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US Diplomacy and National Security

You Can Prosecute Animal Rights Activists But Not a Right-Wing Militia for “Terrorism”

by Kevin Jon Heller

Earlier today, a right-wing militia seized the headquarters of the Malheur National Wildlife Refuge in Oregon. The group, which is led by Ammon Bundy — the son of Cliven Bundy, who led an armed stand-off with federal agents in 2014 — is demanding that the federal government release Dwight Hammond Jr. and Steven Hammond, two ranchers who are due to report to a California prison on Monday to serve out their sentences for arson. Bundy says the group intends to hold the building “for years” and refuses to rule out using violence if police try to remove them.

There is little question that the militia’s actions qualify as seditious conspiracy. 18 USC 2384 specifically criminalizes “two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspir[ing]… to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy is a very serious crime, one that carries a maximum sentence of 20 years imprisonment.

But what about domestic terrorism? Could the members of the militia be prosecuted as domestic terrorists once the seige is over?

Domestic terrorism is defined in 18 USC 2331(5):

the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

At this point, the militia has probably not satisfied 18 USC 2331(5). Although their activities are clearly “intended… to influence the policy of a government by intimidation or coercion,” it is difficult to argue that the militia has engaged in acts “dangerous to human life,” because the Wildlife Refuge’s headquarters was closed and unoccupied when the militia seized it.

The situation would be very different, of course, if the militia followed through on its threat to use force to repel an attempt by the police to retake the headquarters. Doing so would clearly qualify as domestic terrorism under 18 USC 2331. But here is the problem in terms of actual prosecution: as Susan Hennessy pointed out in an excellent post at Lawfare after the mass murders in Colorado and California, “[d]omestic terrorism does not exist as a substantive offense under federal law.” It is simply an element of other substantive federal offences, such as bribery affecting port security, 18 USC 226 (Hennessy’s example). And none of those offences would seem to cover the militia’s seizure of the Wildlife Refuge headquarters.

The bottom line, then, is that although we could call the members of the militia “terrorists” if they ever engage in acts dangerous to human life, they could not be prosecuted as terrorists. That’s perverse — especially when we contrast the absence of a substantive federal terrorism offence covering the militia’s actions with the existence of a substantive federal terrorism offence designed specifically to prosecute non-violent animal-rights activists: 18 USC 43, the Animal Enterprise Terrorism Act (AETA). The AETA, which was adopted by Congress at the behest of the pharmaceutical, fur, and farming industries, is an absurdly overbroad statute that deems any actions that intentionally damage the property of an animal enterprise to be “terrorism”:

(a) Offense.—Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce—

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such purpose—

(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

(C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).

The only “violence” the AETA requires is the violence of ripping up documents or opening up animal cages. Indeed, the AETA has been used to prosecute as terrorists four people who “chalked the sidewalk, chanted and leafleted outside the homes of biomedical scientists who had conducted animal testing” and two young men who “released about 2,000 mink from cages and painted the slogan ‘liberation is love’ in red paint over a barn.” The charges in the first case were thrown out for lack of factual specificity, but both of the defendants in the second case have pleaded guilty and are facing 3-5 years in prison.

It defies logic that there is a substantive federal terrorism offence covering non-violent activists who open mink cages but not one covering a right-wing militia that forcibly seizes a federal building, demands the release of prisoners, and threatens to kill anyone who tries to intervene. But there you have it.

China Launches Op-Ed Rebuttal to Philippines’ Arbitration Case

by Julian Ku

The UNCLOS Arbitral Tribunal formed to consider the dispute between the Philippines and China gave China until January 1 to file a response to the arguments made by the Philippines at its most recent merits hearing.  China had not showed up at any of the hearings, nor has it submitted any official written arguments to the Tribunal.   I don’t know if China will file any submissions (don’t hold your breath), but its state-run flagship The People’s Daily has launched an op-ed fusillade this week attacking the Philippines. Perhaps, this is China’s response to the arguments made at the arbitral hearing.

The first editorial, “Grandstanding Cannot Cover Up Illegal Moves”, is focused on vilifying the Philippines’ for bringing this arbitration, and the remarks of its foreign minister Albert F. del Rosario. The criticism is mostly non-legal, accusing Mr. del Rosario of bad faith, speaking untruths, and being an all-around bad guy.  But the oped does contain the germ of a legal argument justifying China’s defiance of the UNCLOS tribunal:

State sovereignty is a core principle in contemporary international law. No force is above a sovereign state. No country, organization or individual could expect China to stand by and allow its interests to be harmed. Here is a piece of advice for people like Mr. del Rosario: Don’t misread the situation. The Chinese government and people are adamant about safeguarding China’s rights and interests in the South China Sea. All calculating moves against that would end up in failure.

The second editorial, China’s Sovereignty over the South China Sea Islands Brooks No Denial, offers more of a legal and factual argument.  Interestingly, the editorial relies heavily on the legal force of the 1943 Cairo Declaration and the 1945 Potsdam Declaration as the basis for China’s South China Sea claims over the disputed Spratly/Nansha Islands.  The theory here is that the Spratly/Nansha islands belonged to China, and that Japan forcibly occupied them during WWII.  Cairo and Potsdam required Japan to return all “stolen” territories, ergo, the South China Sea islands go back to China.

The Philippines (apparently) argued at the merits hearing that the Nansha Islands were “terra nullius” and were not included in the “stolen” territories that Japan had to return to China.  Moreover, the Philippines argued that the Cairo and Potsdam Declarations were not legally binding.

China responds with a factual claim (China has always had sovereignty over the islands) as well as legal claim (the Cairo and Potsdam Declarations are legally binding). This latter argument is not precisely accurate, although it is true that Japan promised to comply with Potsdam in its surrender.  But none of this changes the fact that neither Cairo nor Potsdam say anything about the Spratlys/Nansha specifically, and seem a weak legal basis for China’s claims to those islands.

In any event, the editorial is largely rhetorical rather than legal. It concludes by rallying the Chinese people against mysterious international forces threatening their sovereignty:

[T]he determination of the Chinese people to safeguard its territorial integrity is as firm as a rock. Only the Chinese people have the final say when it comes to China’s territory. Any attempt to negate China’s sovereignty, rights and interests through a so-called “arbitration award” will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in water. By going back on its own words and confusing the concepts for the purpose of territorial expansion, the Philippines will only end up bringing disgrace on itself.

Gotta love the metaphors, although I doubt very much the Arbitral Tribunal will be in any way moved by them.

A Shout-Out For Peter Spiro’s NY Times Oped on the Constitutionality of Trump’s Muslim Ban

by Julian Ku

I wanted to briefly point our readers to this smart oped in today’s NY Times from OJ’s own Peter Spiro on the constitutionality of Donald Trump’s proposed ban on Muslim immigration into the U.S.  Peter argues that, contrary to many people’s expectations, such a ban would be constitutional.  And that’s the problem.  Read the whole thing!

International Law Does Not Prohibit Commercial Asteroid Mining. Nor Should It.

by Julian Ku

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources.  Here is some key language from the bill, which President Obama is expected to sign.

§ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967.  Chief among those obligations is Article I of that treaty:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

There is also Article II, which seems to restrict claims of sovereignty in outer space.

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
The Space Act of 2015 tries to avoid this potential conflict by limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.”  The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?)

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.

On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same.  Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.”  Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations.   Can the U.S. live with that result?

I think it can.  In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible.  We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject.  There will be plenty of time for that.

Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.

Margulies:

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

A Treaty or Not a Treaty? My Senate Testimony About the Paris Climate Change Agreement

by Julian Ku

I had the honor and pleasure of testifying today before the U.S. Senate’s Environment and Public Works Committee.  The topic of the hearing was “Examining International Climate Negotiations” and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a sole executive agreement.  I further argued that the Senate should require to the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments.

You can watch the oral testimony and the questions below on C-SPAN (my testimony starts around the 11’40” mark. Almost all of the testimony has to do with the substantive merits of such an agreement (about which I express no opinion), as opposed to the legal aspects. So I will go ahead and declare victory for my argument by default.

A Short Response to Ilya Somin: Does Self-Defense Mean the U.S. Can Invade and Occupy Syria?

by Julian Ku

Ilya Somin has updated his post at the Volokh Conspiracy to include my critique, and his response to my critique. I just want to add two more points to our little debate on the domestic legal effect of the North Atlantic Treaty’s Article V collective self-defense clause before we put it to rest. (For those of you looking for a broader discussion on the Paris attacks than our legal parsing, I recommending joining this Federalist Society teleforum today here at 2 p.m. EST).

1) Ilya argues that “[w]hile the use of force is discretionary under Article 5, treating an attack on an ally within the designated area as if it were an attack on the US itself is not… And in the event of an enemy attack on the US itself, the president has the legal authority to use force of his own volition, without additional congressional authorization”.

This is an interesting point, and I agree with Ilya that the President can use military force to defend the U.S. without going back to Congress.  So Ilya is reading Article V as a pre-authorization to the President to defend treaty allies with military force as if it were an attack on the United States.But this reading calls into question how much military force the President can use under this “pure” self defense rationale.  Surely, President Bush was authorized to defend U.S. territory on 9/11 and its immediate aftermath.   But did the 9/11 attacks also authorize the President to start bombing, and then to invade Afghanistan, without going back to Congress?  In other words, does the self-defense rationale allow all offensive actions against the attacker up to and including invasion and occupation of another country?

Similarly, do the Paris attacks(assuming Article V were invoked) allow President Obama to launch military strikes (and maybe invade and occupy) Syria?  Surely, the President could have ordered U.S. forces to defend France without Congress. But I’m just not sure the Article V self-defense rationale gets Ilya all the way to a full-scale war on ISIS.

2) On a historical note, Ilya takes issue with my characterization of the legal rationale for Article V as allowing the U.S. and its allies to comply with the UN Charter’s rules on the use of military force.  He argues that “[t]he true main purpose of Article 5 is to commit the signatories to a system of collective defense against attack…”

I don’t disagree that this was Article V’s “main” purpose, but my original post was focused on the legal purpose of Article V.  On that front, I think it is safe to say Article V was about ensuring NATO was in compliance with the then-new UN Charter, and much less about re-allocating war powers under the U.S. Constitution.

I should hasten to add that I am in favor of a robust military response to the Paris attacks (actually, I was in favor of a robust response before the Paris attacks too).  And unlike Ilya, I think the President has broad powers under the Constitution to use military force without explicit congressional authorization.  I just don’t think collective self-defense treaties like Article V are needed to authorize unilateral presidential action against ISIS.

Should the U.S. Even Bother to Invoke Article V of the North Atlantic Treaty After Paris?

by Julian Ku

Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law.  Here is Ilya:

Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.

I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best.  But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.

Here is the full text of Article V:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .

I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.”  But I don’t think Article V requires the other NATO members to provide military assistance.  Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).

I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.”  But I don’t think it has to.

Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added).  I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.”  If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress.  This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.  

Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.

In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers.  The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are).  Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter.  That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter.  But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.

The Daily Caller and Alan Dershowitz’s Dishonest Attack on MSF

by Kevin Jon Heller

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”

[snip]

Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

So How Is China Taking Its Loss at the UNCLOS Arbitral Tribunal? Not Well.

by Julian Ku

I have been curious to see how China would respond to yesterday’s UNCLOS Annex VII Arbitral Tribunal’s ruling finding it has jurisdiction to hear the Philippines South China Sea related claims.  Well, the Chinese Ministry of Foreign Affairs was ready with this blistering response:

Q: The Arbitral Tribunal established at the request of the Republic of the Philippines rendered the award on jurisdiction and admissibility of the South China Sea arbitration. What is China’s comment on that?

A: The Chinese government will not accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. The Chinese Foreign Ministry has immediately released a statement to elaborate on China’s solemn position. The award is null and void, and has no binding effect on China. I would like to highlight three points.

First, China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. As a sovereign state and a State Party to the UNCLOS, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiations and consultations. China and the Philippines have repeatedly reaffirmed in bilateral documents since the 1990s and the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002 that they shall resolve relevant disputes through negotiations and consultations.

Second, disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures, misrepresented the law and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.

Third, as a State Party to the UNCLOS, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the UNCLOS, and calls upon all parties concerned to work together to safeguard the integrity and authority of the UNCLOS. China urges the Philippines to honor its own commitments, respect China’s rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations. That is the correct path with bright prospects.

The full MFA statement is here, and includes a swipe at the Philippines for using the “cloak of law as a political provocation.”  It is worth noting that China is still aiming most of its rhetorical fire at the Philippines, but it has also now directly criticized the Arbitral Tribunal for “abus[ing] relevant procedures [and] misrepresent[ing] the law….”  I also detect a slightly larger emphasis in China’s complaint about the “unilateral” nature of this arbitration.

I am also impressed by China’s willingness to just ignore the clear provisions of Article 288(4) of UNCLOS, and simply declare that the Tribunal’s ruling is “null and void” and has “no binding legal effect.”  At some point, someone in China is going to have to gin up a legal argument to get past UNCLOS’ clear language giving the Tribunal the power to determine questions of jurisdiction.  But for now, it looks like China is going to stick to its guns.

So It’s Settled: The President Can Violate Customary International Law

by Julian Ku

There is a lot of interesting material revealed in the Charlie Savage NYTimes article on the legal justification for the Bin Laden raid (including how the Attorney General and Office of Legal Counsel were kept in the dark and out of the loop).  But I want to focus on one paragraph in the article, which explained the lawyers’ backup justification for their conclusion:

There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.

Deborah has done some very good analysis here on the CIA’s views on this question, as applied to non-self-executing treaties. I think that is a tricky question. But there is also an easier question that was also probably settled in the lawyers’ legal memos.  Like the Bush administration lawyers, the Obama Administration lawyers concluded that the President can choose to violate that customary international law without violating the Constitution or other domestic law.

Although this may seem obvious, it used to be a highly contested question.  I dug up this discussion from a 1986 panel between leading international law scholars Louis Henkin, Anthony D’Amato, Michael Glennon, Abe Chayes and others.  Almost none (even President Reagan’s legal adviser Abe Chayes) would have openly admitted that the President could violate customary international law. The Restatement of U.S. Foreign Relations Law suggests, but does not completely endorse the view that the President can openly violate customary international law.  Indeed, there used to be a fair number of law review articles explaining why the President’s obligation to “Take Care” that the laws are faithfully executed include customary international law. But, if Savage’s reporting is accurate, the U.S. government (under both George Bush and Barack Obama) is no longer troubled by this question, and has moved on. So should the rest of us, apparently.