Some Historical Perspective on Netanyahu’s Address to Congress

Today there’s some interesting news from the realm of foreign relations law: Israeli Prime Minister Benjamin Netanyahu will give an address to Congress next month on the topic of Iran’s nuclear program, presumably to encourage legislators to support a hardline stance and perhaps to undermine the President’s ongoing efforts to achieve a diplomatic solution. To me, the noteworthy part is not so much the address itself, but rather the process by which it was arranged: the White House had no role. In fact, the Administration didn’t even know about it until today. John Boehner says that he invited Netanyahu without consulting officials from the executive branch because “Congress can make [such a] decision on its own.” The President’s Press Secretary responded that it was a breach of protocol for Netanyahu to plan a visit without first contacting the White House.

A couple of quick points. First, addresses of this type have a long historical pedigree. Consider these facts from the Office of the Historian of the House of Representatives, which has a fun website on the subject:

  • The House initiated the practice in 1824 by inviting an address from the Marquis de Lafayette.
  • In 1874, King David Kalakaua of Hawaii became the first foreign dignitary to receive an invitation to address a joint meeting of Congress.
  • Since 1874, approximately 115 foreign leaders and dignitaries have addressed joint meetings of Congress. This group includes people such as Nelson Mandela, Winston Churchill, Margaret Thatcher, Angela Merkel, Queen Elizabeth II, King Hussein I, and Yitzak Rabin.
  • Dignitaries from France and the United Kingdom have given the most joint-meeting addresses, followed by dignitaries from Israel (7), Mexico (7), Italy (6), Ireland (6), the Republic of Korea (6), Germany (5), India (4), Canada (3), Argentina (3), Australia (3), and the Philippines (3).
  • Single-chamber addresses were the norm initially, but addresses to joint meetings became standard after World War II.

The second point is that all of this practice implicates the separation of powers, particularly the President’s authority over official diplomacy. Whether it’s constitutional seems to depend heavily on your preferred method of interpretation. Originalists and textualists would probably have a hard time identifying the basis for it. Invitations might generally be ok if you think that customary practice can inform the separation of powers, but it’s unclear whether there’s any precedential support for the specific idea that Congress can invite foreign leaders without consulting the President and even against the President’s wishes. Most of the historical practice appears to have involved at least some coordination with the executive branch.

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A Short Response to the Dudden Op-Ed

The New York Times published an op-ed today by University of Connecticut history professor Alexis Dudden, who criticizes the Japanese government for starting or at least intensifying territorial disputes with China, Korea, and Russia. Dudden contends that Japan’s territorial claims are “expansionist” and “distort[] history” in a way that undermines the country’s major interests. In my view, she fails to justify this conclusion in two respects.

First, Dudden makes an implicitly legal argument in suggesting that Tokyo’s claims are expansionist, but never engages with the law of territorial sovereignty. She does not discuss the doctrines of acquisitive prescription and occupation, for example, even though they are central to the merits of the competing claims. The op-ed refers at times to UNCLOS, but also acknowledges its irrelevance by saying that the treaty “does not determine sovereignty over land.” In a common maneuver, Dudden focuses instead on history and the Japanese government’s actions during the late nineteenth and early twentieth centuries. But of course that alone is little help—one cannot resolve a dispute over title simply by reference to historical events; sovereignty is a question of law, and history is relevant only insofar as the law says so, and in the way that the law specifies. To credit or discount one party’s position without applying relevant legal doctrine and precedent is to say, in essence, that international law does not matter. Of course, Dudden and others are perfectly free to make that argument. But they should do so explicitly, rather than act as if the law is relevant while simultaneously declining to apply it.

Second, Dudden’s argument seems too categorical in the sense that it treats the various territorial disputes as an undifferentiated whole. The law of territorial sovereignty is highly fact-dependent. Small variations in the degree and duration of effective control can make a big difference in determining title, so Japan could easily have the better argument in some of the disputes even if it has the weaker argument in others. You can’t draw conclusions about the merits of Japan’s position on the Senkaku Islands, for example, even if you are convinced that Japan’s claim to Takeshima/ Dokdo is frivolous, or vice versa.

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The Senkakus in the ICJ

The Japan Times published an article today reporting that, in Jerome Cohen’s view, Japan should take the dispute over the Senkaku Islands to the International Court of Justice. From Tokyo’s perspective, this could be a win-win: either China consents to jurisdiction, in which case Japan likely prevails on the merits, or China refuses to consent, in which case Japan has achieved a significant diplomatic victory by coming across as the only party sufficiently confident in its claim to seek a resolution before an international tribunal. Why hasn’t this happened? One possibility is that the Japanese government simply doesn’t want to run the risk that the ICJ will rule against it, however unlikely that may be. Another possibility is that litigation would require a reversal of Tokyo’s longstanding position that there’s “no dispute” to begin with–one cannot simultaneously litigate a claim and deny that there’s anything to litigate–and Tokyo fears that the change will weaken national credibility. Still another concern might be that recognizing the existence of a dispute will create unwanted opportunities for China. Beijing might respond, for example, by demanding bilateral negotiations and using its steadily increasing leverage to insist upon a series of painful concessions.

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Thoughts on Proposals for a Sino-Japanese Bargain

Commentary on the longstanding contest over the Senkaku/ Diaoyu Islands may be entering a new and more conciliatory phase. A lot of early scholarship focused on the zero-sum question of who has proper title under international law, but more recent analyses have started to explore paths toward a cooperative resolution. Last month, Akikazu Hashimoto, Michael O’Hanlon, and Wu Xinbo offered a multi-pronged plan under which China and Japan would promise not to raise new territorial disputes in the future, the parties would agree to decouple EEZ determinations from sovereignty over the Islands themselves, each side would acknowledge the other’s territorial claim, and Japan would delegate rights of administration to a joint oversight board with authority to regulate patrols and use. The authors view their approach as “designed to respect the core interests and nonnegotiable demands of both claimants to the islands.” Under a separate proposal by Mark Rosen, Tokyo would concede that the islands are not entitled to an exclusive economic zone (EEZ), Beijing would pull back excessive straight baselines along the coast of the Chinese mainland and acquiesce to Japanese effective control over the Islands, and the two sides would divide the sea space opened up as a result of their respective concessions. Rosen frames his plan as a simple application of international law and asserts that it will resolve tension by “tak[ing] the Senkaku off the table in terms of the effect that those islands have in establishing a maritime boundary in the East China Sea.”

These scholars share a commitment to the idea that a grand bargain is the most likely path to a peaceful resolution, and their proposals are admirably creative. But they also share a common problem in that they misapply international law in ways that uniformly disfavor Japan. Consider two key points:

First, Japan has a superior claim to title over the Islands. I acknowledge that it may be difficult for readers to view this argument as anything other than yet another partisan salvo in what has become a tired and seemingly intractable debate. But the characteristics of the debate itself should not obscure the fact that the law supplies a doctrinal resolution. The best answer to the question of title is not an unknowable mystery, obscured by rhetorical heat, high stakes, and history, but a simple puzzle very similar to dozens of others that international tribunals have resolved over the course of the twentieth and twenty-first centuries. And on balance, the best solution to that puzzle is that the relevant historical facts and legal doctrines favor Japan, which has exercised effective control over the Senkaku Islands for over a century, with prolonged periods of Chinese acquiescence. Those who remain skeptical should consider the views of other thoughtful analysts (here and here) who have reached the same conclusion.

Second, the Senkaku Islands probably create an EEZ. Article 121(3) of the UN Convention on the Law of the Sea provides that land features have no EEZ if they are “[r]ocks which cannot sustain human habitation or economic life of their own,” but the Senkakus do not appear to be rocks of that type. It is widely acknowledged that Tatsuhiro Koga—a longtime lessee of the Islands—brought scores of seasonal workers to live there and operate businesses processing bonito and collecting albatross feathers in the early twentieth century. In carrying out those activities, Koga demonstrated that the Senkakus are capable of sustaining both human habitation and economic life of their own. To conclude that the Islands are rocks despite this history, one must find that they are no longer capable of fulfilling functions that they previously fulfilled for extended periods of time. I have seen no evidence to support such a finding.

These observations suggest that the recent proposals for a grand bargain are unfair to Japan. Equipped with the better legal argument, why would Tokyo agree not only to acknowledge the Chinese claim but also to delegate administrative rights? And given that the Islands probably add significantly to Japan’s EEZ, why would Tokyo accept that they do not? For advocates of conciliation, the answer is that Japan would win concessions in return. O’Hanlon has emphasized that Japan could gain a Chinese promise not to raise additional territorial disputes or contest Japan’s rights of administration, while Rosen proposes that Japan could win Beijing’s agreement to pull back straight baselines along the coast of the Chinese mainland. But from a legal perspective, these are sour deals for Tokyo. None but the most ardent Chinese nationalists think that the PRC has anything better than a frivolous claim to other territories currently administered by Japan, and even Rosen describes the Chinese straight baselines as “excessive.” In truth, what these commentators are proposing is that Japan give up comparatively strong legal claims in exchange for China’s abandonment of comparatively weak claims. This might be sensible for any number of reasons, including the trajectory of the regional balance of power, but none of those have anything to do with international law. If the parties achieve a diplomatic solution, it will be in spite of the law, rather than with its assistance.

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Don’t Read the “Want China Times”

A few days ago I posted an essay at The Diplomat to report some of the things I learned about the Senkaku Islands during my recent trip to Japan. One part of that essay explained that the Yaeyama Islands are a likely source of future tension between China and Japan and that Japan is planning to expand its military presence on Ishigaki and Yonaguni. An online Taiwanese newspaper–the Want China Times–interpreted that comment to mean that I think Japan will be at fault for future tension over the Yaeyamas. But this was not my intent; in fact, I personally see China as the party at fault for much of the tension in the East China Sea. Why? Because I think that Japan has good title to the Senkaku Islands and that China repeatedly violates Japanese sovereignty by sending ships into the Japanese waters surrounding the Islands. Insofar as Japan is expanding its military presence to defend itself from Chinese incursions, that’s China’s fault, not Japan’s; Japan wouldn’t need to expand its defenses if it weren’t for Chinese incursions. Takeaway: don’t read the Want China Times. It’s an unreliable source.

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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.

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*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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