Syria and the Arms Trade Treaty

Posted on February 3, 2014 by Ryan Scoville

In this post, I want to evaluate the link between two contemporary foreign policy issues that are generally viewed as unrelated. The first is ongoing U.S. military assistance to Syrian rebels. As Reuters reported last week, the United States is currently supplying a variety of small arms, anti-tank rockets, and other items to “moderate” rebel factions, and Congress has approved funding for future deliveries through the end of the fiscal year. The second issue is the Obama Administration’s decision to sign the Arms Trade Treaty (“ATT”) last September. While it’s far from clear that the United States will ratify the ATT, an established doctrine of international law holds that the act of signature triggers an interim obligation to refrain from conduct that would defeat the treaty’s “object and purpose.” This obligation might restrict the ability of the United States to supply arms to the rebels, and raises questions about the legality of the ongoing transfers. To understand why, it’s necessary to consider the text of the ATT, the rebels’ conduct, and the nature of the interim obligation. Continue reading →

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The Drafting History of the Treaty of Shimononseki

Posted on January 22, 2014 by Ryan Scoville

One of the many contested issues in the sovereignty dispute over the Senkaku / Diaoyu Islands is whether China ceded title to Japan in the Treaty of Shimonoseki. In this post, I’ll briefly explain the competing textual arguments under the Treaty and then explore the question of meaning from an angle that is often overlooked: whether a first-hand, historical account of the Treaty negotiations from a Japanese official named Munemitsu Mutsu favors the contemporary position of either party. Mutsu’s account is valuable to the ongoing debate because he wrote it shortly after the negotiations concluded and, as the Japanese foreign minister and Tokyo’s chief representative at Shimonoseki, he possessed intimate and unsurpassed knowledge of the discussions that occurred. I obtained the account from Kenkenroku: A Diplomatic Record of the Sino-Japanese War, 1894-95, which was edited and translated by Gordon Mark Berger in 1982. Continue reading →

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New Article on the Diplomacy Powers of Congress

Posted on December 4, 2013 by Ryan Scoville

I’m happy to report that I have a new piece out in the Michigan Law Review. It’s entitled “Legislative Diplomacy” and provides an empirical and theoretical analysis on the extent to which Congress has constitutional authority to engage in international diplomacy. It’s available here.

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Why China’s New ADIZ Has No Legal Significance

Posted on November 30, 2013 by Ryan Scoville

There’s been an avalanche of news on the East China Sea over the past week. As I discussed in my previous post, China recently announced a new Air Defense Identification Zone (“ADIZ”), thereby requiring foreign aircraft flying over the Sea to provide navigation plans and means of identification to Chinese authorities, and to follow any instructions from the same. China’s armed forces “will adopt defensive emergency measures” against any aircraft that fails to cooperate. The reactions have been uniformly negative. Australia, Japan, South Korea, Taiwan, and the United States have all expressed opposition, while Japan, South Korea, and the United States each sent military aircraft into the ADIZ without notifying China or otherwise complying with the announced rules. Sensing that they had overreached, Chinese authorities subsequently exempted U.S. aircraft as long as they do not “go too far.” Japan, however, remains in the crosshairs. My last post explained that the legality of all of this hinges on whether China has title to the Senkaku / Diaoyu Islands that are located within the ADIZ, and on how aggressively China chooses to enforce the measure.

My purpose in this post is to make a simple point: regardless of whether the ADIZ is lawful, it carries close to zero legal significance in the sovereignty dispute over the Senkaku / Diaoyu. The reason is that once a dispute crystallizes, a development marked by the so-called “critical date,” the law denies the relevance of all subsequent acts that either party undertakes for the purpose of improving its legal position. The goal of this doctrine is twofold: First, it aims to reduce the risk of military or other conflicts that might arise from simultaneous acts of sovereignty by the competing parties. By deeming most subsequent acts irrelevant, the law reduces the benefit that a party might obtain by disturbing the status quo. Second, the doctrine aims to protect the quality of the evidence on which sovereignty may depend by eliminating the incentive for parties to create new facts in support of their claims once a dispute has arisen. Underlying this particular goal is the assumption that official acts that occur prior to the crystallization of the dispute are more genuine indicia of sovereignty or its absence because such acts are undertaken without an eye toward the response of other parties or international tribunals.

The critical date for the Senkaku / Diaoyu dispute is no later than approximately 1970, shortly after the UN Economic Commission for Asia and the Far East reported a high probability of massive deposits of oil and natural gas underneath the waters surrounding the Islands. This is the point at which the parties understood the economic stakes of sovereignty, and began publicly to assert competing claims. The result is that an overwhelming majority of official acts that have occurred in the decades since are inconsequential. It is generally of no moment, for example, that the Japanese government purchased some of the Islands in 2012, or that Chinese vessels have visited the surrounding waters with frequency in recent years. Likewise, it doesn’t matter that China has now established an ADIZ that regulates the airspace above the Islands. At most, such acts demonstrate only that neither party has acquiesced in the sovereignty claim of the other; they cannot support title as evidence of effective control. Sovereignty over the Islands, wherever it belongs, was decided by events that occurred decades ago.

Rather than bolster China’s legal claim, the purpose and effect of the ADIZ is to help slowly pry the Islands from Japan by leveraging a regional balance of power that is increasingly favorable to China. As one official Chinese media outlet stated on Friday, the “ultimate goal is to beat [Japan’s] willpower and ambition to instigate strategic confrontation . . . .” The ADIZ matters as a public-relations move, because of what it says about China’s growing confidence vis-à-vis Japan, and as evidence that China plans to resolve the dispute through extralegal means.

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China’s New Air Defense Identification Zone

Posted on November 26, 2013 by Ryan Scoville

£¨Í¼±í£©[¶«º£·À¿Õʶ±ðÇø]¶«º£·À¿Õʶ±ðÇø»®ÉèʾÒâͼThree days ago China’s Ministry of National Defense established an Air Defense Identification Zone (“ADIZ”) for the East China Sea. According to the announcement, foreign aircraft operating within the ADIZ will be subject to a couple of requirements: First, they must provide Chinese authorities with various means of identification, including by reporting flight plans, maintaining two-way radio communications and responding in a timely manner to inquiries, displaying clear marks of nationality, and maintaining the operation of any secondary radar transponders. Second, the aircraft must “follow the instructions” of Chinese authorities. If any aircraft fails to provide identification or follow instructions, “China’s armed forces will adopt defensive emergency measures.” The ADIZ is outlined in red in the map on the left and, most notably, includes the air territory above the contested Senkaku / Diaoyu Islands. Japan has warned that the ADIZ creates a risk of “unpredictable events,” while Secretary of State John Kerry and Secretary of Defense Chuck Hagel said that they are “deeply concerned” about China’s announcement and committed to defending Japan. The obvious purpose of the ADIZ is to further whittle away at Japan’s de facto control over the Islands. In this post, I want to raise two brief points on the legality of this measure.

First, the lawfulness of the ADIZ hinges in part on one’s preexisting view about sovereignty over the Senkaku / Diaoyu Islands. If sovereignty belongs to China, then it is unproblematic for the ADIZ to encompass the Islands. But if title belongs to Japan, the ADIZ is plainly unlawful. These conclusions follow from the powers that accompany sovereignty as a matter of longstanding custom. Simply put, states lack authority to regulate foreign aircraft flying over another state’s territory. While I recognize room for disagreement, I personally think that Japan has a stronger claim to sovereignty for reasons I’ve explained elsewhere. From this view it follows naturally that the ADIZ is unlawful because it effectively denies Japan’s right to fly aircraft freely over part of its own territory.

Second, even if China has sovereignty over the Islands, it does not automatically follow that the ADIZ is lawful. To understand why, it’s important first to realize that the UN Convention on the Law of the Sea establishes a system under which the sovereign powers of coastal states diminish as the distance from land increases. Sovereignty is most robust within the territorial sea, which extends 12 miles from the coastline; somewhat less extensive within a so-called “contiguous zone,” which extends an additional 12 miles out from the edge of the territorial sea; and even more limited within an “exclusive economic zone” (“EEZ”) that reaches from the outer edge of the contiguous zone up to 200 miles from the shoreline. As Peter Dutton has explained, a “substantial majority” of the international community views the airspace above waters located within a coastal state’s EEZ as an international navigational commons, such that even military aircraft are generally free to operate without interference. By Dutton’s calculation, no more than sixteen states have adopted a contrary view—Bangladesh, Brazil, Burma, Cape Verde, China, Guyana, India, Kenya, Iran, Malaysia, the Maldives, Mauritius, North Korea, Pakistan, Portugal, and Uruguay. A number of other countries—including the United States—have established expansive ADIZs, but have also reportedly declined to enforce them in a way that interferes with the navigation of foreign military aircraft not bound for territorial airspace. In the 1980s, the United States even engaged in hostilities with Libya to push back against Libya’s attempts to impose a large ADIZ over the Mediterranean. China’s new ADIZ appears to be largely co-extensive with its EEZ. As a result, the legality of the ADIZ is tenuous insofar as the majority practice reflects customary international law, and insofar as China plans to use the ADIZ to assert regulatory powers that are more robust than the custom permits. Of course, uncertainties remain. It’s unclear, for example, whether China will in fact enforce the ADIZ in an aggressive manner. And it’s conceivable that China has achieved the status of a persistent objector so as to exempt itself from the customary rule. Yet in the past China has affirmed that “all countries enjoy the freedom of overflight in the exclusive economic waters of a nation,” and has routinely declined to protest American reconnaissance flights in the airspace over the Chinese EEZ. In comparison to that practice, the ADIZ looks like a shift in strategy and further evidence of a growing Chinese readiness to assert itself in the region.

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Data on Congressional Foreign Travel

Posted on November 12, 2013 by Ryan Scoville

If you’d like to know about some of your representative’s or senator’s foreign travel habits, you can find out at the link below. The link will download a spreadsheet containing data on all congressional foreign travel for 2009, which is the most recent year for which the available data is the most complete. My sources were WikiLeaks cables and public reports on publicly and privately financed foreign travel. Although a few years old, the data still provide a pretty good sense for who is traveling, where they are going, which committees have the most frequent fliers, and how often legislators are traveling on public and private funding. If you want to know the purpose behind any given trip, additional information is often available by performing a keyword search of State Department cables at WikiLeaks’s website.

Composite Travel Data

The spreadsheet is generally self-explanatory, but here are a few points of additional clarification:

(1) Most of the dates reported in Column C are the actual travel dates. In some cases, however, the actual dates were unavailable, which forced me to use the dates of the Congressional Record reports in which the travel was disclosed. I signified the dates of these reports with an asterisk (e.g., “*09/09/09” would mean that the travel was reported in a document dated September 9th, not that the travel actually occurred on that date). Dates without asterisks are actual travel dates.

(2) The Congressional Record generally does not report the destination country for travel undertaken for the House or Senate Intelligence Committee. At best, the reports list only the destination continent (e.g., Europe) for such travel, and Column D reflects this practice.

(3) Columns G through K are all of the committees on which the corresponding legislator served at the time of the reported travel.

(4) The main spreadsheet tab is composite data, meaning data from public reports on publicly funded travel, public reports on privately funded travel, and the WikiLeaks cables. The second tab separates out all of the privately funded travel.

In December 2013 I published an article (available here) that discusses these findings and some of their implications for U.S. constitutional law.

Special thanks to Margaret Krei, Sam Berg, Nick Hagman, and Katie Linn for excellent research assistance.

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Video: Chemical Weapons in International Law

Posted on October 25, 2013 by Ryan Scoville

I recently appeared on International Focus, a local public television program that covers current events in international affairs. The host and I talked about legal issues related to the use of chemical weapons, including historical efforts to prohibit use, some of the key provisions of the Chemical Weapons Convention, and practical hurdles that inspectors will face in destroying Syria’s stockpile. The video is below. (I’m one of those people that hates seeing recordings of himself, on home videos or otherwise, so I haven’t watched it yet. This of course makes it hard for me to recommend that you watch it…but whatever. Grimace.)

 

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UN Immunity in the Haitian Cholera Litigation

Posted on October 11, 2013 by Ryan Scoville

Two days ago, victims of a cholera outbreak in Haiti filed a class action in the Southern District of New York against the United Nations, the UN Secretary-General, and the former head of the UN Stabilization Mission in Haiti (“MINUSTAH”). The complaint alleges that the defendants were negligent in deploying cholera-stricken Nepalese troops to Haiti and in constructing and maintaining their sanitation facilities. Additional claims include gross negligence, wrongful death, negligent supervision, negligent and intentional infliction of emotional distress, private and public nuisance, and breach of contract. The lawsuit is compelling in many respects, but I think the court will dismiss the complaint on the basis of the defendants’ immunity. In this post, I’ll explain why.

First some background: In 2004, the Security Council passed a resolution creating MINUSTAH for the purpose of enhancing security and promoting democracy and the rule of law in Haiti. In implementing that resolution, dozens of countries have deployed military and police forces to Haiti over the last decade. One of those countries, however, was Nepal, where cholera is apparently endemic. In 2011, within a couple of months after the arrival of approximately 1000 Nepalese troops, Haitians living downstream from the troops contracted cholera, and from there the number of cases shot up dramatically. The latest CDC figures are that the disease has infected over 650,000 Haitians, 8300 of whom have died. This is tragic. What’s worse is that, even in the face of pretty clear evidence of the source, the UN has refused even to acknowledge its role, much less offer compensation.

While it’s impossible not to sympathize with the plaintiffs, it’s hard to see how their lawsuit can succeed. For the UN, immunity seems fairly clear because the United States is a party to the Convention on the Privileges and Immunities of the United Nations, which establishes that the “United Nations, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” To date, the UN has not waived its immunity, and as far as I can tell no federal court has ever allowed a lawsuit against the UN to proceed where the UN has invoked the Convention.

The plaintiffs might attempt to overcome this problem in a couple of ways. One is by relying on the International Organization Immunities Act (“IOIA”), which states in part that “[i]nternational organizations . . . shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” The argument here would be that the IOIA confers on the UN only a limited form of immunity because the statute’s reference to the immunities of foreign governments points to the Foreign Sovereign Immunities Act (“FSIA”), which permits lawsuits against states on certain types of commercial and tort claims. But I think this argument will fail. The D.C. Circuit rejected it several years ago on the view that the IOIA refers to the absolute form of sovereign immunity that predominated in the United States at the time of the statute’s enactment in 1945, rather than the restricted immunity codified decades later in the FSIA, and the Second Circuit has implied that it might adopt the same interpretation. Additionally, the Second Circuit held just a few years ago that the absolute immunity embodied in the Convention applies in place of the IOIA because it is more specific—the Convention expressly concerns the United Nations, while the IOIA refers generically to “international organizations.” One intriguing implication here is that, at least in some U.S. courts, international organizations enjoy a more robust form of immunity than do sovereign states.

A second possibility for the plaintiffs is to argue that the UN lost its immunity by breaching the treaty that is the immunity’s source. Section 29 of the Convention says that the UN “shall make provisions for appropriate modes of settlement of (a) [d]isputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; [and] (b) [d]isputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General.” Relying on this language, the plaintiffs might contend that the UN violated the Convention by failing to offer any mode of dispute settlement. Although the Convention does not say that the UN can lose immunity by failing to honor its obligations, other international law holds that a material breach of a multilateral treaty by one of the parties entitles “a party specifically affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State,” and entitles “any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.” This law refers to a breaching “state” rather than an international organization, but it is understood also to apply “to any treaty adopted within an international organization.” The upshot is that, assuming a breach, the UN might temporarily lose its immunity if a state decides to suspend the Convention, given that the Convention is the immunity’s source. The problem, however, is that only states can suspend, and the United States almost certainly will not. For one, I’ve never heard of the United States doing that in circumstances like this. Additionally, I don’t think international law authorizes Washington to suspend in this case, given that the United States was not “specifically affected” by the breach, and given that the breach doesn’t appear to “radically change” the position of every party with respect to further performance.

That leaves the claims against the UN Secretary-General and the former head of MINUSTAH. Here, the Vienna Convention on Diplomatic Relations and Convention on the Privileges and Immunities of the United Nations both apply and provide, in essence, that UN officials are immune from civil lawsuits for any acts performed by them in their official capacity, unless the Secretary-General or Security Council provides a waiver. Scanning the plaintiffs’ complaint, I didn’t notice any allegations of tortious acts carried out other than in an official capacity. Moreover, Ban Ki-moon is unlikely to waive the immunity of the former head of MINUSTAH, and the Security Council has shown no sign of a plan to waive the Secretary-General’s immunity. So it’s likely that these claims, too, will fail.

Of course, it’s possible that the plaintiffs filed their complaint simply in the hope of putting more public pressure on the UN to provide redress, rather than because they think they will prevail on the merits. In that regard, they may very well succeed. It’ll be interesting to see how the UN responds.

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The U.S. also Violates an International Norm Against Chemical Weapons

Posted on September 7, 2013 by Ryan Scoville

Lost in the ongoing debate about Syria is a rather startling irony: while the Administration argues that intervention is necessary to enforce global norms against chemical weapons, the United States stands in material breach of the Chemical Weapons Convention, the single most important international law on this category of arms. Entering into force in 1997, the CWC prohibits the production, stockpiling, and use of chemical agents. Significantly, it also required member states to completely destroy their stockpiles by April 2007 or obtain an extension from a conference of states-parties. The United States ratified the treaty in the late ’90s and proceeded to comply with the obligation to destroy the U.S. arsenal, which included mustard gas, VX, and sarin. But our stockpile was easily one of the largest in the world, with nearly 30,000 metric tons of chemical agents, and by 2003 it became apparent that meeting the 2007 deadline would be impossible. So Washington requested a new deadline of April 29, 2012, and the conference of states-parties granted the request.

The new deadline, however, was again too soon, and the U.S. military failed to complete the destruction project in time. Today approximately 10% of the arsenal remains in place, and the Pentagon doesn’t expect to finish with disposal until 2023. What’s more, there’s no possibility of another extension: an annex to the CWC establishes that “in no case shall the deadline for a State Party to complete its destruction of all chemical weapons be extended beyond 15 years after the entry into force of [the] Convention.” In short, we’ve been in breach of the CWC for over a year, and we’ll probably continue to breach the treaty for another decade. This breach, moreover, isn’t trivial, as the obligation to destroy stockpiles reduces the risk of proliferation, drastically lowers the risk of use, and generally goes to the very heart of the treaty’s purpose of ridding the world of chemical weapons.

In raising this point, I obviously don’t mean to equate the U.S. breach with what has happened in Syria. The point is simply this: it’s harder for the Administration to justify war to enforce international norms against chemical weapons while simultaneously violating a critical part of the Chemical Weapons Convention. If the norms are that important, one would think that the United States would adhere to them in full. (For more on this subject, see this article by David Koplow, who provides an extensive analysis on the U.S. breach.)

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Evidentiary Problems in Congressional Foreign Policymaking

Posted on September 4, 2013 by Ryan Scoville

Here’s an interesting news item: The Administration is reportedly preparing to bring military and political leaders of the Syrian rebels to Washington so that they can lobby Congress to approve U.S. military intervention against Assad. I mention this because it seems to highlight a significant evidentiary problem that Congress has to deal with in deciding momentous questions of foreign policy. To inform their decision, members of the House and Senate will have intelligence reports that the President has chosen to share, testimony from executive branch officials, press reports, and whatever information can be gleaned from the rebel leaders. But virtually all of these sources are heavily biased in favor of intervention. Having already decided to pursue military action, the President and his subordinates are disinclined to highlight evidence that might weaken their case. The Syrian rebels are, for obvious reasons, unlikely to present anything other than an argument for intervention. And the U.S. media is both hawkish and sub-optimal as a source of military and foreign intelligence, given frequent lack of access to inside information. Analogizing to domestic litigation, the situation is like having one party to a lawsuit provide virtually all of the evidence, and forcing the court itself to find any support for the counterargument. If the adversarial system elicits truth, this approach may do the opposite. Moreover, the problem is particularly acute in foreign policy because Congress is unable to employ its usual tools of investigation outside the territory of the United States. Committees, for example, can’t subpoena foreign leaders to testify, staff members can’t gather eyewitness accounts by deposing non-citizens living abroad, and relevant governments may not volunteer relevant and reliable information. In many cases, members of Congress try to make up for the information gap by traveling overseas to meet with foreign leaders and observe conditions, but the instability in Syria renders even that option unavailable. Don’t be surprised if the overwhelmingly one-sided configuration of evidentiary inputs results in Congress approving the use of force.

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