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Comparing U.S. Strategies in Constructing Cybernorms with China

by Duncan Hollis

I’ve got a new draft article up on SSRN (you can download it here) entitled China and the U.S. Strategic Construction of Cybernorms: the Process is the Product.  It was written for a really great inter-disciplinary workshop held at Stanford Law School earlier this Spring by the Hoover Institution’s National Security, Technology and Law Working Group (which is chaired by Ben Wittes and Jack Goldsmith). The article will be published shortly in Aegis, the Hoover Institution’s Paper Series with some cross-linking on Lawfare (Hoover already has one of the Workshop’s other papers posted – a great piece by by Adam Segal on Chinese Cyber Diplomacy).

In the meantime, here’s my abstract:

This paper explores the role norms—shared expectations about appropriate behavior within a given community—play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents – on what they say.

In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms—incentives, persuasion, socialization—by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.

As always, comments and feedback are most welcome.

Actually, President Trump CAN Unilaterally Withdraw the U.S. From NATO

by Julian Ku

The estimable professor-pundit Daniel Drezner has a typically smart blogpost on President Trump’s refusal to affirm the U.S. commitment to Article 5’s collective defense provision of the North Atlantic Treaty.  I don’t have a problem with his views here, but I can’t help jumping in to correct this paragraph from his post:

So why is this such a big deal of a story? The United States is a member of NATO, which means that Article 5 is legally binding whether Trump says so out loud or not. Unlike NAFTA or the Paris climate treaty, I’ve been assured by smart lawyer types that Trump cannot unilaterally withdraw.

[Emphasis added].

Actually, as a matter of U.S. constitutional law, Drezner and his smart lawyer friends have things kind of backwards here, at least with respect to NAFTA and NATO. The broad consensus view is that the President has the unilateral authority to terminate a treaty pursuant to that treaty’s termination provisions or consistent with international law.  This means that as long as the President follows Article 13 of the North Atlantic Treaty — which requires the U.S. provide one year’s notice before termination — President Trump can terminate US membership in NATO without first getting consent from the Senate or the Congress as a whole.

The U.S. Supreme Court has never ruled on this question definitively, but it strongly hinted that the President has this power in its seminal 1979 Goldwater v. Carter decision refusing to require senatorial consent before President Carter’s termination of the U.S.-Republic of China (Taiwan) Mutual Defense Treaty.  The American Law Institute’s newly approved section on Treaties in the forthcoming Restatement (Fourth) on U.S. Foreign Relations Law explicitly endorses the President’s unilateral treaty termination power, and this was not even a change from the earlier Third Restatement.

Terminating NAFTA is the more complex problem, as John Yoo and I have argued here.  Although the President also has the power to terminate NAFTA’s international agreement status, he has to separately nullify the domestic legal effect of NAFTA. Some of that might be done via executive action, but it is our view that he will need another statute to completely eliminate all domestic legal effects of NAFTA.

It is also worth noting that the President’s unilateral termination power calls into question those who criticized President Obama for failing to submit the Paris Agreement to the Senate on the theory that this would have somehow insulated Paris from a unilateral President Trump termination.  In fact, President Trump could have terminated the Paris Agreement unilaterally, whether or not it was approved by the Senate.

None of this is meant to encourage or endorse any of President Trump’s actual or threatened treaty terminations.  But as a matter of U.S. constitutional law, there is no reason to doubt he can take the U.S. out of NATO, Paris, and many other international agreements.

States Are Failing Us in Syria — Not International Law

by Kevin Jon Heller

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title “International Law is Failing Us in Syria.” The international law she is talking about is the jus ad bellum — the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the humanitarian crisis in Syria indicates that an exception to Art. 2(4) for UHI is “the only means of preserving international law’s credibility in the use of force realm”:

The reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most sound, narrow, acceptable grounds possible, together with our allies. This view is not an acceptance that international law does not matter. It is an acceptance that international law – like so much public law – operates in a dynamic space that is inevitably interwoven with the reality of how states act and the widespread acceptance of its legitimacy.

I don’t want to focus here on the legal aspects of Ingber’s post, other than to note that when she claims “our allies… have become comfortable stretching the outer bounds of what international law has historically been thought to permit” with regard to the use of force, she links almost exclusively to UK practice. (The one exception is “unwilling or unable,” where she refers to the flawed Chachko/Deeks post that tries to categorise state positions on the doctrine.)

The legal questions are, of course, interesting. But what I find most problematic about Ingber’s post is its most basic assumption: namely, that the international community has failed to do more in Syria because UHI is not legal. That assumption, I think, is categorically false. If the King of International Law announced tomorrow that UHI was consistent with Art. 2(4) of the UN Charter, it would have no effect on the international response to the Syrian crisis. Literally none.

And that is because international law is not failing us in Syria. States are.

Or, more precisely, the self-interest of states is failing us. States have not intervened in Syria to end the humanitarian crisis because doing so would be immensely costly in terms of both blood and treasure, not because Art. 2(4) doesn’t permit UHI. There is no easy solution for states concerned about Syria, such as a Kosovo- or Libya-style airpower campaign. If they want to end the crisis, they will have to invade Syria and destroy the large and generally well-equipped Syrian army — a task that would make the invasion of Iraq look positively economical by comparison. And the sad truth is that the US is not going to spend billions of dollars and accept thousands of dead American soldiers to save a bunch of defenceless Syrian civilians. Nor is the UK. Or France. Or Germany. Or any other state.

Do intervention-minded scholars disagree? Does anyone really believe that there is a head of state out there — actual or even potential — who at this very moment is saying to herself “I could end the Syria crisis tomorrow if that damn Art. 2(4) didn’t prohibit unilateral humanitarian intervention”? The idea beggars belief. I am on record with my insistence that UHI is not only unlawful but criminal, but I’m not stupid. A successful UHI in Syria would result in a Nobel Peace Prize, not a confirmation of charges hearing.

What is most striking about Ingber’s post is that she barely attempts to defend her claim that international law is preventing the kind of UHI she believes is necessary in Syria. All she says is that “with respect to Syria alone, the fact that international law may have played a role in taking intervention off the table during the Obama presidency (and there are subtle indications that it did) should weigh heavily on us now.” I’ve read both of the documents to which she links, and the indications are subtle indeed. In the press conference, Obama openly acknowledges the real reason why the US did not intervene in Syria while he was President — it wasn’t worth the cost:

So with respect to Syria, what I have consistently done is taken the best course that I can to try to end the civil war while having also to take into account the long-term national security interests of the United States.

And throughout this process, based on hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours — whenever we went through it, the challenge was that, short of putting large numbers of U.S. troops on the ground, uninvited, without any international law mandate, without sufficient support from Congress, at a time when we still had troops in Afghanistan and we still had troops in Iraq, and we had just gone through over a decade of war and spent trillions of dollars, and when the opposition on the ground was not cohesive enough to necessarily govern a country, and you had a military superpower in Russia prepared to do whatever it took to keeps its client-state involved, and you had a regional military power in Iran that saw their own vital strategic interests at stake and were willing to send in as many of their people or proxies to support the regime — that in that circumstance, unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.

Obama takes the same position in the interview with Jeffrey Goldberg. Nothing in the interview suggests that the illegality of UHI had anything to do with Obama’s unwillingness to intervene more dramatically in Syria. On the contrary, as Goldberg explains by means of contrasting Obama with Samantha Power, he simply doesn’t believe in UHI:

Power is a partisan of the doctrine known as “responsibility to protect,” which holds that sovereignty should not be considered inviolate when a country is slaughtering its own citizens. She lobbied him to endorse this doctrine in the speech he delivered when he accepted the Nobel Peace Prize in 2009, but he declined. Obama generally does not believe a president should place American soldiers at great risk in order to prevent humanitarian disasters, unless those disasters pose a direct security threat to the United States.

Goldberg recounts many of the factors underlying Obama’s realist view of American military power. The key one, though, is pragmatic, not legal — the disaster of NATO’s supposedly humanitarian intervention in Libya:

But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.

The Libya fiasco is particularly important, because it is tempting to believe that collective UHI in Syria might be more successful than individual UHI. It probably would — except that the benefits of collective action would still not outweigh the reluctance of powerful states to spend blood and treasure for merely humanitarian concerns. Libya is a case in point: NATO countries were willing to drop bombs on the Libyan army, but they would never have committed soldiers to a ground invasion. They are not willing to put them in Libya now, when the risks are minimal. So even if Ingber is right that states have shown “widespread support for military action in response to humanitarian crises” (and I don’t think she is), she is still missing the fundamental point: they support military action by others, not by them. It’s not an accident, for example, that interventionists like John McCain and Lindsey Graham expect Arab soldiers to do the fighting for them in Syria.

And, of course, Syria is not Libya. Or even Kosovo. On the contrary: unlike in those situations, UHI in Syria, whether individual or collective, risks a shooting war with Russia, the second most powerful military in the world, and perhaps with Iran. That unpleasant possibility provides a far more effective deterrent to military action against Assad than the text of Art. 2(4) ever will.

What, then, is to be gained by “divining” or “crafting” an exception to Art. 2(4) for UHI, as Ingber suggests? The legality of UHI would not lead to humanitarian interventions in Syria or in any other comparable situation. But it would give powerful states like the US yet another pretext for using force to promote their national interests. Why invoke an inherently selfish rationale such as self-defence as a pretext for aggression when you could invoke humanitarian intervention instead? Who is opposed to helping innocent civilians? And if we take your land and oil and other resources along the way, well, we have to pay for our selflessness somehow, don’t we?

Legalising UHI, in short, will not lead to more humanitarian uses of force. It will lead to more aggression. And that is because international law is not the problem in Syria and elsewhere. States are.

An Important Absence in the Syria War Crimes Accountability Act of 2017

by Kevin Jon Heller

On Monday, my friend Beth van Schaack posted an excellent analysis at Just Security of the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” Beth summarises the most important aspects of the bill; in this post I want to focus on Section 7, which authorises US technical assistance to certain non-US accountability mechanisms. The most important paragraph in Section 7 is this one (emphasis mine):

(a) IN GENERAL.—The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and violent extremist groups in Syria beginning in March 2011—

(1) identify suspected perpetrators of war crimes, crimes against humanity, and genocide; (2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence; (3) conduct criminal investigations; (4) build Syria’s investigative and judicial capacities and support prosecutions in the domestic courts of Syria, provided that President Bashar al Assad is no longer in power; (5) support investigations by third-party states, as appropriate; or (6) protect witnesses that may be helpful to prosecutions or other transitional justice mechanisms.

There a very interesting — and potentially very important — absence in Section 7(a). As the bolded text indicates, the paragraph only authorises the US to provide technical assistance to entities that are investigating international crimes committed by pro-Assad forces and “violent extremist groups.” Note what is missing from that construction: Syrian rebel groups. The bill does not permit the US to support any entity investigating war crimes, crimes against humanity, and acts of genocide committed by rebels.

Lest anyone think I am reading Section 7(a) too narrowly, consider the wording of Section 3(1), which summarises acts that the US “strongly condemns” (emphasis mine):

(A) the ongoing violence, use of chemical weapons, targeting of civilian populations with barrel, incendiary, and cluster bombs and SCUD missiles, and systematic gross human rights violations carried out by the Government of Syria and pro-government forces under the direction of President Bashar al-Assad; and (B) all abuses committed by violent extremist groups and other combatants involved in the civil war in Syria.

It is difficult to see who “other combatants involved in the civil war in Syria” might be if they are not rebels. Indeed, Section 5(a), which requires the Secretary of State to submit a report on international crimes to Congress, explicitly distinguishes between “violent extremist groups” and rebel groups (emphasis mine):

(b) ELEMENTS.—The reports required under subsection (a) shall include— (1) a description of alleged war crimes, crimes against humanity, and genocide perpetrated during the civil war in Syria, including— (A) incidents that may constitute war crimes, crimes against humanity, or genocide committed by the regime of President Bashar al-Assad and all forces fighting on its behalf; (B) incidents that may constitute war crimes, crimes against humanity, or genocide committed by violent extremist groups, anti-government forces, and any other combatants in the conflict.

In light of Section 5(a), it is clear that Section 7(a) does not authorise the US to support an entity that is investigating international crimes committed by rebels.

That said, the bill is unclear in one important respect: whether the US can support an entity that investigates international crimes committed by both pro-Assad forces and rebel groups. On a literal reading of Section 7(a), the answer would seem to be no. But the sponsors of the bill might disagree. Journalists?

I agree with Beth that the Syria War Crimes Accountability Act of 2017 is an important step forward for accountability in Syria. Unfortunately, it also reflects the US’s tendency to take international crimes committed by rebel groups much less seriously than those committed by Assad’s forces and by ISIS.

GOP Wants the US to Leave the United Nations

by Kevin Jon Heller

Finally, a Republican bill we can all get behind! The American Sovereignty Restoration Act of 2017:

A bill was introduced to the House of Representatives in early January that, among other things, calls for the United States to withdraw from the United Nations. Sponsored by Senator Mike Rogers, the American Sovereignty Restoration Act (aka H.R. 193) had been previously introduced by the Alabama senator to no avail back in 2015 (then H.R. 1205), when he cited reasons ranging from spending waste to enabling an intercontinental “dictators’ club,” which sounds like a manuscript Ann M. Martin decided to leave in her desk drawer.

I believe in sovereignty — and in restoring it when it is lost. So I support the bill. And no more UN membership, of course, means no more permanent veto for the US. So no more holding peacekeeping missions hostage whenever the international community doesn’t let the US play by its own rules. No more US propping up its own preferred dictators while criticising the preferred dictators of others. No more US protecting Israel from the consequences of its actions. Sounds pretty good!

Does anyone know how to introduce similar bills in the Duma and the NPC? I hear Russia and China are suffering a sovereignty deficit, as well.

Addendum to Goodman: Saudis Haven’t Promised to Stop Using Cluster Munitions

by Kevin Jon Heller

The inestimable Ryan Goodman has a new post at Just Security listing all the times the Saudis denied using cluster munitions in Yemen. As Ryan points out, we now know that those denials were what I like to call “shameless lies” (emphasis in original):

On Monday, British Defense Secretary Michael Fallon told the House of Commons that following the UK’s own analysis, the Saudi-led coalition has now admitted to using UK manufactured cluster munitions in Yemen. Mr. Fallon heralded the “transparent admission” by the coalition, and added, “we therefore welcome their announcement today that they will no longer use cluster munitions.” Many news outlets ran a headline focused on the Saudi-led coalition’s statement that it would stop using cluster munitions in Yemen (including Al Jazeera, Fox, ReutersUPI).

Lost in the news coverage is the Saudi-led coalition’s  consistent pattern of denial of using cluster munitions.

So, let’s take a walk down memory lane. At the end, I will discuss the significance of this pattern of denial for future policy options on the part of the United States and the United Kingdom.

At the heart of Monday’s revelations were allegations of the use of cluster munitions by Amnesty International, and here’s a key point: Riyadh previously assured the UK government that it had not used cluster munitions in response to Amnesty’s allegations.

Ryan’s post is very important, particularly its discussion of how Saudi Arabia’s admission could affect the US and UK. I simply want to point out something that also seems to have been lost in all the media coverage: Saudi Arabia did not promise to stop using cluster munitions in Yemen.

No, it promised to stop using British-made cluster munitions in Yemen. From Al Jazeera:

“The government of Saudi Arabia confirms that it has decided to stop the use of cluster munitions of the type BL-755 and informed the United Kingdom government of that,” said the Saudi statement, carried by state news agency SPA.

If Saudi Arabia only had BL-755 cluster munitions, its announcement today might be meaningful. But we know from investigations conducted by Human Rights Watch that Saudi Arabia has also used US-made cluster munitions in Yemen, particularly the CBU-105 Sensor Fuzed Weapon:

yemenclusters0516_map-01

Nothing in the Saudi statement rules out continuing to use American-made cluster munitions in Yemen. Only British ones are off the table. And if you believe that I am parsing the statement too carefully — well, I’d suggest reading Ryan’s post. Saudi Arabia cannot be trusted to tell the truth about the brutal UK- and US-backed counterinsurgency it is waging in Yemen. Full stop.

Homage to California? (More on What Calexit Teaches Us About Secessionist Movements)

by Chris Borgen

Law professors should not be political prognosticators.  That’s probably something on which we can all agree.  Nonetheless, here’s my prediction: despite the current buzz (see also, this), California will not secede from the United States. Sorry, Silicon Valley Hamiltons.  However, the “Yes California” movement, spurred on by a Trump presidential victory can be instructive on the law,  psychology, and incentives behind more robust secessionist movements around the world.

As Julian mentioned in a post earlier today, the “#Calexit”  movement is seeking a referendum on secession in 2019.  The  group’s website states:

“As the sixth largest economy in the world, California is more economically powerful than France and has a population larger than Poland. Point by point, California compares and competes with countries, not just the 49 other states.”

In our view, the United States of America represents so many things that conflict with Californian values, and our continued statehood means California will continue subsidizing the other states to our own detriment, and to the detriment of our children.

Although charity is part of our culture, when you consider that California’s infrastructure is falling apart, our public schools are ranked among the worst in the entire country, we have the highest number of homeless persons living without shelter and other basic necessities, poverty rates remain high, income inequality continues to expand, and we must often borrow money from the future to provide services for today, now is not the time for charity.

This statement, and much about the movement, is like a study in secessionist politics, albeit with a sun-kissed white wine and Jacuzzis twist.  OK, that Jacuzzi quip may be snarky, but I wanted to attach an image to this idea: the yearning for Calexit, such as it is, is an example of a wish for a “secession of the successful” (to use a term political geographers John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga used to describe the attempted  Transnistrian secession from Moldova, actually). These types of separatist movements, in which the separating group wants to stop paying rents to the central government and/or keep resources within their own territory for themselves, are generally called “tax exits.”

The Transnistrian, Slovenian, and Croatian separations or or attempted secessions all had elements of tax exits. (See P. Collier & A. Hoeffler, ‘The Political Economy of Secession’, in H. Hannum & E. F. Babbitt (eds), Negotiating Self Determination (2006), 46 (concerning Slovenia and Croatia)). This is not even a solely a phenomenon of nation-building.  In the U.S., we have even had new towns made up of wealthy neighborhoods that separated themselves from existing municipalities over tax allocations.

Perhaps the best analogy, though, is Catalonia.  Relatively wealthy,  a large export economy, and the hub of creative industries in Spain, Catalonia even looks like parts of California (or vice versa). A common complaint is that wealth generated in Catalonia is redistributed by the national government to regions that are economically weak.

Now, here’s what the Calexiters argue:

Since 1987, California has been subsidizing the other states at a loss of tens and sometimes hundreds of billions of dollars in a single fiscal year. As a result, we are often forced to raise taxes and charge fees in California, and borrow money from the future to make up the difference. This is partly why California presently has some of the highest taxes in the country, and so much debt. Independence means that all of our taxes will be kept in California based on the priorities we set, and we will be able to do so while repaying our debts and phasing out the current state income tax.

You can’t state more clearly that a tax exit is a significant motivating factor for Calexit.

So, if a majority of Californians say “yes to California,” do they have a right to become their own country under domestic law or international law?

Julian answered the domestic law question in his post.

As for international law, the right to self-determination is described in Article 1 of both the International Covenant of Civil and Political Rights Covenant and the International Covenant on Economic, Social and Cultural Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, while Catalans, for example, can make a credible argument that they are a distinct people with their own language and culture and a heritage as a significant nation in European history, Calexiters are mainly upset about the recent election and would like to hang on to more tax revenues.  Those are disputes over policy, but not claims of an independent national identity.

Regardless, since the birth of the United Nations, diplomats and jurists emphasized that a right of self-determination does not provide a remedy of secession outside of the context of decolonization. A broad right to secession would have clashed with a cornerstone of the UN, the territorial integrity of states. Outside of the context of decolonization, the right of self-determination for communities that are within already existing states is understood as a right to “internal” self-determination: the pursuit of political, cultural, linguistic, and other rights within the existing state (in this case, the U.S.).

However, secession is not in and of itself illegal under international law (although it may be linked to an act that is breach in international law, such as a military intervention by another state: think Russia invading Georgia to assist South Ossetia.)

While secession may be neither a right nor illegal under international law, secessionist acts are usually illegal under domestic laws.  Taken together, whether or not a secession is successful begins as a domestic political struggle, framed by the legal system of the pre-existing country and sometimes implicating international law due to intervention by other countries (or if the secession becomes a non-international armed conflict, but that’s another story).

All this sounds quite exotic in the context of some tech industry founders applying their credo of “disruption” to national politics. (I’m just waiting for the first Calexiter to say he or she aims to “break shit.”)  The short answer is that there is no right for California to secede under either domestic or international law.

However, the rhetoric of self-determination is enticing to would-be nation-builders and Calexiters make many of the same mistakes as other tax exit secessionists:

First, they assume there is a clear path to secession, when that is rarely the case.  Talk to the Catalans about this.  They have mustered hundreds of thousands of people in the streets in (more…)

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.

Congratulations to Duncan Hollis on His Election to the Inter-American Juridical Committee

by Chris Borgen

We at Opinio Juris are very proud that our colleague Duncan Hollis of Temple University Law School was elected on June 15 by the General Assembly of the Organization of American States to the Inter-American Juridical Committee, which

…serves the Organization as an advisory body on juridical matters of an international nature and promotes the progressive development and the codification of international law.

It also studies juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.

No two members of the Committee may be from the same state and Duncan’s term will start in January 2017, at the end of David Stewart’s three years of service. Duncan is one of three new members of the Committee.

With his wide-ranging expertise on topics ranging from the law of treaties to the challenges that new technologies pose to International Humanitarian Law, Duncan will be a great addition to the Committee.  Congratulations!

AJIL Unbound Symposium on Third World Approaches to International Law

by Kevin Jon Heller

AJIL Unbound has just published a fantastic symposium entitled “TWAIL Perspectives on ICL, IHL, and Intervention.” The symposium includes an introduction by James Gathii (Loyola-Chicago) and essays by Asad Kiyani (Western), Parvathi Menon (Max Planck), Ntina Tzouvala (Durham), and Corri Zoli (Syracuse). All of the essays are excellent and worth a read, but I want to call special attention to Ntina’s essay, which is entitled “TWAIL and the ‘Unwilling or Unable’ Doctrine: Continuities and Ruptures.” Here is a snippet that reflects her central thesis:

The similarities between this practice and the prominent role of nineteenth-century international legal scholars in the construction of the “civilizing” discourse of the time are striking, even if “[s]ubsequent generations of international lawyers have strenuously attempted to distance the discipline from that period.” Imperial aspirations tied to such arguments also form a “red thread” that connect “the standard of civilization” with the “unwilling or unable” doctrine. The unequal international legal structure promoted by these arguments is intimately linked to an unequal political structure, characterized by the dominance of the Global North over the Global South. More specifically, states of the Global North are enabled to use force against the sovereignty and—importantly—the life and security of the citizens of states of the Global South in pursuing the former’s “war on terror” and the political and economic agendas accompanying it. Moreover, pressure is exerted upon states of the Global South to transform themselves and adopt policies appealing to powerful states, if they want to avoid being branded “unwilling or unable.” A strong parallel can be detected between this transformative process and the pressure exerted upon peripheral states during the nineteenth century to introduce reforms that would render them “civilized” and, hence, equal to Western states.

Ntina makes a number of points in the essay that I’ve tried to make over the years — but she does so far better than I ever have or could. For anyone interested in the “unwilling or unable” doctrine, her essay is a must read.

Opinio Juris’ New Series on International Law and Presidential Politics

by Roger Alford

Presidential PoliticsWe are pleased to announce that Opinio Juris will begin an occasional series on international law and Presidential politics. Foreign policy and international law have been a central topic of discussion among the U.S. presidential candidates, and there is much fodder for discussion regarding the fidelity of their positions with the United States’ commitments under international law. The series will address the connection between the U.S. presidential election and international law. As long as it relates to international law, any comment, debate discussion, party platform, or candidate position presented by the Republican or Democratic presidential candidates is fair game for a post.

Rather than present these posts as a symposium subject to specific time constraints, we have decided to run it as an occasional series between now and the November 2016 election. As we have done in the past, we welcome academics to submit guest posts for possible publication. We will focus on the international legal aspects of the U.S. presidential election, not the broader political issues. So please keep your posts confined to international law and Presidential politics.

We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include other voices. So if you want to write a 500- to 1500-word guest post for Opinio Juris about the U.S. presidential elections and international law, please do so beginning this week and continue to do so through the November election. You can send your post to Jessica Dorsey (her email is linked to the right). Our editorial team will review the posts and publish those selected.

U.S. Appeals Court Holds that “Domestic Takings” Can Violate International Law

by Julian Ku

As I continue to avoid grading my exams, I ran across this interesting recent case (Helmerich & Payne v. Venezuela) from the U.S. Court of Appeals for the D.C. Circuit which considered whether Venezuela’s expropriation of a Venezuelan subsidiary of a U.S. corporation is a “taking in violation of international law” under Section 1605(a)(3) of the U.S. Foreign Sovereign Immunities Act. Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Ven

Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Venezuela argued that it is immune under the U.S. Foreign Sovereign Immunities Act because, among other reasons, its expropriation fo the subsidiary is not a “taking in violation of international law” for the purposes of the FSIA.  The FSIA does contain an exception for such claims in the so-called “Hickenlooper Amendment” to the FSIA enacted in the wake of the well-known Sabbatino case from the early 1960s.

What I find fascinating is the Court’s rejection of Venezuela’s argument that as a “domestic takings”, its expropriation of a Venezuelan company cannot violate international law, even if (as in this case) the sole shareholder of that Venezuelan company was a U.S. national and that there is plenty of evidence of anti-U.S. animus motivating the expropriation.      This is indeed a difficult question, and I am struck that the D.C. Circuit held that such a taking “could” violate international law but it relied solely on other U.S. court precedents (the 1962 Second Circuit decision in Sabbatino) and Section 712 of the Restatement of U.S. Foreign Relations Law.  This is pretty thin precedent, as the dissenting judge in this case points out.  I am not ordinarily one to yell for citation of international and foreign sources, but given the clear language of the FSIA (a “taking in violation of international law”), it is odd that no international or foreign sources were consulted.

In any event, I am curious whether any of our readers could help out by pointing to other precedents on the question of “domestic takings” under international law.  I have a feeling the DC Circuit reached the right conclusion here, but I am troubled by the lack of authority for its holding.