International Law from a Cuban Perspective

Recently I returned from a trip to Cuba, where I had the opportunity to interview Celeste Pino Canales, a highly regarded professor of public international law at the University of Havana. I pursued the interview for a couple of reasons. First, I wanted to get a sense for what it’s like to be an international law professor in Cuba. Second, given renewed interest in the field of comparative international law, I wanted to investigate whether there might be distinctive Cuban perspectives on topics such as treaty law and custom. The setting was the University of Havana Law School, where the classrooms have framed photographs of a rugged, youthful Fidel and inscriptions like “This is where I became a revolutionary.” Professor Pino Canales and I spoke with the help of a translator, so it’s possible that I missed certain nuances, but she made a number of points that seem worth sharing.

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We began by talking about her work, which is both identical to and different from that of legal academics in the United States. I’ll focus on some of the principal differences: Imagine being a professor whose field is international law, but who cannot travel abroad for conferences, use the internet for research, or follow major foreign news sources. How would you track the latest developments in your field, conduct research, and connect with foreign colleagues?

These are the conditions and questions that appear to confront professors of international law in Cuba. Pino Canales and others like her are unable to travel abroad for conferences and other professional opportunities. Although it was unclear whether this is due to limited finances or government restrictions, the consequence is that Cuban academics tend to have exceedingly limited contact with their overseas counterparts. Pino Canales has managed to develop relationships with Bolivian, Venezuelan, Costa Rican, and some African scholars, but only because those individuals traveled to Havana for conferences and presentations. To me, the composition of that group was striking not only because it suggested the existence of a network of scholars with whom most in the West have no interaction, but also because it revealed a general absence of intellectual exchange with Americans in particular. Worlds were colliding as we spoke, in fabulous and disorienting ways.

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As for research, the resources simply aren’t there. One problem is that most publications on international law are written in languages other than Spanish. Cubans study English in grade school, but my impression was that most people, including scholars, lack the aptitude to read legal scholarship in English, and that most universities do not have the capacity to systematically translate publications into Spanish. Equally significant, international law professors cannot access most non-Cuban scholarship. All faculty and students at the University of Havana reportedly share a single internet account with bandwidth equivalent to that of one residential account in the United States, so it takes forever even to visit the website of the United Nations, let alone download documents, and the American embargo has further complicated research by blocking downloads of online U.S. publications. To obtain books and articles from abroad, Pino Canales must typically wait for foreign academics to visit, network with them once they arrive, and then request that they physically mail hard copies to her once they return home.

These conditions seem noteworthy for a couple of reasons. First, they make it difficult for Cuban scholars to participate in the “invisible college of international lawyers.” Working in substantial isolation and with limited means, professors find it a challenge to follow the latest developments in the field, exchange ideas, and contribute. Much of this is probably old news to those who are more knowledgeable about the country, but I think it’s a useful reference point for American scholars who are accustomed to the luxuries of substantial travel budgets, unlimited internet access, massive electronic databases of legal authorities, a large community of colleagues, and an abundance of publications and conferences in English. These are the practical manifestations of the happenstance of presence in the global core. The Cuban experience suggests that to be an international law scholar without these resources is to be relegated to the status of an intermittent observer of a semi-global conversation, rather than an active participant, and that poverty and political differences stand as major obstacles to the creation of a fully inclusive community of international lawyers.

Second, the professional isolation of those who hold influence over Cuban understandings of international law might in turn foster the development of distinctive national perspectives about the field. As an illustration, the primary Cuban textbook on public international law has Cuban authors, most of whom received their legal training from domestic schools, and cites mostly to legal and academic sources from the 1960s and 1970s, only a small portion of which are American or European. Do Cuban law graduates develop unique or, to the American mind, antiquated views about international law in learning from this sort of text? Quite plausibly, yes. And given that international law requires a certain cross-national harmonization of understandings and attitudes, those who support the idea of effective global norms might fairly view the conditions in Cuba with concern.

All that said, I think the recent steps toward rapprochement could help to mitigate these problems. For example, new federal regulations authorize on a case-by-case basis the export of “items for . . . education” to “meet the needs of the Cuban people.” This reform appears to make it easier for American scholars to share international law casebooks and articles with Cuban colleagues. Likewise, although the Treasury Department has for years allowed travel for certain “educational activities,” expanding transportation and communication links between the two countries will likely make it easier for American scholars to visit for research on international law and to develop and maintain contacts with Cuban colleagues. As one illustration of the potential payoffs of this sort of endeavor, I was able to obtain from Professor Pino Canales a copy of the main Cuban textbook on public international law, which I hope to translate and share with American scholars in the near future. These sorts of activities will make it easier to appreciate differences in perspective and help to generate mutual understanding.

What, then, are Cuban perspectives on international law? I wasn’t able to explore this question as much as I’d hoped, and I don’t know whether Pino Canales’s views are representative, but a few points were clear. First, she seemed skeptical about international law’s claim to legal status. She stated, for example, that the field “is more about politics than law,” and she suggested quite firmly that just as there is “no such thing as a half-pregnant woman,” there is no such thing as soft law—law is either formally binding or not law at all. I had always assumed that Cuba would promote expansive concepts of international law as a strategy to try to constrain its powerful neighbor, so these positions struck me as surprisingly realist and Austinian.

Second, Pino Canales was critical of developed countries for trying to use international law to impose on the rest of the world a “democratic, liberal, and bourgeois” model of society that lacks universal resonance. She expressed skepticism about market liberalization and characterized it as a mechanism by which the powerful reinforce existing global hierarchies.

Finally, although not necessarily issues of international law, Pino Canales explained that Cuba maintains four non-negotiable demands notwithstanding the recent developments in its relationship with the United States. First, Washington must respect Cuba’s sovereignty and the self-determination of its people by removing the embargo, which she described as “fundamentally illegal.” In her view, the recent reforms from the Obama Administration simply aren’t enough. Second, the United States must rescind the Cuban Adjustment Act, which incentivizes a destabilizing exodus of young people to the United States by making it easy for them to become permanent residents upon arrival. Third, the U.S. government must terminate Radio y Television Marti, a federally financed broadcaster that transmits reformist, Western programs in Spanish to Cuba. And fourth, Pino Canales stated that the United States must relinquish control over Guantanamo. She argued that the lease can’t be held in perpetuity, and that the international law doctrine of rebus sic stantibus renders unenforceable the provisions of the 1903 treaty that granted the United States “complete jurisdiction and control” over the land where the military base is located. Assuming that these positions represent the views of her government, it will likely take a lot more than removal of the embargo to develop an amicable relationship. The optimistic view is that American scholars might have a small role to play in that process.

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New Data on Incursions into Waters Surrounding the Senkaku Islands

The Japanese Coast Guard just released some new data on the “numbers of Chinese government and other vessels that entered Japan’s contiguous zone or intruded into [the] territorial sea surrounding the Senkaku Islands.” Here they are:1

I see two noteworthy trends: first, an ongoing pattern of significant fluctuation in the monthly volume of incursions into the contiguous zone, and second, stabilization of entries into the territorial sea at an average of eight per month, which is down quite a bit from the highs of 2012. If you’re Japan, these patterns remain troubling, but the numbers concerning the territorial sea suggest that China may have settled on a strategy of stalemate, at least for the time being.

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New Article on Customary International Law

I just posted a draft of a new article that studies citations in published judicial opinions to evaluate how federal courts go about ascertaining customary international law. For those interested, it’s forthcoming in the Iowa Law Review and available here.

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Legislative Diplomacy After Zivotofsky

Zivotofsky was a case about the recognition power, but it was also the first in quite a while to offer any insight into the Justices’ views on the nature of the President’s power to communicate with foreign sovereigns. Given precedents like Curtiss-Wright, which famously quoted John Marshall for the proposition that the President is the “‘sole organ of the nation in its external relations,’” commentators have long assumed that diplomatic communication is an exclusively executive domain.

The past six months, however, have featured two high-profile examples of official contacts between Congress and foreign governments. In January, House Speaker John Boehner unilaterally invited Israeli Prime Minister Benjamin Netanyahu to address Congress on the subject of the Iranian nuclear program, and in March a group of 47 Republican Senators wrote an open letter lecturing the Iranians on certain features of the U.S. Constitution. These incidents, while deeply controversial, raised questions about the longstanding assumption of executive exclusivity and clarified a need for closer analysis on the precise nature of the Article II diplomacy power. They also suggested a need to explore whether there’s any affirmative support for legislative diplomacy in Article I.

What are Zivotofsky’s implications for this topic?

On my reading, the most important takeaway is that the Court’s interpretation of Article II leaves room for the possibility of a constitutional practice of legislative diplomacy. I say this for two reasons:

First, for an opinion that ruled in favor of executive power at the lowest ebb, Zivotofsky contains a lot of language that is surprisingly favorable to Congress. Most significantly, the majority expressly refused to hold that the President has “exclusive authority to conduct diplomatic relations” and ranged from hesitant to hostile in its treatment of the authorities that could most easily justify exclusivity. The Court flatly “decline[d] to acknowledge” that the President has “broad, undefined powers over foreign affairs” and characterized as dicta Curtiss-Wright’s language on the sole-organ theory. Justice Roberts similarly criticized Curtiss-Wright, concluding that the Court’s “precedents have never accepted such a sweeping understanding of executive power,” and the majority balked at an invitation to interpret the Vesting Clause as an independent source of authority. With Curtiss-Wright out of the picture and trepidation over the Vesting Clause Thesis, the argument that Article II allocates all official international communication exclusively to the President becomes harder to sustain.

Second, in giving weight to considerations of text, structure, original meaning, customary practice, and function, the majority opinion featured a methodological eclecticism that reinforces the validity of extra-textual arguments in favor of legislative diplomacy. As I’ve shown elsewhere, Congress has been communicating independently with foreign governments for a long time, and it’s now standard for members of the House and Senate to travel abroad and meet with foreign officials. This practice, moreover, carries important benefits as an informal means of investigating extraterritorial facts and a way for legislators to promote the interests of their constituents, and the State Department’s routine support suggests the Executive Branch agrees. If historical gloss and functionalism are alive and well with respect to the recognition power, then they would seem to apply to questions about legislative diplomacy, too.

To be sure, I don’t see Zivotofsky as a green light for Congress. Far from it. The Court made clear that the President has exclusive authority to dictate the content of official communications on issues for which unity of message is important, where there is a need for decisive and unequivocal action, and where there are benefits to be gained from engaging in “delicate and . . . secret diplomatic contacts.” The Court also explained that the President has “a unique role in communicating with foreign governments,” including “the power to open diplomatic channels . . . by engaging in direct diplomacy with foreign heads of state and their ministers.” Congress, by contrast, “has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.” Legislative diplomacy must take place within these constraints. In addition, the Court didn’t address whether Article I contains an affirmative source of international communicative authority, and thus left open the possibility that it doesn’t. But with these caveats, the idea that Congress has power to interface directly with foreign governments seems to survive Zivotofsky in the sense that it’s now harder to argue that Article II categorically precludes the practice.

[Cross-posted at Lawfare]

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The Role of Foreign Perceptions in Zivotofsky v. Kerry

One of the noteworthy disagreements in Zivotofsky concerns the significance of foreign perceptions of U.S. law.

The majority suggested the risk of misperception is relevant as a type of functionalist consideration: Pointing to evidence that § 214(d) drew objections from Palestine and protests in the Gaza Strip, and invoking a need for “one voice” in foreign affairs, Justice Kennedy concluded that the statute is unconstitutional not simply because it purports to compel the President to issue statements that contradict his policy on the status of Jerusalem, but also because those statements would mislead foreign audiences to think that U.S. recognition policy has changed. Such equivocation is unacceptable because foreign countries “need to know . . . whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights.”

At least two Justices had a different view. Treating foreign perceptions as essentially irrelevant, Justice Roberts criticized the majority for “subject[ing] a duly enacted statute to an international heckler’s veto.” Justice Scalia insisted the statute’s “symbolic support for Israel’s territorial claim . . . makes no difference as a matter of constitutional law,” even if it has “tremendous significance as a matter of international diplomacy.”

The disagreement raises a number of empirical and theoretical questions that are worth considering:

(1) For the majority, whose potential misperceptions substantiate the need for one voice? Foreign ministries? Foreign governments? Foreign publics? All of the above?

The opinion doesn’t squarely address this point, but mentions that “foreign countries” need clarity on recognition matters and cites evidence of official and public reactions to the statute in Palestine. I take that to suggest a concern for both governmental and popular understandings.

Yet it’s not obvious the Court should care about anything other than foreign officialmisperceptions. Most foreigners are not lawyers, let alone comparative lawyers with knowledge about the U.S. legal system. Most foreigners don’t follow or possess any particular interest in U.S. legal developments. Most, moreover, are dependent on foreign media outlets of variable quality, and over which the U.S. government has no influence. The result is that even basic aspects of U.S. law are often unknown or misunderstood abroad. (Consider, for example, this 2008 poll showing that more than 50% of the United Kingdom presumed polygamy to be legal here.) I’m having a hard time seeing why the courts should give any weight to popular perceptions of such questionable origins, particularly in addressing questions of constitutional law. If the one voice doctrine is justified, it has to be for reasons other than the idea that a congressional voice creates a risk of misunderstanding among public audiences that are often fundamentally uninformed.

(2) Did § 214(d) cause misunderstanding among foreign officials?

I probably haven’t seen all of the evidence, and I don’t purport to be an expert on the Middle East, but the two sources cited by the majority focus on the public response in Palestine and other parts of the region. The first source, a diplomatic cable, reported that the public’s “strong, emotional reactions reflect to a large degree the simplistic and sensationalist way that regional and local Arab media have portrayed the law.” The second source, a newspaper article, reported that Palestinians threw rocks to protest “U.S. legislation that urged recognition of Jerusalem as Israel’s capital.”

What’s missing is clear evidence that Palestinian officials misinterpreted the statute. The cable quoted public denunciations from various government sources, including one objecting that the statute “undermines the role of the U.S. as a sponsor of the peace process.” But that doesn’t necessarily show an official misconception. It’s one thing to object, but another to object on the specific view that the law effected a change in recognition policy. After all, many kinds of pro-Israel legislation would presumably generate official statements of disapproval; it strikes me as noteworthy that the sources contain no quotes directly showing an official misinterpretation. As if to underscore the point, a second cable not cited by the majority also reported widespread misunderstanding in the region, but only described it as a problem among the “media and public.” And both cables show that U.S. diplomats, presumably in contact with Palestinian officials, made efforts to clarify the statute’s effect.

While again acknowledging that I don’t have all the facts, it’s also a little hard to believe that Palestinian officials would misinterpret the significance of the passports going forward. With the majority conceding the statute doesn’t formally change U.S. policy, all three branches of the federal government now agree on that point. To nevertheless anticipate that foreign officials will read the passports as evidence of a change, we’d have to assume that the uniform message of the President, Congress, and the Supreme Court is somehow lost in translation. But U.S. diplomats are there to ensure it isn’t. And why would a foreign government be sensitive to the issuance of the passports but not the official interpretation of their significance?

(3) Is foreign official misperception of U.S. law a common problem?

I don’t know the answer, but I’ll venture three ideas: First, there’s probably a spectrum of governments ranging from the savvy to the uninformed. Due to exposure and practical necessity, those that work with the United States frequently and on a wide range of issues are likely to possess a more sophisticated understanding. Likewise for governments that share a common law tradition or similar political system, both of which probably make it easier to appreciate the background assumptions and underlying values of U.S. law. Second, the sophistication of foreign understandings has probably increased since the mid-twentieth century, as the advent of American hegemony magnified the importance of U.S. legal knowledge, as globalization improved foreign access to U.S. sources, and as inter-governmental contacts expanded in volume and variety to address proliferating global challenges. Finally, foreign government officials—particularly those with diplomatic responsibilities—are likely to be more sophisticated in their understanding than foreign publics.

If there’s something to these ideas, then we might reasonably think that the risk of misperception varies depending on the identity of the implicated governments, with those that are more sophisticated being less prone to error and better able to appreciate the nuances in U.S. law. We might also think that concerns about misperception should generally receive less weight now than they might have in the past, and that they should be less acute with respect to foreign official understandings of U.S. law. From this perspective, the problem with the majority reasoning is that it creates a categorical rule in favor of the executive on the basis of a risk that may be only occasional.

(4) Is the mere risk of misperception enough, or must there be evidence that misperception has occurred?

The majority seems to view risk alone as sufficient by focusing on the contradiction that would arise if the President were forced to issue the passports—the passports “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”

(5) How is a court to determine that a risk of misperception exists?

Although the majority cited a newspaper article in discussing the foreign response to § 214(d), the primary basis for the anticipated misunderstanding appears to be deference to the judgment of the Secretary of State, who emphasized the danger of diplomatic repercussions in the briefing and provided the cables that described hostile reactions from Palestinians. It’s not uncommon for courts to defer to executive representations about the foreign policy consequences of U.S. law, but the decision to do so here seems noteworthy for the simple reason that this is a case about the lowest ebb of executive power, where the President’s claims must be “scrutinized with caution.” Although I’m not sure there’s an alternative, there seems to be a tension between fact deference and legal scrutiny; a President with a relatively free hand to shape the Court’s view of what will happen is one with a capacity to heavily influence the disposition of the legal argument.

[Cross-posted at Lawfare]

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Further U.S. Assurances on the Senkaku Islands

Prime Minister Abe’s official visit to the United States seems to have been successful in at least one respect: he obtained additional assurances that the U.S.-Japan security treaty covers the Senkaku Islands.

On April 28th, President Obama stated that “our treaty commitment to Japan’s security is absolute,” and that Article 5 “covers all territories under Japan’s administration, including the Senkaku Islands.” The same day, John Kerry affirmed that the U.S. “[c]ommitment to Japan’s security remains ironclad and covers all territories under Japan’s administration, including the Senkaku Islands.” And the Senate passed a resolution providing that “although the United States Government does not take a position on the ultimate sovereignty of the Senkaku Islands, the United States acknowledges that they are under the administration of Japan and opposes any unilateral actions that would seek to undermine such administration.”

These statements follow a July 2014 House resolution reaffirming the House’s “unwavering commitment and support for allies and partners in the Asia-Pacific region, including longstanding United States policy . . . that Article V of the United States-Japan Mutual Defense Treaty applies to the Japanese-administered Senkaku Islands.”

That makes for four public statements from the political branches within the past year alone. The effect, of course, is that under the defense treaty the United States “recognizes that an armed attack” against Japan in the Senkakus “would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.”

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The Study of International Law in Foreign Law Schools: A Brief History

In my last post I provided a short history on international legal education in the United States. This time I offer the global equivalent: a (very) rough sense for the evolution of law school study requirements in a number of foreign countries, based on a combination of two UNESCO surveys from the mid-twentieth century and my recent research on contemporary practice.

Here are the results:

Compulsory Training in International Law

Country 1967 1973 2015
Finland Yes Yes Yes
France Yes Yes ~50%
Italy Yes Yes Yes
“Latin America” Yes Yes Yes
USSR Yes Yes Yes (Russia)
Bulgaria Yes Yes
Hungary Yes Yes Yes
Romania Yes Yes
Yugoslavia Yes Yes Yes (successor states)
Nigeria No No No
Norway No No Yes
Sweden No No Yes
Denmark No No Yes
Egypt Yes Yes Yes
Germany No (West) ~50%
India ~50% ~50% 100%
Japan No No No
Sri Lanka No ~50%
UK 48% 3%
USA “Very few law schools” “Very few law schools” 4%

A couple of things stand out. First, current law school training requirements have been in place for decades in a majority of the states surveyed. Assuming no deviation from the rules in place in 1973, every person who has studied to become a lawyer in Bulgaria, Egypt, Finland, Hungary, Italy, “Latin America,” Romania, Russia, and Yugoslavia and its successor states over the past forty years has taken at least one course on international law. On the flip side, compulsory training has been uncommon or non-existent over the same period in Japan, Nigeria, and the United States.

Second, most of the significant change has been in the direction of more international legal education. Law schools in Scandinavian states did not require their students to study international law in the 1960s and 1970s, but appear to now. Only 50% of Indian law schools mandated an international course up through 1973, but 100% have the requirement today. Germany and Sri Lanka appear to have experienced similar shifts. The biggest exception to this trend is the UK, where nearly 50% of universities compelled their law students to study international law in 1967 but only 3% do today.

This evidence suggests not only that the level of general knowledge of international law has varied cross-nationally in recent decades, but also that knowledge has varied over time within a number of states. Are there any foreign policy consequences? I would argue yes.

Sources

Rene-Jean Dupuy & Gyorgy Haraszti, The University Teaching of Social Sciences: International Law (1967)

Rene-Jean Dupuy & Gregory Tunkin, Comparability of Degrees and Diplomas in International Law (1973)

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