Recommended Reading on U.S. Foreign Relations Law: 2014 Edition

With the end of the year approaching, I’ll share a list of 10 really good articles from 2014 on the subject of U.S. foreign relations law, somewhat broadly defined. These aren’t the only noteworthy articles, but each stood out to me for one reason or another–some were really well-written, while others were creative or thought-provoking or struck me as extremely persuasive. I recommend them all.

Roger P. Alford, Human Rights After Kiobel: Choice of Law and the Rise of Transnational Tort Litigation, 63 Emory L.J. 1089 (2014)

Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773 (2014)

Zachary D. Clopton, Replacing the Presumption Against Extraterritoriality, 94 B.U. L. Rev. 1 (2014)

Jean Galbraith, Congress’s Treaty-Implementing Power in Historical Practice, 56 Wm. & Mary L. Rev. 59 (2014)

Jean Galbraith & David Zaring, Soft Law as Foreign Relations Law, 99 Cornell L. Rev. 735 (2014)

Michael J. Glennon, National Security and Double Government, 5 Harv. Nat’l Sec. J. 1 (2014)

Andrew Kent, Are Damages Different? Bivens and National Security, 87 S. Cal. L. Rev. 1123 (2014)

David H. Moore, Beyond One Voice, 98 Minn. L. Rev. 953 (2014)

David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2 (2014)

Ganesh Sitaraman, Foreign Hard Look Review, 66 Admin. L. Rev. 489 (2014)

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Back From Japan: What I Learned

Recently I went to Japan as part of a small group of American academics and researchers who are interested in Japanese foreign policy. During the trip, we met with officials from the Ministry of Foreign Affairs, Ministry of Defense, Coast Guard, and Cabinet Secretariat to discuss recent developments in regional security and U.S.-Japan relations. Unsurprisingly, many of the meetings focused on the Senkaku Islands. In this post, I’ll share a few things I learned.

There’s Still “No Dispute”

During the meetings, it quickly became apparent that some media outlets in the West haven’t accurately characterized current Japanese policy. Tokyo’s longstanding position has been that there’s “no dispute” over the Senkakus—the territory belongs to Japan and there is nothing to negotiate or even talk about. This view is of course controversial in China, which also claims the Islands, and the two sides have been engaged in a fairly protracted and tense standoff as a result. To reduce tensions and improve bilateral relations, China and Japan jointly released a four-point statement on November 7th. Sources ranging from The Diplomat to The New York Times reported the statement as evidence of a significant shift in policy: Japan would now recognize the existence of a dispute. On this view, the recent statement was a major concession to China because recognizing a dispute might open the door to bilateral negotiations that could have only one effect—namely, an erosion of Japan’s effective control over the territory.

But these media accounts are simply inaccurate. Japan has not changed its policy; every official who addressed the issue stated unequivocally that Tokyo continues to maintain that there is no dispute.

The principal source of confusion is that China and Japan both released their own versions of the four-point statement—one each in their respective native languages, and one each in English. In relevant part, China’s English-language version states that “the two sides have acknowledged that different positions exist between them regarding the tensions which have emerged in recent years over the Diaoyu Islands and some waters in the East China Sea, and agreed to prevent the situation from aggravating through dialogue and consultation and establish crisis management mechanisms to avoid contingencies.” Japan’s English-language version, by contrast, states that both sides “recognized that they had different views as to the emergence of tense situations in recent years in the waters of the East China Sea, including those around the Senkaku Islands, and shared the view that, through dialogue and consultation, they would prevent the deterioration of the situation, establish a crisis management mechanism and avert the rise of unforeseen circumstances.” While similar in various respects, these texts carry different meanings on significant issues. Most importantly, China’s version suggests that the two sides acknowledge that they hold different positions not only regarding tensions in the waters surrounding the Islands, but also over the Islands themselves. It doesn’t take much to go from there to the conclusion that Japan now recognizes a dispute.

How, then, to make sense of the recent statement in light of the longstanding and—it turns out—current Japanese position that there is no dispute? First, disregard the Chinese versions of the statement—Tokyo did not approve them, so they cannot bind Japan or operate as official representations of the Japanese position. They are merely what China wants to tell Chinese nationals and the international community about Japan’s position. Second, pay close attention to what Tokyo said. It is noteworthy that the Japanese versions never state that Japan recognizes a dispute over the Senkaku Islands. Instead, they express simply that the two sides “recognized that they had different views as to the emergence of tense situations in recent years in the waters of the East China Sea, including those around the Senkaku Islands.” The different views, in other words, do not concern the Islands themselves, but the waters that surround them, and do not concern sovereignty per se, but rather the “emergence of tense situations in recent years.”

What, specifically, are the different views to which Japan refers? I asked this question to an official at the Ministry of Foreign Affairs, who explained that they consist of the Chinese view that tense situations exist because Japan purchased the Senkaku Islands in 2012, and the competing Japanese view that these situations exist because China has set up an Air Defense Identification Zone that encompasses the airspace above the Islands and sent scores of vessels into the surrounding waters. Strictly speaking, recognition of disagreement on these points is independent of whether Japan recognizes a dispute over sovereignty, so the longstanding policy continues.

Coordination Presents a Challenge

From my meetings with various government officials it was also clear that Japan’s greatest concern involves a so-called “gray zone” incident—a seizure of the Senkaku Islands by paramilitary Chinese fishermen or other ambiguous actors. From the Japanese perspective, such an incident would require difficult decisions about whether and when to shift from a police response to one that involves the military. Leaving the matter to the Coast Guard, which has close to no weapons, creates a risk that Japan will be unable to extricate potentially well-armed intruders, but handing the matter over to the Self-Defense Force creates a risk of involving the People’s Liberation Army and starting a war.

At the moment, there are reasons both to discount and credit these fears. On one hand, while the number of Chinese incursions into the waters surrounding the Senkaku Islands has been significant in recent years, it has declined. The chart below* reports the number of incursions by Chinese vessels into the waters around the Senkakus in 2013 and most of 2014. Note the red bars, which depict the number of vessels that entered territorial waters ranging from 0 to 12 nautical miles from the Islands’ coast. The downward trend shows that China is not sending as many vessels into the most hotly contested area, and with recent signs of a détente there is reason to think that a sharp uptick is unlikely in the near future. Insofar as these developments signal a Chinese desire to avoid conflict, the risk of a gray-zone incursion seems limited, at least for now. Of course, the blue line does not trend downward to the same degree, but it is a less significant measure of the risk of conflict because it represents vessel entries into the contiguous zone (12 to 24 nautical miles from the coast), which are not as provocative.

000021033

*Chart courtesy of the Japanese Coast Guard

On the other hand, there are a couple of reasons for concern. First, incursions of any frequency are problematic because they create a risk of conflict through miscalculation. Second, I left Japan with the sense that important preparations have not been and will not be undertaken. I was told, for instance, that the Coast Guard and Maritime Self-Defense Force do not coordinate or engage in joint training in anticipation of a possible gray-zone incident. And I was told that Tokyo and Washington are not actively involved in any joint planning with respect to this type of threat, even though the United States has a treaty obligation to defend Japan in the event of an “armed attack” on the Senkaku Islands. In fact, Coast Guard officials explained that Japan does not even seek U.S. participation in preparations because a Chinese perception of U.S. involvement would substantially escalate tensions. This concern is reasonable. One of its consequences, however, is a risk that unforeseen interagency and bilateral logistical challenges will complicate U.S. and Japanese efforts to execute an effective response.

The Yaeyama Islands Are a Future Hotspot

Finally, the trip made clear to me that Japan’s Yaeyama Islands are a likely source of future tension. These islands, located southwest of Okinawa, are of tremendous strategic significance because they are inhabited and closer to mainland China, the Senkakus, and Taiwan than any other part of Japan. One of them—Ishigaki Island—is also home to an airport that could serve a military function. At present, Japan has virtually no military presence there, but that will change. Tokyo broke ground for a new radar base on one of the islands this past April, and scholars at the Japan Institute of International Affairs explained to me that there is a long-term goal also to deploy the military to Ishigaki. Many of the locals apparently welcome these developments both because they see a larger military presence as a source of economic opportunity and because China has interrupted their use of fishing grounds around the Senkakus. How China responds may significantly affect future security in the region.

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Paper on the Senkaku/ Diaoyu Islands Dispute

My paper on the Senkaku/ Diaoyu Islands dispute was published yesterday. It’s available here.

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Ruling on the Motion to Dismiss in the Navy/ Fukushima Litigation

A few days ago the district court in the Navy/ Fukushima litigation (Cooper v. TEPCO) issued a ruling on TEPCO’s motion to dismiss. Key takeaways: the court dismissed the plaintiffs’ claims for design defect and intentional infliction of emotional distress, along with all claims by unnamed “DOE” plaintiffs, but otherwise denied the motion. In particular, the court refused the dismiss on the basis of forum non conveniens, and chose not to abstain on the basis of international comity. The ruling is available here.

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Does the Legalization of Marijuana Violate International Law?

The shift toward legalization of marijuana has gained a lot of momentum in the past few years. By a recent count, more than twenty states have enacted legislation that permits use of one form or another. Most allow only medical use, but Colorado and Washington also permit recreational consumption. For present purposes, I take no position on the policy merits of this development. I do, however, want to point out that the marijuana debate tends to overlook an important issue—namely, federal tolerance for legalization of the sort that has occurred in Colorado and Washington probably places the United States in material breach of international law.

The argument is pretty straightforward: The 1961 Single Convention on Narcotic Drugs provides that parties “shall take such legislative and administrative measures as may be necessary . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of” cannabis, among other drugs. Having joined the treaty in 1967, the United States is bound to comply. But for the most part, the Obama Administration has chosen not to enforce federal drug laws against recreational consumption in Colorado and Washington, and state authorities in those jurisdictions obviously do not have state prohibitions to enforce. Thus, the United States no longer takes “administrative measures” that are necessary to limit use to medical and scientific purposes. A comparable analysis applies under the 1971 Convention on Psychotropic Substances and the 1988 Convention Against Traffic in Narcotic Drugs and Psychotropic Substances, both of which contain similar provisions and bind the United States as a party.

This argument is neither new nor creative. The UN agency that oversees the treaties’ implementation—the International Narcotics Control Board—has reached the same conclusion. In a message accompanying the INCB’s annual report for 2013, the agency president stated that the federal response to legalization in Colorado and Washington “contravene[s] the provisions of the drug control conventions, which limit the use of cannabis to medical and scientific use only.”

One commentator has argued that federalism excuses the treaty violations by prohibiting the federal government from compelling states to enforce federal law. This claim appears to rely on the Supreme Court’s anti-commandeering principle, which holds that Congress can’t oblige the fifty states to enact or enforce a federal regulatory program, or conscript state officers to enforce federal law. But I’m not persuaded. First, the Court has never applied the principle as a limitation on the treaty power, and there is no consensus on when or even whether it would be appropriate to do so. Second, even if anti-commandeering generally applies in the treaty context, the principle doesn’t excuse the type of breach that is occurring here—i.e., one that arises from the Administration’s decision not to use federal resources to limit marijuana use within the United States to medical and scientific purposes. That decision has absolutely nothing to do with commandeering.

It’s clear, moreover, that federalism does not generally preclude the Administration from taking the kinds of administrative measures that the treaty demands. As Missouri v. Holland explained long ago, the subject-matter limitations that reside in the various clauses of Article I, Section 8 do not apply to the treaty power, so the provisions in question impose a valid obligation. And even if one disagrees with Holland, the Court’s more recent decision in Gonzales v. Raich established that the Commerce Clause includes the power to prohibit the local cultivation and consumption of marijuana. If it wanted to, the Administration could return the United States to compliance by enforcing existing laws that are valid under this precedent.

What, then, are the consequences of the breach? The Single Convention spells out a series of procedures that the INCB can initiate in response, beginning with consultations and ending with discussion of the matter in the UN General Assembly. Although its relevance is less likely, Article 14(d)(2) adds that the INCB may also “recommend to Parties that they stop the import of drugs, the export of drugs, or both, from or to the country or territory concerned, either for a designated period or until the Board shall be satisfied as to the situation in that country or territory.” The primary consequence, then, is reputational—the United States marks itself as a state that violates international drug laws, with possible adverse effects on the willingness of other states to cooperate with our enforcement efforts in related areas. Regardless of what you think about legalization, this is a problem if you care about the international rule of law and the standing of the United States in the international community.

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A Global Survey on the Study of International Law (Part II)

Last month I put up the first in what I anticipate will be a series of posts on the subject of international legal education. I summarized the results of a global survey on the study of international law, reported that a majority of law students around the world must complete at least one course on the subject prior to graduation, and pointed out that the overwhelming tendency for American law schools to offer international law exclusively as an elective is fairly abnormal. In this post, I’ll explain my methodology and elaborate a bit on the data underlying my conclusions.

The methodology was pretty simple: I relied on a collection of official government documents, information available on the websites of university law faculties, and, occasionally, email correspondence with faculty members. Where this evidence established that a curriculum includes a mandatory course that on its face substantially implicates public international law, I coded the corresponding university as requiring international legal training. Inversely, I coded a university as requiring no such training where the evidence demonstrated that courses on public international law are elective or unavailable. Finally, I coded a university as “no data” if it has a law faculty but evidence of its curriculum was inaccessible within the confines of the research methods. For present purposes, the key point is that the numbers only reflect what I could find. This probably amounts to all relevant data for many states. But for others, particularly in the developing world, the data are less complete because not all universities have functioning websites and even those that have them often omit information about their curriculum.

With that established, let’s break down the compulsory training rates on a geographic basis. Table 1 shows the aggregate percentage of law schools on each continent that mandate at least one course on international law.

Table 1

Continent Aggregate Rate
Africa 85%
Asia 92%*
Europe 70%
North America 40%
Oceania 30%
South America 99%

Table 2 in turn shows the average rate of compulsory training among states on each continent.

Table 2

Continent Average National Rate
Africa 83%
Asia 84%*
Europe 85%
North America 83%
Oceania 33%
South America 99%

As these numbers show, mandatory education in international law is globally pervasive. It is common on all continents, particularly Africa, Asia, and South America. In this sense, basic competency is not a peculiarity of the European lawyer, but standard for a majority of law graduates around the world.

If anything, features of the survey methodology suggest that the results are likely to understate the amount of training that is taking place. For instance, the data do not incorporate assumptions about the curricula of specific universities even in the presence of strong national trends. In Argentina, for example, I found fifty-one law schools that require a course on international law, zero at which the course is elective or unavailable, and four for which information is presently inaccessible. Given such a strong trend, it is likely that the four schools with an inaccessible curriculum also require the study of international law, but I treated them as “no data” schools out of an abundance of caution. Additionally, the map codes universities as not requiring courses on international law if they offer multiple forms of a basic law degree, at least one of which does not include a compulsory international course. Finally, the map does not address elective courses, advanced degrees, or sources of non-university training, such as bar examinations and post-graduate programs for future judges and prosecutors.

But the data also suggest that training in international law is not universal. Table 3 displays the numbers on the ten countries with the lowest rates of compulsory study.

Table 3

Country National Rate
Ireland 0%
Japan 0%
New Zealand 0%
Nigeria 0%
United Kingdom 3%
South Korea 4%
United States 4%
Canada 23%
Ghana 25%
Australia 33%

What stands out most about these particular figures is that, of the ten states listed, eight—Ireland, New Zealand, Nigeria, the United Kingdom, the United States, Canada, Ghana, and Australia—have a common law heritage, while the remaining countries of Japan and South Korea both maintain close ties to the common law West. It appears, therefore, that law schools in common law jurisdictions are far less inclined to prioritize the study of international norms.

To me, this is interesting for a couple of reasons. First, it challenges a stereotype. Many commentators seem to hold the view that the United States is unique among advanced democracies in its level of disregard for international norms. As a general matter, that might be true—I don’t know. But from the perspective of educational patterns, such a view seems unwarranted. In places like Ireland, Japan, and New Zealand, law schools seem to do even less to promote the study of international law than their counterparts do in the United States. Second, Table 3 raises a question: why do universities in civil law jurisdictions tend to mandate the study of international norms at a higher rate? I’ll take up that issue in the next post.

*The figures for Asia are still preliminary. They assume that universities in China and Russia follow national regulations that require all law schools to teach a compulsory course on international law, but I haven’t yet looked at specific curricular offerings in those jurisdictions to confirm that universities follow the regulations.

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Mwani v. Al Qaeda

A federal magistrate judge issued a noteworthy decision yesterday in Mwani v. Al Qaeda—a case filed several years ago by victims of the 1998 truck bombing of the U.S. Embassy in Nairobi, Kenya. Six Kenyan nationals alleged jurisdiction under the Alien Tort Statute (ATS) and asserted claims for wrongful death, assault, and battery. The court found Al Qaeda liable on two of the claims and awarded compensatory and punitive damages.

Two aspects of the decision seem significant. First, the court reaffirmed a prior holding that jurisdiction is appropriate even under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, which established that ATS jurisdiction is available only for claims that “touch and concern the territory of the United States” with “sufficient force” to displace the presumption against the extraterritorial application of U.S. law. The magistrate judge concluded that Mwani satisfied Kiobel because Al Qaeda carried out part of the planning within the United States and directed the attack against the U.S. Embassy and its employees. It’s fairly common for an ATS case not to survive Kiobel these days, but the conclusion here seems reasonable.

Second, the court found Al Qaeda liable to the six victims based on the common law of assault and battery. This part of the decision is more problematic. The ATS provides for federal jurisdiction over “any civil action by an alien for a tort,” but only when that tort is “committed in violation of the law of nations or a treaty of the United States.” The question, then, is not simply whether the defendant’s conduct is tortious, but whether it’s tortious as a matter of international law. In this analysis, domestic common law is relevant only as the vehicle by which a violation of international law becomes actionable. Pure common law tort claims are simply disallowed. Indeed, not even all claims resting on international law are actionable. As the Supreme Court explained in Sosa v. Alvarez-Machain, the ATS provides jurisdiction only for claims that “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century” international prohibitions on the violation of safe conducts, infringement of the rights of ambassadors, and piracy. For the Mwani plaintiffs to prevail, they have to show not only that international law prohibits assault and battery, but that those prohibitions are widely accepted and clearly defined. They didn’t do this, and I’m skeptical that they could.

The court appears to have considered ATS jurisdiction appropriate because another judge previously concluded that the “attack on the United States Embassy in Nairobi, Kenya alleged in Plaintiffs’ Complaint impinged the diplomatic mission of the United States and directly infringed on the rights of ambassadors.” But as I understand it, that’s not how it works. The issue is not whether any aspect of the defendant’s conduct amounts to a tort in violation of international law, but whether the defendant’s conduct vis-à-vis the plaintiffs amounts to such a tort. None of the plaintiffs was a U.S. ambassador or employee of the U.S. Embassy, and the basis for their claims is not injury to the ambassador but rather themselves, so the international law on the protection of ambassadors has no bearing on the merits of their claims. Exercising ATS jurisdiction in these circumstances is analogous to using federal question jurisdiction to adjudicate a standard state-law tort claim on the reasoning that a third party could’ve brought a federal claim arising out of the same incident. That doesn’t happen.

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