICC: even an unexecuted arrest warrant limits the freedom of a suspect facing charges. There may be no reasonable prospect of Bashir being arrested anytime soon. But there is also no reasonable prospect that he will be traveling outside of Asia, Africa, and the Middle East anytime soon either, making it much more difficult for him to function as an effective head of state. With luck, his political party will eventually decide he’s more trouble than he’s worth — at which point he may well end up in the ICC’s dock. (A lesson Mr. Milosevic learned the hard way.)

Can the Offenses Clause save Missouri v. Holland?

by Duncan Hollis

Things are continuing to gear up here in the United States for the big foreign affairs law case of the year – U.S. v. Bond, which, among other things may allow the Supreme Court to revisit one of its most significant foreign affairs law cases ever - Missouri v. Holland.  Bond asks two questions: (1) whether the Constitution limits Congress’s authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question — the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the “scope and continuing vitality of . . .  Missouri v. Holland“.  Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.

So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress’ authorities under Article I.  That, after all, was the central holding of Holmes’ opinion in Missouri and it’s the one that most scholars fear — or, hope, depending on their disposition — may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh).  But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause.  The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute.  This is not a surprising argument.  The Commerce Clause’s expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes’ impassioned assertion of a dynamic reading of the treaty power.

Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority — the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser’s Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They’ve now posted a scholarly exposition of their argument on SSRN.  Here’s the abstract:

The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.

The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.

I find myself fairly convinced of the paper’s historical claim — that the reference to the law of nations at the time of the Framing included U.S. treaty obligations.  Thus, I think their argument is one the Court can (and should) consider in the Bond case.  In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition.  Let me highlight three after the jump.

A Reply to Goodman Re: War/Not War with Al-Qaeda

by Kevin Jon Heller

Ryan has a fascinating but problematic post today at Just Security in which he takes international-law scholars to task for opportunistically flip-flopping on whether the US is involved in an armed conflict with al-Qaeda. Here is the crux of his argument, taken from the post’s introductory paragraph:

Those arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict. In fact, a pattern has emerged over the years: opposition to different actions has alternated between arguing that the US is—or is not—involved in an armed conflict with Al Qaeda. It sometimes seems as though the preferred argument depends on how that threshold question—whether we’re in a war—affects the interests at stake.

I thought about writing a letter to the editor in response, but there is no guaranteed that Just Security would publish it — and there would be no way for anyone other than a Just Security member to join the discussion (Facebook and Twitter, as I’ve said, being inadequate media for dialogue.) So I thought I would reply on Opinio Juris and invite interested readers to comment here.

The basic problem with Ryan’s post is this: it conflates inconsistency of outcome and inconsistency of principle. In Ryan’s view, “war” with AQ is a simple binary: either the US has been or has not been at war with AQ. As he puts it:

What might have been a better path over the past twelve years and, more importantly, the way forward? At the very least: a consistent position that one legal situation (war) or the other (not a war) exists.

Ryan thus equates inconsistency of outcome with inconsistency of principle: if scholars have taken inconsistent positions about war/not war between the US and AQ, that must be because they have adopted inconsistent legal principles (opportunistically, no less) concerning the existence of war.

But that is a flawed understanding of international humanitarian law. The basic principle of conflict qualification, as I have pointed out many times before, is this: the existence of non-international armed conflict is a fact-specific determination, one that depends on the organization of the non-state actor and the intensity of hostilities between the non-state actor and a state. Conflicts evolve over time in terms of both organization and intensity, so peace can turn into NIAC and NIAC can turn into peace. And, of course, there are many other types of conflict: NIAC can turn into IAC (Libya when the West intervened on behalf of the rebels); IAC can turn into NIAC (Afghanistan with the toppling of the Taliban); IAC can turn into occupation and occupation can turn into NIAC (Iraq); IAC and NIAC can exist alongside of each other (which would be the case if the US started bombing Syria); and so on. The qualification matters, because the type of conflict affects everything from targeting rules to the detention regime (as Ryan well knows, having written very intelligently about detention of civilians).

Because conflict qualification, especially concerning the existence of NIAC, is an inherently fluid and fact-specific determination, it is impossible to infer inconsistency of principle with regard to the nature of the conflict between the US and AQ from inconsistency of outcome. It is completely possible to take a principled approach to conflict qualification and yet not conclude that “one legal situation (war) or the other (not a war) exists.” Indeed, I’d go further and suggest that the most unprincipled approach to conflict qualification is the one that the US has adopted. The USG has never made an effort to take conflict qualification seriously; it has simply assumed the existence of a global non-international armed conflict between the US and AQ since bin Laden “declared war” in 1996. (Hence the USG’s ability to claim with a straight governmental face that al-Nashiri was able to commit war crimes prior to 9/11 and prior to the AUMF.) The only principle behind the US position is expediency — the USG’s desire to have its “war” with AQ governed by IHL instead of by IHRL.

Let me be clear: I am not defending all of the scholars that Ryan mentions in his post. I have vast disagreements with some of them, and some of them may well be arguing opportunistically. But I suspect that, if we examined many of their positions, we would find that their supposed inconsistency actually reflects a good-faith effort to take conflict qualification far more seriously than the USG ever has. Specifically, I’m willing to wager that most of those positions were based on (1) a rejection of the idea that the US can be in a global NIAC with AQ, an idea that to the best of my knowledge no non-American scholar accepts; and (2) an insistence that although the US and AQ can be involved in NIACs in specific geographic areas — Afghanistan, Pakistan, Yemen, etc. — the existence of such NIACs has to not only be determined based on the situation on the ground (organization and intensity), but also needs to be re-assessed over time.

Let me end with a couple of examples. In “Turn 1,” Ryan chides Allain Pellet for claiming that it was “legally false” the US and AQ were at war after 9/11 and takes Antonio Cassese to task for calling it a “misnomer” to describe the US/AQ conflict as a “war.” Dig deeper, however, and both Pellet and Cassese were absolutely correct. Pellet’s article was written 10 days after 9/11, nearly three weeks before the US began bombing Afghanistan. At that point there was no armed conflict between the US and AQ. One attack, no matter how horrible, does not a (non-international) armed conflict make. And Cassese was not denying the possibility that the US and AQ could be involved in a non-international armed conflict; he was denying that the US and AQ could be involved in a “war” — a term that has always been reserved for armed conflict between states. So his claim, too, was accurate.

Emerson is right — “[a] foolish consistency is the hobgoblin of little minds.” The problem is not with international law scholars who have “flip flopped” on the qualification of the armed conflict between the US and AQ; the problem is with the USG’s insistence that it has be either/or. When it comes to IHL, very few complex legal issues admit of simple binaries.