A Few Points on Syria

Posted on August 31, 2013 by Ryan Scoville

So many people have written about the looming Syria intervention that it’s hard to add much to the conversion, but I’d like to make a few quick points. First, regardless of what happens, international law has been a (surprisingly?) big part of the discussion, both among the public and high-level officials, including the President. That fact seems to suggest that the realist critique of international law is overstated; it’s hard to conclude that treaties and customary norms are irrelevant when they are such salient rhetorical tools in the arguments for and against intervention. If the recent discussion is any indication, the law has a certain gravity that pulls states toward compliance and forces them to develop compelling explanations for deviation. Which is something.

The second point is that I’m happy to see that President Obama will seek congressional authorization for the use of force. The decision constitutes a welcome break from decades of executive unilateralism in military affairs. At the same time, I disagree with those who think that this is anything like a watershed moment. Why? Because the President clearly stated that he chose this route on the basis of policy rather than constitutional law. As long as he reserves the right to attack without congressional authorization, I don’t see how his decision to seek authorization can be viewed as anything other than a non-constitutional precedent.

Finally, one argument I haven’t really seen is that U.S. intervention might be justified on the theory that it’s consistent with the purposes, even if not the letter, of Security Council control over the non-defensive use of force. One purpose seems to be that the Council’s control substantially decreases the likelihood of purely aggressive or otherwise unjustified war by ensuring prior approval or at least acquiescence from all of the major powers. The other is avoidance of war between those same powers. You can make a case that intervening in Syria is not inconsistent with either purpose: Given the nearly universal acceptance of the legal prohibition on the use of chemical weapons and obvious immorality of use, it’s hard to argue that punishing the perpetrators is unjustified. And the limited nature of the intervention will substantially reduce the risk of great-power conflict. I’m not necessarily in favor of intervening, and I recognize that this argument has limits, including the precedent that intervention might set for other states to pursue their own non-defensive wars without approval, but the argument also suggests that the U.S. intervention will not be a flagrant violation of the UN Charter.

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Litigation Over the U.S. Role in the Iranian Coup

Posted on August 28, 2013 by Ryan Scoville

Yesterday Iran’s parliament approved a bill requiring the Iranian government to sue the United States in international court for orchestrating the 1953 coup against Mohammad Mosaddegh. Given the timing, I’m guessing that the National Security Archive prompted this move by releasing evidence last week that officially confirmed the CIA’s involvement.

The bill probably isn’t going anywhere for a host of reasons; here’s just one: the International Court of Justice wouldn’t have jurisdiction over the lawsuit. There are only four ways to get a case to the ICJ: (1) by special agreement among the disputing parties, (2) on the invitation of one party and implied consent of the other, (3) in accordance with a dispute-settlement clause in a treaty, or (4) by the prior agreement of both parties in accordance with Article 36(2) of the ICJ Statute.

None of these options apply. The United States and Iran have no special agreement providing for jurisdiction, and Washington obviously won’t consent. Additionally, there is no applicable treaty with a dispute-settlement clause that refers cases to the ICJ; several years ago the court held in the Oil Platforms Case that a provision in the 1955 U.S.-Iran Treaty of Amity, Economic Relations, and Consular Rights conferred jurisdiction over part of a dispute that arose back in the late 1980s, but that provision can’t apply to the coup because the coup predates the Treaty and the Treaty is non-retroactive. Finally, neither the United States nor Iran has accepted ICJ jurisdiction under Article 36(2).

If Iran’s going to prevail against the United States in a legal forum, it will have to be elsewhere.

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Sexual Minorities Uganda v. Lively

Posted on August 22, 2013 by Ryan Scoville

Last week a federal district court in Massachusetts issued a somewhat surprising opinion on the Alien Tort Statute. The plaintiff alleged that a U.S. citizen named Scott Lively committed crimes against humanity by engaging in anti-gay advocacy in Uganda, including attending conferences, speaking in public on a purported link between homosexuality and pornography, publishing books about his views, and consulting on a draft anti-homosexuality bill for the Ugandan Parliament, the cumulative result of which was to intensify public and private persecution of gays and lesbians in the country. Based on this same conduct, the plaintiff also filed counts for aiding and abetting liability and conspiracy to commit crimes against humanity. Lively responded by moving to dismiss on the ground that there is no international norm against the persecution of gay people, and that even if such a norm exists it enjoys insufficient acceptance and specificity to satisfy the standard set forth in Sosa v. Alvarez-Machain. The court denied the motion and, in a first for ATS litigation, held that “[w]idespread, systematic persecution of LGBTI people constitutes a crime that unquestionably violates international norms,” and that ATS jurisdiction was proper because “[a]iding and abetting in the commission of a crime against humanity” satisfied Sosa.

I oppose Mr. Lively’s bigotry and sympathize with the court’s decision. But I also think it’s important to be honest about the decision’s legal merits, which is to say that I think the court probably got a couple of things wrong. Most fundamentally, I’m skeptical that it’s a crime against humanity under current international law for a private individual to advocate discrimination against gay people (or any other group). Tellingly, the opinion didn’t cite any authority that is directly on point—all of the cases and other sources involved other types of conduct.

Lively’s actions also seem insufficient under the Rome Statute, which in relevant part defines “crimes against humanity” as:

any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack . . . [p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.

The other acts “referred to in th[e] paragraph” are murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; enforced disappearance of persons; the crime of apartheid; or “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

This definition suggests that the court erred in two respects. First, the Statute defines crimes against humanity as including persecution only “on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law.” Sexual orientation doesn’t comfortably fall into any of those categories. Gender expressly refers only “to the two sexes, male and female, within the context of society,” and given the limited state of gay rights even in relatively progressive countries like America, it’s simply not the case that discrimination on the basis of sexual orientation is “universally recognized as impermissible.” Second, even assuming that sexual orientation is a cognizable category of persecution, the court failed to explain how such persecution occurred “in connection with” another prohibited act. If the court had engaged in that analysis, the only category of supplemental conduct that gets even close to the allegations in the complaint is “other inhumane acts.” But even that category probably doesn’t apply, given its requirement that the inhumane acts be of a character “similar” to that of things like extermination, torture, and rape. As bad as Lively’s conduct appears to have been, it was not accompanied by acts that most people associate with crimes against humanity. There’s a material moral difference between, on one hand, writing books and giving speeches that favor discrimination and, on the other, acting like President Assad. That difference raises legitimate questions about whether the prohibition was intended to extend to acts of speech.

But let’s assume for the sake of argument that Lively’s acts constituted a crime against humanity. What then? I think the court also erred by botching the Sosa test, which permits a federal cause of action under the ATS only for norms that are “accepted by the civilized world and defined with specificity comparable to the 18th-century paradigms [the Court has] recognized”—i.e., prohibitions against infringement of the rights of ambassadors, violation of safe conduct, and piracy. Given the apparent absence of any specific authority for the norm in question, it’s hard to see how the norm could satisfy Sosa. If the prohibitions that courts typically recognize are clearly defined, widely accepted, and longstanding, the law designating persecution on the basis of sexual orientation as a crime against humanity appears to be precisely the opposite—fuzzy, controversial in parts of the world, and nascent. The court tried to sidestep this problem by pointing out that the concept of aiding and abetting liability is well-defined and accepted, but that conclusion makes no sense unless the primary offense to which the aiding and abetting liability pertains is itself compliant with Sosa. To conclude otherwise is just bootstrapping—i.e., it’s allowing the clarity of the general prohibition on aiding and abetting to overcome the murky status of the primary offense. I’m not aware of any other ATS case that allows for that.

As one last point, I think it’s worth noting that there’s a potential tension here between international law and the First Amendment. All of Lively’s conduct appears to have taken the form of advocating discrimination. Even assuming that international law prohibits such conduct, the right to free speech may in turn prohibit a court from imposing liability. One decision that comes to mind is Snyder v. Phelps, where the Supreme Court held that members of the Westboro Baptist Church had a First Amendment right to protest at the funerals of deceased U.S. soldiers. It’s not clear that Lively’s conduct was any worse.

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Egypt & the Take Care Clause

Posted on August 19, 2013 by Ryan Scoville

In the course of recent debates over how to respond to the events in Egypt, many have pointed out that the central legal question is whether Section 508 of the Foreign Assistance Act obligates the President to cancel hundreds of millions in U.S. military aid. Reports are now emerging that the Administration has quietly decided to suspend aid on a temporary basis, but without deciding that a coup has occurred. Putting aside the complex policy questions at stake, I want raise a couple of unconsidered points on the relationship between this decision and the President’s duty under the Take Care Clause, and suggest that the President has a statutory and constitutional obligation to go one step further and cancel military aid, unless Congress passes a new law overriding the current statute.

Here’s what Section 508 says:

None of the funds appropriated or otherwise made available pursuant to this Act shall be obligated or expended to finance directly any assistance to any country whose duly elected head of government is deposed by military coup or decree: Provided, That assistance may be resumed to such country if the President determines and reports to the Committees on Appropriations that subsequent to the termination of assistance a democratically elected government has taken office.

Like many others, I think it’s pretty clear that the statute applies. U.S. military assistance to Egypt falls into the category of funds that the text addresses, and there doesn’t appear to be any real question that a “coup” occurred. (The Administration’s careful avoidance of the term reminds me of the Clinton Administration’s refusal to use the word “genocide” to describe what happened in Rwanda in the early ‘90s.) As a result, the Administration probably has a statutory obligation to cut off aid. Some officials have suggested otherwise on the view that Section 508 doesn’t require a determination on whether a coup occurred, and thus permits the Administration to decline to make the factual finding necessary to trigger the statutory mandate, but that reading would gut the mandate itself. To say that the President has unlimited discretion to decide whether he will decide whether a coup has occurred is in effect the same as saying that the President has no real obligation to cancel aid. Perversely, such a reading would turn the statute’s prohibitory language into a pure grant of power—if a coup occurs, the President can cancel assistance if he so desires.

The more interesting question is whether the President has constitutional power to ignore the statute. On one hand, Article II states that the President “shall take Care that the Laws be faithfully executed,” and thus supports a simple argument in favor of cancelling assistance: Section 508 is a “law,” so the President has a duty to see that it is “faithfully executed,” and only by acknowledging that a coup occurred within the meaning of the statute can the President honor that duty; ignoring the statute or denying its application based on an implausible interpretation of its terms would be the opposite of faithful execution. Additionally, there is no general executive law-suspension power; the only textual support for a power not to honor valid federal law comes from the Suspension Clause, which applies only to habeas corpus, and resides in Article I, which suggests that the power is by nature legislative.

On the other hand, the Take Care Clause has limits. One is that it doesn’t obligate the President to oversee the execution of laws that are unconstitutional. Some have also advanced a second and more controversial limit under which an “extreme or emergency situation” involving foreign affairs or national security may justify an executive decision to violate a valid federal statute. The question posed by the coup in Egypt is whether either of these theories would authorize the President to resume military assistance in contravention of Section 508.

I think the better answer is no. One conceivable defense of eventually resuming aid is that the Take Care Clause does not apply to Section 508 because the statute interferes with the President’s exclusive power to recognize foreign governments, but that theory works only if barring assistance is equivalent to prohibiting the President from identifying the military leadership as the legitimate government of Egypt. I doubt the equivalence for a couple of reasons. First, there is no inherent link between recognition and aid, which the United States might restrict for any number of unrelated reasons, such as ensuring that U.S. weapons are not used to commit human rights abuses, maintaining a balance of power, punishing a government, or preventing assistance to a rival. Official practice demonstrates as much. A legislative prohibition on certain military aid to Russia, for example, doesn’t establish that the United States refuses to recognize President Putin’s regime as the government of Russia. Inversely, legislative authorization of military aid to Taiwan doesn’t mean that the United States recognizes Taipei as the government of China. Recognition hinges instead on the enumerated powers from which it derives—namely, the President’s powers to appoint and receive ambassadors. In the Russia and Taiwan examples, the status of diplomatic relations is the more reliable indicium of recognition, and has no relationship to military aid per se. Second, as some have pointed out, the executive previously honored Section 508 by cutting off aid to Cote d’Ivoire, the Central African Republic, and Pakistan, all without challenging the statute’s constitutionality. Those precedents make it hard to argue that Section 508 is now invalid.

One might also defend the eventual resumption of aid on a more controversial theory advocated by Robert Delahunty and John Yoo—i.e., that the Take Care Clause does not apply in extreme or emergency situations pertaining to foreign affairs. As applied to Egypt, the argument would have to be that the President has power to disregard Section 508 because the coup constitutes a national emergency for the United States and violating the statute is the only way to protect vital U.S. interests. Putting aside the general merits of the theory, its application to Egypt seems to encounter several significant problems. For one, the situation probably doesn’t qualify as an emergency in the extreme sense that the theory envisions. The United States is not a participant in the conflict, and faces no immediate risk of an armed attack as a result of Egyptian instability. If the Korean War was insufficient to justify President Truman’s unauthorized seizure of steel mills, then the Egyptian coup cannot justify the continuation of military aid in diametric opposition to the command of Congress.

Additionally, even assuming that the coup in Egypt qualifies as a national emergency, it’s doubtful that faithful execution of Section 508 would harm U.S. interests in such an extreme manner as to warrant disregarding the statute and the Take Care Clause. Strong ties with Egypt have produced a number of important benefits for the United States, including expedited transit through the Suez Canal, the use of Egyptian airspace, and peace between Egypt and Israel, but it’s not clear that ending U.S. military aid would completely reverse those benefits, and honoring the statute may even promote U.S. interests by deterring military takeovers in other states and encouraging the Egyptian generals to reconcile with their political opponents. Moreover, the cancellation of assistance would not have to be permanent. If assistance remains indispensable, Congress can always pass a new statute to override Section 508 vis-à-vis Egypt.

Finally, the purpose of Section 508 suggests that the rationale for the Delahunty & Yoo theory applies less persuasively here. It is one thing to argue that the President can violate a statute that may not have contemplated a new emergency; in that circumstance, the President might still plausibly claim to honor actual congressional intent. But it is another thing directly to violate the command of a statute that plainly envisions the circumstances that have arisen. Section 508 is not a law that simply failed to foresee the possibility of a coup, but one that Congress drafted for precisely that circumstance. Disregarding the statute would thus require a more robust and problematic assertion of executive power.

In short, even if one favors continuing aid as a matter of policy, the legal analysis seems to favor not simply suspending aid, but cancelling it altogether. Future aid will require either new statutory authorization or a transition back to democracy in Egypt. The Take Care Clause demands as much.

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A Response to the Bolton & Yoo Op-ed on the Arms Trade Treaty

Posted on August 15, 2013 by Ryan Scoville

A few months ago John Bolton and John Yoo published an op-ed in the Wall Street Journal criticizing the Obama Administration for promoting U.S. ratification of the Arms Trade Treaty, which the UN General Assembly adopted in April. The op-ed argues that the ATT would enable the Administration to circumvent Congress and require new domestic limits on small arms in violation of the Second and Tenth Amendments. I just read the piece and was surprised at how unpersuasive I found it to be, so I decided to write a quick response. I have already explained why the Second Amendment argument isn’t particularly compelling (see here), but a few additional points deserve emphasis:

First, in arguing that Articles 5 and 10 of the treaty would require the United states to adopt new restrictions, Bolton and Yoo overlook existing federal law. They acknowledge that the United States “already has the world’s most serious export controls in place.” What they fail to mention is that current laws also impose permit and registration requirements on arms importers, bar some imports based on country of origin, mandate broker registration, and even authorize criminal penalties against violators. I see nothing in Articles 5 and 10, or in the op-ed, indicating that these laws would be insufficient. That being the case, it’s at least questionable that the United States would have to adopt new import restrictions after ratification. While some might perceive the sufficiency of existing U.S. law as an argument against ratification, that view ignores the positive diplomatic implications of U.S. participation—an arms treaty backed by the world’s largest arms exporter would enjoy much greater legitimacy.

Second, Bolton and Yoo seem to suggest that the ATT would enable the Obama Administration to get around the Second Amendment, but that is simply incorrect. As they later acknowledge, the Supreme Court held in Reid v. Covert that treaties cannot violate the protections enshrined in the Bill of Rights. The right to bear arms being one of those protections, it is obvious that a ratified ATT would have to comport with the Second Amendment. And as I explained in my previous post, I think the treaty in fact would, particularly given the common practice of adding reservations to address issues of this nature.

Third, the argument that the President could use the ATT to circumvent the Tenth Amendment seems unpersuasive. Because the treaty focuses on international arms transfers, its restrictions fall easily within Congress’s ample powers to regulate foreign and interstate commerce. Moreover, even assuming the ATT would interfere with a traditional domain of state power, that fact would not render the treaty unconstitutional. As Bolton and Yoo concede, longstanding Supreme Court precedent holds that the Tenth Amendment does not restrict the treaty power. This concession forces them to argue that the Court’s precedent has been wrongly decided, which is the same as saying that the ATT is constitutional under that precedent.

Bolton and Yoo also attack the ATT on the ground that it is “far easier,” and thus more problematic, to adopt gun restrictions by treaty than through normal legislation. This also seems incorrect. Unlike a statute, the passage of which requires only simple majorities, a treaty must win approval from two-thirds of the Senate. Official practice is consistent with the view that this heightened voting requirement poses a greater hurdle than bicameralism: according to one study, from 1980 to 2000 the United States entered into over 2700 congressional-executive agreements, which are the same as statutes in the procedures required for their adoption, but only 375 treaties. If it were far easier to adopt treaties, one would think that they would outnumber congressional-executive agreements, or at least rival them in frequency, particularly given the widely held position that treaties and congressional-executive agreements are functionally interchangeable.

Bolton and Yoo close by suggesting that President Obama might rely upon the international obligations that accompany treaty signature to implement the ATT without Senate approval. This argument is based on Article 18 of the Vienna Convention on the Law of Treaties, which requires signatories of an unratified treaty to “refrain from acts which would defeat the [treaty’s] object and purpose.” Putting aside the political implausibility of the scenario that Bolton and Yoo describe, they gloss over the fact that most interpretations of Article 18 characterize the interim obligation as negative in character; the duty is simply to avoid new conduct that will defeat the object and purpose, not to affirmatively implement treaty provisions.

One final point: I was surprised that Bolton and Yoo did not address the issue of whether the ATT would be self-executing, given that a non-self-executing ATT would require implementing legislation and, therefore, could not possibly enable the Administration to circumvent Congress. On my reading, non-self-execution is likely. The provisions of Articles 5 and 10, for example, rather clearly contemplate domestic acts of implementation after ratification. Moreover, many have interpreted the Supreme Court’s 2008 decision in Medellin v. Texas as favoring, if anything, a presumption against self-execution. I don’t see anything in the relevant provisions that would overcome that presumption.

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A Comment on the Future of the Senkaku / Diaoyu Dispute

Posted on August 13, 2013 by Ryan Scoville

James Holmes from the Naval War College posted a good article at Foreign Policy on the growing strength of the Chinese navy. He acknowledges limits to the force’s current capabilities and a number of unknowns about the potency of its armaments and readiness of its crews, but is basically bullish about its long-term prospects, specifically noting that its development is proceeding rapidly and that it has “the most potential of any Asian navy.” I have no basis for disagreeing with those conclusions, and want to add simply that the navy’s rapid development has important implications for the Senkaku / Diaoyu dispute. Several observers have estimated that the current navy would be an approximate equal to its Japanese counterpart if the two fought over the Islands. But, as Holmes’s article suggests, the long-run seems clearly to favor China, particularly given the disparate economic trajectories of the two countries. As time passes, and assuming recent trends continue to hold, Japan’s ability to defend the Islands and deter Chinese aggression will likely wane.

All of which is to say that the present is the time of maximum leverage for Japan. You wouldn’t necessarily know it, however, from Japanese actions over the last couple of years. Tokyo has made few efforts to achieve a diplomatic or legal solution, and has instead focused on strengthening its own naval forces. The strategy appears to be one of attempting to match in kind China’s growing naval power. In the long run, I don’t see how this strategy is sustainable.

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Japan’s Vulnerability Under the U.S.-Japan Security Treaty

Posted on August 11, 2013 by Ryan Scoville

Many have noted that the U.S.-Japan Treaty of Mutual Cooperation and Security could pull the United States into the dispute between Japan and China over the Senkaku / Diaoyu Islands by obligating the United States to come to Japan’s defense in the event of hostilities. Article 5 of the Treaty has the key language and provides that “each Party recognizes that an armed attack against either Party in the territories under the administration of Japan 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.” Because the Senkaku / Diaoyu Islands are “under the administration of Japan,” there is no question that the Treaty applies to them. For that reason, the dispute over the Islands poses a risk for the United States; if any of the nearly daily incursions by Chinese vessels into the surrounding waters turns into an “armed attack,” the United States will have a legal obligation to back Japan. Yet the precise nature of that obligation is unclear. For a couple of reasons, I think it is more limited than many have assumed.

First, Article 5 does not necessarily require the United States to use military force in responding to an armed attack; the obligation is simply to “act to meet” the danger presented. It is not unreasonable to imagine that the United States could satisfy that obligation by pursuing economic or even diplomatic measures, depending on the circumstances. The vagueness of the text leaves Washington with significant discretion to decide whether a particular response will be enough.

Second, even assuming that only military measures can suffice, an armed attack on Japan will trigger a U.S. obligation to carry out only those measures that can be executed “in accordance with [U.S.] constitutional provisions and processes.” Significantly, those provisions and processes include Article I’s War Clause, which gives the House and Senate the exclusive power to issue declarations of war. The Treaty can legitimately obligate Congress to use that power in Japan’s defense if one assumes that the President and Senate could, simply by adopting the Treaty, require the House to cooperate in the passage of any war resolution that the Treaty subsequently demands. It is not clear, however, that the President and Senate have such a power. On one hand, a ratified treaty has the status of federal law under the Supremacy Clause. On the other hand, the House’s involvement in various Article I processes is meaningful only if the House retains power to make decisions independently. A treaty that could obligate representatives to approve a war resolution would transform their collective exercise of the war power into a mere formality and shift the true location of that power to the Senate and President. In short, the separation of powers might limit U.S. obligations under the Treaty. The only interpretation that clearly raises no constitutional problem would leave the House with an independent power to choose whether to support a war resolution, and thus preserve the possibility that the resolution fails.

More broadly, this analysis suggests that the Treaty obligates the United States to act only in ways that do not require the approval of the House of Representatives under U.S. law. Options that fall into this category include any number of diplomatic initiatives that rest on the exclusive diplomacy powers of the President, and limited military measures that rely on the President’s power as commander in chief. Article 5 thus operates somewhat perversely: the security guarantee is strongest when the measure necessary to meet the threat is modest, and weakest when the necessary measure is most robust. At best, Japan has a vague promise of limited assistance in the event of an attack. The Treaty leaves the United States with plenty of room to maneuver, but also leaves Japan vulnerable.

In this context, and given the difficulties associated with increasing the U.S. military presence in Japan, it is hard not to sympathize with Prime Minister Abe’s proposal to amend Article 9 of the Japanese Constitution to allow for a more potent military. According to Defense Department estimates, China’s military budget grew by an average of 9.7% annually from 2003 to 2012, with spending totaling somewhere between $135 and $215 billion last year. This is far less than military expenditures in the United States, which totaled $677 billion in 2012, but also noticeably more than Japanese expenditures, which saw no annual growth in the last decade and increased by only .8% to $51.7 billion in 2013. A stronger domestic force and corresponding shift away from Article 9 may be the only way for Japan to counterbalance a more assertive China.

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New Paper on the Senkaku / Diaoyu Islands Dispute

Posted on June 27, 2013 by Ryan Scoville

I posted a new essay on the dispute between Japan and China concerning sovereignty over the Senkaku / Diaoyu Islands. Here’s the abstract:

Legal analyses on the sovereignty dispute over the Senkaku / Diaoyu Islands have been unfavorable to Japan. The literature is populated primarily with works by Chinese commentators who argue in favor of the Chinese claim, and by others who conclude that the applicable law is simply too indeterminate to support either party. Academic analyses favoring Japan are rare and underdeveloped. This is a surprising state of affairs, given that Japan actually has the better argument. The purpose of this paper is to explain why.

The essay is still just a draft, so I welcome feedback from anyone who is interested in the topic.

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A Response to the Claim of Chinese Sovereignty Over Okinawa

Posted on June 17, 2013 by Ryan Scoville

800px-Qing_Dynasty_1820According to recent news reports, a growing group of Chinese officials and scholars has commenced a semiofficial campaign to challenge Japanese sovereignty over Okinawa. This is of course in addition to the widely publicized Chinese efforts to challenge Japanese control over the Senkaku / Diaoyu Islands. The basis for the claim to Okinawa appears to be a combination of early history and the Cairo Declaration, which the United States, China, and the United Kingdom issued in 1943 to help prepare the post-war order in East Asia. The argument goes like this: Okinawa and the other Ryukyu Islands were originally Chinese territory because the Ryukyu Kingdom was a tributary state of the Ming and Qing Dynasties; Japan stole the Ryukyus by invading them in 1609 and formally annexing them in the late 1870s; the Allies demanded the reversion of sovereignty over Okinawa to China in 1943 by stating in the Cairo Declaration that “all the territories Japan has stolen from the Chinese . . . shall be restored to the Republic of China”; and Japan agreed to the reversion of sovereignty by accepting the 1945 Instrument of Surrender, which provided for the enforcement of the Cairo Declaration. In this post, I’d like to identify a few reasons why this argument is unpersuasive.

First, it is at best questionable that China had original sovereignty over Okinawa. The Ryukyu Islands were never part of China proper; they maintained a separate government and leadership, and had their own languages and cultures. While Okinawan kings paid tribute to Chinese dynasties and received investiture missions from China, so did much of East Asia, including Korea, Thailand, and Vietnam, among others. These territories were not part of China in the sense that California is part of the United States, or England is part of the United Kingdom. To say that they were exaggerates China’s historical power. Okinawa’s relationship with Satsuma—one of the feudal domains of early Japan—amply illustrates the point. Even while paying tribute to China, Okinawan kings swore oaths of allegiance and paid annual tribute to Satsuma, which in turn exercised substantial authority over Okinawan political and economic life, including by regulating the importation of weapons, making final decisions in judicial cases involving the death penalty or exile, regulating Okinawa’s trade with China, and deciding succession to the throne. These acts of authority, some of which date back to the sixteenth century, are extremely difficult to reconcile with the idea of Chinese sovereignty in the Westphalian sense.

Second, even assuming original Chinese sovereignty over Okinawa, the Chinese nationalist claim seems to disregard the international law doctrine of acquisitive prescription, which holds that one state can obtain title over part of the territory of another by asserting effective control in a peaceful and public manner, without interruption, for a sufficient period of time. As far as I know, China hasn’t objected to Japanese sovereignty over Okinawa for well over a hundred years. If anything, it has done precisely the opposite: official Chinese maps and documents have repeatedly depicted Okinawa as Japanese territory. This acquiescence has enabled Japan to hold Okinawa without interruption. While the United States exercised administrative authority over the Ryukyu Islands from 1952 to 1971, we did so on the understanding that Japan retained “residual sovereignty.” It’s hard to think of an easier case for acquisitive prescription.

Third, it is doubtful that the Cairo Declaration granted sovereignty over Okinawa to China. The reasons are numerous. For starters, the Declaration did not purport to establish a final territorial settlement; the Potsdam Declaration, which the same states issued only two years after Cairo, explicitly left the extent of Japanese sovereignty over “minor islands” for future determination. If the Allies had understood Cairo to be the final say on the matter, there would have been little reason to address the issue again at Potsdam or in negotiations over the San Francisco Peace Treaty. Additionally, there is to my knowledge no evidence that the signatories of the Declaration intended to grant Okinawa to China. The Declaration, after all, said nothing about Okinawa even while mentioning the far less substantial territory of the Pescadores.

Finally, on a less legalistic note, I lived in Okinawa for about a year in my early twenties. Based on that experience, my sense is that the idea of Chinese sovereignty over Okinawa would be surprising, and probably upsetting, to most Okinawans today. While many residents are resentful of Tokyo’s agreement to locate major U.S. military bases on the islands, they all speak Japanese, watch Japanese TV, celebrate Japanese holidays, and travel to mainland Japan for education and business. Island residents think of themselves as Okinawan, rather than Japanese, but are in a wide variety of ways fully assimilated into modern Japan.

The history between Japan and China is incredibly complicated and sensitive and impossible to reduce to a few paragraphs, but I think there are a couple of tentative observations to make about the nascent Chinese nationalist campaign for Okinawa, given the preceding legal analysis. One is that Chinese nationalism is a nostalgic ideology in the sense that it downplays or simply disregards modern demographic and legal realities while relying heavily upon the Sino-centric East Asian order of the Ming and Qing Dynasties as the foundation for audaciously expansive territorial claims. The other observation is that the borderline frivolousness of the Chinese nationalists’ claim to Okinawa weakens the credibility of their claim to the Senkaku / Diaoyu Islands. If these individuals are asserting Chinese title over Okinawa notwithstanding the apparent absence of legal support, what’s to say that they take international law seriously in claiming the Senkaku / Diaoyu?

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The Decentralization of American Diplomacy

Posted on April 29, 2013 by Ryan Scoville

The Atlantic has a good article out right now on mayoral participation in global diplomacy. According to the authors, the practice is increasingly common and ambitious. Mayors of large cities have taken on issues ranging from global warming to nuclear disarmament, to economic growth and terrorism. These efforts are also becoming more institutionalized. The mayor of New York, for example, has a “Mayor’s Office for International Affairs,” and Europe has an “EU-China Mayors’ Forum” that promotes relations between European and Chinese municipal authorities. The authors use the term “diplomacity” to refer to the “expanding propensity of cities to develop the necessary mechanisms to autonomously navigate foreign relations on their own.”

These developments strike me as interesting for a couple of reasons. First, they form half of a two-dimensional assault on a classical model of international relations, which identifies heads of state and their agents as the critical channels for official communication. Diplomacity amounts to a vertical assault on that model because it reflects a dispersion of diplomatic activity among national and local authorities. Communication by national officials other than heads of state—such as legislators—forms the other half: a horizontal assault in the form of a dispersion of diplomatic acts among component parts of national governments. Neither of these is new, but both have intensified under globalization. The result is an entirely different picture of international relations. If diplomacy under the classical model was centralized and tidy, the contemporary counterpart is decentralized and cluttered with a broad range of actors. This has both benefits and disadvantages. States and localities, for example, will often possess unique perspectives on international problems and unique capacity to develop solutions, but the proliferation of voices may also complicate the management of inter-state relations.

Second, the assault on the classical model in turn places pressure on American constitutional doctrines that are premised on that model, such as doctrines regarding “dormant foreign affairs preemption” and the diplomacy powers of the President. In its most robust form, dormant foreign affairs preemption holds that the Constitution’s allocation of foreign affairs powers to the federal government implicitly bars states and localities from taking any actions with adverse foreign policy implications that are more than “incidental.” The growing volume of diplomacity means that states and localities are increasingly likely to run afoul of this limit. Similarly, the horizontal proliferation of diplomatic acts has resulted in legislative incursions on the traditional diplomacy powers of the President. These tensions call for scrutiny of both non-classical forms of diplomacy and the justifications for the traditional legal restrictions that they encounter. There have been several good academic critiques of dormant foreign affairs preemption, and I have previously written on the issue of horizontal dispersion (here). Viewing diplomacity and legislative diplomacy as related phenomena is important because these practices implicate the same concerns about centralization and unity of message in U.S. foreign relations. If one accepts diplomacity even where it complicates the President’s job of establishing a single, coherent position on any given policy matter, it is harder to oppose legislative diplomacy for having a similar effect. And the same holds true in the other direction. Likewise, if one favors diplomacity as a democratizing force that incorporates a broader array of actors into international relations, the same consideration should encourage support for legislative diplomacy.

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