Not content to push border disputes with only Japan and the Philippines, China apparently has decided that now is also a good time to create a border crisis with India.  Last week, Chinese troops apparently crossed over a disputed border to camp 20 km inside Indian-claimed territory in the remote region of the Himalayas (the Chinese deny the incursion has occurred and both sides appear to be climbing down a bit).

This rather hostile-to-China essay in the Japan Times provides a nice summary of how China has stepped up its activities on three different territorial fronts at the same time.  First, there is the ongoing dispute with the Philippines over the Scarborough Shoal/Huangyan Island in the South China Sea. Then, there is that dangerous dispute with Japan over the Diaoyu/Senkakus in the East China Sea.  Finally, China is provoking India.

Overall, China’s strategy appears to be to put its interlocutors on the defensive and to exhaust them with low-intensity incursions. This is working.  Japan is now repeatedly having to scramble its jets over the Senkakus at repeated Chinese incursions, and India is apparently rushing troops to the remote border region to confront the Chinese troops.  But, as the author of the essay notes, these are all reactive measures that allow China to keep the initiative.  China is not seeking a war, but it is seeking to push the envelope against its neighbors, with some success. India is trying to keep the dispute from escalating and Japan has been defensive about the Senkakus for the first time in decades.

Only the Philippines seems to be able to push back and force China to react, albeit through the soft pressure of an Annex VII UNCLOS arbitral proceeding.

It is impressive how China can keep three of its neighbors scrambling to respond while it slowly builds up its territorial claims.  In the long run, China v. India/Japan/Philippines/Vietnam/etc.  seems like bad odds, but so far it is working. Will international arbitration play any role in resolving these disputes?  I doubt it, but we will soon get some empirical evidence if the Philippines is able to win a judgment that affects or shifts China’s behavior.

As members of Congress begin calling more insistently for some unspecified form of U.S. military intervention against the regime of Syrian president Bashar al-Assad, I admit to suffering the same doubt as Julian. What exactly is the legal theory here – under domestic and international law – that would authorize the United States to use force in Syria?

There was, once upon a time, this idea in the Constitution that only Congress had the authority to declare war. While declarations of war per se have long since fallen out of legislative favor, Congress has still from time to time stirred itself to authorize the President to use military force abroad – giving the whole going-to-war business some meaningful democratic imprimatur. But Congress hasn’t authorized the use of force in Syria.

The go-to use-of-force authority for the post-9/11 wars – the 2001 Authorization for Use of Military Force – doesn’t plausibly extend to the use of force against Assad’s government. The 2001 AUMF authorized the President to use force against the Taliban, Al Qaeda and “associated forces.” Assad is none of the above. There have been reports that some of the rebel groups competing to overthrow the Assad regime are sympathetic (at the least) with the radical Islamist aims of Al Qaeda. Even if (a big if) those groups could be counted as associates of the Al Qaeda that attacked this country on 9/11, those groups in this conflict are also fighting against Assad. In other words, if we intervened in Syria against Assad, we would all in some sense be on the same side. That can’t be what the Congress that passed the AUMF had in mind.

Maybe, then, Congress is imagining the President could take action under his own power under Article II of the Constitution. After all, this President intervened in Libya without prior congressional authorization. That, too, of course had its problems. It was also thought, once upon a time, the President’s power to use force without getting Congress’ sign off first was quite limited. The Constitution’s framers believed, and the Supreme Court agreed, that the President must have at least some inherent constitutional power to, as they put it, “repel sudden attacks.” There has been no such attack by Syria against the United States here. True enough, the White House was legally untroubled by the absence of any attack against the United States by Libya. Embracing the far more problematic contemporary reading of inherent presidential power, the Obama Justice Department said then that the President could use military force on his own so long as it was in the national interest, and so long as the contemplated force didn’t actually amount to “war.” At least for 60 days. After that, under the statutory War Powers Resolution, the President has to get congressional approval for engaging U.S. forces in any kind of “hostilities” – a level of force even the Administration recognized could fall short of all-out war. In Libya, the Administration was able to argue its continued military engagement beyond the 60-day clock didn’t rise to the level of “hostilities” requiring authorization in part because our international allies did much of the actual fighting themselves. Is that in the cards here?

This brings us to the other small set of problems around Syrian intervention: international law. The UN Charter says that one state can use force against another in two circumstances: (1) if the UN Security Council authorizes it, or (2) in national or collective self-defense if an armed attack occurs, until the Security Council has time to act. In Libya, we had a UN Security Council Resolution authorizing military intervention. There is no such resolution here, and at the moment, slim prospect of obtaining one given Russia’s opposition to intervention. Is this plausibly self-defense, for example, collective self-defense on behalf of our NATO ally Turkey? Perhaps. Recent months have seen scattered reports of shelling across the Syria-Turkey border. But there is no public indication thus far that Syria has used chemical weapons against Turkey, or evidence that it has plans to do so, or even that it is threatening conventional attacks. In any case, without support from NATO itself, it is difficult to see the United States prevailing in any claim that it is acting with such justification. Is NATO actually on board?

Finally, and even setting aside the still contested international legality of humanitarian intervention in the absence of a Security Council resolution, it’s not at all yet clear that the limited use of chemical weapons seemingly at issue thus far materially changes the already horrifying humanitarian disaster that has been Syria for the past nearly two years. It is here the term “weapons of mass destruction” can hide all kinds of important detail. Of course the use of chemical weapons is horrible, of course it’s illegal. But not every use of a chemical agent, or even a biological one, harbors the potential to cause actual mass destruction. Both in assessing the case for humanitarian intervention, and the case that might justify an anticipatory use of force in self defense, it matters a lot what’s actually going on. The Obama Administration wants to wait and find out the details? For the sake of the law along with very much else, sounds like a good idea to me.

New evidence that Syria has used chemical weapons against insurgents have spurred new calls here in the U.S. for military action in Syria.  Here is the LA Times (hardly an interventionist paper):

An American or multilateral response should of course be proportional to the offense. That means considering whether chemical weapons were used against civilians or militants, and whether a “whole bunch” were used, as Obama put it, or much less. But there’s no doubt that an operation to secure or destroy the regime’s chemical weapons would be consistent with this country’s stated commitment (one that all too often has not been honored) to protect civilians from the worst ravages of war.

The editorial was plainly drafted carefully with some knowledge of the legal issues that would apply to such an operation.  First of all, there is that pesky U.S. Constitution, Article I, Section 8 which many folks think grants the the U.S. Congress the exclusive power to authorize U.S. military force.  I don’t think the editorial envisions President Obama seeking congressional authorization, so it is probably assuming he would act under his inherent Commander-in-Chief powers. (When George W. Bush was president, newspapers like the LA Times used to worry about the unilateral exercise of this type of power, but these days, not so much.)

Second, there is the international law governing the use of force. I raised this question back in December, when President Obama drew his red line, suggesting that the self-defense justification under the U.N. Charter can’t work here.  This post drew two very good responses from experts in the field, one from Daniel Bethlehem (formerly the chief legal advisor to the UK’s Foreign Office) and the other from Ashley Deeks (former legal advisor to the U.S. State Department, now UVA Law Prof).

My earlier post offered a simple no-frills reading of the U.N. Charter, building on the simple no-frills reading of the U.N. Charter critics of the Iraq War were fond of making in the Bush years. This was a useful strawman, since I pointed out it would lead to a “silly result.”  Still, I am not totally sold on the more sophisticated rationales offered by Daniel and Ashley.  As far as I know, Syria has not threatened (at least recently) to attack its neighbors. I don’t count its skirmishes with Turkey, which seem in any event to have settled down. It has certainly not threatened use of chemical weapons against Turkey, Israel, or anyone other than the Syrian rebels.  I am just not buying self-defense here, unless we really are back in 2002 and President Bush’s doctrine of preemptive self-defense for WMDs has achieved international consensus.

What is it about chemical weapons that changes the legal calculus? Sure, I realize the use of chemical weapons here is a plain and blatant violation of the law of armed conflict, and really horrible in every way possible.   But as horrible as it is, I wonder why chemical weapons would be the trigger since the casualties from the non-chemical weapons in Syria has been much worse. And what is it about chemical weapons that would per se justify humanitarian intervention, while the mass bombings or killings of thousands of civilians would not?

I am guessing the answer here is going to come from a different path that has nothing (formally) to do with chemical weapons.  Since the U.S. has recognized the Syrian opposition as the legitimate government of Syria, I suppose consent for an intervention can be had without too much trouble. But, this opposition doesn’t exactly have widespread recognition, and doesn’t really control most of the country. Still, it probably is the least difficult legal path.

When President Obama said using chemical weapons would “cross a red line,” he must have had something in mind, unless it was a total bluff.  A unilateral U.S attack is very possible, and may even be desirable.  But legality is going to have to be finessed in ways that critics of the Iraq War should not be happy with.

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

I’ll start with a few brief points about why I believe Justice Breyer’s opinion provides a sounder approach and is more legally accurate than the Court’s opinion.

Then I will critique the Court’s opinion and, in particular, its extension of a presumption against extraterritoriality to causes of action (as opposed to conduct regulating rules).

First, I must say I’m sorry to see Justice Breyer’s view that “just as we have looked to established international substantive norms to help determine the statute’s substantive reach, so we should look to international jurisdictional norms to help determine the statute’s jurisdictional scope” did not command a majority. This is more or less the argument I laid out in an article in the Virginia Law Review in 2011, where I argued “when Congress enacts a statute silent on geographic scope designed to implement international substantive law, courts should construe that statute in line with international jurisdictional law, including attendant principles of extraterritorial jurisdiction.”

History and precedent support this view as to the ATS. As Breyer’s opinion points out, piracy took place on other nations’ ships, and those vessels were clearly considered foreign territory in early Supreme Court case law. Moreover, as Tony D’Amato and I pointed out in our amicus brief in Kiobel, the way Congress overturned application of a judicially imposed presumption against extraterritoriality to U.S. law outlawing piracy was to revise the definition to confer jurisdiction over piracy, “as defined by the law of nations.” That is, Congress explicitly invoked the law of nations—and its jurisdictional principles—to grant universal jurisdiction over, and to reject a judicially imposed presumption against extraterritoriality to, piracy on foreign ships (which, again, were considered the territories of foreign nations). The ATS contains this same invocation of “the law of nations,” which comprises both substantive and jurisdictional components. That ought to be enough to dispose of the presumption given this precedent.

It is also worth mentioning that the Kiobel Court’s assurances that Congress would have included a “clear indication of extraterritoriality” had it wanted the ATS to apply to causes of action arising abroad simply makes no sense in light of the fact that the statute was enacted in 1789, and the earliest manifestation of a judicially invented presumption against extraterritoriality came about in 1818—and in a piracy case no less!—United States v. Palmer.

Next, I want to critique what seems to me a strange move in extending the presumption against extraterritoriality to causes of action. The Court begins by noting that the presumption typically applies to conduct regulating rules, then acknowledges that the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” But the Court then extends the presumption to “constrain courts considering causes of action that may be brought under the ATS.” This is weird.

To begin with, as the Court acknowledges, the presumption has traditionally applied to U.S. prescriptive jurisdiction, or jurisdiction to prescribe rules of conduct. But that rationale can’t apply to the ATS, since the conduct regulating rule is international law, and whether that conduct regulating rule is deemed the direct or indirect application of international law via common law doesn’t matter. All that matters from a prescriptive jurisdiction perspective is that the rule applied accurately reflects substantive international law, including as to liability. If it does, there is no concern about extraterritoriality, as the Court seems to accept: “The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.”

Thus the Court seizes upon the cause of action as the relevant creature of U.S. law to which the presumption applies. The problem is that under longstanding principles of private international law—which is, and has been since the founding, part of “the law of nations”—causes of action are creatures of forum law, or the lex fori. A presumption against extraterritoriality doesn’t apply to causes of action because, simply put, they aren’t extraterritorial. This is the whole basis for the traditional approach to conflict of laws under which the forum crafts causes of action to allow foreigners to sue under foreign laws. It may be true that, generally speaking, the forum will not create a cause of action if there is no cause of action under the law of the place of the tort. And here the Court in Kiobel cites Justice Holmes’ opinion in Cuba R. Co. v. Crosby. But at the very least, this would require some evaluation of whether the lex loci delicti provides a cause of action for, among other things, extrajudicial killing, crimes against humanity, torture, and arbitrary arrest and detention. At most, we might even take Holmes’ opinion in Crosby at its word. There, the Court explained that when dealing with torts that “are likely to impose an obligation in all civilized countries . . . [U.S.] courts would assume a liability to exist if nothing to the contrary appeared.” Thus in such cases, the burden is on the defendant to show no liability under the law of the place of the harm. And if nothing else, universal jurisdiction stands for the proposition that there are some acts that “impose an obligation in all civilized countries.”

In sum, the Court’s extension of the presumption against extraterritoriality to causes of action is both conceptually mistaken and doctrinally unsupported under longstanding principles of the law of nations.

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.]

Based on my quick read through the opinions, it seems that it’s a win for corporations and a loss for international human rights groups seeking to use the US federal district courts to vindicate claims of customary international law violations outside of the United States, in other foreign sovereign territories.  The principal rationale was that there was not enough here to rebut the presumption against extraterritoriality, most recently articulated in Morrison v. National Australia Bank.

The big question going forward will be the circumstances in which the presumption might be rebutted. One possibility clued in by the majority’s discussion of the 1794 Bradford opinion (page 12) is where there is a treaty provision in play which the US has ratified, even though that treaty might not be viewed as “self executing.”  For instance, torture under the Torture Convention brought by an alien, as opposed to a US citizen under the TVPA.

Another might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

Finally, perhaps, as with piracy on the high seas, ATS claims may be possible in terra nullius circumstances, such as where acts have occurred in failed states.

One idea that Kiobel has put to rest (at least here in US courts) is the idea that the ATS could be fairly read as a grant of universal civil jurisdiction.  On this theory, the ATS could be applied to overseas activities if the nature of the alleged action was so heinous as to rise to the level of a universally proscribable crime (see here for Donald Donovan and Anthea Roberts’ take on this).   The Court seemed to take this idea pretty seriously in Sosa v. Alvarez-Machain.  At least, Justice Breyer seemed to do so in his concurrence to that decision.

That concurrence hinted that Justice Breyer was untroubled by ATS cases which satisfied the international standards of universal jurisdiction because such cases would be unlikely to cause friction with foreign governments. Here is Justice Breyer back in 2004.

…[R]ecognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement §404, Comment b. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. [citation omitted] Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well. 

Indeed, Sosa could have been read as a universal civil jurisdiction decision, although it was grounded in U.S. historical analysis that seemed to coincide with universal civil jurisdiction.  Still, as I noted before, Justice Breyer did not build on the Sosa concurrence in today’s Kiobel opinion.  Instead, he revived the quite rarely invoked “protective” principle to justify the ATS’ extraterritorial reach.  He then added that preventing war criminals from winning a “safe harbor” in the U.S. was within the protective principle (that’s a somewhat dubious interpretation to me).  This is a much narrower approach than I would have expected from his Sosa concurrence.

Indeed, I am somewhat surprised that this narrower Breyer approach, which would still have knocked out most ATS corporate lawsuits, did not manage to win Justice Kennedy’s vote. It certainly looks like it was designed to do so.  But having lost Kennedy, I guess Breyer figured he would simply go forward anyway with his narrower concurrence.  But this also means that the idea of “universal civil jurisdiction” under the ATS, both as a matter of law but also as a matter of justifying the ATS on policy grounds, is dead.  The heinousness of the crime alleged is not as important as identifying a distinctly American interest in the case. This really shifts the ground in the ATS public relations wars, and will be much harder for the ATS advocates to overcome.

This is a tough loss for the human rights advocacy community, ending an era that began with the Second Circuit’s rediscovery of the Alien Tort Statute in its 1980 decision in Filartiga v. Pena. As Julian highlights below, Justice Kennedy may have left the door ajar to future claims, but only barely. Even Breyer’s concurrence — the rejection of the claim was unanimous, which must make it hurt a little more — sets a bar of a “distinctly American interest”, which may translate in the days of compartmentalized multinationals to the presence of US citizen victims. Lots of claims are going to get thrown out in Kiobel’s wake.

Does this mean that corporations can turn a blind eye to human rights? Not a chance.

Human rights is now a core component of corporate social responsibility, which, at least among major transnational corporations, is no longer optional. The United Nations is moving to bring human rights directly to bear on corporations through such initiatives as the U.N. Global Compact and the Guiding Principles on Business and Human Rights (see John Ruggie’s important new book on the latter). Accountants, shareholders, NGOs, and other private standard-setters are increasingly vigilant to human rights compliance (think Apple and Foxconn to highlight only one recent example). Human rights is being internalized in the corporate psyche, a process not contingent on the survival of the ATS.

There may even be alternative legal avenues. State tort law presents some promising possibilities. Kent Greenfield suggests reviving corporate “ultra vires” doctrine as another possible entry point for human rights. The ATS helped police and facilitate corporate compliance with international law, but other forms of discipline will work to help fill the gap created by its eclipse.

Would’ve been helpful if he’d said a wee bit more. For now, we’ll have to comb through the majority opinion in search of the questions he has in mind. In the meantime, worth noting the Court was 9-0 in affirming the Second Circuit’s decision to dismiss the ATS complaint in this case.

JUSTICE KENNEDY, concurring.
The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

UPDATE: In the annals of amusing moments in OJ history, looks like Julian and I had much the same thought at the same moment.

Today (April 12) St. John’s Law School of Law is hosting a conference in New York  in cooperation with NATO’s Allied Command Transformation group entitled Cyberconflict: Threats, Responses and the Rule of Law. The conference brings together experts from the armed forces, academia, and law enforcement to consider issues at the intersection of technology, law enforcement, national security, civil liberties and international law. In an environment where individual, independent hackers can do the same damage as a government-sponsored cyberattack, how can states craft legal tools, military strategies, and intelligence operations that address national security concerns and differentiate between cyberwarriors and amateur hackers acting on their own?

The opening panel, moderated by Peggy McGuinness is “Cyberwar, Jus ad Bellum, Jus in Bello and Views from a NATO Perspective.” Panelists David Fidler (Indiana University Maurer School of Law), Richard Pregent (Legal Advisor for NATO Allied Command Counterintelligence), and Alex Vandurme (NATO Computer Incident Response Capability) will consider  public international law, domestic law, and how it effects NATO strategy regarding cyberwar.

I will moderate the panel on “Public International Law, National Security Law and Cyberconflicts.” Geoffrey Corn (South Texas College of Law), Sean Watts (Creighton University School of Law), and Richard Jackson (Special Assistant to the US Army Judge Advocate General for Law of War Matters)  will consider questions such as whether cyberwarfare can conform to the International Humanitarian Law principles of humanity, proportionality, distinction, and military necessity,  whether the U.S. should pursue a cyberwar treaty, and whether the President order extended cyberattacks without Congressional authorization?

Finally, Jeff Walker (St. John’s) will moderate the session on “Constitutional Issues in Addressing CyberWar/CyberEspionage/CyberCrime.”  Susan Brenner (University of Dayton School of Law), Amy Harman Burkart (Cybercrime Unit, U. S. Attorney’s Office for the District of Massachusetts), and Christopher Soghoian (The American Civil Liberties Union) will address questions such as what legal framework applies when states defend against, investigate, and prosecute non-state-actors who engage in cyber-espionage or computer-based crime and how do we differentiate between cybercrime and cyber war?

I will post on the substantive issues in the coming days. The St. John’s Journal of International and Comparative Law will also have a symposium issue in the fall devoted to the conference papers.

Pierre N. Leval, a well-respected judge who sits on the U.S. Court of Appeals for the Second Circuit in New York, has published a full-scale no-holds-barred policy defense of the Alien Tort Statute in Foreign Affairs.   The essay, which is adapted from his lecture to the New York City Bar Association, offers the standard argument in favor of the Alien Tort Statute (it gives victims of human rights atrocities the possibility of justice and compensation).  And he offers a pre-rebuttal to a possibly negative ATS ruling from the U.S. Supreme Court in Kiobel v. Royal Dutch Shell: the fact that other countries do not permit similar civil suits does not mean the United States should also close its courthouse doors.  In fact, it is a good reason to keep them open.

But I found Judge Leval’s advice for foreign countries that might enact their own version of the ATS most interesting and revealing.

Human rights advocates should try to allay predictable objections to countries’ opening their courts. They should start by drafting proposed legislation with modest and realistic goals, building in limitations that may disappoint the most ardent activists but hugely increase the chances of success. For example, a proposed bill for a country should require the approval of the foreign ministry before each suit can proceed to trial and specify that a suit will be allowed only if the plaintiff has no access to just relief in the country of the defendant or in the country where the abuse occurred. The bill should also require a court to dismiss a suit when the defendant can show that the plaintiff has forum-shopped and has access to justice in a country far better suited to hear the dispute, on the condition that the defendant agrees to face trial in that other country’s courts. And it should require an initial showing of probable cause to stave off frivolous, politically motivated suits. Limitations such as these would do much to disarm or convert opponents.

I agree!  In fact, any law allowing for civil suits to enforce universal norms must have these kinds of political and foreign policy safeguards. And critics of the ATS in the United States have repeatedly noted that such safeguards do not really exist in the expansive and textually-unsupported interpretation of the ATS first developed by judges on Judge Leval’s court. Put another way, it is hard to imagine that a new bill in the U.S. Congress creating universal civil jurisdiction would pass without similar limitations.  So why should the courts feel comfortable giving the ATS such a widely expansive role if neither Congress nor any foreign legislature would ever enact such a law if given a choice?

Internal debate inside the Administration must be heating up, because someone in D.C. is in a leaky mood. McClatchy yesterday released a story on U.S. targeting operations billed as the “first independent evaluation of internal U.S. intelligence accounting” of such operations. The report is based substantially on classified reports covering most (not all) of the drone strikes carried out by the intelligence community (as opposed to the Defense Department) in 2006-2008 and 2010-2011. Among the findings:

At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were ‘assessed’ as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts. Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani Network, several Pakistani Taliban factions and the unidentified individuals described only as ‘foreign fighters’ or ‘other militants.’

The McClatchy piece contends that such statistics are necessarily at odds with Administration statements that its targeting operations were limited to senior leaders of Al Qaeda and allied groups. This seems wrong; I haven’t understood the Administration’s position to be that it would only target senior leadership. Indeed, that was part of the problem with the White Paper. It argued that targeting senior leaders was within the President’s authority, but it didn’t foreclose the possibility that others could also be targeted. The Paper spent a great deal of time gesturing at, if not quite committing to, legal theories that would support much broader targeting authority. In this respect, the leaked news, if accurate, confirms what should by now be the unsurprising conclusion that the White Paper did not describe the full scope of asserted U.S. targeting authority.

That said, the official details here are new and therefore important to untangle. We might fairly assume some of these strikes are the deeply problematic signature strikes we’ve known about – against ‘militants’ who may or may not pose a threat to the United States. But what about the named groups? Does the United States have the authority to target the groups it targeted in the Pakistan/Afghan border region – including the Haqqanis, the Pakistani Taliban, and Lashkar i Jhangvi? Start with domestic law. The Authorization for Use of Military Force (AUMF), giving the President the power to use force against those groups responsible for the attacks of 9/11, is an authorization for the use of military force. It’s not clear the AUMF empowers the CIA to do anything. In any case, as the article points out, there’s no suggestion that the groups named above were in fact responsible for the attacks of 9/11. So odds are slim that the AUMF is the relevant source of domestic authority. That leaves CIA’s authority under Title 50 of the U.S. Code to conduct covert operations, operations for which a presidential finding is required and which the U.S. wishes to be able publicly to deny. So perhaps there is a presidential finding (of course classified) that authorizes the use of force against a far broader range of groups than is covered by the AUMF. That would be news. One may well not think this a good idea (itself worth several separate posts), but provided the Administration is complying with the modest requirements of covert action (the finding, congressional notification, etc.), it would address the problem of domestic law.

That still leaves international law. Set aside for the moment my ongoing concerns (see, e.g., here, here) that CIA doesn’t especially think itself legally bound by these obligations. What is the international law justification for the U.S. to use force against these groups? At least as to Haqqani and Lashkar i Jhangvi, McClatchy’s report suggests those groups are responsible for attacks against U.S. forces in Afghanistan. If that’s true, the United States might well be justified in using force against those groups in self-defense, and compliant with domestic law as well, provided these groups were covered under the scope of whatever classified presidential finding exists. Put differently, and to be clear, at least some of these strikes against these groups might be legal.

That still leaves several puzzles. For one, how broad is the President’s covert action finding? Hard to imagine it’s one that gives the CIA has some general power to use force in self-defense on behalf of the United States. That would seem quite a bit beyond the scope of ordinary Title 50 authority, which forecloses the intelligence community from using covert action authority to conduct traditional military activities (as, one might imagine, would include the military’s power to defend itself against foreign attack). So more likely the finding named groups. Were the groups targeted actually on it? Then there’s the U.S. targeting of Pakistani Taliban, which McClatchy doesn’t indicate is behind attacks on U.S. forces. That may just be oversight, or lack of information on McClatchy’s part. Maybe the same self-defense rationale exists there, too. But the Pakistani Taliban wasn’t a publicly designated (at least) terrorist group until 2010, and as I understand it is mostly focused on overthrowing the Pakistani government itself. So if it’s not self-defense, what is the international law justification for targeting them?

The unattractive (and speculative) explanation is this. The President issued a broad finding authorizing the CIA to use lethal force against a set of terrorist groups larger than just those groups responsible for the attacks of 9/11 – including a bunch of Pakistan’s internal enemies. The CIA isn’t especially worried about whether its exercise of this authority globally complies with international law restrictions on the use of force. Or, more specifically, the CIA thinks as long as it has the foreign state’s consent, it can use force in that foreign state whether or not it has an independent basis – UN Security Council authorization or a self-defense justification notwithstanding. In other words, the CIA thinks as long it’s not violating Pakistani sovereignty (which consent addresses), there’s no other international legal bar preventing its actions.

Exactly because it would be far too easy for one state to have another state do its internal dirty work for it, that’s never been my understanding of the UN Charter Article 2/Article 51 universe in which we live. I suspect the CIA disagrees with me. As for international human rights law, like the International Covenant on Civil & Political Rights (the treaty the United States ratified that says, among other things, states can’t kill people arbitrarily), the U.S. has long taken the view that our treaty obligations under the ICCPR don’t restrict our actions outside the United States. And while the Obama Administration had made gestures in some settings that it was reconsidering that longstanding position, if this is really what we’re doing in Pakistan, I can see why it hasn’t actually taken the plunge. In the meantime, worst case from the above and all apart from the loopy signature strikes themselves, we’re killing people in Pakistan with whom we are not at war and who pose no threat (imminent or otherwise) to the United States.

The International Tribunal of the Law of the Sea has received a request for an advisory opinion from the Sub Regional Fisheries Commission located in Senegal. The Commission is a treaty based organization founded in 1985, which has seven member states (Senegal, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, and Sierra Leone). Some background information on the Commission is available here.

The Commission’s request asks four questions:

1. What are the obligations of the flag State in cases where illegal, unreported, and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States?

2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?

3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?

4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and sticks of common interest, especially the small pelagic species and tuna?

If ITLOS’s approach to this advisory opinion is similar to its Advisory Opinion on the Seabed, we can expect a creative and expansive response.  There, ITLOS affirmed the due diligence principle (which the ICJ recognized in the Pulp Mills case), and gave it content by linking it to the obligations of states.  ITLOS therefore has a trackrecord of “making waves” with regards to linkages between the law of responsibility and the Law of the Sea.

Nonetheless, at present, there is not much information generally available about the background of this request other than general difficulty with IUU fishing in the region.   Has the commission brought this case to try to gain leverage with distant water fishing nations?  Is this ultimately a dispute with the EU?   Some relevant conversations about the law of the sea and responsibility are taking place at the Food and Agriculture Organization that might provide useful background information.  See in particular the draft guidelines on Flag State performance that address questions of flag state responsibility for IUU fishing.

And we at Opinio Juris hope to contribute to this conversation by way of a symposium later this spring on the intersection between the law of the sea and principles of state responsibility.