Posting has been a bit light lately and will continue to be light for a while, because I am in the process of relocating to London. If you would like to contact me, please use my new SOAS email address: kh33 [at] soas [dot] ac [dot] uk. I am not sure how long I will be able to get emails at my Melbourne address.
Archive of posts for category
Guest Post: Ghodoosi–Comprehensive Solution to an Agreement: How the New Iran Deal Is Framed Under Iranian Law?
[Farshad Ghodoosi is a JSD candidate at Yale Law School.]
In continuation of the discussion about the New Iranian Deal started by Duncan Hollis, I decided to take a stab at clarifying the Iranian side of the story. The new deal, the so-called Geneva Agreement (24 Nov. 2013) and the ensuing implementation agreement (that took effect on Jan 20th, 2014), between Iran and the 5 plus 1 group seems to be more than a joint plan of action. Practically, it attenuates some of the bites of the previous Security Council Resolutions on the Iran Nuclear Program and will create tit-for-tat commitments on both sides. Whether the agreements reached thus far create binding obligations under international law is beyond the scope of this piece and requires further details on the recent –yet unpublished – implementation agreement. However, the drafters of the agreement of Nov. 24th deftly avoided the term “agreement” and instead employed the term “comprehensive solution”.
This choice of term might have been to avoid the formalities of treaty law internationally but also domestically vis-à-vis Iran. Naming might make a difference under Iranian Law. Generally speaking, the Iranian Constitution seeds skepticism towards international agreements and contracts in the present Iranian legal system. Article 77 declares, “international protocols, treaties, contracts and agreements should be ratified by the Islamic Consultative Assembly (Majlis)”. The Article is very broad and all encompassing. Those hardliners unhappy about the deal in Iran’s parliament are pressing on implementing this article, stating that the agreement needs to be ratified domestically, otherwise it is void of effects. On the other hand, supporters in parliament categorize it as a “preliminary agreement” not requiring parliament approval.
I believe a preliminary agreement is still an agreement and is subject to Article 77 of the Iranian Constitution. If I were in the shoes of the supporters of the deal in the Parliament, I would emphasize the word “comprehensive solution” as it is reflected in the text. The term “comprehensive solution” is not listed in the Article 77 of the Iranian Constitution and therefore would arguably not need parliament approval.
Another hurdle for international agreements is Article 125 of the Iranian Constitution. This Article stipulates that “signing international treaties, protocols, agreements and contracts of the Iranian states with other states and also signing conventions pertaining to international organizations, subsequent to Islamic Consultative Assembly approval, is vested in the President or his legal representative.” The Council of Guardians, the body responsible for interpreting the Constitution, restricts this Article to instances where the international instrument contains “an obligation” or “a contract” (decision March 13, 1983). It handed down its decision in a situation where “a letter of intent” for cooperation was signed between Iran and India while there were doubts whether parliament had to approve it.
Despite the language in the Iranian Constitution, I believe, it is not certain that Articles 77 and 125 make the Iranian legal system a dualist system. In dualist systems, international instruments are devoid of any status in domestic law until ratified through the legislative process. I posit that the matter should be clear in the language of the Constitution. Under Article 77, however, the sanction for non-compliance with the provision is unclear. It does not mention whether non-compliance renders the international agreements ineffectual, or makes them of lower status (similar to regulations) in relation to other domestic laws. Alternatively, it could be simply a ground for impeachment or question from the President. Article 125 also seems only to vest the signing authority on the President to render the international instruments official, and not necessarily dictate their binding nature. It might sound like a long shot, but I believe, notwithstanding the requirement of parliamentary approval, international agreements could still be invoked and enforced in Iranian domestic law—at least as a contractual agreement between parties. This interpretation makes international agreements and contracts with Iran, most of which are not ratified by parliament, valid and effective under Iranian Law.
I would like to end this post with a separate comment — the absence of any dispute resolution mechanism in the deal. It is indeed not a very smart idea to omit any form of dispute resolution mechanisms. Considering the lack of trust and the history of contention between both sides (especially Iran and the US), any minor disagreement might lead to dismantling the entire agreement and the new rapprochement (as was apparently close to happening in the implementation the Joint Action Plan). There are several potential reasons parties avoided incorporating any dispute resolution mechanism. First and foremost, they probably disliked the idea of handing over such a highly political matter to a judicial body of any sort. Another potential reason was to avoid making the agreement seem like a treaty subject to international law or otherwise a binding instrument. Nonetheless, I believe disagreements over implementing the agreement could have been vested to an arbitral body or a mediation panel at least in an advisory capacity.
From the third paragraph of President Obama’s implementation of surveillance reforms (Presidential Policy Directive/PPD-28).
[O]ur signals intelligence activities must take into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information.
The primary operative provision of the directive, section 2, adopts limitations on bulk surveillance data that “are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.” Likewise for section 4 and the safeguarding of personal information. (Protections for non-citizens are much more prominent in the operative instrument than in Obama’s Justice Department speech today, which unsurprisingly played to domestic politics more than international sensitivities, though it is there, too.)
So Obama bought into a key Review Group recommendation. Whether or not one thinks the overall policy will suffice to rein in the NSA (a mixed verdict, at best), the fact that it applies to citizens and non-citizens alike strikes me as a pretty big deal – can’t think of an obvious precedent. As the biggest player on the global landscape, it will certainly contribute to the crystallization of an international right to privacy.
It also reduces the importance of the Supreme Court’s 1990 ruling in Verdugo-Urquidez, which found non-US citizens outside the United States to enjoy no Fourth Amendment rights (and which no doubt supplied the key legal authority for NSA programs aimed at foreigners). That doctrine becomes less consequential as the net supplied by other sources of law rises below rights located in the Constitution. The absence of constitutional rights no longer translates into no rights. This is another front on which sovereigntist victories in the Supreme Court will be hollowed out over the long run by forces beyond its control.
The American Journal of International Law has posted electronic excerpts from its “Agora: Reflections on Kiobel”, which will be published in its next issue. As a contributor to the AJIL Agora myself, I was fascinated to see the different takes that everyone had on the decision. For the most part, contributors seem to read Kiobel the same way: as sharply cutting back or even eliminating the vast majority of Alien Tort Statute claims that are based on overseas conduct. In general, the Agora seems to signify that the international legal academy is ready to move on from the ATS: to other jurisdictions like the Netherlands or Europe, to new statutory amendments to the ATS, to other non-litigation based mechanisms, or perhaps to state courts in the U.S.
As for my contribution, I was more interested in taking apart Kiobel’s resounding, unanimous, and surprising rejection of universal civil jurisdiction under the ATS. I am in partial sympathy with the take of Professor David Moore, another Agora contributor who is more focused on US domestic law aspects of the ATS. I think scholars and advocates have underestimated the importance of plain-vanilla separation of powers concerns in leading to the Court’s refusal to read the ATS as granting universal jurisdiction to federal courts. Here is the opening from my essay (and make sure you check out the whole Agora):
The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS).2 But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.
In this short essay, I argue that the surprising death of universal jurisdiction reflects the triumph of the “separation of powers” critique of the ATS, which casts a skeptical eye on giving federal courts an independent role in the administration of both ATS lawsuits and cases involving international law more generally. I argue that this separation of powers critique of the ATS, which has found relatively little academic support, is a crucial reason why the Court unanimously rejected universal jurisdiction in Kiobel and why the Court may further restrict the ATS in future cases.
Excited to see news of a new blog by former National Institute of Military Justice head Gene Fidell on military justice systems worldwide. Here’s a description:
Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been wise, some have not. In some respects, there has been remarkable resistance to change. The purpose of this blog will be to identify and comment on developments in the reform of military justice from a national and global perspective.
Welcome to the blogosphere GMJR!
Last week at the American Association of Law Schools (AALS) annual conference I had the honor of speaking on a panel on UN Law Making, with Mahnoush Arsanjani, formerly of the UN Secretariat, Kimberly Prost, Ombudsperson for the Al Qaida sanctions regime, and Pablo Castillo-Diaz, of UN Women. A summary of the matters discussed by the panel is available here.
Our wonderful moderator Prof. Stephanie Farrior asked us to comment on perceptions and misperceptions about how international law is made. Both the questions and the answers struck me as useful to those of us returning to the classroom in January.
Here are some of Stephanie’s questions:
- What misconceptions regarding law-making at the UN might students have?
- What players have a particularly notable influence on law-making?
- What developments, challenges, or other aspects of the work of the UN do you think are especially important for law professors to be aware of?
- What are the on the ground realities of law-making by the UN that law professors should know about?
As a general matter, I think UN outsiders (law professors and students included) are at a disadvantage when trying to understand UN law making. One of the most common forms of UN law making comes through Security Council Chapter VII, resolutions that are binding on all member states under the UN Charter. Two of the high water marks of Security Council law making power were the creation of ad hoc tribunals (ICTR and ICTY) under UN Charter Articles 41, and the passage of resolution 1373.
Security Council Resolutions, however, are usually crafted during informal negotiations in a heavily political context. There is no “legislative history” as a result of this system. The transparency critique of this process is longstanding.
How can you find out what the real story is if you’re not a UN insider? Three sources of information that I consult regularly are:
- Security Council Report, an NGO which seeks to increase Security Council transparency. It is largely funded by non-Security Council members. For example, see this interesting recent report on consensus in the Security Council, that assesses voting patterns, decision-making rules and the role of consensus in the Security Council.
- For historical debates, I look at the Security Council repertoire, although there is generally a 2-3 year delay.
- Finally, for current debates both the UN News website and the UN’s new document system portal has improved transparency considerably, making it much easier to obtain official statements than ever before. As a general matter, the UN has made it much easier to watch open sessions of the Security Council, and now regularly webcasts these sessions here.
There is a common misperception that a Security Council Resolution can be read like a statute or a treaty. I tell my students a much different approach is required. Here are a few of the differences:
- Often resolutions are not drafted by lawyers, so the language is not chosen with the same specificity as that we would see in legislation.
- Sometimes what is not said in a resolution is more important than what is said, particularly if sensitive language has been deleted. The refusal of some countries to permit language on the Responsibility to Protect into resolutions in Syria is an obvious example of this reality.
- There can be profound differences of opinion amongst Member States about the legal content of resolutions.
- Vague language is often an end result of the process, reflecting compromise somewhere along the way.
- Resolutions do not typically spell out the consequences of non-compliance.
- There is a code to the language of UN Security Council resolutions. For example, it is much more significant if the Council demands a particular action than if it urges it. Different levels of language in resolutions contain important legal signals.
How are the resolutions interpreted? One of the challenges to UN lawmaking that became very apparent to me during my recent sabbatical study of UN sanctions is that the UN system doesn’t offer many ways to resolve ambiguities in interpretation and implementation. UN sanctions on North Korea, for example, ban luxury goods, but the resolution did not contain a definition of what a luxury good is. Some clarification was provided in a later Security Council resolution issues in March of 2013, some six years later, see this resolution, but this followed a long period of debate about how to interpret and apply this term. Essentially, the definition of what constitutes a luxury good was left to the discretion of Member States.
The 1718 DPRK Sanctions Committee eventually issued an Implementation Assistance Notice dated 13 September 2013, to clarify and has identified the following items as constituting luxury goods: jewelry with pearls, gems, precious and semi-precious stones (including diamonds, sapphires, rubies, and emeralds), jewelry of precious metal or of metal clad with precious metal, yachts, luxury automobiles (and motor vehicles): automobiles and other motor vehicles to transport people (other than public transport), including station wagons, and racing cars.
Who can influence Security Council resolutions?
- Small states can have a big impact on UN law making if their representatives are strategic about using their time as non-permanent members of the Security Council, or during open debates, to push forward a certain issue – the inclusion of language on women, children and armed conflict, for example, were supported by smaller non-permanent member states.
- Emerging powers are also becoming important contributors to the conversation – Brazil’s counterproposal on the Responsibility to Protect (entitled Responsibility While Protecting) garnered a lot of attention last year.
- Academics have played a very important role in defining the Council’s law making powers. In the sanctions field for example, academics have been supported by some “best practices” states (including Canada, Switzerland and the Nordic Countries), receiving funding to do empirical work, participating in processes like Bonn-Berlin and Interlaken, and even helping to develop a new sanctions app.
Do you have any observations on the questions posed above? Please chime in via the comments box if you do.
Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program. But, what’s being held back is the actual text of the deal. There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November? Assuming it is legally binding, it’s also unclear as to why the text is not being released? Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues? Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?
Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.” That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations). But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated. As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain). Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter). Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.
A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants? I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?). Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:
The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)
Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another. Even so, I’m curious to know more about the Iranian implementation agreement. Is it intended to be legally binding or a political commitment? And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution? I’d welcome comments from readers who know more details here than I do.
Hat Tip: Orde Kittrie
Your weekly selection of international law and international relations headlines from around the world:
- Negotiators are still trying to reach a peace deal in South Sudan.
- China has destroyed more than 6 tonnes of illegal ivory in a bit to discourage poaching.
- China and Japan have resorted to naming each other Voldemort in the latest discussion over PM Abe’s visit to the Yasukuni shrine. Abe has meanwhile offered South Korea and China to explain the intentions behind his visit.
- Japan and the US have condemned China’s unilateral declaration of fishing restrictions in the South China Sea.
- “Jihad Jane” has been sentenced to 10 years’ imprisonment for her involvement in a failed plot to kill a Swedish artist over an offensive depiction of the Prophet Mohammed.
- Former Israeli PM Ariel Sharon passed away on Saturday after eight years in coma. Haaretz has listed eight pieces to understand Sharon.
- Tunisia’s National Assembly has inserted gender equality in its draft constitution which will protect its existing laws on women’s rights that are liberal compared to its Arab neighbors.
- Qatar’s ambassador was summoned to Egypt’s Ministry of Foreign Affairs which considered an official Qatari press release critical of Egypt’s crackdown against the Muslim Brotherhood as interference in Egypt’s internal affairs. A new Egyptian constitution is expected to pass by referendum this week.
- Iraq’s ambassador to the US has said that the Obama administration could do more to battle al-Qaeda in Iraq, and has praised George W. Bush’s administration.
- The Friends of Syria have urged Syrian opposition groups to attend peace talks in Geneva later this month.
- A first shipment of chemical weapons left Syria this week for destruction.
- The interim nuclear deal between Iran and the West will enter into force on January 20.
- Iran’s President Rouhani will be the first Iranian leader in a decade to attend the World Economic Forum in Davos.
- William Hague, the UK’s Foreign Secretary, has criticized proposals from within his Tory party to renegotiate EU treaties to allow national parliaments the power to veto EU legislation.
- The European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) have filed a complaint with the International Criminal Court to investigate alleged torture by UK troops in Iraq between 2003 and 2008. The UK has rejected the complaint as unnecessary since they have investigated allegations.
Put the words “Al Qaeda” in a news headline, and you inevitably conjure a very particular idea in the mind of the American reader. “Al Qaeda” is the group that attacked the United States on 9/11. The group led by Osama bin Laden (now led, some might recall, by his successor, Ayman Zawahiri). The group we’ve been at war with for the past decade-plus, and that would gladly attack us again when it has the chance. It’s the group (legal-minded readers would add) whose members the President is authorized by the AUMF statute to detain indefinitely or target lethally. It’s a term, in other words, that has specific and powerful meaning in our political and legal life.
But the recent reporting on the takeover of Falluja in Iraq by an “Al-Qaeda-linked” group obscures a much more complicated reality than the one conjured by the brand name “Al Qaeda.” (Among the recent headlines: “Qaeda-Linked Militants in Iraq Secure Nearly Full Control of Falluja” in the New York Times; “U.S. Won’t Ship Iraq The Weapons It Needs to Fight Al Qaeda” (describing “Fallujah’s fall to al Qaeda”) in Foreign Policy.)
Read even a little bit past some of the headlines (ok, typically about ten paragraphs past, more often in a different story altogether) and one learns that the group that took over Fallujah is a radical Islamist group called the Islamic State of Iraq and the Levant, or the Islamic State of Iraq and Syria (ISIS). True, the same group (more or less) was once known as Al Qaeda in Iraq (AQI) (one of about a half-dozen changing names in the mix over the past decade), but the name changed again about a year ago to reflect the group’s growing aspirations and involvement in Syria as well.
Ok, but just because the group is now called ISIS rather than AQI doesn’t mean reports are wrong to call it Al-Qaeda-linked, right? Fair enough, a rose by any other name, etc. So how can one tell whether a group is actually Al Qaeda affiliated or not?
As Harold Koh reminded us at the AALS conference last week (great panel put together by the Section on National Security Law), what matters in the domestic legal sense (in the sense Congress and the Administration and courts have used it in interpreting the 2001 AUMF) is whether these groups are “co-belligerents.” While the term lacks anything like the certainty in international law that many administration lawyers seem to think it has, the Administration at least has adopted a multifactor test for what it thinks co-belligerency means: (1) an organizational affiliation such that Zawahiri’s Al Qaeda is capable of exercising a degree of command and control over the associated group; (2) evidence that the associated group has in fact “joined the fight”; (3) “the fight” that the associated group has joined is against the United States. If the group doesn’t meet those criteria, it doesn’t fit within the definition of the law.
Let’s start with organizational control. As best I can tell from published reports, one of the main sources of in-fighting amongst Islamist rebel group in Syria stems precisely from the fact that ISIS is not following orders from Zawahiri. Here’s Sarah Birke’s recent article (once again headlined, “How al-Qaeda Changed the Syrian War”) from the New York Review of Books describing the evolution:
[ISIS founder] al-Baghdadi decided it was time to merge [another radical Islamist group, Jabhat al-] Nusra, with Al Qaeda in Iraq, expanding the geographical spread of the organization, which doesn’t recognize national borders but seeks to unite the entire umma, or Muslim community of believers, under one rule. He declared the two branches would be known as the Islamic State of Iraq and al-Sham. Al-Sham refers to Greater Syria, the whole expanse of the Levant that holds a special place in jihadist thought for being the heart of the region and close to Jerusalem. But Jabhat al-Nusra’s leader Mohammed al-Jolani, who is Syrian, refused the merger, possibly because it had not been sanctioned by al-Qaeda’s chief, Ayman Zawahiri, who later ruled that the two groups should remain separate (a ruling ignored by the ambitious Baghdadi, leading some to consider ISIS outside al-Qaeda). In fact, while ISIS and Nusra share many aims, and both are well funded and trained, there are significant differences between the two groups. Jabhat al-Nusra stresses the fight against Assad, while ISIS tends to be more focused on establishing its own rule on conquered territory. Nusra has pursued a strategy of slowly building support for an Islamic state, while ISIS is far more ruthless, carrying out sectarian attacks and imposing sharia law immediately. And while Nusra, despite its large contingent of foreign fighters, is seen as a home-grown problem, Syrians at the border frequently described Da’ash as foreign “occupiers” in their country.
Indeed, while Zawahiri has been trying to assert Al Qaeda’s authority over both ISIS and its rival Islamist group Al Nusra, neither group has been a model of compliance. In a videotaped aired by Al Jazeera two months ago, Zawahiri blamed the leaders of both groups for acting without the knowledge of the central al-Qaeda leadership, and ordered the re-organization of jihadist efforts in Syria and Iraq by abolishing ISIS and giving Al Nusra sole responsibility for Syria. ISIS, however, has shown no sign of curtailing its Syrian operations. Indeed, Foreign Policy separately reports that ISIS arrested, and has probably killed, a Jabhat al-Nusra commander in the city of Raqqa. Despite all this, the Times in particular is fond of citing the “black banners of Al Qaeda” as evidence that ISIS, et al. remain tied to the same mast, as it were. But terrorist experts have regularly pointed out the popularity of the black flag with the white lettering among a range of Islamist groups across the region. As Aaron Zelin, co-author of a recent West Point Counterterrorism Center report, put it: “Just because they have a flag does not necessarily mean they are al Qaeda. Anybody could use a flag like that.”
Beyond all this, there’s no evidence I’ve been able to unearth that ISIS has in fact “joined the fight” against the United States. On the contrary, as Dan Byman recently reminded us: “AQI’s focus on Iraq’s Shi’a government and population was never in harmony with the Al Qaeda’s core’s focus on the United States and the West.” While ISIS’s radical Islamism, and of course regional sectarianism more broadly, may well have a host of troubling implications, it is far from the same kind of danger to the United States posed by a group – the Al Qaeda of 2001 the name still evokes – with both the means and the motive to attack the United States directly.
Which brings me back to the original point. Whether or not ISIS is lawfully subject to the use of force authorized by the 2001 AUMF – and I am so far unpersuaded that it is – use of the name “Al Qaeda” in headlines has political consequences in our public debate. If it’s really that Al Qaeda, political pressure to use force in Iraq (and everywhere else) will build. If it’s something else – a group with different aims, a different focus – then our strategy may well and wisely be quite different.
Journalists trying to report from the nightmare of Syria and Iraq are doing a brave and important service; more than one has died trying to do it. But the headlines are misleading. We should all read more about what’s going on in Syria and Iraq. And if we don’t know what or who, we should be able to read that, too.
Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…
There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.
This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much. If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them. Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)
I’ve been working hard this break teaching in Hofstra’s winter program in Curacao. But I couldn’t resist stepping away from the beach and posting on the India-US flap over the arrest of an Indian diplomat in New York. Dapo Akande at EJIL Talk! has two great posts on the consular and diplomatic immunity legal issues. I have nothing to add, but wanted to focus on how the ICJ could actually play a role in resolving (or not resolving) this dispute.
As those following the incident may know, Devyani Khobragade, India’s deputy consul-general in New York, was arrested and charged with lying on her visa applications about the salary she was paying the maid she had brought from India. As a consular official, Khobragade could only assert functional rather than absolute immunity. Most of the outrage in India is about her treatment after arrest (which does seem excessive to me as well), but the legal issues mostly have to do with her immunity from arrest.
As Dapo points out, India may now be asserting that at the time of the arrest, Khobragade had already been transferred to India’s U.N. Mission. This might entitle her to the broader protections of U.N. diplomatic immunity as oppose to mere consular immunity. According to Dapo, Section 11(a) of the Convention on the Privileges and Immunities of the United Nations may grant her absolute immunity from arrest (but not from prosecution). India may also argue shifting her to the UN mission now gives her immunity from arrest going forward, even if she wasn’t a UN diplomat at the time of her arrest. Thus, on this theory, Khobragade could at least leave the U.S., or even wander New York free from the possibility of arrest or detention, even though the criminal prosecution would go forward.
Much of this would turn on whether Khobragade would need U.S. consent to acquire diplomatic status within the U.N. Again, I am far from expert on this but it seems a murky legal issue at best with plausible arguments for both sides based on the U.S./UN Headquarters Agreement and the Convention on Privileges and Immunities of the United Nations.
Sounds like a case for international dispute settlement! It turns out there are mandatory dispute settlement procedures under both agreements. The U.S./UN Headquarters Agreement allows the U.N. to take the U.S. to compulsory arbitration pursuant to Section 21. This would require the U.N. to side with India’s view on Khobrogade’s diplomatic status, but this is hardly impossible or even improbable that they would support a broad view of UN diplomatic rights and immunities.
Interestingly, India could also take the U.S. to the ICJ under Article VIII, Section 30 of the Convention on Privileges and Immunities of the United Nations.
SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement.
Somewhat surprisingly, both India and the U.S. have signed on to the Convention without trying to limit the effect of this provision through a reservation (as China and others have done). Such a reservation may be of little effect anyway, but at least it would be an argument against ICJ jurisdiction. So I think that India could bring an ICJ case seeking a provisional measure guaranteeing Khobragade’s immunity from arrest under Article 11(a).
It is possible the U.S. would simply ignore any ICJ order, but this is not quite the same as the Medellin cases. First of all, it is the federal government rather than the state governments involved here, and the President probably has authority to order federal agents NOT to arrest Khobragade. Furthermore, the U.S. interest here is far weaker than in the Medellin case, which involved individuals who had been convicted of murder. In this case, the U.S. may be upset over allowing an alleged visa-fraudster to walk, but it is of a completely different magnitude than giving a new hearing to a convicted murderer.
In my view, it would be a perfectly legitimate exercise of presidential power to order executive branch officials to refrain from further action in this case. An ICJ provisional measures might provide a clearer justification for the President’s decision, although I think he probably has the authority right now to stop all of this. But the ICJ might provide a face-saving way for both sides to resolve this deeply fractious incident.
In any event, it will be interesting to see if India chooses the ICJ route. Or if the US even invites an ICJ resolution of this conflict. Indeed, if India goes to far in its retaliations against US diplomats, the U.S. might take India to the ICJ under the Vienna Convention on Diplomatic Relations!
The current ICJ even has one Indian judge, and one U.S. judge. One problem for India is that its legal position is hardly flawless, and it could very well fail in the ICJ. But if India thinks it has strong legal arguments (and they do look fairly strong to me), it seems like a textbook case for the ICJ. Indeed, since neither side shows any sign of backing down, I think the ICJ might actually be useful here.
Citizenship practice and policy is mostly below the news radar; change is slow; and the field tends not to be reported in any sort of integrated way. So here are the key threads from 2013 and how they might spin out in 2014.
1. Citizenship is not priceless. A growing number of states are selling citizenship. Malta is the latest. EU citizenship can be yours for 1.15mn Euros. Hungary, Spain, and Portugal now offer permanent residency in return for smaller investments in residential property, which can lead to citizenship in short order; and Cyprus tossed consolation passports to foreigners who lost more than three million Euros in the country’s banking collapse. The trend has been somewhat predictably lamented by liberal nationalists (see this forum, for example, on EUI’s excellent citizenship observatory site, with a lead contribution from Ayelet Shachar), but look for other states to cash in on a commodity that has no effective marginal cost. Will 2014 see a passport price war?
2. Even the Germans can live with dual citizenship. Americans will have a hard time understanding how big a flashpoint dual citizenship has been in German politics over the last 15 years. As a condition for remaining a part of Angela Merkel’s coalition after recent elections, Social Democrats secured the elimination of the so-called “option model” that had required German-born dual nationals to renounce one or the other by age 23. Dual Turkish-German citizens living in Germany are the big winners. If Germans can live with dual citizenship, any country can. Expect the dramatic trend towards acceptance of the status to move into its mopping up stage, with remaining holdouts (e.g., Japan) giving up their old-world jealousies.
3. American no more. 2013 saw a continued uptick in the number of individuals renouncing U.S. citizenship, with Tina Turner following in the footsteps of Facebook co-founder Eduardo Saverin, along with thousands of ordinary Americans living abroad. Taxes supply the clear motivation, as much the burdensome administrative requirements imposed by the Foreign Account Tax Compliance Act (FATCA) as the payment obligations themselves. Expat websites are aflame with outraged citizens ready to cut the cord. Expect this story to get closer to the front burner as FATCA enforcement kicks in during 2014. Do external Americans have enough political clout to repulse this IRS juggernaut?
4. Foreigners have privacy rights, too. In the NSA’s massive post-9/11 surveillance apparatus, it was open season on non-citizens outside the United States. With good jurisprudential reason: the Supreme Court (in Verdugo-Urquidez) squarely held that non-resident foreigners have no Fourth Amendment rights against the U.S. government. But that understanding is under pressure from other quarters. There’s the prospect of an international right to privacy. That won’t have much effect on America’s spymasters, at least not in the short run. The President’s NSA review board might be more influential. Its recent report called for substantial limitations on eavesdropping on foreigners (see pages 155-56). It will be interesting to see whether Obama buys in.
5. A human right to citizenship. The Dominican Republic came under withering human rights fire after its Supreme Court declared Dominican-born individuals of undocumented parents (almost all Haitian) not to enjoy Dominican citizenship. The ruling leaves 200,000 effectively stateless. Those crying foul included the major human rights groups, the UN, major powers, the Caribbean Community, and the Dominican diaspora. Expect the DR to reverse course during the coming year or face some material consequences. Other states are also coming under increasing scrutiny for rights-problematic citizenship practices. The Gulf States are getting more bad press for their notoriously ungenerous naturalization laws. Notwithstanding significant goodwill in the wake of the transition to democracy, Burma is not getting a free pass on its continuing refusal to facilitate citizenship for the Rohingyas. Human rights-based citizenship claims are clearly on the upswing, a context in which sovereignty once supplied a trumping defense.
6. Obama’s gives up on The New Citizenship. President Obama centered citizenship as a theme in a number of high profile speeches, including the trifecta of his nomination acceptance speech, his second inaugural address, and the State of the Union. In his words, citizenship “describes the way we’re made. It describes what we believe. It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations.” Lofty rhetoric, but nobody seemed to notice. Don’t expect any more stabs at this one. Much as he would like it to, this will not go down as the defining label of the Obama Presidency.
7. Ted Cruz may be a Canadian, but he is eligible for the presidency. There’s a delicious irony in the fact that the candidate most attractive to Obama-obsessed birthers himself has a much bigger question-mark relating to presidential eligibility. But even though Ted Cruz was born in Canada (and holds Canadian citizenship as a result), he is almost certainly eligible to run for president as a “natural born” U.S. citizen, holding citizenship at birth through his mother. Cruz says he has applied for termination of his Canadian citizenship. Expect the questions to linger if his candidacy looks viable; it’s just too easy a poke in the Tea Party gullet.
8. The path to legal residency matters more than the path to citizenship. At least among those affected, namely, 11-13 million undocumented aliens in the United States, as evidenced in a Pew Hispanic Center poll and reported by Julia Preston in a NYT story here. This can’t be surprising, since the main drawback of being out of status is locational insecurity. So why the persistence of the popular political tagline, “a path to citizenship”? It plays better for political proponents of regularization by lending their agenda a high-minded civic orientation. It also seems required by American notions of equality: we can’t just give undocumented aliens permanent residence insofar as it would offend baseline equality norms. Could reform advocates cave on this in 2014 if it presents the only path to a deal? Maybe.
9. Recementing ties to long-lost brothers and sisters. Spain followed through on its 2012 promise to extend citizenship to descendants of Sephardic Jews expelled from Spain half a millennium ago. Though meaningful ties persist (including in a still-living language spoken by Sephardi), one might wonder if the Spanish government was looking to capitalize on somewhat tenuous ties to its economic advantage, granting citizenship to nonresidents at the same time residents (Moroccans, for example) face significant obstacles to naturalization. More controversially, Hungary moved ahead with policies to extend citizenship — and the vote — to nationalistic co-ethnics in neighboring Slovakia and Romania supportive of the right-wing government in Budapest. Look for more countries to strategically relax requirements for citizenship by descent as they increasingly see diaspora populations as an economic and/or political resource.
And a couple to watch for 2014: what would be the UK/EU citizenship mechanics of Scottish independence; will increasingly common birth tourism packages revive efforts to scale back birthright citizenship in the US; and how will citizenships of convenience play out in the Sochi Olympics. Happy New Year!