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 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.


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

As I’ve discussed in other posts, international law has a fairly peripheral role in American legal education. Only eight schools require their students to complete a course on the subject, and the range of international electives tends to be quite limited. Wondering whether this is only a recent phenomenon or instead something with deeper roots, I did a little research into historical practice. It turns out that scholars have surveyed the state of international legal education in the United States multiple times over the course of the past century. By combining their work—including two particularly good pieces by Manley Hudson (1929) and William Bishop (1953)—with a recent survey of my own, we can gain at least a rough sense for how the curriculum has evolved over time. Here’s what I found:

First, international law had a role even in the Founding era. In 1779, for example, the law of nations was added to the instructional duties of the “moral professor” at William & Mary. In 1790, James Wilson devoted a “considerable part” of his lectures at the College of Philadelphia to the law of nations, while James Kent lectured on the subject at King’s College just a few years later. According to Hudson, “the law of nations had a recognized place in the pursuit of a legal education, and it formed a part of the learning of many of the better-educated lawyers” of the period.

But international law appears to have lost a bit of its luster as a topic of study by the mid-1800s. Hudson explains that notwithstanding a growing body of American treatises, “some prejudice against the subject grew up among those engaged in professional legal education.” Why did this happen? A number of factors contributed: law students found themselves “overwhelmed by the development of private law,” the “law-teaching profession was recruited from the ranks of practitioners, few of whom had had experience with international law,” and “the system of law reports inaugurated in 1879 gave no special place to it.” Surely another influence was the relative insularity of the pre-imperial United States.

Lack of enthusiasm manifested in the form of limited course offerings. A survey from 1907 found that while ten schools—Harvard, Yale, Columbia, Cornell, Chicago, Indiana, Iowa, George Washington, John Marshall, and Washington University—offered an elective, “[m]any of the lesser schools and most of the Western schools omit international law.” This state of affairs persisted for quite some time. Hudson complained in 1929 that law schools had “neglect[ed] the subject” for the past “several decades.” In 1933, Edward Dickinson described international law as a “curricular luxury” that “is actually affecting a very small percentage of the law students.” By 1938, only 22 of 84 AALS schools offered even one course on the subject.

Offerings did, however, increasing over time, particularly after World War II. By 1947, the number of schools with an elective in international law had increased to 30. That number soon grew to 55, or 51% of AALS member schools, by 1953; 91, or 68% of schools, by 1964; and 117, or 78% of schools, by 1974. At this point, moreover, it was not uncommon to see multiple offerings—32% of schools had three or more electives in international legal studies by the mid-1960s. Reported contributors to this shift include the publication of new teaching materials, an increase in the number of law professors who were qualified to teach the subject, financial support from the Ford Foundation, and a growing student perception of the utility of international training.

The postwar trend continued into more recent decades. By 1991, John King Gamble was able to report that 98% of schools offered at least one course on international law. By 1997, roughly 90% had 5 or more international offerings. A 2004 ABA survey documented a “noted increase[]” in international electives during the 1990s, with 33 schools now making available not only an introductory course, but specialization certificates as well.

Although it is unclear whether the United Nations played a role, changes in the American curriculum over the second half of the twentieth century occurred alongside a litany of UN General Assembly resolutions calling on states to expand international legal education. In the first of these, adopted in 1947, the General Assembly resolved “to request the Governments of Members States [t]o take appropriate measures to extend the teaching of international law in all its phases . . . in the universities and higher educational institutions of each country that are under government control . . . , or to initiate such teaching where it is not yet provided.” Subsequent resolutions reaffirmed this request with more forceful language: In 1962, the General Assembly “[u]rge[d] Member States to undertake broad programmes of training . . . in the field of international law.” From 1970 to 1990, a string of ten resolutions repeatedly “[u]rge[d] all Governments to encourage the inclusion of courses on international law in the programmes of legal studies offered at institutions of higher learning.” In 1989, the General Assembly adopted a resolution declaring the 1990s the “United Nations Decade of International Law,” one of the primary goals of which was to “encourage the teaching, study, dissemination and wider appreciation of international law.” Subsequent resolutions from 1991, 1993, 1995, 1997, and 1999 “[u]rged all States . . . to make all possible efforts to implement th[is] goal,” and a resolution from 1992 specifically invited states to “encourage their educational institutions to introduce courses in international law for students studying law, political science, social science and other relevant disciplines.”

The precise extent to which U.S. students have taken advantage of the marked increase in the availability of training is unclear. Notwithstanding greater support for international law as an elective, virtually no American schools mandate any instruction on the subject, and it appears that this has long been the custom. One survey from 1946, for example, explained that international courses at the time were “nearly always elective, not required.” A 1951 survey similarly found that only five law schools required their students to complete such a course. And while there are reasons to believe that international law might be more popular with modern students than their predecessors, it still appears that only a distinct minority chooses to pursue an international elective. A 1997 study, for instance, found that fewer than 20% take a course on international law.

In short, the study of international law in the university setting has a long history in the United States, and it appears that formal training in the discipline is far more available to students today than at any other time since the Founding. But international law is still a fairly marginal part of the standard American curriculum, particularly in comparison to the curricula of other countries, many of which require all of their students to study the discipline.


ABA Proceedings of the Section of International and Comparative Law, Report of the Committee on Teaching of International and Comparative Law 127-29 (Sept. 18-19, 1951)

ABA Section of Legal Education and Admission to the Bar, A Survey of Law School Curricula, 1992-2002 (2004)

John A. Barrett, Jr., International Legal Education in the United States: Being Educated for Domestic Practice While Living in a Global Society, 12 Am. U. Int’l L. Rev. 975 (1997)

William W. Bishop, Jr., International Law in American Law Schools Today, 47 Am. J. Int’l L. 686 (1953)

Michael H. Cardozo & Richard R. Baxter, The Practical State of Teaching and Research in International Law, 1974 (1977)

Richard W. Edwards, Jr., International Legal Studies: A Survey of Teaching in American Law Schools, 1963-1964 (1965)

John King Gamble, Teaching International Law in the 1990s (1992)

Charles Noble Gregory, The Study of International Law in Law Schools, 2 Am. L. School Rev. 41 (1907)

Manley O. Hudson, The Teaching of International Law in America, 15 ABA J. 19 (Jan. 1929)

Manley O. Hudson, Twelve Casebooks on International Law, 32 Am. J. Int’l L. 447 (1938)

Joseph L. Kunz, A Plea for More Study of International Law in American Law Schools, 40 Am. J. Int’l L. 624 (1946)

Philip W. Thayer, The Teaching of International and Comparative Law, 1 J. Legal Educ. 449 (1948-1949)

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On the Senate Letter to Iran

A few quick points on yesterday’s open letter from 47 Republican Senators to the government of Iran:

(1) I don’t see legislative communications with foreign governments as categorically or even mostly unconstitutional, especially when Congress doesn’t purport to speak on behalf of the United States. But this letter still raises concerns. What distinguishes it from many other similar acts is that the Senators issued it without coordinating with the executive branch, and for a purpose at odds with the President’s attempts to reach a nuclear deal with Iran. There’s far less precedent for legislative diplomacy of this type.

(2) It’s rich that the Senators, whose stated purpose was to educate the Iranian government on the U.S. Constitution, incorrectly described the Senate’s role in treatymaking. According to the letter, the Senate “ratif[ies]” treaties after the President negotiates them. But of course that’s not right. As the Senate’s own website explains, the “Senate does not ratify treaties—the Senate approves or rejects a resolution of ratification. If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).”

(3) Finally, the Senators are probably correct as a matter of constitutional law in stating that a subsequent President could unilaterally revoke whatever agreement might emerge from the nuclear negotiations. But the Senators completely disregard that revocation could, depending on the nature of the agreement, place the United States in breach as a matter of international law. And they’re probably wrong in stating that “future Congresses could modify the terms of the agreement at any time”—future amendments are presumably possible, but presumably only if Iran agrees to them.

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The Senkaku Islands and the Problem of Intertemporality

An underappreciated complexity in the dispute over the Senkaku Islands is that the merits of the competing claims don’t hinge exclusively on contemporary international law. One of the most central issues is whether the Senkakus were terra nullius when Japan annexed them in 1895. If they were, then Japan prevails on the merits. But in deciding this issue, we’re technically not supposed to look for guidance in recent ICJ opinions, recent scholarly articles and treatises, or recent state practice. The reason is something called the doctrine of intertemporality, which requires that the legality of events be judged in light of the law contemporaneous with their occurrence, rather than with the law in force at the time a dispute is ultimately resolved. The appropriate question, in other words, is not simply whether the Senkaku Islands were terra nullius under the doctrine of occupation, but whether they were terra nullius under that doctrine as it existed in the years leading up to the date of Japanese annexation in 1895. Twentieth and twenty-first century developments in the doctrine are, strictly speaking, irrelevant.

This refinement complicates the analysis in two ways. First, it creates a certain level of unavoidable indeterminacy. There was far less law on the doctrine of occupation back in the nineteenth century. No international tribunals had issued decisions on the matter by that point, and even scholarly treatments were fairly sparse. Once we acknowledge that the contemporaneous authorities didn’t provide substantial guidance on what constitutes effective control, it becomes hard to say with certainty whether China had established effective control over the islands prior to 1895.

A second and more fundamental problem is that it’s questionable whether it’s even appropriate to apply the doctrine of occupation in the first place, regardless of its variant intertemporal manifestations. Today we take for granted that international law applies universally, to all states. But it wasn’t always so. Originating in Western Europe, it took time for this body of law to migrate to other parts of the world. And as recent works by Shin Kawashima and Masaharu Yanagihara demonstrate, that migration didn’t reach China and Japan until the late 1800s. China, for example, didn’t have a single text on Western international law until 1865, and didn’t view itself as operating within the framework of that law until after the First Sino-Japanese War in 1894-1895. To the extent that Chinese officials utilized Western doctrines prior to that time, it was, according to Kawashima, purely tactical: the idea was to “gain[] the upper hand over the West by using the tools of the West.” Similarly, Yanagihara explains that Japan had no knowledge of Western international law prior to Commodore Perry’s arrival in 1853, and that there were no Japanese translations of any relevant texts prior to 1865.

This history carries real significance for the debate over Japan’s early occupation of the Senkakus. At a minimum, it calls into question the legitimacy of using an historically Western doctrine to ascertain the legal consequences of events that took place before the parties themselves accepted the doctrine’s relevance and binding force. As late as October 1874, while locked in a dispute with Japan over the status of Taiwan, China specifically rejected the applicability of the Western concept of terra nullius. In Yanagihara’s words, the Chinese Foreign Ministry asserted that “it was useless to talk about international law in cases concerning Taiwan and China” because “international law ha[d] been quite recently invented in Western countries.” The relevant conceptual framework, in China’s view, was instead the Sino-centric order that had predominated in East Asia for centuries—an order that would presumably resolve uncertainties about the “sovereign” (to the extent such a concept existed) status of proximate “territory” (to the extent such a concept existed) in favor of China itself.

These observations are problematic for an occupation-based Japanese claim to the Senkaku Islands. They don’t, however, do much of anything to a Japanese claim founded on acquisitive prescription, which would rely entirely on effective control that occurred after 1895 and after the two sides had adopted the framework of Western international law. For Japan, this is one of the reasons why acquisitive prescription seems to be a stronger argument than occupation.

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Residency Venue in Cases with Foreign Corporate Defendants

A few years ago, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, in part to resolve, as the title suggests, uncertainties concerning the old venue statute. The effort succeeded in various regards, but Congress seems to have unwittingly created a new problem in the course of correcting others. Specifically, it’s not clear how to determine residency venue under 28 U.S.C. § 1391(b)(1) when at least one of the defendants is a foreign corporation.

The statute appears to provide two contradictory solutions: First, venue is appropriate in a district only if at least one defendant resides there and all defendants—including the foreign corporation—reside in the state in which the district is located. In this analysis, 1391(c)(2) decides residency questions for all corporate defendants such that a foreign corporation, like any other, is a resident of the given state only if it is subject to personal jurisdiction there. Alternatively, venue is appropriate in a district only if at least one defendant resides there and all defendants—excluding the foreign corporation—reside in the state in which the district is located. Under this option, 1391(c)(2) only governs the residency of domestic corporations; foreign counterparts are “not resident in the United States” under 1391(c)(3) regardless of whether they are subject to personal jurisdiction in the state in which the district is located, and thus “may be sued in any district” and “disregarded” in determining whether venue is appropriate under 1391(b)(1).

The difficulty arises because it’s not clear whether 1391(c)(2) and (c)(3) operate on the same concept of residency. One would think they do. After all, there is no specific indication of different meanings, both provisions are part of 1391(c), and an accepted canon of construction holds that a term used more than once should typically carry the same meaning throughout a statute. But this would lead to a bizarre result: If 1391(c)(3) incorporates (c)(2)’s personal jurisdiction-based concept of residency, then “not resident in the United States” under (c)(3) means not subject to personal jurisdiction in the United States, and a foreign corporation may be sued “in any district” only if it is not subject to personal jurisdiction here. That amounts to a null set of venues in which federal courts can constitutionally adjudicate claims against non-resident corporate defendants.

We could avoid this problem by adopting a different interpretation of 1391(c)(3). One possibility is that the provision uses a narrower concept of residency, defined exclusively in terms of state of incorporation and principal place of business: a foreign corporation is “not resident in the United States” even if it’s subject to personal jurisdiction here, as long as it’s incorporated and has its principal operations abroad. On this view, 1391(c)(3) doesn’t become inapplicable simply because there’s personal jurisdiction over the defendant. Such an interpretation would not only render 1391(c)(3) more useful in the sense that it would facilitate venue in cases in which a district court can constitutionally exercise jurisdiction, it would also align with 1391(c)(3)’s approach to human defendants, which permits venue anywhere with respect to individuals who are domiciled abroad even when personal jurisdiction is present. A second possible interpretation is that 1391(c)(3) applies only to human defendants, leaving 1391(c)(2) as the sole basis for determining whether 1391(b)(1) applies in cases with any kind of corporate defendant.

But both of these options raise their own difficulties. For one, there is no clear textual justification for saying that residency under 1391(c)(3) means something different than it does under (c)(2), or for concluding that (c)(3) applies only to natural persons. On top of that, different meanings would make it hard to decide in principle which of the two provisions governs: Is a foreign corporate defendant a non-resident under (c)(3)? Or is it an entity under (c)(2)? There’s a sense in which it would be both, so neither provision would be more specific.

Uncertain about the proper resolution, I did a quick Westlaw search to see how courts and influential treatises have handled the issue. None of these sources provide any thorough analysis on point, but they do imply that 1391(c)(3) applies even when foreign corporations are subject to personal jurisdiction in the United States. Coupling this fact with the difficulty that accompanies the contrary interpretation, the best view seems to be that 1391(c)(2) and (c)(3) use different concepts of residency, with the latter pointing simply to entities that are incorporated and headquartered overseas.

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More Responses to the Dudden Op-ed

The New York Times just published a collection of thoughtful (and warranted) responses to Alexis Dudden’s recent op-ed on Japan’s territorial claims. I wrote earlier that Dudden’s piece disregards international law, and I stand by that. The responses contend that it also misinterprets the Japanese language and history (I agree on both points).

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