Certificates of Competency for Nominees to be Chiefs of Mission: 1980 – 2014

In the Foreign Service Act of 1980, Congress mandated the creation of official records by which to assess the qualifications of ambassadorial nominees. Section 304 provides that, upon the nomination of an individual to serve in the office of ambassador, the president shall provide to the Senate Foreign Relations Committee a “report on the demonstrated competence of that nominee to perform the duties of the position in which he or she is to serve.” Commonly known as “certificates of demonstrated competency,” the purpose of these records is to deter unmeritorious appointments and help the Senate evaluate nominees by reference to whether they possess a useful knowledge of the principal language or dialect of the receiving country and “knowledge and understanding of the history, the culture, the economic and political institutions, and the interests of that country and its people.”

In April of 2014, the Obama Administration announced a policy to disclose the certificates to the public for all future nominees. This policy, which is now codified in a federal statute, has since fostered transparency with respect to dozens of recent appointments. But it also left unavailable the certificates for all nominees from 1980 to the date of the Obama Administration’s announcement, so I filed a request under the Freedom of Information Act (FOIA) in April of 2014 to obtain the roughly thirty years of certificates that predate and thus were not covered by the new disclosure regime. I finally acquired these records after a few years of delay and litigation, and now want to make them available to others in case they’re of use for research:

Tranche I

Tranche II

Tranche III

Tranche IV

Tranche V

Tranche VI

Tranche VII

Trance VIII

Finally, a file containing coding data for all nominees from 1980 to 2019 is available here.

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New Paper on Ambassadorial Appointments

I just posted a new draft on the topic of U.S. ambassadorial appointments. The paper uses documents I obtained from the State Department through requests and litigation under the Freedom of Information Act (FOIA) to develop an account of the past several decades of official practice, identifies a couple developments of concern, and explores potential legal reforms. The paper is forthcoming in the Duke Law Journal; here’s the abstract:

In making appointments to the office of ambassador, U.S. presidents often select political supporters from outside the ranks of the State Department’s professional diplomatic corps. This practice is aberrational among advanced democracies and a source of recurrent controversy in the United States, and yet its merits and significance are substantially opaque: How do political appointees compare with career diplomats in terms of credentials? Are they less effective in office? Do they serve in some countries more than others? Have any patterns evolved over time? Commentators might assume answers to these questions, but actual evidence has been in short supply. In this context, it is difficult for the public to evaluate official practice and hold accountable those who wield power under the Appointments Clause.

This Article helps to correct for the current state of affairs. Using a novel dataset based on a trove of previously unavailable documents that I obtained from the State Department through four years of requests and litigation under the Freedom of Information Act (FOIA), the Article systematically reveals the professional qualifications and campaign contributions of over 1900 ambassadorial nominees spanning the administrations of Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama, along with the first two years of Donald Trump. In doing so, the Article substantially enhances the transparency of the appointments process and exposes developments of concern: not only are political appointees on average much less qualified than their career counterparts under a variety of congressionally approved measures, but also the gap has grown along with the size of their campaign contributions to nominating presidents, resulting in a significant number of questionable appointments to ambassadorships involving major U.S. partners. In short, it appears that campaign contributions may be generating an increasingly deleterious effect on the quality of U.S. diplomatic representation overseas. The Article concludes by exploring potential legal reforms, including Senate rule amendments and statutory measures to regulate qualifications and enhance transparency.

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Ad Hoc Diplomats

I just posted a revised version of a new article on the role of the president and the Senate in the appointment of special envoys and other types of irregular diplomatic agents. The piece will be coming out in the Duke Law Journal; here’s the abstract:

Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats — individuals chosen exclusively by the president to complete limited and temporary assignments — play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.

This Article critically examines the appointments process for such irregular agents. An orthodox view holds it permissible for the president to dispatch any ad hoc diplomat without Senate confirmation, but this view does not accord with the original meaning of Article II. Scrutinizing text and an extensive collection of original historical sources, I show that, under a formalist reading of the Constitution, the appointment of most ad hoc diplomats requires the advice and consent of the Senate because these agents are typically “public Ministers” and “Officers of the United States” under the Appointments Clause.

The analysis makes several contributions. First, it provides a thorough account of the original meaning of “public Ministers” — a term that appears several times in the Constitution but lacks precise contours in contemporary scholarship and practice. Second, for formalists, the analysis reorients longstanding debates about the process of treaty-making and empowers the Senate to exert greater influence over a wide variety of presidential initiatives, including communications with North Korea, the renegotiation of trade agreements, the campaign to defeat ISIS, and the stabilization of Ukraine, all of which depend on the work of ad hoc diplomats. At a time of trepidation over the nature of U.S. foreign policy, such influence might operate as a stabilizing force. Third, the analysis illuminates rhetorical and doctrinal maneuvers that have facilitated the rise of the modern presidency, including historical revisionism and the marginalization of international law as an input in constitutional interpretation. These maneuvers complicate the political valence of originalism and cast the Justice Department’s Office of Legal Counsel (OLC) — a key proponent of the orthodox view — as a motivated expositor of the separation of powers.

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The Ethics of Baiting and Switching in Law Review Submissions

The Marquette Law Review hosted a fantastic symposium on the “ethics of scholarship” back in September and will be publishing an issue dedicated to the topic in the coming months. My short contribution addresses the ethics of a practice that appears to occur at times in law review submissions–namely, the practice of strategically over-claiming the importance of a paper to law review editors in order to improve the prospects of a favorable placement, and then walking back the over-claim prior to releasing the paper to the public. Here’s the abstract:

Sometimes the authors of law review articles engage in a bait-and-switch: they insert exaggerated claims of novelty or significance into their submission to student editors and then, after securing a satisfactory offer of publication, moderate those claims in drafts made available to colleagues and the public. By doing so, the authors manage to improve their chances at a desirable placement and avoid unscholarly claims before peers.

This symposium essay suggests that baiting and switching is unethical, and then discusses potential ways to address it.

With the annual submission season upon us, I hope the essay helps to discourage a problematic practice.

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Egocentric Bias in Perceptions of Customary International Law

I just posted a draft of a chapter that I’m contributing to International Law as Behavior (Harlan G. Cohen & Timothy Meyer eds., forthcoming Cambridge University Press), an edited volume that will offer interdisciplinary analyses on a variety of topics in international law. Here’s the abstract for the chapter, which is available on SSRN:

A substantial body of research in social psychology suggests that egocentric biases inhibit our ability to discern norms. This chapter identifies and explains two of those biases – the False Consensus Effect and the False Uniqueness Effect – and then explores their relevance and implications for efforts to identify customary international law (CIL). Among other things, the analysis offers insights on the persistent objector rule, the origins and evolution of CIL, and the merits of rational choice models.

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Trade Negotiations & the Appointments Clause

Below is a short series of posts on the issue of whether it’s consistent with the Appointments Clause for the President to appoint treaty negotiators, such as those who would renegotiate NAFTA, without first obtaining case-specific advice and consent from the Senate. In short, I think that the original meaning of the Appointments Clause probably disfavors such a practice, but one expert on these sorts of issues partially disagrees.

The opening argument.

A response from Prof. Michael Ramsey.

My reply.

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A Closer Look at Congressional Foreign Travel

On Monday, Paul Singer at USA Today reported new data on the burgeoning practice of congressional foreign travel. According to Singer, federal legislators spent more government funds venturing abroad in 2016 than any other year in the past decade. Roughly 40% of the trips cost over $10,000 each. The Senate Armed Services Committee spent more than any other, and the House Intelligence Committee experienced a big jump in expenses under the leadership of Rep. Devin Nunes (R-CA), who issued a directive for Committee members to “spend more time in the field.” These are important developments that suggest both the utility of what I’ve called “legislative diplomacy” and the risk of abuse as members of Congress engage in the practice with greater regularity. We also know, however, that the U.S. Government is not the only source of funding—members of Congress also rely on private sponsors. To name just one example, Rep. Tulsi Gabbard (D-HI) recently accepted sponsorship from a nonprofit organization in making a controversial trip to Syria, where she met with Bashar al-Assad.

Which raises the question: How much do we know about this separate domain of privately funded congressional foreign travel? More specifically, how common are non-governmental sponsorships? Has reliance on private sources become more or less common over time? Which members of Congress have participated? Where did they go? And who paid for it? Continue reading

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A Legal Analysis of Rep. Tulsi Gabbard’s Trip to Syria

Rep. Tulsi Gabbard (D-HI) has drawn attention in recent weeks for leading a delegation to Syria and Lebanon, where she reportedly met with government leaders, refugees, and members of civil society. The stated purposes were to engage in fact-finding and promote an end to the Syrian war, but details about the trip have raised questions about its wisdom and legality. In this post, I’ll elaborate on the relevant legal issues and supplement the news coverage by offering additional context for what’s taken place.

By way of background, Rep. Gabbard’s trip has proven controversial for a number of reasons: She reportedly declined to inform House leadership in advance, met with Bashar al-Assad, toured with officials from a Lebanese political party that actively supports Assad, and received funding from an American organization that counts one of those same officials as its executive director. Moreover, both before and after traveling to Syria, the congresswoman channeled some of Assad’s positions on the war in statements to the public. Two weeks ago, amid mounting scrutiny, she pledged personally to reimburse her sponsor, but critics have continued to denounce the trip and Rep. Gabbard for violating the Logan Act and House ethics rules. As I explain below, the arguments so far have been unpersuasive, but commentators have neglected an important angle of approach. Continue reading

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Finding Customary International Law

I just posted the final, published version of my paper Finding Customary International Law, which came out in the Iowa Law Review last month. It’s available here.

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The South China Sea Arbitration: Implications for the Senkaku Islands

One of the big takeaways from the South China Sea arbitration is that the high-tide features in the Spratly Islands are mere “rocks” under Article 121(3) of the UN Convention on the Law of the Sea because they “cannot sustain human habitation or economic life of their own.” This means that even the largest islands within the group lack an exclusive economic zone and a continental shelf. It also means that the separate question of sovereignty over the islands themselves is suddenly much less consequential than it might have been: whoever has title over the land now enjoys a diminished package of maritime rights that spatially extend no farther than a 12-nautical-mile territorial sea and an additional 12-nautical-mile contiguous zone.

This outcome is not only significant for the South China Sea; it also suggests something about the status of disputed features in the East China Sea: the Senkaku Islands. Simply put, the UNCLOS tribunal’s exposition and application of 121(3) strongly suggest that the Senkaku Islands are rocks. This is a setback for Japan, which has the superior claim to title, but might help to deescalate tensions between China and Japan by substantially reducing their legal incentives to contest each other’s claim.

I’ll start with 121(3)’s text: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Due to a lack of precedent and divergent commentary, there’s been quite a bit of uncertainty about the meaning of this language. The tribunal, however, resolved much of it in favor of treating close cases as rocks.

Particularly noteworthy for present purposes is the tribunal’s application of 121(3) to Itu Aba / Taiping Island—the largest and least rock-like of Spratlys. According to evidence cited in the ruling, Itu Aba has had fresh-water wells of sufficient quality and volume to support small groups of people; its vegetation has included, at one point or another, coconut, banana, plantain, and papaya trees, along with fields of palm, pineapple, cabbage, radish, and sugarcane; and workers there have at times operated small animal farms. The soil, moreover, contains sizable quantities of phosphate, and the surrounding waters have supported an abundance of sea life. Such conditions made it possible for fishermen to inhabit the island on a temporary basis for “comparatively long periods of time.” In addition, Japanese companies extracted economic benefits from Itu Aba for over twenty years starting in 1917. One company employed 600 workers to mine nearly 30,000 tons of guano, and built dorms, warehouses, a clinic, an analysis room, a weather station, a jetty, and mining tracks on the island to support its activities. Another hired roughly 40 workers to use the island as a base of operations for fishing in the surrounding waters. A publication from 1941 reported that still two other companies had a combined total of 130 personnel residing there “continuously.”

This evidence clearly suggests a capacity to sustain certain forms of human presence and economic activity. The tribunal, however, designated Itu Aba as a rock by narrowly interpreting 121(3)’s key terms.

First was the term “human habitation.” According to the tribunal, this entails the “non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner,” and requires “conditions sufficiently conducive to human life and livelihood for people to inhabit, rather than merely survive.” In other words, habitation refers to presence for “an extended period of time” by a “settled group or community for whom the feature is a home.” Applying this standard, the tribunal concluded that Itu Aba is not “obviously inhabitable” in light of its physical characteristics. There has been potable water and vegetation “capable of providing shelter and the possibility of at least limited agriculture to supplement the food resources of the surrounding waters.” Fishermen, moreover, have survived there “principally on the basis of the resources at hand.” Yet the island’s “capacity even to enable human survival” is “distinctly limited.” Historical use confirmed as much. The island served as “a temporary refuge and base of operations for fishermen and a transient residence for laborers engaged in mining and fishing,” but nothing resembling a stable community ever formed. The temporary presence of migrant workers for a “few short years” failed to suffice because the purpose of their presence was not to “make a new life for themselves on the island[].”

Second was the phrase “economic life of their own.” The tribunal explained that “economic life” means “more than the mere presence of resources,” and that “some level of local human activity to exploit, develop, and distribute those resources would be required.” “Of their own” in turn means that the feature(s) “must have the ability to support an independent economic life, without relying predominantly on the infusion of outside resources or serving purely as an object for extraction activities, without the involvement of a local population.” Itu Aba failed to meet these standards, too. Although the island supported certain kinds of economic activity, all of it was “essentially extractive in nature (i.e., mining for guano, collecting shells, and fishing)” in the sense that it “aimed to a greater or lesser degree at utilizing the resources [present] for the benefit of” populations elsewhere. This was inadequate.

A number of commentators, myself included, have characterized the Senkaku Islands as fully entitled islands rather than rocks. But that position now appears untenable. Indeed, there are several ways in which the Senkakus, even as a group, present a similar or even easier case for rock status than Itu Aba. Consider the following timeline, which I pieced together from archival materials and an academic article that the Japanese Ministry of Foreign Affairs recently highlighted as presenting an accurate account of the islands’ history: Prior to the late 1800s, there was essentially no human presence of any kind. In 1890, a Japanese company placed roughly 80 fishermen on the largest of the islands (Uotsuri) to build huts and collect shells and other marine resources, but these individuals were present at most “for seasonal periods.” Other groups of fishermen also stayed on the islands intermittently, but only “for two to three months at a time, or at the longest half a year” because the “environment wasn’t suitable for longer stays.” In 1893, a group of workers stranded on Uotsuri managed to survive for an unspecified period. The food they consumed, however, was non-native, and they were “almost at the end of their endurance” when they were finally “rescued.” In 1896, the Japanese government leased some of the Senkakus to an Okinawan entrepreneur who used them and the surrounding waters as a source of albatross feathers, terns, bonito, and guano, all of which he sold in Japan or exported for profit. At the peak of these operations around 1912, there were 248 people present, but these individuals were “hired—not so much as pioneers to develop new territory than as migrant labor employed to do a certain job,” and they “received payment in return for agreeing to live and work on the islands” only “for a certain period of time, normally a year or six months.” And although the entrepreneur constructed dorms, warehouses, work huts, and a boat-building dock to support his operations, there were “no personally owned houses” present. Since the expiration of the lease, no one has lived on the islands even temporarily, and they are uninhabited today.

Much of this sounds similar to Itu Aba. Neither appears to have a naturally occurring supply of food, water, or shelter in quantities sufficient to enable a group of persons to live for an indeterminate period of time. Neither has ever had a stable community of residents who considered the island their home. Neither has sustained economic activities that are anything other than extractive. Uotsuri is slightly larger than Itu Aba, but the tribunal emphasized that size per se is irrelevant. There appears to be an abundance of resources around the Senkaku Islands, but the same could be said of Itu Aba. Given that Itu Aba is a rock, it is highly likely that the Senkakus are as well.

This strikes me as a major development in its own right. China and Japan have contested sovereignty over the Senkakus in part because of the marine resources surrounding and the hydrocarbons reportedly lying beneath the islands. If sovereignty is unlikely to carry with it an exclusive economic zone or rights to the continental shelf, then the parties simply have less incentive to contest title in the first place. This should be a welcome development for the international community, especially third parties that might be drawn into the dispute if it ever degenerates into open hostilities. But it also means that the tribunal’s ruling is a double-edged sword for Japan, which, in the view of most American legal commentators, has the stronger claim to sovereignty. Tokyo has already called upon China to comply with the UNCLOS ruling and would benefit in various ways if Beijing were to oblige, but this very same ruling has substantially bolstered the argument for downgrading the extent of Japan’s legal entitlements in the East China Sea. How Japan responds will be an issue worth following.

[Cross-posted at Lawfare.]

Posted in International Law, Senkaku / Diaoyu Islands, 尖閣諸島 | Tagged , , , , | 1 Comment