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There are many dads who have played make-believe with their little girls, perhaps taking the part of kindly king to his daughter's princess.  Not many people have turned this game into an international legal incident concerning state formation.  But  at least one man has. According to the Washington Post:
Jeremiah Heaton was playing with his daughter in their Abingdon, Va., home last winter when she asked whether she could be a real princess. Heaton, a father of three who works in the mining industry, didn’t want to make any false promises to Emily, then 6, who was “big on being a princess.” But he still said yes. “As a parent you sometimes go down paths you never thought you would,” Heaton said. Within months, Heaton was journeying through the desolate southern stretches of Egypt and into an unclaimed 800-square-mile patch of arid desert. There, on June 16 — Emily’s seventh birthday — he planted a blue flag with four stars and a crown on a rocky hill. The area, a sandy expanse sitting along the Sudanese border, morphed from what locals call Bir Tawil into what Heaton and his family call the “Kingdom of North Sudan.” There, Heaton is the self-described king and Emily is his princess.
Wow. Heaton just upped the ante for all non-royal dads. The Washington Post also reports:
Heaton says his claim over Bir Tawil is legitimate. He argues that planting the flag — which his children designed — is exactly how several other countries, including what became the United States, were historically claimed. The key difference, Heaton said, is that those historical cases of imperialism were acts of war while his was an act of love. “I founded the nation in love for my daughter,” Heaton said.
That’s sweet. Really. But let’s turn to the international legal argument…

I've been swamped with various projects and distractions here in Taiwan (mostly food-related), so I didn't notice until today this very interesting Zachary Keck post about how Japan's recent decision to re-interpret its constitutional provision to allow expanded overseas military activities would enable Japan to help defend Taiwan against an attack from China.  It's a fascinating post, but it also made...

On Friday, Ukraine, Moldova, and Georgia signed the Association Agreements with the European Union that have been at the center of so much controversy among Russia, the EU, and these states. Preventing Ukraine, Moldova and Georgia from signing these agreements had become an important foreign policy goal for Moscow (see, for example: 1, 2, 3) after significant pressure, and perhaps some incentives, from Moscow, former Ukrainian President Yanukovich’s decided at the last minute not to sign the agreement at the EU’s summit in Vilnius in November precipitated the demonstrations that began in Kiev. Those were followed by Yanukovich fleeing, Russia’s intervention in and annexation of Crimea, and the ongoing tensions over the future of Ukraine. Moldova and Georgia have also faced threats of economic and/or energy embargoes as well as the ongoing Russia-backed separatist issues in Transnistria, South Ossetia, and Abkhazia. After the diplomatic disputes and the pipeline politics, the secessionist movements and Russian military incursions, Maidan Square and Crimean annexation, the signing of these treaties are a significant milestone, and hopefully a turning point. Ukraine, Moldova, and Georgia are committing themselves to a path of greater economic and normative integration with the EU. The EU is committing itself to allowing market access to the EU; more generally, the EU will likely become increasingly involved the in the internal policies of these countries, although they are not member states. What is clear is that this is a significant moment, President Poroshenko of Ukraine called it the most important moment for his country since the dissolution of the Soviet Union. What is not yet clear is how relations with Russia will evolve from this point. Here are some issues to consider...

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It's a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don't find his arguments convincing. Orr begins by citing Art. 43 of the...

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I'm a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I'm...

Most of the discussion about Abu Khattallah's capture in Libya has focused on the operation's basis -- or lack thereof -- in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah's capture can potentially be justified on two different grounds:...

[caption id="attachment_30807" align="alignnone" width="130"] photo: NYU Law School[/caption] I am sad to mark the passing of one of the giants of international law, and one of my teachers, Professor Andreas Lowenfeld of NYU Law School. His career was exemplary; Andy operated at the highest levels of practice and academia. In an era when so many scholars and practitioners become hyper-focused on...

My co-author John Yoo and I have a piece up on Forbes today arguing that the U.S. Supreme Court missed a grand opportunity in Bond v. U.S. to place constitutional limits on the treaty power.  We take aim at Missouri v. Holland head-on.  We criticize the interpretation of the Chemical Weapons Convention Implementation Act adopted by the opinion for the Court...

The conflict between China and Vietnam over a Chinese oil rig has (thankfully) calmed down a little bit, with fewer reports of rammings and water cannon fights in the South China Sea.  But the war of press release and government-sponsored editorials has heated up and all of them are wielding international law as a weapon of authority and legitimacy. Vietnam's government...

[David Golove is the Hiller Family Foundation Professor of Law at the New York University School of Law. Marty Lederman is a Professor at the Georgetown University Law Center. This contribution is cross-posted at Just Security.] The Supreme Court has finally issued its decision in United States v. Bond.  Although it appeared the Court might be on the brink of a momentous decision that would have substantially diminished the historical reach of the treaty power, or of Congress’s power to ensure the nation’s compliance with its treaty obligations, none of the radical theories put before the Court attracted more than three votes.  Bond clearly is significant.  But its significance lies not in what the Justices did, but instead in what a majority of them declined to do.  In short, the decision sustained the constitutional status quo. In an opinion written by the Chief Justice, a six-Justice majority did what one of us had proposed (and the other had hoped the Court might do)—namely, to use a plain-statement presumption in order to construe the statute in question so that it does not apply to the discrete conduct involving the two private individuals in this particular case.  The Chemical Weapons Convention, and the federal statute implementing that treaty, were drafted broadly, presumably so that they would not fail to cover the sorts of cases of dangerous use of chemicals that the treaty-makers plainly had in mind.  The result, however, is that the words of the statute, read literally, would also make a federal crime out of virtually any “nonpeaceful” use of toxic chemicals, including all run-of-the-mill poisonings traditionally handled under state law.  This goes well beyond anything that motivated the treaty-makers.  The Chief Justice is surely correct that, notwithstanding the breadth of the treaty and statutory language, “there is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.”  The paradigmatic case that the treaty is designed to address, wrote the Chief, is the sort of chemical attack depicted in John Singer Sargent’s haunting 1919 painting “Gassed.”  But as the Chief jibed, “[t]here are no life-sized paintings of [Carol Anne] Bond’s rival washing her thumb” after she had touched the toxic chemicals that Bond had spread on her car, mailbox and front door.* The Chief Justice therefore construes the federal statute not to cover Bond’s conduct.  [See Curt Bradley in defense of the Court’s plain-statement analysis.]  The precise scope of the majority’s statutory construction remains a bit obscure.  (Presumably the law is not limited to conduct that is apt to inspire great paintings!)  But this much is clear:  The Court explains that the statute does apply in cases where toxic chemicals are used for “assassination, terrorism, and acts with the potential to cause mass suffering”—presumably even if such offenses are wholly intrastate and/or where they do not involve any foreign nationals.  The Chief writes that such cases do not implicate federalism concerns because “[t]hose crimes have not traditionally been left predominantly to the States.”  But of course it has predominantly been state law that traditionally handled such "noneconomic, violent criminal conduct," and the Chief Justice does not explain why creation of a parallel federal offense would not implicate the federalism concerns reflected in the Court’s Commerce Clause decisions since Lopez (1995).  Accordingly, the Court’s confirmation of Congress’s power to implement treaties by criminalizing such conduct is quite important, as we explain further below. The most important aspect of Bond, however, was not its statutory interpretation but the fact that the ground-breaking constitutional limitations offered up to the Court each failed to attract the support of a majority of Justices. a.  Limiting Congress’s Power to Implement Treaties The Cato Institute filed an amicus brief urging the Court to hold that even in cases where the President and the Senate conclude a valid treaty, Congress lacks any specific power to pass legislation necessary and proper to ensure that the United States abides by its treaty commitments.  This deeply counterintuitive argument—that the Necessary and Proper Clause empowers Congress to enact legislation to help the President and the Senate make treaties, but not to help the federal government implement the nation's agreements—was first suggested by Cato’s lawyer, Professor Nicholas Rosenkranz, in 2005 (that is to say, more than two centuries after adoption of the relevant constitutional provisions).  As we explain in Part II of our amicus brief in Bond, this argument is simply implausible on historical, textual, and structural grounds—not to mention inconsistent with a series of Supreme Court decisions, including the unanimous opinion in Neely v. Henkel (1901) and Justice Holmes’s celebrated 1920 decision in Missouri v. Holland. In his opinion concurring in the judgment in Bond,