New Article on Customary International Law

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

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Legislative Diplomacy After Zivotofsky

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

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

What are Zivotofsky’s implications for this topic?

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

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

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

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

[Cross-posted at Lawfare]

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The Role of Foreign Perceptions in Zivotofsky v. Kerry

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Cross-posted at Lawfare]

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Further U.S. Assurances on the Senkaku Islands

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

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

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

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

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

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

Here are the results:

Compulsory Training in International Law

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

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

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

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


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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