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Weekend Roundup: April 11-24, 2015

by Jessica Dorsey

The last two weeks of posts at Opinio Juris have seen several items from Julian, including on his favorite treaty reservation ever in the Hague Child Support Treaty and more on the HCST and the role of US states here. He also asked the burning question of whether the new “Bipartisan Trade Priorities and Accountability Act”  violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

Kristen highlighted the new report entitled “Nuclear Weapons: the State of Play 2015” ahead of the upcoming NPT review conference, while Kevin weighed with his thoughts on the current petition at NYU to keep Harold Koh from teaching human rights (here and here).

We featured two guest posts, the first from William S. Dodge discussing whether the Alien Tort Statute is headed back to the US Supreme Court and the second from Natia Kalandarishvili-Mueller on Russia’s treaties with Abkhazia and South Ossetia, Georgia.

I wrapped up the news (here and here), offered the Events and Announcements here, and An did so here.

Thanks for following us on Opinio Juris and have a fantastic weekend!

Weekend Roundup: March 8-14, 2015

by Jessica Dorsey

This week on Opinio Juris, we saw some analysis on the recent letter sent by US Republicans to Iran. Julian kicked off the discussion by pointing out the (unnecessary?) letter explaining the US Constitution and foreign relations law and Peter questioned whether the letter might be unconstitutional and even criminal. Julian offered further thoughts about why the Congress should be involved in the process, after Iran responded to the letter. Duncan spelled out the President’s options for dealing with Iran, with a focus on international commitments and domestic authority to commit the US internationally and Julian found a workaround toward a legally binding solution via a Security Council resolution on the matter.

Kevin added a few of his thoughts on the recent domestic conviction by the Ivory Coast of Simone Gbagbo and complementarity at the ICC, and offered a mea culpa on the Israeli attacks on Hezbollah in 2006. Finally, Tom Ruys offered a response to a recent discussion with his guest post on self-defense and non-state actors in the Cold War Era. We saw a lot of discussion on all the posts this week in the comments.

I wrapped up the news here and listed the events and announcements here.

Thanks for following us and have a great weekend!

The Security Council Workaround: How the Iran Deal Can Become Legally Binding Via a UN Security Council Resolution

by Julian Ku

Since the United States has made clear that its “deal” with Iran will NOT be a binding legal commitment under international law, one wonders what all the fuss over the Iran Letter from US Senators was about. As Duncan explains in his great post below, there is little doubt that the President can enter into a nonbinding “political commitment” and withdraw from it without violating international law.  Confusingly, though, Iran keeps talking as if there is going to be a binding international legal commitment.

The answer to this confusion appears to be that the US government plans to make a non-binding political commitment, and then take this commitment to the UN Security Council to get it “carved into marble” as a Security Council resolution that would be binding under international law.  Jack Goldsmith explains in detail at Lawfare how this might happen, and why this is constitutional (if also kind of sneaky).  The President gets to both avoid going to Congress AND get a binding legal obligation on Iran.

Of course, a future President could choose to withdraw or defy the UN Security Council resolution, but the legal and diplomatic costs would be much higher than withdrawing from a mere political commitment.  Congress could also, unquestionably, override any domestic legal effects of a UN Security Council Resolution by passing a statute refusing to lift sanctions on Iran, or stopping the President from doing so.  Diggs v. Shultz makes clear that a statute passed by Congress later in time than a Security Council resolution will have the force of law by operation of the last in time rule.  But the legal and diplomatic costs for doing so would also be higher than for a mere political commitment or even a bilateral executive agreement.

So the Administration has a plan to avoid Congress and get its deal sanctified by international law.  Pretty clever lawyering, although I (like Goldsmith) expect some serious political blowback from Congress.

Guest Post: Self-Defence and Non-State Actors in the Cold War Era – A Response to Marty Lederman

by Tom Ruys

[Tom Ruys is professor of international law at Ghent University. He is the author of ‘Armed Attack’ and Article 51 of the UN Charter (CUP: 2010) and co-editor-in-chief of the Journal on the Use of Force and International Law.]

In a previous post on OJ, Kevin Jon Heller talked about the Israeli intervention in Lebanon in 2006 and its relevance from a jus ad bellum perspective. The post gave rise to a discussion between Kevin and Marty Lederman revolving essentially around the legality of self-defence against attacks by non-State actors in the Charter era. Kevin takes the position that throughout the Cold War attacks by non-State actors were generally only regarded as ‘armed attacks’ in the sense of Article 51 UN Charter inasmuch as they could be imputed to a State. In this context, Kevin among others things quotes a section of my book from 2010. Marty, on the other hand, claims that ever since the 1837 Caroline affair, States have always regarded attacks by non-State actors as ‘armed attacks’ (irrespective of any State involvement), which may trigger the right of self-defence if the necessity and proportionality requirements are met. He adds that there is no clear evidence from the Cold war era to suggest that States have come to embrace a prohibition on the exercise of self-defence against non-State attacks since 1945. Marty notes en passant that the excerpt from my book contains ‘no references to any state practice or opinio iuris’ that would support Kevin’s position. Yet, if this is indeed the case, it is because the excerpt is merely the conclusion of a much more extensive chapter, which does contain ample illustrations in terms of State practice and opinio (similar and other references can moreover be found in the excellent analyses by Olivier Corten (Law Against War) and Christine Gray (International Law and the Use of Force)).

Upon a closer reading of Marty’s comments, I doubt we can find much common ground, since our points of departure seem diametrically opposed. Marty’s view rests on the presumption that pre-Charter precedents, such as the Caroline case, are ‘incorporated’ in Article 51 UN Charter. I essentially agree that the Caroline case has largely constituted the source of inspiration for the customary requirements of necessity and proportionality in the context of the right to self-defence. That is not to say, however, that what was considered permissible back in 1837, was still deemed permissible in 1945. Quite the contrary, even if we leave aside the fact that recourse to war was still regarded as a lawful means of settling inter-State disputes in the 19th century, the 19th-century understanding of self-preservation was much broader than the modern concept of self-defence, which developed only gradually in the early 20th century. The modern jus contra bellum is a product of the late 19th and mostly early 20th century. Up until 1912, Oppenheim stated without hesitation that intervention ‘in the interest of the balance of power’ must ‘obviously’ be excused, since ‘an equilibrium between the members of the Family of Nations is an indispensable condition of the very existence of International Law’ (International Law, 2nd ed.). In other words: pre-Charter precedents must be put into perspective. Instead of relying on 19th-century precedents, the proper course in dealing with this conundrum is to look at the Charter provisions and at evolutions in State practice in opinio juris since 1945.

Below are some cursory comments that tend to support Kevin’s position:

The adoption of the UN Charter and its aftermath

Even if some official statements and some draft versions of Article 51 refer to ‘attacks by one State against another’, the problem of non-State attacks was widely overlooked at the San Francisco Conference. Still, there are various indications that self-defence in the early Charter era was essentially construed as applying to attacks by one State against another. Kunz, for instance, in 1947 wrote that an armed attack ‘must not only be directed against a State, it must also be made by a State or with the approval of a State’ ((1947) 41 AJIL, 878). And the 1949 Report of the US Senate Committee on Foreign Relations on the North Atlantic Treaty contains the following observation: ‘[T]he words ‘armed attack’ clearly do not mean an incident created by irresponsible groups or individuals but rather an attack by one State upon another… However, if a revolution were aided and abetted by an outside power such assistance might possibly be considered an armed attack.’

Article 3(g) of the Definition of Aggression

Marty Lederman dismisses the idea that the Article 3(g) of the Definition of Aggression renders any support to Kevin’s position, since it ‘doesn’t say a thing about whether and in what circumstances IL prohibits State A from attacking the armed group in the territory of State B.’ That is perhaps textually correct, but if one takes a closer look at the debates within the Fourth Special Committee on the Definition of Aggression, it becomes obvious that the precise wording of this provision had everything to do with the underlying effort to find a compromise on the scope of Article 51 UN Charter (e.g., Italy: ‘The main concern was whether the right of self-defence should apply in cases of indirect aggression…’ UN Doc. A/AC.134/SR.52-66, 100). It all started with the following clause in the draft ‘Thirteen-Power proposal’: ‘When a State is victim in its own territory of subversive and/or terrorist acts by irregular, volunteer or armed bands organized or supported by another State, it may take all reasonable and adequate steps to safeguard its existence and its institutions, without having recourse to the right of individual or collective self-defence against the other State under Article 51 of the Charter’ (Article 7, UN Doc. A.AC.134/L.16). The draft clause fuelled an intense debate over the circumstances in which ‘indirect’ aggression might or might not trigger the right of self-defence. It is thus not too surprising to see that the ICJ used Article 3(g) of the Definition of Aggression in its Nicaragua case as the relevant threshold to determine whether attacks by non-State armed groups could justify the exercise of self-defence. What was surprising, however, about the Court’s approach, was that the Court gave a restrictive interpretation to Article 3(g) by excluding the provision of ‘logistical or other support’ (thus by and largely confining the applicability of Article 51 UN Charter to attacks imputable to a State, leaving little or no room for other forms of ‘substantial involvement’).

State practice in the Cold War period

If we look at State practice prior to 1980, in particular to the interventions by Israel, Portugal and South Africa in neighbouring countries, it is quite clear that State invoking the right of self-defence to justify cross-border military action against non-State actors generally claimed that the other State had somehow ‘sent’ the perpetrators of the initial attacks. By contrast, self-defence claims relying on active or passive support to armed bands or ‘terrorists’ operating on a more autonomous basis, did not meet with legal acceptance from third States. There is no evidence from the early Charter years to suggest that attacks by non-State armed groups could as such qualify as ‘armed attacks’ (irrespective of any State involvement).

It is only in the 1980s and the 1990s that this situation began to change as Israel, and subsequently the United States, increasingly began to claim a broader right to exercise self-defence against attacks by non-State actors (absent State imputability). This evolution must be seen against the background of an evolving political climate, viz. the (quasi-)completion of the decolonization process, and the growing recognition of terrorism as a threat to international peace and security. Cases such as the Israeli raid against the PLO headquarter in Tunis nonetheless illustrate that these claims initially met with a lukewarm, if not outright negative, reaction from third State (e.g., UN Doc. S/PV.2613, § 115 (Greece: ‘Acts of terrorism cannot in any way serve as an excuse for a Government to launch an armed attack on a third country’.).

State practice after the Cold War era and the 9/11 attacks

Marty stresses in his comments that the excerpt from my book contains ‘no references to any state practice or opinio iuris’ from the Cold war era affirming the need for State imputability (or at least State involvement) for attacks by non-State actors to trigger the right of self-defence. By contrast, he suggests the same excerpt refers to a ‘considerable number of interventions’ as well as ‘numerous security doctrines and official statements’ supporting the opposite view that non-State attacks can ipso facto amount to ‘armed attacks’ in the sense of Article 51 UN Charter. These references, however, relate to the post 9/11-era, not to the early Charter years. I readily acknowledge – and here I must depart to some extent from the position of Kevin – that there have been significant evolutions in State practice and opinio juris (cf. the Israeli intervention in Lebanon in 2006 or the strikes against IS in Syria). Yet, I fully agree with Kevin that this evolution is of a relatively recent nature and does not alter the fact that for most of the Charter era attacks by non-State armed groups were not, of themselves, regarded as ‘armed attacks’ triggering the right of self-defence. I hesitate to confirm whether this broader interpretation of the concept of ‘armed attack’ (as encompassing attacks by non-State actors absent any form of State involvement) has become lex lata. Suffice it to say that State practice seems to be heading in that direction (if the ICJ had taken the opportunity to confirm this trend in DRC v. Uganda or Palestinian Wall, we would not be having this discussion), and that the US-led military operations against IS have given rise to quite a number of interesting expressions of opinio juris of various States (for a comprehensive overview, readers may wish to keep an eye on the forthcoming Digest of State Practice in the Journal on the Use of Force and International Law).

(One final thing: like Marty and others I believe an ‘unable and unwilling’ test must be regarded as an aspect of the necessity assessment. By contrast, the question whether there is need for State imputability, or some other form of ‘substantial involvement’ by a State, for cross-border attacks to trigger the right of self-defence, has to do with the interpretation of the concept of ‘armed attack’.)

Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement

by Kevin Jon Heller

Another complementarity fight is brewing, this time between the ICC and Cote d’Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however, Gbagbo was convicted in an Ivorian court and sentenced to 20 years imprisonment on very different charges:

A court in Ivory Coast has sentenced Simone Gbagbo, the wife of the former president Laurent Gbagbo, to 20 years in prison for her role in a 2011 post-election crisis in which around 3,000 people were killed, her lawyer said.

Simone Gbagbo, who is also wanted by the international criminal court, was tried alongside 82 other allies of her husband in a case that revived deep divisions in a nation still recovering from years of political turmoil and conflict.

Gen Bruno Dogbo Ble, who headed the elite republican guard, and the former navy chief Admiral Vagba Faussignaux were both jailed for 20 years, according to their lawyer, while others got shorter sentences. Michel Gbagbo, the former president’s son, was sentenced to five years.

Supporters of Laurent Gbagbo, whose refusal to acknowledge his defeat to Alassane Ouattara in elections in late 2010 sparked the brief civil war, claimed his wife’s trial was politically motivated.

“The jury members retained all the charges against her, including disturbing the peace, forming and organising armed gangs and undermining state security. It’s a shame,” said Simone Gbagbo’s lawyer, Rodrigue Dadje.

Cote d’Ivore will no doubt now file an admissibility challenge with the ICC, claiming that they do not have to surrender Gbagbo because  Art. 17(1)(c) of the Rome Statute provides that a case is inadmissible if “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” Art. 20(3) specifies that, as long as the trial is genuine, “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”

I do not know the precise conduct that underlies Gbagbo’s domestic conviction. But it seems highly likely that the “undermining state security” and “organizing criminal gangs” charges were not based on substantially the same conduct as the ICC’s crimes against humanity charges. If not, the case will still be admissible before the Court, because Art. 20(3) explicitly permits the ICC to prosecute conduct different than the conduct underlying a domestic conviction. That specific provision has never been litigated, but the judges are very unlikely to read Art. 20(3) more expansively. After all, in the context of cases still under investigation at the domestic level, the Appeals Chamber specifically held in the Kenya cases that the domestic investigation must focus on “substantially the same conduct” as the ICC’s investigation:

The defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(l)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.

Here is my question: what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t. As I have argued at length in my essay “A Sentence-Based Theory of Complementarity,” the ICC simply cannot afford the kind of hyper-formalism that underlies both the “same conduct” requirement and Art. 20(3). In my view, the Court should defer to any national prosecution that results (or any national investigation is likely to result) in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s investigation. The upcoming Gbagbo complementarity fight, I think, will likely illustrate why my theory of complementarity makes sense.

Finally, it’s worth noting that should the ICC agree with me, it does in fact have an out — Art. 89(4) of the Rome Statute, which provides as follows:

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Nothing in the Rome Statute seems to prohibit the Court from deciding, after such a consultation, to let the suspect serve his or her domestic sentence prior to — or even instead of — requiring the state to surrender the suspect to the Court. I hope the ICC will consider such a decision regarding Gbagbo. It has nothing to gain by forcing Cote d’Ivoire to turn her over.

Dealing with Iran: A Primer on the President’s Options for a Nuclear Agreement

by Duncan Hollis

Without weighing in on the merits of any deal with Iran on nuclear matters, I’ll express some frustration over the rhetoric used in the current firestorm between the White House, 47 Senators (plus Governors Perry and Jindal), Iran’s Foreign Minister, and the 4th Estate on what kind of deal the United States might conclude with Iran and the so-called P5+1 (the UK, France, China, Russia and Germany).  There seems to be a great deal of confusion and conflation of issues in terms of the legal logistics of concluding any deal.  Now, maybe some of that is willful — obfuscation in service of each side’s political goals.  But, on the chance that some of those weighing in are under-informed on the actual issues and options available, I thought I’d offer a (brief) primer on what the actual options are in this case and how those options may limit/shape U.S. behavior.

For starters, it’s critical to differentiate the question of how nation states can reach agreement from the question of how a domestic legal system authorizes a State to enter into agreements (let alone what effect it gives them).  As such, I think the conversation needs to split off the question of (1) what kind of international deal this will be; from asking (2) what authority does the United States have (or will it need) to conclude such a deal as a matter of U.S. law.  Let’s take each angle separately.

International Commitments

When it comes to nation States entering into an agreement (that is, a mutual commitment of shared expectations as to future behavior), there are actually three basic options States can choose: (a) a treaty; (b) a contract; or (c) a political commitment.

(a) a treaty:  The treaty is a (relatively) well understood vehicle that rests on international law for its authority and effects.  Article 2(a) of the Vienna Convention on the Law of Treaties (VCLT) defines a treaty as

an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

There’s some nuance to this definition, which I’ve explained in the Defining Treaties chapter of my book.  But for our purposes, it suffices to note that the VCLT lays out who has authority to make a treaty (i.e., heads of state and government, foreign ministers and those with full powers) and how they can do so (i.e., by signature, ratification, accession, acceptance, approval or any other agreed means).  Once formed, a treaty is subject to the general (and fundamental) principle of pacta sunt servanda — treaties are “binding upon the parties to it and must be performed by them in good faith.” Domestic legal obligations are not recognized as a basis for breaching treaty commitments, with one exception.  Article 46 provides that

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 46, however, has proven relatively limited in its availability to States as an exit option; the one time it got raised before the ICJ, the Court suggested that States are not obliged to keep track of other states’ legislative and constitutional regulations on treaty-making and that a violation could not be manifest “unless at least properly publicized.”   Given the varied ways the U.S. authorizes treaties (discussed in more detail below), it’s hard to imagine a later Administration being able to invoke Article 46.  Indeed, if U.S. foreign relations scholars can’t agree on the ground rules for when specific treaty-making procedures are required (or prohibited), I’m hard pressed to say other countries should be able to identify a manifest violation in a case where the Executive branch pursues one specific procedure over others.

(b) a contract:  Interstate commitments can also be contracts instead of treaties. Contracts, like treaties, are considered legally binding, but differ from them in that contracts rely on domestic law as the source of their “bindingness” instead of being governed by international law as treaties are. Still, governments from time to time will do deals (e.g., one State selling helicopters to another) where the agreement specifically indicates its terms are governed by, say, the “law of New York.” This doesn’t seem to be on the table with Iran though, so I’ll reserve to a latter date more detailed analysis of how contracts and treaties differ. 

(c) a political commitment:  The third — and final — option for agreements among States is a “political commitment.”  Some scholars prefer to call it “soft law,” but for reasons Josh Newcomer and I elaborated in our article on political commitments, I think that term is a bit of a misnomer. The basic idea is simple — states can make agreements where the basis of their commitment does not rest on law, but “political” (or perhaps “moral”) forces.  In a political commitment, the fact of the promise itself motivates compliance rather than importing the sanctity of law and its legitimacy to do so. Non-legally binding commitments have now been a feature of international relations for more than a century, and include some pretty high-profile agreements, including the Shanghai Communique, the Helsinki Accords, the recent US-China Deal on Climate Change, and the Comprehensive Joint Plan that started this whole set of negotiations with Iran.  Moreover, as Josh and my article details, these commitments exhibit a tremendous diversity in terms of the form they take, the substantive commitments they contain, the extent to which they establish or implicate institutions, not to mention their varied relationships to other legal and non-legal commitments.

Traditionally, political commitments are seen as distinct from treaties in terms of being (i) more flexible; (ii) less credible because exit options are easier; with (iii) greater opportunities for confidentiality; and (iv) fewer domestic legal hurdles to their formation.  The actual variation in political commitments suggests, however, that these differences may be over-stated — today’s practice suggests that there is some significant overlap in what political commitments and treaties do.  For example, it may have been true at one time that treaties were necessarily less flexible than political commitments, but with the advent of tacit amendment procedures, treaties have gained in flexibility, while some political commitments have become more highly structured and inflexible in terms of the precision or normativity of their contents or the institutional structure in which they operate.  The one area where political commitments appear to hold a distinct advantage (or disadvantage depending on your perspective) is with the relatively weak domestic law attention they receive.  As Josh and I concluded in our article — a point reiterated earlier today by Jack Goldsmith and Marty Lederman, states like the United States have imposed few (if any) legal restrictions on the Executive’s ability to enter into political commitments.

Domestic Authorities to Commit the United States Internationally

In Article II, Section 2, clause 2 of the Constitution, the President has the “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”  If one were to take up the issue de novo, you might think this text requires that all treaties the United States wishes to conclude under international law have to proceed to the Senate.  In practice, however, Senate Advice and Consent has become one of only four ways the United States may gain authority to enter into a treaty (in the international law sense of that term).  Add in the possibility that the Iran deal might be a political commitment, and there are actually five options for how U.S. law might authorize a deal with Iran: (i) Senate Advice and Consent; (ii) a Congressional-Executive agreement; (iii) via an existing Senate Advice and Consent treaty; (iv) a sole Executive Agreement; or (v) a political commitment.

(i) Senate Advice and Consent Treaty.  If the United States concludes a treaty (in the international law sense of the term) with Iran and the P5+1, President Obama could send that treaty to the Senate for advice and consent, and, assuming the Senate agreed (with or without reservations, understandings or declarations), the President would then clearly have constitutional authority to consent to the deal.  Senate advice and consent is much less used compared to the past (less than 10% of modern treaties go through the Senate), although it should be noted that almost all past arms control agreements have received Senate advice and consent.  Still, given the general stalemate that has pervaded the Senate’s role in treaty-making the last few years, this seems a complete non-starter as a path forward, particularly with 47 Senators on record against virtually any deal involving Iran.

(ii) Congressional-Executive Agreement:  The President could gain authority to conclude a treaty (again, in the international law sense of that term) with Iran and the P5+1 via Congress instead of the Senate alone.  A simply majority vote of both Houses could enact a bill that with the President’s signature would become federal law and thus create legal authority for the United States to conclude (and perform) an Iranian treaty.  As a practical matter, congressional consent can be ex ante or ex post, but again, domestic politics in this case countenances against this being a likely option (even though today the vast, vast majority of U.S. treaty commitments under international law rely on one or more statutory authorities for their formation).

(iii) via an Existing Senate Advice and Consent Treaty:  Article VI of the Constitution treats both statutes and treaties (i.e., those receiving Senate advice and consent) as the “supreme law of the land.” Thus, just as a statute could authorize President Obama to conclude an international agreement with Iran, so too could a pre-existing Senate advice and consent treaty.  So far, I’m not aware of any nominations for an existing U.S. treaty that could do this (but someone might want to carefully parse the 1955 Treaty of Amity and Peace with Iran if it’s still in force (it’s not listed in Treaties in Force)).   Or, this might be a way forward if, as Marty and Jack hint, the Executive branch concluded the deal with Iran as a political commitment, but then had it endorsed by the U.N. Security Council pursuant to its Chapter VII authorities.  In that case, legal authority to conclude the deal might reside in the U.N. Charter itself since the Senate long ago gave consent, subject to a U.S. veto, to Security Council measures to preserve international peace and security.  As such, I don’t think we can dismiss this option as much as it might seem inapplicable at first glance.

(iv) Sole Executive Agreement:  The President may rely on his own Constitutional powers (e.g., as commander in chief) to authorize a U.S. treaty commitment.  In practice, this is rarely done as the State Department will usually try to also locate authority in at least one federal statute (even something as bland as Congress’ authorization of State Department responsibility for foreign affairs).  That said, the Supreme Court has endorsed the President’s ability to conclude certain treaties as sole executive agreements, although often in the face of congressional acquiescence, not outright opposition.  So, one might imagine this option would generate some inter-branch litigation if the Republican-controlled Congress rejects reading the president’s powers to include whatever sort of commitments are contained in any agreement the United States concludes with Iran.  Still, if the deal is to be a treaty under international law, this seems the most likely basis for authorizing it under U.S. law.  As Fred Kaplan noted yesterday, and Secretary Kerry apparently suggested a few hours ago, all the attention on treaties may have been misplaced and an entirely different deal might be at work here, namely a political one.

(v) Political Commitment;  It’s possible that the White House is looking for a political commitment with Iran and the P5+1.  If so, then all the machinations about forming a treaty under international law, and, just as importantly, the relatively robust set of domestic approval options for treaty-making, are inapplicable.  Although Josh and I argued that functional similarities between treaties and political commitments should require a Congressional role in the formation of at least some political commitments, I concede that Marty and Jack are correct that at present it’s hard to say this is the law of the United States.  On the contrary, today, it still appears that political commitments by their very nature do not implicate any of the domestic legal, procedural hurdles associated with treaties and thus may be a path forward for the United States to do a deal with Iran without worrying about the views of either the Senate or Congress as a whole.

That said, if the United States is actually going to argue it is concluding a political commitment with Iran and not a treaty, I want to conclude with two important caveats on the international and domestic aspects of such a deal that I’ve not seen mentioned previously.

First, a political commitment must be a political commitment for all sides, not just one side.  There’s much ambiguity in the U.S. and Iranian statements surrounding some of the negotiations, and it’s possible to read some of yesterday’s press briefing to suggest a deal where the United States would have only a political commitment while Iran was legally bound to perform its promises (see, for example, the carefully worded “verifiable and enforceable commitments” language used). That, however, is not an available option in international law.  Either the agreement is a treaty for all parties or its a political commitment for all participants.  I am unaware of any case where the nature of the agreement varies for the parties to it (that is it was a treaty for one state and a political commitment for everyone else).  Certainly, there have been disputes in the past as to the status of a particular agreement, with the ICJ and international arbiters called upon to weigh in on whether the deal struck gave rise to international legal obligations or not.  And it’s also possible for a treaty to contain not just legally binding commitments but also political ones (see, e.g., Article 1 of the Algiers Accords).  But, a stand-alone political commitment is, by definition, mutually exclusive from the international legal commitment that defines a treaty.  As such, once an agreement contains at least one commitment intended to be governed by international law, it’s a treaty not a political commitment.  Indeed, unlike contracts, treaties do not require consideration.  Thus, a treaty can exist where only one side (e.g., Iran) makes all the promises to do (or not do) certain things. Taken together, this suggests that, unless the United States is making some new, novel move to unsettle the existing forms of international commitment, its suggestion that it is pursuing a political commitment with Iran should mean that none of the commitments will give rise to any international legal obligations in and of themselves (there may be separate estoppel arguments, but let’s save those for another post).

Second, turning to the U.S. domestic context, it may be true that the Constitution does not require any particular approval procedure for political commitments, but it is also true that the Senate retains significant political power to pressure the President to pursue a treaty over a political commitment or even to insist on having a treaty submitted for Senate advice and consent in lieu of simply relying on Executive Power.  For example, before it became the Senate-approved Moscow Treaty, President Bush had apparently considered the possibility of doing the deal with Russia as either a political commitment or a Sole Executive Agreement.  But the Senate objected; and in a bipartisan push succeeded in having the deal submitted for its advice and consent.  Thus, one could imagine that if the Senate (or I suppose Congress as a whole) wanted to deploy their political checks on Executive power (think appropriations or ambassadorial/cabinet approvals), the White House might have to recalculate whether and how it wants to proceed with Iran here.  Nor is this entirely a U.S. problem; reports suggest that when the United States was looking to craft a strategic framework with Iraq a few years back, the Iraqis ended up concluding that the deal had to be done as a treaty (in the international law sense) since their Parliament was insisting on approving it in lieu of going to more streamlined political commitment route.  Simply put, just because there may be no extant constitutional constraints on the President’s ability to conclude a political commitment with Iran does not mean that there won’t be domestic negotiations over whether and how the United States concludes any deal involving Iran and nuclear matters.

So . . . now that I have that all off my chest, I’ll get out of the way and let the various actors continue to negotiate and debate the merits of the appropriate way(s) forward here.  I just hope that folks will do so with more attention to what the existing international and domestic law has to say (or not say) on these questions.

 

Mea Culpa Regarding Israel’s Attacks on Hezbollah in 2006

by Kevin Jon Heller

In a number of posts (see, for example, here and here), I have claimed that the League of Arab States (LAS) formally rejected the “unwilling or unable” test in the context of Israel’s 2006 attacks on Hezbollah in Lebanon. Thanks to comments by Ori and Tom Ruys on the most recent post, I now realize I have been guilty of the same kind of methodological sloppiness that characterizes most scholarly work in defence of the test. If you read the statement by the LAS — you can find it here — there is no way to determine whether the it denounced Israel’s attack because it rejected the “unwilling or unable” test or — and this actually seems more likely — because it simply rejected Israel’s claim that it was acting in self-defence. (I disagree with Ori that the statement can be read as an indictment of Israel solely for using disproportionate force in self-defence.) And if we cannot determine the precise reason why LAS rejected Israel’s self-defence claim, that rejection obviously cannot provide opinio juris against the “unwilling or unable” test.

That said, loathe though I am to disagree with Tom, I don’t see the international response to Israel’s attacks on Hezbollah in Lebanon as supporting the “unwilling or unable” test. Most obviously, Israel claimed that Hezbollah’s actions were attributable to Lebanon — it did not invoke the test at all. Moreover, no state specifically invoked “unwilling or unable” during the Security Council debate over Israel’s actions — some expressed concern over Lebanon’s failure to exercise effective control over the entirety its territory, but a number of those states attributed that failure to Israel’s occupation of southern Lebanon, not to Hezbollah’s actions. So I agree with Olivier Corten that “these standpoints are highly ambiguous and so it seems a very difficult business to deduce from them any opinio juris.”

My thanks to Ori and Tom for weighing in — and to Ori for providing links to the relevant documents. Apologies to readers for being so sloppy. I just hope my lack of care will not distract from my basic point, which is that scholars who claim that the “unwilling or unable” test represents customary international law have failed to identify (anywhere near) sufficient significant state practice or opinio juris in defense of their position.

Iran Responds to US Senators’ Letter, Shows Why Congress Should Be Involved in the First Place

by Julian Ku

I am totally swamped with various overlapping projects right now, so let me procrastinate anyway by noting that Iran took my suggestion and sent a response to the “open letter” sent them from 47 US Senators yesterday.  The letter actually shows why the President, and not the senators, is the one who is operating on the edge of constitutionality.

In the letter, Iran’s foreign minister suggested the senators were violating the US Constitution’s allocation of foreign policy conduct to the President.

[Foreign Minister] Zarif “expressed astonishment that some members of Congress find it appropriate to write leaders of another country against their own president,” a press release explained. “It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.”

As I explained yesterday, I don’t think the letter is a  violation of the Constitution, although there is a closer question under the much-cited, never used Logan Act.

What I found more interesting is the Iranian FM’s suggestion that a future president who withdrew from or amended the agreement would violate international law. This statement illustrates why I think Congress should be included in this process in the first place.

[Zarif] warned that a change of administrations would not relieve the U.S. of its obligations under an international agreement reached under the previous administration. Any attempt to change the terms of that agreement, he added, would be a “blatant violation of international law.”

“The world is not the United States, and the conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” Zarif explained. “The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”

Zarif is no doubt right as a matter of international law (assuming there will be a binding agreement as opposed to a mere political commitment).  But think about it.  Why should a president be allowed to commit the US to binding obligations under international law that neither Congress nor a future President can withdraw from without violating international law?  Shouldn’t such a president be required to first get approval from Congress before committing the United States to this path? Isn’t that why there is a Treaty Clause in the first place? At the very least, doesn’t it make constitutional sense for Congress to have a right to weigh in?

So while lefty blogs and lefty senators are having a field day accusing the Republican senators of violating the law or exaggerating Jack Goldsmith’s pretty minor quibble with the letter’s use of the term ratification, they are ignoring the real constitutional question here.  The President seems ready to commit the United States to a pretty serious and important international obligation without seeking prior or subsequent approval from Congress.  And foreign countries are ready to denounce the United States if, say Congress, decides to pull out or refuses to carry out those obligations. Even if the President’s actions are good policy, it seems like a political and constitutional train wreck that could easily be avoided if the Administration simply agreed to send the Iran deal to Congress.

Way back in 2008, leading scholars like Oona Hathaway and Bruce Ackerman repeatedly denounced President Bush for considering executing a security agreement with Iraq without Congress. Where are the academic defenders of Congress’s foreign policy prerogatives now?

GOP Iran Letter Might Be Unconstitutional. Is It Also Criminal?

by Peter Spiro

I’ll one-up Julian’s post below on Tom Cotton’s letter to the leaders of Iran admonishing them that any agreement entered into today could be reversed by Obama’s successor. It appears unprecedented for a group of opposition members of Congress to engage in such a communication.

It may also be criminal. The 1799 Logan Act provides that:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Most putative Logan Act violations violate the spirit and structural foundations of the Logan Act (John Boehner’s invitation to Benjamin Netanyahu supplying a recent example). This one seems to squarely satisfy its elements. We have:

  • a correspondence with a foreign government (whether direct or indirect, in the form of an “open letter”, matters not),
  • without the authority of the United States (it enjoys no imprimatur from the executive branch nor, for that matter, from Congress as an institution),
  • with the pretty clear intent “to influence the measures or conduct of” the government of Iran in relation to a controversy with the United States.

Some might debate the last prong, but what other motivation could the letter have than to persuade Iranian leaders to back off a deal for fear that it will hardly be worth the paper it’s written on?

Now I know as well as the next guy that there’s been no Logan Act prosecution in the modern era. I also understand that in the wake of globalization national legislators routinely interact with foreign government officials. Iran is probably sophisticated enough about US constitutional law to the point that the letter’s substance isn’t news to them. But an initiative like the Cotton letter seems to cross a line, and perhaps it should be slapped back. How will contested foreign policy initiatives ever get off the ground if whoever’s out of the White House can meddle so brazenly? We have clearly left the era in which politics stopped at the water’s edge.

UPDATE: Steve Vladeck has this post up at Lawfare arguing against the Logan Act’s viability in this context. I take the point on desuetude. A law that lies around unused for a protracted period at some point becomes not-law (think jaywalking). Steve also argues that as a legislator, Cotton may have been acting with the “authority of the United States.” I can’t agree on that point. If anything, Cotton’s status as a senator makes the offense a greater one, because it’s more likely to be taken seriously and do real damage to national foreign relations.

As for the First Amendment, there are certainly First Amendment implications here. The Cotton letter involves speech that would be fully protected in the ordinary domestic context. But the Constitution in general and the First Amendment in particular are seen through different lens when it comes to foreign relations.  Does that mean that the Logan Act would withstand a First Amendment defense? Not necessarily. But the answer is not so clear cut as it would otherwise seem.

None of this is to say that there will or even should be a Logan Act claims against Cotton and his collaborators, and the factors that Steve highlights plainly contribute to non-prosecution as a prudential matter. But the above-the-fold attention given to the Cotton letter shows that there is something out of the ordinary going on here. If he had said the same things on CNN no one would have paid any attention; it would have been business as usual. Not so as addressed to the Iranian leadership.

47 US Senators Send Iran’s Leader an Unnecessary(?) Primer on How US Constitution Works

by Julian Ku

Most of the US Senate’s Republican membership has signed an open letter to Iran’s leaders “informing” them about the nature of the U.S. constitutional system with respect to international agreements.   It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President’s foreign affairs power. It may also concede more than the Senators may have wanted to on the constitutionality of the proposed Iran deal.

Here are the key paragraphs in the letter;

[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them.  In the case of a treaty, the Senate must ratify by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and the Senate….Anything not approved by Congress is a mere executive agreement.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

OK, there is nothing here that is incorrect, as a matter of law, and this is not surprising since the letter was apparently drafted by Sen. Tom Cotton of Arkansas, a very smart and knowledgeable constitutional lawyer. The letter does raise a couple of important constitutional issues.

First, a letter sent directly to a foreign leader on a matter which is currently under negotiations with the U.S. could be criticized as an unconstitutional interference in the President’s inherent  power to conduct foreign affairs.  Certainly, it is very unusual.  Imagine if the U.S. Senate had sent a letter to the Iraqi leaders in 2007-8 that Congress was going to have to approve any US-Iraqi alliance or defense cooperation treaty.

In any event, I actually think this letter skirts, but manages to avoid, any unconstitutional interference.  Phrased merely as a letter “bringing attention” to the U.S. constitutional system, the letter does not state U.S. policy, nor does it make any statement on the question of policy.

The most troubling line of the letter is: “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.  ” But this is indisputably correct as a matter of law.

Maybe the strongest criticism of the letter is simply that it need not have been sent.  The only possible purpose of sending the letter is to discourage the Iranians from actually concluding an agreement, since presumably the Iranians can read US foreign relations law textbooks (or even blogs) without the help of the US Senate.  But then again, maybe they don’t. If the Iranians are somehow deluded into thinking a sole executive agreement could survive a Republican president in 2016, it is probably best for all concerned that they know the truth now.

Second, and on the other hand, I do wonder if the senators here may have conceded more than they wanted to here.  There is still a plausible constitutional argument out there that President must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole.  The letter all but concedes that the President can indeed conclude a sole executive agreement with Iran on this matter.  Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal?  (also, they only got 47 votes! There are 55 Republican senators, plus some Democrats who also oppose the Iran deal. Do they not agree with this statement of law?).

In any event, I can’t recall a letter of this sort from recent (or even older) U.S. history.  Readers should feel free to add examples in the comments.  I wonder if the Iranians will send a letter back?

Weekly News Wrap: Monday, March 9, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Australia is systematically violating the international Convention Against Torture by detaining children in immigration detention, and holding asylum seekers in dangerous and violent conditions on Manus Island, a United Nations report has found.

UN/World

Events and Announcements: March 8, 2015

by Jessica Dorsey

Events

  • The Conference of the African Association of International Law will take place in Libreville, Gabon from 29 – 31 August 2015. Deadline for submissions of abstracts: 15 March 2015. The African Association of International Law (AAIL) is pleased to announce its 2015 conference entitled: International Economic Law and Development in Africa: Challenges and Opportunities. The working languages of the Conference are English and French. Submissions are welcome in either language. Only one submission per author will be considered. Submissions from women are strongly encouraged. Kindly send an abstract (300 – 500 words) of your paper including your curriculum vitae as well as contact details and institutional affiliation. These materials should be sent to: conference2015 [at] aail-aadi [dot] org before 15 March 2015. Successful applicants will be notified by 31 March 2015. The deadline for submission of final papers is 30 June 2015. Conference fees will be waived for all selected panelists. An award will be given to the author(s) of the best paper of the conference. Selected papers will be published in the African Yearbook of International Law. Should you have any questions about the conference or the call for papers, kindly contact Adejoké Babington-Ashaye, AAIL Director of Programmes at conference2015 [at] aail-aadi [dot] org.
  • The University of Iceland Human Rights Institute and iCourts, the Danish National Research Foundation´s Centre of Excellence for International Courts at Copenhagen University, invite all PhD students to attend a high-level seminar entitled Methods of Human Rights Law Research 26-27 May 2015

Announcements

  • The 4th Munich Advanced Course in International Law (MACIL), organised by the Chair of Public International Law of University of Munich (Germany), will take place in August 2015. The 2015 session is entitled ‘International Law Beyond the State: Towards a New Role for Individuals and other Non-State Actors’. Classes are going to discuss the role of individuals and other non-state actors in international law both from a general international law perspective and with reference to specific case studies. Students of international law, young academics and practitioners of international law or related fields are warmly invited to apply. Deadline for application is 30 April 2015. Further information regarding the programme and the 2015 faculty can be found here.
  • PluriCourts, a Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order in the fields of human rights, trade, investment, international criminal courts and the environment, are offering up to five 3-year postdoctoral fellowships. For more information, click here.

Calls for Papers

  • AJIL Unbound has called for submissions for a Special Issue on Third World Approaches to International Law (TWAIL). Third World Approaches to International Law constitute a distinctive voice in international law. These approaches have emphasized the centrality of colonialism and imperialism to the field. TWAIL has challenged the manner in which first world scholarship monopolized the production of knowledge about international law and, in so doing, has brought to the fore questions of race, culture, power relations, and class. While some TWAIL approaches have critically evaluated the continuities of colonialism and imperialism in post-cold war neo-liberal policies through a variety of lenses including Marxism, others have emphasized international law’s philosophic and theoretical features including its contingency, particularism, and indeterminacy. TWAIL scholars acknowledge that they are engaged in simultaneously critiquing and exposing the limits and the biases, blind spots and unanticipated bad consequences of international law, on the one hand, and embracing possibilities embodied in the guarantees of individual rights and self-determination, on the other. For these and other reasons TWAIL has been criticized for relying on the same underlying assumptions as the system it sought to transcend, for under-emphasizing the continuing marginalization of many women and of indigenous peoples, and for offering no positive agenda for the reform or transformation of international law. AJIL Unbound invites essays of no more than 3000 words reflecting on Third World Approaches to International Law along the foregoing non-exhaustive list of themes. The deadline for submission is April 30, 2015. Submissions should be sent to ajiltwail7 [at] gmail [dot] com.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.