General

Responding to Marty Lederman on Somalia

Marty has a response up over at Just Security to my earlier post on the domestic and international law questions arising after the U.S. actions in Libya and Somalia late last week. Continuing the conversation, a few replies here. (1) Is there a statutory source of domestic authority for the operation in Somalia? Marty’s theory is that the AUMF may well suffice...

The Raids in Somalia and Libya – Theories of Self Defense?

As all major news outlets have now reported, the U.S. carried out two armed raids overseas late last week: one in Tripoli that resulted in the successful capture of suspected core Al Qaeda leader Abu Anas al-Liby, and another in Somalia apparently aimed at a leader of militant Somali group Al Shabaab. Both raise complex questions of U.S. and international...

Weekend Roundup: September 28 – October 4, 2013

This week on Opinio Juris, we organized a book symposium on Investment Law in International Law: Integrationist Perspectives, edited by Dr Freya Baetens. If you enjoyed the symposium, don't miss CUP's offer of a 20% discount for our readers. More details are here. Freya introduced the goals of the book, followed by comments by Laurence Boisson de Chazournes. On Tuesday, Nicolas Hachez and Jan Wouters...

Weekly News Wrap: October 3, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East The Security Council has urged the Syrian government to allow cross-border aid deliveries, calling on all parties to Syria's conflict to agree on humanitarian pauses in fighting and key routes for aid convoys. Russian President Vladimir Putin seems optimistic about Syria, saying global powers were "on the right...

Guest Post: A Critique of Dodge and Cleveland, and Thoughts on Bond

[John C. Dehn is an Assistant Professor at Loyola University Chicago School of Law] In a recent article posted to SSRN, and introduced by Duncan here, Professors Sarah Cleveland and Bill Dodge (“the authors”) have done us all a great service in unearthing the history of the Offenses Clause and its inclusion of U.S. treaty violations.  Although I was originally suspect of their claim that the Offenses Clause empowers Congress to punish all U.S. treaty violations, as was obvious in my comments to Duncan’s post, I ultimately found myself convinced of this aspect of their thesis. The persuasive evidence they marshaled to support this broad claim, however, caused me to question the rather uncertain limitation that they later placed on it: that conduct being punished pursuant to the Offenses Clause “must itself be condemned in some manner under international law.”  (p. 3, all bare page references are to draft article)  Further to this point, the authors posit that the Offenses Clause allows Congress to punish “when: (1) a treaty operates directly to prohibit the conduct; (2) a treaty expressly mandates that states punish the conduct; (3) a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment; [or] (4) a treaty authorizes punishment under international law, even if it does not require it.  In all such cases, however, it must be international law that condemns the relevant conduct, at least in general terms….”  (p. 53). The intent behind these proposed limitations is laudable: to circumscribe what might otherwise be construed as virtually limitless congressional authority to regulate domestic matters potentially implicating U.S. treaty obligations.  Much of the evidence the authors offer in support of the broader claim seems to potentially undermine these limitations, that is, depending upon exactly what they intended to exclude.  (I, for one, would welcome the authors to provide examples of treaty provisions excluded by their proposed limitations.  In establishing their broader thesis the authors cited even congressional reliance upon what appear to be hortatory provisions of the U.N. Charter.  See p. 34). Throughout the article, the authors rely on founding era and other evidence supporting a purposeful reading of the Offenses Clause. To summarize: (1) the Offenses Clause reaches treaty infractions because treaties, even bilateral treaties, become part of the law of nations; and, (2) the Offenses Clause was enacted so that Congress may ensure national compliance with the law of nations, including U.S. treaty obligations.  They present an abundance of pre- and post-constitutional evidence to support this broad thesis.  And they recognize that the law of nations applies not only to a state acting in its corporate capacity but also to its members acting individually.  Thus, the act of a single person may, in the proper context, place a nation in violation of its international obligations. In such circumstances, it would seem, the Offenses Clause allows regulation of any such act. Indeed, the authors’ evidence strongly suggests that a relevant provision of international law need not “address” if this means to some affirmative extent, even generally (unless exceptionally generally), the precise conduct Congress is regulating pursuant to the Offenses Clause.  Any conduct capable of violating a treaty obligation in a proper context is susceptible of regulation.  To say that the law of nations includes treaties is to say that every act that results in a treaty violation is “condemned” by the law of nations.  Thus, it seems redundant for the authors to suggest, as a limitation, that “it must be international law that condemns the relevant conduct, at least in general terms.” And it seems internally inconsistent to require that “a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment.”  Violation of a general treaty provision may occur in myriad ways not mentioned or even contemplated at the time the relevant treaty was drafted and adopted.

Weekend Roundup: September 21-27, 2013

This week on Opinio Juris, Kevin welcomed Just Security to the blogosphere, but regretted the absence of a comments section.  Not one to be easily stopped, he went for inter-blog commentary instead with his response to Ryan Goodman's post on whether or not the US is at war with al-Qaeda. He also criticized the Special Court for Sierra Leone’s Appeals Chamber for its incoherent — and selective —...

On the Draft Security Council Resolution

As Ken notes below, the draft UN Security Council Resolution regarding the disposition of Syria’s chemical weapons is now available. While it can’t be construed as authorizing the use of force against Syria to ensure compliance without further Security Council action – entirely consistent with the Council’s past practice in Iraq, Kosovo, and elsewhere with slowly escalating Security...

P-5 Approved Draft Language of Security Council Resolution on Syria’s Chemical Weapons

Probably many of you are reading, as I am now, the just-released language of a draft UN Security Council resolution (reported by the press as P-5 approved) on Syria's chemical weapons.  I'm particularly interested in this, as I'm talking tomorrow at ASIL's monthly brown bag lunch for Congressional staff on Syria and the use of force - it's a descriptive...

Weekly News Wrap: September 26, 2013

It's been another busy week in international law and international relations. Here's a recap of a selection of the headlines from around the world: Middle East Israel and Palestine have agreed to intensify their peace talks with greater participation by the United States. Iran's foreign minister expressed hope that a meeting with top diplomats from the US and five other powers will jump-start...