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Comment on Simon Chesterman, `Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’

by Antony Anghie

[Antony Anghie, National University of Singapore. Tony Anghie has written on various aspects of globalization, human rights, and the history and theory of international law. He is a member of the TWAIL network of scholars. This post is part of a joint Opinio Juris/EJIL:Talk! symposium. For the latest symposium post on EJIL:Talk!, click here.]

Simon Chesterman’s article displays a customary rigor and thoughtfulness. As I understand it, Simon’s broad argument is that Asian states have not engaged with the international system as much as their counterparts in other regions-Latin America and Africa, for instance. Simon views this situation as anomalous suggesting that Asia has `arguably’ benefitted the most from the current international order-of which international law is a part-and yet remains reluctant to participate fully in the system. The question then arises of whether Asia will be engage more deeply as its power increases, and whether such engagement will lead to a different sort of world order. He concludes that international law will remain much the same.

This is a rich and far reaching article and I can comment on only a few aspects of the many issues it raises. I agree in large part with Simon’s historical analysis; but I think he glosses over important aspects of that history which help us understand how Asian states did attempt to engage with international law, and why that experience led to a failure which further estranged them from a system of international law about which they always felt ambivalent. Simon assesses Asian engagement with international law principally in two ways. First, by the extent to which Asian states have signed on to various treaties and regimes(such as the ICJ, the ICC, international human rights treaties); and second, by the extent of legal integration within Asia itself. ASEAN for instance, is far less `legalized’ than corresponding regional organizations What he mentions but glosses over in one sentence at footnote 102 (perhaps ironically, a generous reference to my own work) is my concern here: the “Third way”-the efforts Asian states made to develop an anti-colonial internationalism and use it as a basis for changing international law-an initiative that began at Bandung in 1955 and extended through the Non-Aligned Movement to the New International Economic Order (NIEO).

Asian states realized that they were excluded by the new UN system from any meaningful decision making power. (See R.P. Anand, `The Formation of International Organizations and India: A Historical Study’, Leiden Journal of International Law 23 (2010) pp. 5-21. ) Concerned about this predicament, various Asian states held conferences, in Delhi 1947 and Colombo 1954 to explore Asia’s role in the emerging world order. These were preludes to Bandung in 1955. (Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.) Bandung, Global History and International Law: Critical Pasts and Pending Futures (CUP forthcoming))

I agree with Simon that the Bandung communique and its version of sovereignty expressed in the “Five Principles” reflects norms that are found in the UN Charter. This is entirely understandable, however, given Asia’s experience under colonialism that Simon covers well in his article, the effect of which was to deride and subordinate any other version of sovereignty. Sovereignty after all was indispensable for participation in the system. Most importantly, however, the Asian states at Bandung, rather than simply accepting wholesale a Western international law, or acting in a suitably modest “regional” manner, attempted to forge a global movement, with states from Africa that, in time, evolved into the Non-Aligned Movement that represented the vast majority of countries in the world. This was an internationalism based on the powerfully felt needs of the time by the vast majority of the world’s states engaged in an anti-colonial campaign and attempting to assert their sovereignty, ensure their security and promote development. This contrasted with an internationalism based on liberal abstractions-regarding the state, society, personhood itself-that presented themselves as universal and that animated the normative claims of a Western international order that was still based on power relations now unassailably entrenched in the UN system. Most significantly, Asian states had an agenda that was directed very explicitly at reforming the international legal system. The organization that was to become the Asian-African Legal Consultative Organization (AALCO), still functioning actively and based in New Delhi, was established after Bandung to achieve this task.

The third world states-Asian, African, Latin American-launched the NIEO, a massive campaign to change international law. This attempted to establish, among other changes, a different regime of international trade and investment, and of the law of the sea and the resources of the deep sea bed. It is difficult now to imagine that the UNCTAD version of trade was a real rival to the GATT in the 1960s. The NIEO was immediately denounced by Western lawyers and states as unrealistic and anarchical. The battle for international law was a bitter one and the Third World lost. The point then is that Asian states, together with their African and Latin American allies, attempted to do what Simon argues they must do, which is assume greater responsibility for global governance. At the risk of generalizing, disillusion and wariness set in again as a result of the failure of the NIEO. Asian states had ignored the hard lessons of nineteenth century colonialism in the dazzle of independence, lured by the false promise of international law; and resolved not to be fooled again. In more recent time the blatant hypocrisy of the United States and United Kingdom in claiming to promote accountability and human rights in Asia and other parts of the world after the illegal war they waged in Iraq, only confirmed this vision of an unequal and power driven international law.

Asian states, then, failed in their efforts to create a different world order. Equally, however, their efforts to participate more fully in existing structures of governance have been regularly thwarted. Simon points out that, given its size and power, Asia is under-represented in international institutions. He does not really elaborate on why this is the case, and indeed seems oddly coy about this issue, even in his conclusion where he almost seems to suggest that it is Asian reticence that has led to this situation; he refers to Asia’s under-participation and under-representation as being due to historical factors and also to “the diversity of power dynamics of the continent as well as the absence of push factors to bring about change.” This is odd given, again, the many ongoing, if unsuccessful, battles waged by Asian states to win more say in the international system. Simon mentions India’s campaign to gain a seat in the Security Council almost in passing. China’s creation of the Asian Infrastructure Bank was surely influenced by the frustration it felt as its efforts to play a larger role in the global economic system through the established institutions, the IMF and the World Bank were blocked and delayed.( See The Economist, `The infrastructure of power’, June 30th 2016.) In a different context, Asia’s economic success has been remarkable. Some Asian states at least have used international law strategically and successfully. Indeed, Asian states may have succeeded despite and not because of international law. But Japan’s efforts to question neo-liberal economics and the orthodoxies of the Bank and the IMF in explaining and understanding the so called ”East Asian miracle” were also frustrated, diffused and diminished, as scholars such as Alice Amsden point out. (Alice Amsden, `Why Isn’t the Whole World Experimenting with the East Asian Model to Develop?: Review of The East Asian Miracle’, World Development Report, Vol. 22 No. 4 pp. 627-633, 1994.)

In conclusion, my argument is that Simon, in glossing over these aspects of the Asian experience, fails to recognize the ways in which Asia has attempted to influence international law. Perhaps more broadly, in overlooking the power struggles that have caused this marginalization of Asia, Simon adopts a rather sanguine view of international law and its openness to change which is somewhat strange given that in other respects his approach is so keenly aware of power politics.

My second point is to agree with Simon that it is unlikely that the “rise of Asia” will witness a major shift in international law. Rather, convergence will be likely. For me, this is simply because the largest Asian states which are in the best position to propose new initiatives, are unlikely to do so; it is surely no coincidence that much of Simon’s more detailed analysis focuses on the great powers of Asia: China and, to a lesser extent, India. A different sort of analysis would have emerged if the focus had been on the jurisprudence of Judge Weeramantry (for example, on his separate opinion in Gabcikovo-Nagymaros Project (Hungary/Slovakia) (.pdf)) or on non-state actors in Asia. (For example, see Balakrishnan Rajagopal, `The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’, Leiden Journal of International Law 18(2005) pp. 345-387 and Prabhakar Singh, `Indian International Law: From a Colonized Apologist to Subaltern Protagonist’, Leiden Journal of International Law, vol 23 (1), March 2010, pp. 79-103.)

History suggest that states that wield great power develop imperial tendencies. International law as it is currently configured readily lends itself to economic- and hence political- domination, and India and China, founded in many ways on ancient Empires, are now in a position to deploy for their own purposes those instruments of which they had previously been victims. The major difference between China and the United States of course is that when the former engages in economic relations with smaller states it does not claim to further a specific model of governance, of rights, of political institutions that are universal in character. Its use of economic mechanisms to expand its influence is likely to be even more effective as a result, as Asian states struggle to achieve development and now turn to China increasingly as a vehicle of growth. It is now China that is eager to enter into investment and trade agreements as Simon points out. In many respects, further, a sort of reversal has taken place: it is Western states, especially after 9/11, that have converged towards Asian ideas regarding sovereignty and security. It is Western international lawyers who have very capably and expertly provided additional and helpful justifications for expanded violence in the form of drone attacks and broad concepts of self-defense (see, for example, Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors’, 106 American Journal of International Law 1) that may in time prove useful to rising Asian states. And a Trump presidency could mean that the illiberal attitudes usually associated with authoritarian Asian states – having to do with sovereignty, nationalism, protectionism, indifference to human rights-will be the driving forces of US foreign policy. In their unassailably assured efforts to create a liberal world order, the United States and Europe misunderstood or overlooked developments not only in Afghanistan and Libya, but their own heartlands.

For Simon, the NIEO was too “radical” to succeed; the emergence of Asia as a real power, however, is in his view, unlikely to bring about major changes to the system. The Asia which fought for the NIEO had a vision but no power; some Asian states in the present have power but no distinctive vision. If this is indeed the case, the tragedy inherent in the situation must surely be appreciated. The broad conclusion appears to be that those who acquire power simply seek to preserve the system that enables and legitimizes its exercise. The theme is a familiar one: as Asia’s own history, the rise of Japan, suggests, it is only by making war, by becoming imperial, that a state becomes civilized, a proper Great Power. The cycle repeats, the difference perhaps being that rising Asian states will attempt to marry their imperial compulsions with the rhetoric of Third World solidarity, Bandung principles and non-intervention. Simon has written a fine piece exploring large themes and raising many challenging questions that will surely provoke more research.

First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate

by Kevin Jon Heller

I have been following with great interest the debate at Just Security between Adil Haque and Jonathan Horowitz over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a “first strike” at an organized armed group or whether hostilities of a certain intensity between the two are required. Adil takes the former position (see here, here, and here); Jonathan takes the latter one (see here and here).

Though Adil’s posts exhibit his typical brilliance, my sympathies lie with Jonathan. To begin with, as a matter of the lex lata, I don’t think the argument is even close: the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).

Adil, it is worth noting, has a different interpretation of AP II, one that does not require intensity:

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict. The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

This is a difficult position to defend. The text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government? More importantly, despite some stray practice cited by Michael J. Adams and Ryan Goodman in this post, states have simply never interpreted the AP II standard to require only organization.

Even more problematic, though, is Adil’s argument that the “object and purpose” of IHL counsels against conditioning the application of IHL on adequately intense hostilities:

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

As regular readers know, whenever I see arguments based on the supposed “object and purpose” of a treaty, I reach for my pen. All too often, such arguments simply use object and purpose to justify interpreting a treaty in a manner that specifically contradicts the intention of the states that drafted and concluded it. And unfortunately I think that is what Adil does here. He defends applying IHL to first strikes by claiming that the “object and purpose” of IHL is “to protect human beings against dangers arising from military operations” (emphasis mine). But that is misleading: the object and purpose of IHL is to protect human beings against dangers arising from military operations in armed conflict. If there is no armed conflict, IHL has nothing to say about the danger of military operations — because IHL doesn’t apply. And as discussed above, states have always insisted that a first-strike military operation is not enough to create an armed conflict — IHL applies only once there are adequately intense hostilities between government forces and the organized armed group.

Adil is free, of course, to normatively argue that IHL should apply to first strikes in NIAC because doing so would better protect human beings. I would disagree, but the claim is coherent and deserving of discussion. What he can’t do is base that claim on the object and purpose of IHL, because that would be to use an object and purpose that only applies within armed conflict to justify changing the definition of armed conflict itself. The definition of when IHL applies cannot be determined by reference to what the goals of IHL are once it applies. That definition has to be sought outside of the IHL system — and again, it is clear that states do not want IHL to apply to first-strike military operations against organized armed groups.

There is, however, an even deeper problem with Adil’s argument that the need to protect human beings from military operations counsels a definition of NIAC that does not require adequately intense hostilities: if that is true, there is also no reason why the application of IHL should require armed groups to be organized. All of Adil’s arguments against the intensity requirement apply equally to the organization requirement. If we need to protect human beings from the dangers of first-strike military operations by states against organized armed groups, surely we also need to protect them from the dangers of first-strike military operations by states against unorganized armed groups. After all, Adil’s central argument is that the inherent danger of military operations means that IHL should apply to a first-strike regardless of whether that military operation leads to any kind of hostilities.

I see no convincing response to this criticism. It is tempting to argue that the organization requirement is important because a first-strike military operation against an organized armed group is much more likely to lead to actual hostilities than a first-strike military operation against an unorganized armed group. But Adil rejects the idea that hostilities are relevant to the application of IHL. He believes IHL should apply even if a first-strike military operation meets with no response whatsoever.

Another potential response would be to argue that first-strike military operations against organized armed groups pose greater dangers for innocent civilians than first-strike military operations against unorganized armed groups. But that would be a difference of degree, not of kind — and thus far from a convincing basis for applying IHL to the former and not the latter. I’m also not sure whether the claim is even empirically sound. It is at least equally plausible to assume that states are more willing to use military force against unorganized individuals whom they can assume will not fight back (or will not fight back effectively) than against an organized armed group with the capacity to respond to a first strike with military operations of its own.

Adil’s desire to protect human beings from the dangers of military operations is laudable, but his claim that IHL should apply to first strikes against organized armed groups cannot be sustained. Not only have states insisted that IHL applies only to hostilities that reach a certain level of intensity, the idea that protecting individuals from the danger of military operations requires eliminating the intensity requirement is underinclusive. Those dangers exist for all military operations, even those against unorganized armed groups. So the only consistent — if still objectionable — position is that IHL applies to any military operation launched by a state, regardless of its object. I’m curious whether Adil would be willing to take that position.

Clarifying the Alternative: International Criminal Justice Options for African Union Member States

by Oliver Windridge

[Oliver Windridge is a British lawyer specializing in international human rights and international criminal law. Oliver is founder of The ACtHPR Monitor, an independent blog and website dedicated to the African Court on Human and Peoples’ Rights, on twitter @acthpr_monitor. In June 2014 he was one of five non-African lawyers to be appointed to the Court’s inaugural list of Legal Aid Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organization affiliated to the author.]

Following moves from Gambia, Burundi and South Africa in the past weeks to withdraw from the ICC, much thought is now being given, and keyboards worn down, by the international community as it considers what this news will mean for these countries individually, Africa more generally and of course the ICC.

I want to slightly side-step some of these issues though and address the seemingly confused narrative circulating on the African alternative to the ICC. This seems especially important given the South African Minister for Justice Michael Masutha’s first statement on South Africa’s withdrawal from the ICC which reportedly included the line “South Africa will work closely with the African Union and with other countries in Africa to strengthen continental bodies, such as the African Court on Human and People’s Rights, created to deal with such crimes and to prosecute the perpetrators, whilst at the same time continuing to participate and honour its commitments under international human rights instruments.”

Let’s be clear, the African Court on Human and Peoples’ Rights does not and will not, barring an extraordinary turn of events, ever have the jurisdiction to try cases of genocide, crimes against humanity and war crimes. The African Court is a human rights court, similar in many ways to its European and Inter-American cousins. It has jurisdiction to consider alleged violations of the African Charter on Human and Peoples’ Rights and other international human rights instruments to which the member state in question has signed up to, but nothing in the African Court’s statute, Protocol or Rules gives the African Court the power to prosecute individuals for crimes such as genocide, crimes against humanity and war crimes. To point to the African Court as an alternative to the ICC is like Germany or France withdrawing from the ICC and then pointing to the European Court of Human Rights to handle things from now on.

There is another possibility for AU member states though on the horizon and one that not only has the same jurisdiction as the ICC but actually one much greater; the African Court of Justice and Human Rights (ACJHR). At present however this court exists on paper only in the form of the Protocol on the Statue of the African Court of Justice and Human Rights and the subsequent 2014 Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Read through this second Draft Protocol and there emerges details of a mega-court that would subsume the current African Court on Human and Peoples’ Right which would then exist as a “Human and Peoples’ Rights Section”, alongside a “General Affairs” section and an “International Criminal Law” section. The International Criminal Law section would have three chambers, a Pre-Trial Chamber, a Trial Chamber and an Appellate Chamber and have jurisdiction to try individuals on charges of genocide, crimes against humanity and war crimes. Sound familiar?

There are however a number of differences between the ICC and the International Criminal Law Section of the ACJHR. To start with, in addition to genocide, crimes against humanity and war crimes, the ACJHR would have jurisdiction over a further 11 crimes including corruption, mercenarism and the trafficking in persons and drugs, creating an ambitious roster of 14 crimes under its jurisdiction (Article 28A, Draft Protocol). Additionally, the International Criminal Law Section of the ACJHR would include immunity from prosecution for serving AU heads of state or government and other “senior state officials” whilst in office- a vague definition if there ever was one (Article 46A bis, Draft Protocol). But above concerns over immunity and jurisdiction exists the real kicker; to take the ACJHR off the page and into reality requires at least 15 AU member states to ratify the amended Protocol (Article 11, Draft Protocol). Currently however, not a single AU member state has ratified the Draft Protocol and its international criminal law section- not one. This complete lack of ratification goes some way to demonstrate the clear gap that exists between those advocating for withdrawal from the ICC ostensibly to allow the AU to handle matters, and those who have actually signed up to the AU’s alternative.

So as Gambians, Burundians, South Africans and the wider world starts to come to grips with what withdrawal from the ICC could mean, let’s be clear on the regional alternative – the African Court of Justice and Human Rights and where it currently exists- on paper only.

Torture and the U.S. Military

by Deborah Pearlstein

Cross-posted at Balkinization

There should by now be little doubt that various members of the incoming administration, including the President himself, would be willing to torture terrorist suspects should opportunity arise. On the campaign trail, Donald Trump expressed a desire to return to “waterboarding” terrorism suspects and “worse.” Mike Pence declined to rule out torture when asked about it expressly this past weekend. Nominee for CIA Director Mike Pompeo opposed President Obama’s decision in 2009 to close C.I.A. black-site prisons and also to require interrogations to comply with the rules of the Army Field Manual. Army Lt. Gen. Michael Flynn, the choice for national security adviser, is perhaps more equivocal. As a firsthand witness to the counterproductive effects of abusive interrogation, he has said that “I would not want to return to ‘enhanced techniques,’ because I helped rewrite the manual for interrogations.” On the other hand, “if the nation was in grave danger from a terrorist attack involving weapons of mass destruction, and we had certain individuals in our custody with information that might avoid it, then I would probably OK enhanced interrogation techniques within certain limits.”

Even with all best intentions, Congress and the courts are unlikely to play much role at the outset in reining in this particular kind of presidential ambition. There are clear statutory prohibitions against the use of torture as it is; and the courts are empowered to act only once an actual case or controversy is before them. It was in no small measure in the face of the same dilemma during the first George W. Bush administration that so many legal scholars turned to focus on the role of internal, intra-branch checks on executive power – the Justice Department Office of Legal Counsel, agency Inspectors General, and others. It also became apparent that the uniformed military could be included among potentially available checks on executive power.

After the attacks of 9/11, military lawyers and others in the Pentagon played a critical role resisting efforts by the Bush Administration to evade laws barring torture and cruelty to detainees in U.S. custody. Not only was such treatment illegal, they argued, authorizing techniques the troops had long been trained were prohibited was disastrous policy: it sowed confusion in the field, compromised operational effectiveness, endangered our troops, and undermined the mission they had been sent to carry out. Well beyond the Pentagon, it was a young Army specialist who helped blow the whistle on the torture that permeated the U.S.-run Abu Ghraib prison in Iraq, and a Major General whose investigation made clear to Congress how inadequate resources, training, and accountability helped allow the abuse to endure and spread. Elsewhere, military lawyers urged Congress to investigate whether war crimes trials at Guantanamo could ever actually succeed in delivering justice. And it was an Army Reserve lieutenant colonel whose declaration about his experiences at Guantanamo extraordinarily persuaded the Supreme Court to change its mind and agree to decide whether the detainees there had a constitutional right to have their cases heard. Entirely apart from the military’s duty to disobey manifestly unlawful orders, both active duty military, and retired leaders, played a pivotal role in preventing America’s torture crisis from becoming worse than it was.

Yet as laudable as this service was, and especially as the incoming administration peoples itself with retired generals galore, the idea that the military might limit the President in the pursuit of his goals should seem at some level exactly backwards. The President is, after all, the Commander in Chief of the military, a symbol of our country’s bedrock principle of civilian control. That principle was born in part from a (Revolutionary War-era) fear of military oppression in ordinary life, a fear that seems unlikely today. But it was also driven by the worry that the military – whose political popularity is unsurpassed in contemporary American life – was capable of exercising outsized influence over democratic decision-making. The image of the “man on horseback” came to symbolize the concern that a particularly successful and charismatic commander could effectively lead the public down a path contrary to its own democratic interests, undermining the ability of elected leaders to accomplish the policy goals the People wanted them to fulfill.

While the military has of course changed dramatically since the Constitution was drafted, the enduring concern that the military might unduly influence politics led to a series of regulations beginning in the early twentieth century restricting active-duty military from engaging in political activities. Congress came to prohibit officers from holding civil elective office, and to impose criminal penalties for using “contemptuous words” against the President, members of Congress, or other elected officials. Today, active duty military personnel are prohibited from participating in partisan political fundraising, rallies, or conventions; using official authority or influence to interfere with an election; or soliciting votes “for or against a partisan political party, candidate, or cause.”

Such proscriptions are sensible. But these rules, coupled with powerful career incentives, have too often been understood to limit the honest expression of professional military dissent. There was in Washington’s time, and today remains, a critical difference between a military expression of partisan alliance and one of professional judgment. And there is certainly a difference between expressions of political disagreement, and an insistence on adherence to law. The era of Abu Ghraib taught us that there is a range of ways in which the military can, consistent with their own duty to uphold the nation’s Constitution and laws, help to steady the ship of state. Of course the military is no panacea. Plenty of troops supported Donald Trump, and not all would oppose a return to torture. But it is also clear that the military is capable of performing at least a part of the same service Americans should expect of all our political institutions: as a platform from which people of good will and a commitment to law can make their voices heard. Those concerned about a return to torture should reach out. For it is as least as likely as any of our institutional checks to help constrain whatever policy adventurism is to come.

Trump and the UN

by Kristen Boon

Like most policy issues in his campaign, Trump’s references to the UN and multilateralism have been brief.   If one searches for Trump & the UN, the main hit are statements made in 2005 that he could do a much better job renovating the UN than the UN itself!

Apart from disparaging remarks about the Paris climate change agreement, the TPP, NATO and NAFTA made in the heat of the campaign, there has been no consistent message about multilateralism. Moreover, as Deborah noted in her post earlier this week, he has already (thankfully) retreated from some of these remarks.

To the extent we can make predictions at this point however, an observation in an IPI editorial last week has merit:   “a Trump presidency may challenge a post-World War II American record of establishing long-term global security alliances.”  Although the Trump World Tower is directly across the street from the UN, it seems unlikely it will be much of a pied-a-terre for real engagement with the UN.

At present, we know his top pick for UN ambassador is Richard Grenell, a former UN Spokesman and current media strategist.   His writings and thoughts on foreign policy are available here.  We also know Trump plans to pull the US out of the Paris Agreement that only entered into force in early November. Although Ban Ki Moon has gone on record to say that he is “sure [Trump] will understand …. [and] make a good and wise decision” and shift course on global warming and climate change, a source in the Trump campaign said it was “reckless” for the agreement to enter into force before the election.

There will be important reputational effects for the US as it seeks to withdraw from this treaty, particularly if the normal exit process is disregarded. That is to say nothing of the effect on the world’s climate. Moreover, the statement runs up against a basic tenet of international law that the legal entity in international law is the state, and the government is only the representative of the state.   The Obama Administration was clearly within its rights to sign the accord, and any “recklessless” must be attributed to Trump.    Unfortunately, Trump’s determination to upend the Iran deal may have a similar effect: destabilizing an important pact that took years to engineer while threatening to open up the nuclear race once again.

A few issues to watch as Trump takes over the presidency in the new year include the effect of a more like-minded approach between the US and Russia at the UN.   If Trump and Putin engineer a rapprochement, some of the recent deadlocks we have witnessed between the super-powers will evaporate, and may reinvigorate partnerships at the UN.   But what would this look like in practice? Less opposition to Russia’s expansionist tendencies?  Less use of the veto?   More opposition to references to human rights, protection of civilians in Security Council resolutions? Less activism? Shifting priorities for which regions the Security Council should engage with? Certainly for Syrians, the Trump presidency does not seem hopeful.   Yesterday Asad called Trump a natural ally in the fight against terrorism.

Moreover, institutions that challenge the US – take for example, the signal that the ICC may open an investigation into events in Afghanistan that implicate Americans – will both test his diplomatic mettle and provide easy fodder for critics of international institutions.   Trump’s relationship with the new Secretary General Antonio Guterres will also relevant. As both assume new leadership roles, their view on issues like migration and refugees could not be more diametrically opposed.  With two of the five P5 states (the UK and US) moving towards a more isolationist position, the global appetite for multilateralism has changed significantly, and the effects on dynamics within the UN will clearly be profound.

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

Dualism is Overrated – As is Monism: A Response to Julian Ku

by Odile Ammann and Benedikt Pirker

[Odile Ammann is a PhD candidate at the University of Fribourg, Switzerland and a visiting researcher at the University of Oxford. Benedikt Pirker is a Senior Lecturer (Maître d’enseignement et de recherche) at the University of Fribourg, Switzerland, where he teaches and does research in international law and EU law.]

In his Opinio Juris blogpost of November 3, Julian Ku contends that “dualism may save the United Kingdom from Brexit.” To make this claim, he starts by emphasizing an alleged correlation between dualism and a State’s propensity to “violat[e] international law obligations by failing to enforce those obligations (usually treaties) domestically.” However, according to Ku, the decision of the High Court of Justice of England in Wales in Miller v Secretary of State for Exiting the European Union of November 3 tells us otherwise, namely that dualism “makes it harder [for a State] to withdraw from [its] international obligations.” Ku places an emphasis on the High Court’s statement that while the conduct of foreign affairs (and more specifically “the making and unmaking of treaties”) is a prerogative of the Crown, the Crown cannot change domestic law when making use of these powers. More specifically, the Crown, in using these powers, “cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights” (Miller, paragraphs 32 and 33; see also para. 89).

We argue that, contrary to Julian Ku’s assessment, dualism is overrated – as is monism, for that matter. In other terms, the domestic procedure that governs the State’s withdrawal from its international obligations does not hinge on whether a State is monist or dualist. It may be equally difficult (or easy) for dualist States to withdraw from (or to violate) their international obligations as for monist States.

Our response has three parts. First, we show that Miller is not a case about dualism. Instead, it addresses the question of the domestic procedure that applies when the State terminates an international agreement. Secondly, neither dualism nor monism encourage (or hamper) the State’s termination of its international obligations. In a third step, we draw an example to Switzerland to demonstrate that monism creates a number of challenges, too, as regards the termination of international agreements and, more generally, State compliance with international law. We also highlight the fact that the Swiss law on the termination of treaties is similar to the procedure identified by the High Court in Miller. In short, neither monism nor dualism encourage or discourage a State’s termination of its international obligations.

I. Miller v. Secretary of State is not a case about dualism

Some passages of the High Court’s decision in Miller could indeed suggest that the case is about dualism. Besides stressing that 1. the Crown cannot, when exercising her prerogative powers to make or unmake treaties, unilaterally change domestic law (para. 32), the High Court notes that 2. domestic courts do not have the power to interpret international law, since “treaties […] are not self-executing,” (para. 33) and 3. that domestic courts cannot examine the legality of the Crown’s exercise of her prerogative powers (para. 33).

Only the second point is a consequence of dualism, however. The issue at stake in Miller does not pertain to the relationship between domestic law and international law, of which monism/dualism is only one aspect besides the issue of rank and direct effect (three distinct issues that are often conflated in practice). Nor is the question one of international law (e.g. the question of the UK’s right under international law to withdraw from the EU), as the Court rightly clarifies (para. 55 f). Rather, and as Aurel Sari’s response to Julian Ku’s post already convincingly suggests, the High Court’s decision is mainly concerned about determining the appropriate domestic procedure to trigger art. 50 of the Treaty on European Union – a procedure that does not hinge on whether a given State is monist or dualist, but rather on the domestic separation of powers.

Ku’s post is pointing at a conjunction of two facts: first, due to dualism, the United Kingdom’s treaty obligations need to be implemented by a domestic statute in order to be valid in the domestic legal order; second, under UK constitutional law, this domestic statute then takes on a life of its own, as the Crown cannot alter it unilaterally. This second point, however, is not a logical consequence of dualism. Dualism per se does not make it more difficult for a State to alter its international obligations. In monist States, domestic law may create similar hurdles, as the Swiss example shows (below, III.). 

II. Neither monism nor dualism allow inferences as to the termination of international obligations under domestic law

As Ku notes, most of us have, at some point, read that dualism encourages violations of international law, while monism is conducive to compliance with international law. However, such phrases spark confusion instead of providing clarity, and they do so for a number of reasons.

To begin with, the notion of “compliance with international law” is indeterminate, especially given the absence of an international court with general jurisdiction that could clarify what States’ international obligations require in practice. Second, monism and dualism pertain to the conditions under which an international legal obligation takes effect in the domestic legal order, but have no bearing on whether State organs 1. actually apply international law (or, in dualist States, the version thereof transposed into domestic law), 2. interpret domestic law in conformity with international law, so as to avoid normative conflicts, and 3. grant international law direct effect. Courts in monist States may be reluctant to apply international law, they may emphasize rather than downplay or avoid conflicts between domestic and international law, and they may refuse to grant international law direct effect – and vice versa. In other terms, monism or dualism should not be taken to mean more than they actually do. Thirdly, the distinction between monism and dualism is not an on-off-switch: rather, it allows for a range of intermediary forms, and whether a State is monist or dualist can vary depending on the norm, source and substantive area of international law that is at stake. One example is what Melissa Waters calls “creeping monism,” i.e. the tendency of some courts in dualist States to rely on international human rights treaties although these treaties have not been incorporated into domestic law.

Importantly, the fact that a State is dualist or monist allows no inference as to the domestic procedure that applies to the termination of international agreements. As a matter of fact, a dualist State may have an analogous procedure to a monist one, as is the case of the United Kingdom and Switzerland (below).

III. A Brief Comparison with Swiss Monism

Neither dualism nor monism have a bearing on the procedure through which States can enter into international legal obligations and withdraw from them under domestic law. Switzerland provides an illustration of this. It also shows that monism does not necessarily go along with compliance with international law (taking into account the fact that the notion of compliance leaves room for indeterminacy, see above, II.). Switzerland is a monist State: contrary to the United Kingdom, international treaties do not require to be transposed into Swiss law to have effect in the Swiss legal order.

First, the Swiss case illustrates that monism does not ensure compliance with international law. Under Swiss law, constitutional amendments must only respect “peremptory norms of international law”, while they can conflict with non-peremptory norms. This risk has materialized through a number of popular votes that have triggered constitutional amendments, while conflicting with some of Switzerland’s international obligations. Moreover, due to the special system of judicial and constitutional review in place in Switzerland, federal laws that conflict with international law must in principle be applied by the courts (art. 190 of the Swiss Constitution). The Swiss Federal Tribunal accepts that domestic laws enacted with full legislative intent to deviate from international obligations take precedence over such obligations (so-called Schubert practice), although the Tribunal has later created some exceptions to this rule, e.g. in the case of domestic laws conflicting with obligations of international human rights law or under the Swiss-EU Agreement on the Free Movement of Persons.

Second, monist and dualist States may have (at least in some respects) analogous laws as regards the domestic procedure to enter into international agreements. In Switzerland, for instance, the federal government has the competence to enter into some international treaties, considered to be “of limited scope” (art. 7a para. 2 and 3 of the Federal Government and Administration Organization Act, FGAO), without an intervention of the federal parliament. In spite of the fact that Switzerland is monist, this competence has proven controversial in some instances. One example pertains to the so-called “UBS-Agreement” of August 19, 2009, initially concluded by the federal government based on its independent powers. Shortly after the Swiss Federal Administrative Court had found that the treaty would have required the approval of the federal parliament, the parliament, in a somewhat awkward pirouette, approved the treaty a posteriori.

Moreover, and notwithstanding the monism of the Swiss legal order, the issue of which authority has the power to terminate international agreements remains unclear (see e.g. Blum/Nägeli/Peters (BNP); Keller/Balazs). Some authors argue that treaties of limited scope can be terminated unilaterally by the Swiss government, while a flexible approach with parliamentary approval is advocated fort he case of „important“ treaties (BNP, S. 542 f.). Other authors consider that parliamentary approval is always required in the context of treaty termination (see the references in Keller/Balazs, footnote 107).

The possibility of terminating international agreements is often raised in the Swiss political debate (see e.g. BNP, p. 552 with further references). Already in 1988, Swiss parliamentarian Hans Danioth requested the federal government to consider withdrawing from the European Convention on Human Rights, and even as Switzerland was celebrating its 40th anniversary of ECHR ratification, some members of the federal government and of the federal parliament were still advocating withdrawal, even if their views were isolated. Swiss voters will soon be required to express their opinion on a proposed constitutional amendment based on which existing international agreements that conflict with the Swiss Constitution must be renegotiated or terminated. On the other hand, the question as to whether a specific international agreement should be terminated is rarely explicitly put to vote, presumably due to its political sensitivity and, hence, of its slight chances of succeeding at the ballot box. The practice of some political parties to avoid the issue of termination, while triggering votes that may eventually require a renegotiation of international agreements, is criticized by some as a way of misleading voters (see e.g. BNP, p. 557).

The Swiss popular vote of February 9, 2014 “against mass immigration” shows that in practice, dualist States like the UK face similar challenges as monist States. The vote led to a constitutional amendment pursuant to which immigration must be subjected to quantitative restrictions – a regulation that flies in the face of the Swiss-EU Agreement on the Free Movement of Persons. While a “Switzerleave” is not up for discussion given that Switzerland is not an EU member, the federal government has three months left to renegotiate its Agreement on Free Movement with the EU – a situation that British negotiators may find eerily familiar.

To conclude, the power of dualism to act as a safeguard against Brexit (or, more generally, against States withdrawing from their international obligations) is overrated – as is monism. What is decisive in this regard are the mechanisms in domestic law to anticipate and address conflicts between domestic and international law. In this respect (and despite the obvious differences that exist between their respective legal orders and the international obligations they have taken on), Switzerland and the UK might well have things to learn from one another in the course of the next few months.

Trump and International Human Rights #1: The Man and the Government

by Peggy McGuinness

As I recover from the gut-punch delivered last Tuesday, I plan to get back to blogging – something I have put aside for other priorities in the past years. The times and the issues are urgent, and I am anxious to engage with our readers and colleagues around the world at what I see as an extremely fragile period for the U.S. and the globe.  Trump is not a normal president-elect, and we are not in normal times.  In that spirit I plan to resist attempts to normalize Trump. This will the first in an ongoing series on the Trump transition and US engagement with international human rights.

For over 40 years, the U.S. has maintained a bipartisan commitment to the promotion of human rights around the globe.  The depth and the breadth of that commitment has, to borrow a phrase from President Obama, zigged and zagged.  It has bent to presidential national security policies and priorities, and the scope of what is meant by “human rights” has been subject to ideological interpretation by particular administrations.  But a commitment to the broad international project of human rights has remained a constant and ingrained feature of U.S. foreign policy.  Will President-elect Trump – who campaigned on a deeply isolationist rhetoric that explicitly disclaimed an interest in the human rights practices of other states – maintain this commitment?  It will take some time to fully understand the implications of a Trump presidency on US human rights policy, but I want to start by discussing two dimensions to U.S. foreign policy engagement with international human rights:  presidential policy and the human rights bureaucracy.

Let’s be frank:  We have no idea what Trump’s “policy” on human rights – or much else for that matter – will be, since he campaigned on virtually no policies in the traditional sense.  So we start with Trump himself.  We know that he is a man who has acted and spoken as a bigot, sexist and misogynist.  He is a man who admires authoritarian and anti-democratic regimes.  He is a man who has – at least implicitly if not explicitly – emboldened racists and anti-Semites among his supporters, groups that are a very small but sadly resilient element of American politics.  And he has among his closest advisers leaders of the so-called alt-right movement that fuels vile conspiracy theories, including the racist “birtherism” movement against President Obama that Trump himself used as the platform that launched his political campaign.  He has never, as far as I am aware, in his long public life, expressed genuine empathy or concern for the suffering of others.  And the scope of his business interests, the details of which remain largely undisclosed, poise him to embody as president the kind of personal corruption and conflicts of interest that the U.S. usually makes the focus of its anti-corruption and good governance efforts. He has acted and spoken in ways that would subject him, quite properly, to criticism and condemnation by the U.S. government if he were a foreign leader.  Trump, the man, is no defender of human rights.  At best, Trump is an empty vessel, a self-absorbed “bullshit artist” (hat tip:  Fareed Zakaria). At worst, Trump’s contempt for democratic norms and institutions poses a serious danger to American democracy and his rhetoric and behavior will completely undermine the ability of the U.S. to speak with any authority – moral or otherwise —  on questions of human rights.

Given the range of possibilities here, my first question is whether Trump can be constrained, in the ways Michael Glennon argues all presidents are constrained(and in the way Deborah suggested earlier), by the institutions of the government he will lead?  Throughout the executive branch, at the Departments of State, Defense, Homeland Security, Labor, Commerce and Justice, as well as the intelligence agencies and the national security staff at the White House, hundreds of lawyers, diplomats and other government officials monitor and report on the human rights practices of governments all over the world.  Hundreds more work on creating, funding and implementing projects designed to promote human rights, democracy and the rule of law .  This federal “bureaucracy of international human rights” cannot be easily or swiftly dismantled.  The central human rights institutions and networks within the Executive Branch (the Bureau of Human Rights Democracy and Labor, for example) are creatures of statute and of congressional funding priorities.  And it is not clear the Republican House or Senate are interested in eliminating or restructuring of these.  Keep in mind that funding for democracy promotion and other rule of law programs was a favorite of the George W. Bush administration.

The Republican party platform suggests that one dimension of the US commitment to human rights may receive special attention: International Religious Freedom. The US Commission on International Religious Freedom – a favorite of the evangelical right — will continue to be funded, and the platform further states:

At a time when China has renewed its destruction of churches, Christian home-schooling parents are jailed in parts of Europe, and even Canada* threatens pastors for their preaching, a Republican administration will return the advocacy of religious liberty to a central place in its diplomacy, will quickly designate the systematic killing of religious and ethnic minorities a genocide, and will work with the leaders of other nations to condemn and combat genocidal acts.

(*I am not familiar with the anti-religion policies in Canada that are referenced here, but maybe a reader can help me out.)  This is a robust statement in favor of reinforcing the UDHR and ICCPR rights that are mentioned in the 1998 International Religious Freedom Act, the statute that created both USCIRF and the office of International Religious Freedom at the State Department. But it also includes some strong language regarding genocide that would trigger  U.S. obligations under the Genocide Convention.  The platform goes on to endorse continuing engagement on anti-human trafficking programs (and, presumably, continuing the annual trafficking report required by Congress).  As to the broader question of human rights diplomacy, the platform states:

The United States needs a radical rethinking of our human rights diplomacy. A Republican administration will adopt a “whole of government” approach to protect fundamental freedoms globally, one where pressing human rights and rule of law issues are integrated at every appropriate level of our bilateral relationships and strategic decisionmaking. Republican policy will reflect the fact that the health of the U.S. economy and environment, the safety of our food and drug supplies, the security of our investments and personal information in cyberspace, and the stability and security of the oceans will increasingly depend on allowing the free flow of news and information and developing an independent judiciary and civil society in countries with repressive governments such as China, Russia, and many nations in the Middle East and Africa. 

Supporting rule of law projects that promote the “free flow of news and information” and develop “an independent judiciary and civil society” is precisely what the human rights bureaucracy within the Executive has been doing for at least three decades under presidents of both parties.  But if the Republicans want to pitch this as a “radical rethinking,” that’s fine by me.  (They may even want to share their view on a free press with the President elect.)

Taken together, I think it unlikely that the Trump administration will dismantle the bureaucracy of human rights – at least not soon, and certainly not in areas that are important to the Republican Congress.  But unlike the national security functions whose purpose lies at the heart of immediate security and safety of the American people, the human rights bureaucracy can be deeply damaged by the tone and priorities set by the President and his key foreign policy appointees – State, Nat’l Security Adviser, DHS, and the UN Ambassador, among others.  And of course, more than ever, the actual human rights practices of the U.S. at home – issues of domestic rule of law, criminal justice, gender equality, LGBT rights – will either strengthen or weaken the ability of the U.S. to practice human rights diplomacy abroad.  Appointments at the Dept. of Justice and nominees for the bench will send the clearest signal on that front.

 

 

 

The Unknown Unknowns

by Deborah Pearlstein

While I would like to be able to offer some meaningful insight into what we might expect from the foreign policy of Donald Trump, I don’t think it’s possible to overstate at this stage the depth of current uncertainty surrounding what he will actually do. Part of this uncertainty is a function of his preternatural ability to take every position on every topic. (Latest case in point: After Trump repeatedly criticized NATO as overpriced and obsolete over the course of his campaign, we learned from President Obama today that Trump assured the President in their oval office meeting that “there is no weakening” in America’s commitment “toward maintaining a strong and robust NATO alliance.”) Another part of the uncertainty flows from the apparent depth of Trump’s own ignorance of the possibilities of the executive branch. (Again only the most recent example, the Sunday Wall Street Journal reported of Trump’s meeting with President Obama: “Mr. Trump seemed surprised by the scope [of the duties of running the country], said people familiar with the meeting. Trump aides were described by those people as unaware that the entire presidential staff working in the West Wing had to be replaced at the end of Mr. Obama’s term.”)

And then there is the scope and strength of the federal bureaucracy – the career professional staffs of the Departments of State, Defense, Justice, Homeland Security, the intelligence agencies, and more – who, to judge by both newspaper reporting and my entirely non-scientific and idiosyncratic Facebook feed, are grappling mightily with whether to stay or go in the face of extraordinary new leadership. As U.S. Presidents have found time and again (and as I’ve written about in the context of the military in particular, e.g., here), this apparatus makes it difficult sharply to turn the ship of state even with the clearest of intentions and the greatest of bureaucratic skill. There is little indication (as yet) that the incoming administration has either. This is hardly intended to offer comfort or reassurance; I am incapable of greeting with anything but dread the election of a President who has, for example, openly advocated policies that would violate the law – including torturing prisoners with waterboarding “and a lot worse,” and killing the families of those he thinks threaten the United States. It is intended as a check on my own worst speculative instincts. And as a plea to those who are part of that apparatus to start out, at least, by trying to stay.

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

by Chris Borgen

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

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

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

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

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

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

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

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

Now, here’s what the Calexiters argue:

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

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

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

Julian answered the domestic law question in his post.

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

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

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

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

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

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

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

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

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

Would Secession by California and Oregon Be Legal?

by Julian Ku

imgresFollowing Donald Trump’s stunning election victory, ballot measures are already being proposed in California and Oregon to secede from the United States.  Ordinarily, one can just chuckle at these measures as the actions of a radical fringe, but it would be hard to overestimate the depth of anger and opposition to a President Trump in states like California, where he lost by probably 20 percentage points.  If such a measure got on the ballot, we might see a serious campaign akin to Scotland’s 2014 referendum on staying in the United Kingdom.

But it seems settled under US constitutional law that unilateral secession from the United States is unconstitutional.  In the 1869 case Texas v. White, the U.S. Supreme Court ruled:

When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Some might argue, however, that a unilateral secession by California is authorized by the international law right of self-determination.  This is a much more difficult point to analyze, but I think that neither California nor Oregon would qualify to exercise this murky international law right, at least with respect to seceding.  The Canada Supreme Court’s decision in the Quebec case is probably most on point here.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

In other words, international law guarantees to every state its “territorial integrity” and it can’t be overridden by “self determination” unless serious freedoms or discrimination against residents in the seceding region are being infringed.  Moreover, this right has generally only been exercised by states under colonization or foreign occupation.  The right might also exist if the state is facing the threat of egregious human rights violations (e.g. Kosovo), but the right in even that circumstance is controversial globally.

But I will admit I am not an expert on the international law of self-determination. If anyone has a good argument for why California or Oregon qualifies to exercise this right under international law, please feel free to share in the comments.

So I am going to go out on a limb here to say that a referendum to secede California or Oregon from the United States is both unconstitutional and unauthorized by international law.  Still, just getting such a measure on the ballot would be significant because they would force the U.S. government to take a position on the legality of such measures. This could affect US government positions on foreign self-determination movements in places like Hong Kong, for instance.

We live in interesting (and dangerous) times.

Opinio Juris and the Trump Presidency

by Chris Borgen

A couple of weeks ago a group of Opinio Juris bloggers held a round-table discussion at St. John’s University Law School about the international law and policy issues facing the next American President. In front of a full room, we considered issues ranging from relations with China and Russia, to the future of national security policy, human rights, international trade agreements and the UN.  We fielded questions from the audience, went past our scheduled closing time, and still had not answered all the questions in the room. It was clear that there is a need and a desire for intelligent discussion on these and other issues of international law and U.S. policy. There were, and are, significant questions of law and policy before the American public.

Now we know who the next President will be. Sustained and informed commentary about international law and the United States’ role in the world has never been more relevant.  We founded Opinio Juris as a forum for engaged and intelligent discussion on a broad range of international legal issues.  We have fostered a dialogue with voices from varying political, legal, and national perspectives. Among the hundreds (if not thousands) of issues we have covered, we have had commentary by sitting Department of State Legal Advisers on Bush Administration policies in the War on Terror and also concerning the U.S. operation against Osama Bin Laden during  the Obama Administration, as well as expert observations from the negotiations in Paris leading to the climate change agreement (see, for example, 1 and 2), examinations of the development of international criminal law, analyses of the  work of international courts and tribunals, emerging technologies and international law, and conversations about U.S. policy on the conflict in Syria. For the last eleven years we have tried to reflect upon the breadth and depth of international law and policy.

As the U.S. begins its transition into what will be the Trump Administration, we will continue to provide commentary that is informed by expertise in international law and is engaged with the policy debates of our time. A brief scan of the list of initiatives Donald Trump listed in October as the priorities for his first 100 days in office is full of international legal implications. He stated that on his first day in office, among other things:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator

* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately…

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America’s water and environmental infrastructure

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

* THIRD, cancel all federal funding to Sanctuary Cities

* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

This is only part of the list. For example, other statements from President-elect Trump or his surrogates have concerned whether the new administration would honor U.S. obligations under the Geneva Conventions and international humanitarian law, the future of NATO, and commitments to address climate change, to take three examples.  As the transition proceeds and President-elect Trump’s actual agenda takes shape, we will assess and address the international legal issues implicated by his proposals and stances. More generally, we will continue to thoughtfully consider the expansive international legal and policy issues facing the U.S. We hope to add to an informed public discourse.

We started this website as a forum for debate and discussion about international law and policy. Almost 10,000 posts later, this conversation has never been more important and we look forward to hearing what you have to say in the days and weeks to come.