New Supreme Court Ruling on the Alien Tort Statute

Posted on April 17, 2013 by Ryan Scoville

For those interested in federal courts or U.S. foreign relations law, the Supreme Court just issued an important decision in Kiobel v. Royal Dutch Petroleum Co. The basic issue concerned the extent to which the Alien Tort Statute (“ATS”) confers jurisdiction upon district courts to recognize a federal cause of action for violations of customary international law. Here’s what happened: Nigerian nationals sued Royal Dutch Petroleum in federal court for aiding and abetting atrocities allegedly committed by the Nigerian military in the early 1990s, when the plaintiffs and many others were protesting the environmental effects of the oil company’s operations in the Niger River Delta. The district court dismissed some of the claims on the ground that the alleged conduct did not violate international law. On appeal, the Second Circuit dismissed the entire complaint on the view that the ATS does not recognize corporate liability. Many thought that the Supreme Court would affirm on similar reasoning, but the Court mostly sidestepped the issue of corporate liability to focus instead on whether the ATS confers jurisdiction over claims alleging violations of international law when the unlawful acts occurred within the territory of a foreign sovereign.

The answer was negative: the Court held that the ATS does not confer jurisdiction over claims against foreign conduct, so the rule now is that jurisdiction is possible only if the alleged violation of international law occurred within the United States or on the high seas. Five justices reached this conclusion on the view that the language of the statute fails to overcome a traditional presumption against the extraterritorial application of U.S. law. The Justices who adopted this reasoning expressed a concern that the exercise of jurisdiction over claims involving extraterritorial conduct would embroil U.S. courts in delicate foreign policy matters that are better left to Congress and the President. Justice Breyer proposed a more permissive alternative that would permit jurisdiction where “(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest,” but his concurrence garnered only three supporting votes.

A couple thoughts on this decision: First, I think it signals the practical end of the ATS as a tool for human rights enforcement. How often do violations of customary international law occur within the United States? And even to the extent that they occur, how often will the defendants—presumably state and federal officials—fail to obtain some form of immunity from suit? Moreover, even if a violation occurs and immunity is not available, most violations of CIL will also constitute civil rights violations that are remediable in federal court under Section 1983 and Bivens. The ATS doesn’t bring much to the table anymore.

Second, Kiobel seems to sharpen the divide between our approaches to extraterritoriality in civil and criminal cases. While Kiobel confirms that extraterritoriality is rare for statutes concerning civil liability, U.S. officials have relied upon criminal statutes to make extremely broad assertions of extraterritorial jurisdiction in prosecuting the war on terrorism. Just a few months ago, for example, U.S. agents in East Africa arrested members of the Somali terrorist group Al Shabab for participating in weapons and explosives training in violation of 18 U.S.C. § 2339B, which criminalizes “material support for terrorism.” There is no allegation that the individuals are U.S. citizens, have ever been here, or had U.S. targets in mind, but they are now awaiting trial in the Eastern District of New York. I think it’s worth contemplating the justification for this difference of approach. One common explanation is that U.S. courts should be more willing to apply criminal statutes extraterritorially because greater national interests are at stake. But insofar as the conduct that violates CIL also violates U.S. criminal statutes, the difference can’t reflect variations in the seriousness of the offense. Another possible explanation is that broad extraterritorial applications of criminal statutes are permissible because the enforcement decision is in that context left to the executive—the same branch that exercises primary responsibility over the conduct of U.S. foreign policy, and that is best equipped to decide whether prosecution makes sense from a foreign policy perspective. While there is no guarantee that a civil suit by a private party will comport with executive policy, a federal prosecution presupposes some level of inter-agency coordination on whether prosecution makes good policy sense, and suggests an executive judgment that judicial involvement will further rather than undermine that policy.

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A Comparison of Gun Violence in America and Terrorist Attacks in Israel

Posted on March 19, 2013 by Ryan Scoville

I was part of the group of students and faculty that recently visited Israel. It was truly an amazing trip, and it reshaped my perception of everything from the Syrian civil war, to Biblical history, to the contemporary political dynamics that complicate efforts to secure peace between Israelis and Palestinians, to life in the United States. I do not purport to be an expert on anything pertaining to Israel, and my thoughts on the trip are still a bit scattered, but I thought I would share at least one major impression: Israel felt more secure than I thought it would. Having read about the country’s various security problems for years, I started the trip with some anxiety about traveling in what was for me unprecedented proximity to Hamas, Hezbollah, and Syria. To borrow the title of an 1980s sitcom, I thought that anti-Western groups would be a little too close for comfort.

But I felt completely secure, and I think everyone else did, too. It appeared that Israel’s citizens manage to live normal lives in basic safety notwithstanding the various security challenges they face. Markets, tours, businesses, restaurants, and schools all operate without any apparent sense of danger. The external threats are serious, but none of them appeared to be terribly consequential on a day-to-day basis for the individuals who live there.

A comparison might help to illustrate how this is possible. Consider the rate of firearm homicides in America and the rate of civilian casualties in Israel as a result of the Israeli-Palestinian conflict. Here are the numbers for the United States from 2007 to 2011:

Year Firearm Homicides in the U.S. Per 100,000
2011 11,101 3.58
2010 11,078 3.58
2009 11,493 3.74
2008 12,179 4.00
2007 12,632 4.19

And here are the numbers for Israel:

Year Israeli Civilian Casualties for the Israeli-Palestinian Conflict Per 100,000
2011 11 .14
2010 8 .11
2009 9 .12
2008 35 .49
2007 13 .18

In short, Americans have been far more likely to die from gunfire than Israelis to die from terrorist attacks. The rate of firearm homicides in America in 2011, for example, was over 25 times higher per capita than the rate of civilian casualties from terrorism in Israel during the same period. If Americans can manage to feel safe, it should come as no surprise that Israelis can, too. This is not to say that Israel’s security environment is stable or satisfactory, but simply that by one important metric it is no worse, and in fact much better, than our own. To the extent that we perceive otherwise, I think it is probably a product of the media’s tendency to focus on terrorist attacks and conflict, rather than the mundane aspects of daily life. Tragedies are better than peace at garnering attention.

*Figures for firearm homicides in the U.S. are from CDC and UN reports. The Israeli death tolls are as reported by B’Tselem and the Israeli Ministry of Foreign Affairs. Population data for Israel and the United States are from the World Bank and the U.S. Census Bureau, respectively.

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Foreign Travel By Members of Congress (Part III)

Posted on December 18, 2012 by Ryan Scoville

As I explained previously (here and here), I’ve been writing a piece that examines Congress’s involvement in international diplomacy. One half of the article documents the nature and extent of the contemporary practice, while the other analyzes that practice from a separation-of-powers angle. As the data in the last post demonstrated, legislative diplomacy in the form of CODEL travel is a major form of engagement between the United States and foreign countries. Now I want to discuss some of the reasons why the numbers from the last post are significant.

First, the findings at least partially contradict the common perception that CODEL travel is nothing more than a series of taxpayer-funded boondoggles for profligate legislators. With places such as Afghanistan, Iraq, and Pakistan among the most common destinations, and with members of congressional committees such as Foreign Affairs and Armed Services traveling more than their counterparts on other committees, it is apparent that something other than vacationing is going on. Wikileaks confirms as much—an overwhelming majority of the State Department cables show legislators using foreign travel to gather information about economic, political, and social conditions in host countries. The idea, it seems, is that legislators can educate themselves by meeting with foreign officials and personally observing foreign conditions, and then use their knowledge to develop more effective legislative solutions to foreign policy problems. Wikileaks shows that another rationale for CODEL travel is lobbying; legislators often use their meetings with foreign officials to press foreign governments to act in ways that promote U.S. interests or, less frequently, the interests of specific constituents. One might fairly question whether CODELs are effective means of pursuing these goals, but it’s clear that the goals are not sightseeing and leisure. The intermittent public debate on CODEL expenditures needs to acknowledge that.

Second, the results show that the conduct of foreign relations is, from an institutional perspective, more complicated than commonly assumed. In practice, diplomacy is not an executive prerogative; it’s a crowded field occupied by the President, State Department, and other executive actors, plus both chambers of Congress. And in practice, the Senate is not necessarily more involved in foreign relations than the House. As I explained before, House members participated in CODELs even more frequently than their Senate counterparts in 2009, both in aggregate and on a per-legislator basis.

Finally, I think the results are significant because they call for some new thinking about the separation of powers in the context of foreign affairs. A few aspects of the doctrine should be pretty straightforward: Legislative diplomacy generally cannot intrude upon diplomatic functions—such as negotiating treaties—that Article II assigns to the President, and communications carried out for the purpose of fact-finding are constitutional as an exercise of Congress’s implied power to investigate in furtherance of enumerated Article I powers. But beyond that, formalist analysis is probably unable adequately to account for the contemporary practice. For example, as a textual matter is it unclear why CODELs can lobby foreign governments, and why Senator Kerry could undertake missions to Pakistan and Afghanistan on President Obama’s behalf. The alternative is to adopt a functionalist analysis that renders legislative diplomacy constitutional as a form of constitutional custom, or as the product of an executive delegation of Article II diplomacy power, but doing so results in a series of additional complications. Functionalism, for example, typically isn’t used for converse analyses of these kinds; the usual inquiry—such as in Youngstown—is whether custom or legislative delegation supports a gloss on executive power. Moreover, the possibility of executive delegation would operate in tension with the principle of the unitary executive. In working through these issues, I hope to develop a few insights for people interested in constitutional law and those involved in legislative diplomacy, and also to illustrate one way in which Congress exerts more influence in foreign affairs than is often assumed.

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Foreign Travel by Members of Congress (Part II)

Posted on December 13, 2012 by Ryan Scoville

As I mentioned in my previous post, I’ve been writing an article on the subject of international diplomacy by members of Congress, with an emphasis on congressional delegations (“CODELs”) to foreign countries. Information about CODEL practice has been pretty limited, so one of my purposes has been simply to provide a more complete account of how frequently CODELs travel overseas, who is participating, where they go, and what they do when they get there. To do so, I collected information from the State Department cables that Wikileaks released to the public in 2010-11, many of which provide detailed accounts of meetings between members of Congress and foreign governments. I also collected information from official reports on publicly and privately financed congressional travel. Some of the reports were published in the Congressional Record pursuant to federal statute; others were published in accordance with House and Senate ethics rules. The data is quite voluminous, so I focused only on travel that happened in 2009—the most recent year for which the available information is the most complete. Counting each country visit by each legislator as one trip, and adding the data from the various sources, I came up with the following.

A total of 420 federal legislators, or approximately 79% of the combined membership of the House and Senate, completed slightly more than 2000 trips abroad in 2009. Members of the House were responsible for 84.5% of this travel, for an average of 4.0 trips per member, while members of the Senate were responsible for 15.5%, for an individual average of 3.2 trips. Legislators from both parties participated in comparable measure: Democrats averaged 4.09 trips per legislator, while Republicans averaged 3.56.

Legislators engaged in diplomacy unevenly. While some never went abroad even once, fifty-four legislators made at least 10 foreign trips during the year; the most frequent fliers were Eni Faleomavaega (24 trips) (D-AS), Jim McDermott (21) (D-WA), Adam Smith (17) (D-WA), Gabrielle Giffords (16) (D-AZ), Sheila Jackson-Lee (16) (D-TX), Lindsey Graham (15) (R-SC), Gregory Meeks (15) (D-NY), Jeff Miller (15) (R-FL), Solomon Ortiz (15) (D-TX), Dana Rohrabacher (15) (R-CA), and Joe Wilson (15) (R-SC). By comparison, Secretary Clinton made 51 trips to foreign countries over the same period.

Legislators traveled widely. CODELs visited at least 117 countries in 2009. The most frequent destinations were Afghanistan (139 trips), Israel (134), Kuwait (119), United Arab Emirates (86), Germany (73), Iraq (72), Pakistan (53), Jordan (49), Belgium (47), and Italy (47). An overwhelming majority of this travel was publicly funded.

Finally, members of congressional committees with jurisdiction over foreign affairs and related matters were more likely to participate in CODELs than other legislators. For example, the House Foreign Affairs Committee, averaged 6.89 trips per member, while the House Administration Committee averaged only 2.33. Similarly, the Senate Foreign Relations Committee averaged 5.53 trips per member, while the Senate Veterans’ Affairs Committee averaged only 1.33 trips.

In my next post, I’ll offer a few observations about why I think these results are significant, and why they raise some interesting separation of powers questions.

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Foreign Travel by Members of Congress (Part I)

Posted on December 10, 2012 by Ryan Scoville

The Constitution allocates power over the conduct of foreign relations primarily to the executive, but diplomacy by Congress is common. Members of the House and Senate frequently travel overseas as part of congressional delegations—or “CODELs”—to meet with foreign officials, and foreign officials often make stops on Capitol Hill to discuss legislation. In recent years, visiting heads of state such as Benjamin Netanyahu and Lee Myung-bak have even issued formal addresses to Congress. Moreover, these practices are nothing new; federal legislators and foreign officials have been communicating with each other ever since the First Congress convened in 1789.

I think these practices are fascinating for a couple of reasons. First, no one really has a sense for how frequently they occur, where legislators are traveling, or why they go there. News media rarely mention foreign lobbying of Congress. Some media outlets have called attention to expenses incurred by Nancy Pelosi and others during various trips abroad, but there are no complete reports on the nature and extent of contacts between federal legislators and foreign governments. Yet these contacts constitute a significant mode of engagement between the United States and the rest of the world, and have a real impact on the way in which other nations perceive U.S. policy.

Second, I think the diplomatic contacts are fascinating because they challenge the prevailing understanding that diplomacy is a prerogative of the executive branch. Most analyses don’t seem to acknowledge that legislative diplomacy occurs, much less address the extent of its constitutionality. One resulting problem is theoretical: the gap between theory and practice means either that Congress systematically violates the separation of powers, or that the prevailing understanding of executive power is at least incomplete, and possibly incorrect. A second problem is practical: lacking a theoretical foundation, legislative diplomacy occurs in a constitutional void that imposes no principled limits on the conduct of members of the House and Senate, and offers no guidance on the extent to which planned communications are permissible.

I’m currently writing an article—entitled “Legislative Diplomacy”—that addresses these issues. One purpose is empirical. I use evidence from Wikileaks and a variety of public reports on congressional travel to provide an extensive account of the nature and volume of contemporary diplomacy by Congress. This evidence shows that legislative diplomacy is surprisingly frequent, widespread, and longstanding. The other purpose of the article is to offer a constitutional analysis of the contemporary practice. In my next post, I’ll share some of the data I collected.

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The Arms Trade Treaty: A Response to the Second Amendment Critique

Posted on December 1, 2012 by Ryan Scoville

In my last post on the Arms Trade Treaty, I explained some of the latest draft’s basic features, including restrictions on the ability of states-parties to import and export a variety of conventional arms. In this post I’ll share a few thoughts on the argument that the proposed treaty would violate the Second Amendment.

In general, I think the Second Amendment argument has some major weaknesses. First, most of the restrictions would simply have no effect on the right to keep and bear arms. Here’s the proposed list of regulated items: battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and “small arms and light weapons.” As Heller explained, the Second Amendment’s reference to “arms” applies only “to weapons . . . not specifically designed for military use and . . . not employed in a military capacity.” The result is that all but the last items on the list—“small arms and light weapons”—plainly fall outside of constitutional protection. Moreover, even to the extent that the treaty applies to arms covered by the Second Amendment, significant portions of the treaty would not interfere with the right to “keep and bear” those arms. For example, provisions that would restrict exportation—in a sense the very opposite of “keep[ing]” and “bear[ing]”—from the United States surely raise no constitutional problem. And as a practical matter, it’s hard to see how the prohibitions on transfers in violation of Security Council measures or for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes would interfere with the right of U.S. citizens to keep and bear arms.

The only non-frivolous argument against the treaty focuses on its import restrictions. As explained in the prior post, the treaty would require states to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” The opponents’ argument seems to be that these provisions would require the United States to adopt restrictive measures that would themselves infringe upon the right to bear arms. But several observations undercut that argument. First, it’s actually not clear that the provisions would require the United States to adopt any new restrictions. Federal law currently imposes permit and registration requirements on arms importers, bars some imports based on country of origin, mandates broker registration, and authorizes criminal penalties against violators. There is no textual basis for concluding that these measures are anything short of “adequate” and “appropriate.” As long as that’s the case, no new import restrictions would be necessary in the United States, and the treaty would violate the Second Amendment only if the existing federal restrictions do. Treaty opponents seem unwilling to challenge longstanding federal law in this way.

Second, even if the treaty were to require something more restrictive than current federal law, it’s still not clear that the additional restrictions would be unconstitutional. Post-Heller, lower courts have held that the level of scrutiny applied to a regulation depends on the degree to which the law burdens the right and the nature of the conduct being regulated. Where a regulation does not impose a severe burden or does not implicate the right’s core—i.e., “defense of hearth and home” by “law-abiding, responsible citizens”—courts have applied intermediate scrutiny. In doing so, they have upheld restrictions such as registration requirements and licensing fees. Critics of the ATT would have to establish that the contemplated minimum import restrictions would fail under this framework even while a variety of other regulations have survived. I have not encountered a persuasive argument about why that would be the case, particularly given the important national interests in favor of controlling transnational arms flows.

Finally, even assuming the contemplated import restrictions are constitutionally suspect, the United States could simply join the treaty subject to a reservation ensuring that the restrictions raise no constitutional problem. We did something similar with respect to the Genocide Convention and, more recently, entered a Constitution-based reservation to the Torture Convention. The reservation here would have to comport with the object and purpose of the ATT, but a Second Amendment-based reservation could meet that requirement, as several parts of the treaty draft reflect a purpose of respecting national laws.

The treaty text is far from finalized, so it’s possible that the drafting process will generate Second Amendment problems that are currently absent. But I think the real barrier to U.S. ratification won’t be the Constitution; it will be pro-export political pressure stemming from the fact that U.S. arms manufacturers sell more weapons to foreign governments than the rest of the world combined. The Senate will face tremendous pressure to reject a treaty that may jeopardize some of those sales.

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Thoughts on the Arms Trade Treaty

Posted on November 11, 2012 by Ryan Scoville

Last week, the United States announced its support for U.N. efforts to develop a new treaty regulating international trade in conventional arms. The terms are still far from settled, but draft provisions from a U.N. review conference last summer provide a rough guide on how the treaty might work. In this post, I want to highlight some of the key provisions and then explain a likely practical hurdle to U.S. ratification. In a subsequent post, I’ll address a Second Amendment objection raised by treaty critics.

The latest draft suggests that the treaty would have four basic dimensions. First, it would establish a limited number of categorically prohibited international transfers. These include transfers in violation of a measure adopted by the U.N. Security Council pursuant to the Council’s peacekeeping authority; transfers in violation of other international obligations; and transfers made for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes.

Second, the treaty would limit the power of states to export conventional arms by requiring assessments on whether proposed exports would contribute to or undermine peace and security. Mandatory considerations would include whether the arms could be used to commit a serious violation of international humanitarian law, human rights law, or an offense under international treaties relating to terrorism. In the event of an “overriding risk” of one of these consequences, the treaty would prohibit the exporting state from authorizing the transfer. The treaty would also require exporting states to “consider taking feasible measures” to make sure that the arms are not diverted to the illicit market, used to commit gender-based violence, or used by transnational organized crime.

Third, the treaty would impose obligations on arms-importing states. These parties would be obligated to provide information to help their exporting counterparts complete the required risk assessments. Importing states would also have to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.”

Finally, the treaty would impose an assortment of other requirements regarding brokering, record-keeping, and reporting. Each state would have to “take appropriate measures, within its national laws, to regulate brokering taking place under its jurisdiction,” including by requiring brokers to register or obtain written authorization before engaging in brokering transactions. And each state would have to “maintain national records, in accordance with its national laws and regulations, of the export authorizations or actual exports” of arms, and, “where feasible, details of those conventional arms transferred to their territory.” Parties would then submit to the United Nations annual reports on transfers.

Proponents argue that the treaty is necessary because international trade in conventional arms is a multi-billion dollar enterprise that contributes to instability, crime, and rights violations, and yet encounters a surprising absence of international regulation. As one British official explained, “Global rules govern the sale of everything from bananas to endangered species to weapons of mass destruction, but not guns or grenades.” But if the final treaty text is anything like the most recent draft, U.S. ratification is doubtful. Practically speaking, fierce opposition from U.S. arms manufacturers is guaranteed. In 2011, U.S. arms-export agreements with developing nations amounted to $66.3 billion, or an astounding 78.7% of the total global market share. Russia came in second with a comparatively paltry $4.8 billion in deals. It is hard to believe that the Senate will be able to withstand the likely tidal wave of pro-export lobbying.

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Will NATO Membership Draw the U.S. into the Syrian Conflict?

Posted on October 4, 2012 by Ryan Scoville

Military tensions between Syria and Turkey have risen dramatically in the last two days. After shooting down a Turkish fighter jet in June, Syrian government forces reportedly fired into Turkish territory and killed five civilians yesterday. Turkey has responded by shelling targets in Syria.

Though presently limited, the attacks are of keen interest to the United States. Turkey and the United States are both members of NATO and thus parties to the North Atlantic Treaty. Article 5 of that treaty establishes collective self-defense obligations by providing that in the event of an armed attack against any NATO member, every other member “will assist the [attacked member] by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain security of the North Atlantic area.” Thus, the Syrian attacks on Turkey might conceivably require the United States to come to Turkey’s defense.

That being said, it is doubtful that the United States will be involved in a defensive military action against Syria anytime soon. First, one would think that further escalation is unlikely. For Turkey, it would likely mean an even greater influx of refugees; for Syria, an international conflict could only hasten the downfall of the already crippled government. This is significant because NATO held an emergency meeting yesterday without invoking Article 5, and in doing so signaled that the current state of the conflict is insufficient to trigger collective defense obligations. Second, even if the conflict escalates and NATO invokes Article 5, the treaty would require the United States only to take “such action as it deems necessary” to restore and maintain security. That action does not necessarily include the use of military force; the particular form of assistance would be for the United States to decide in its discretion. Given the war-weariness of the American public and the Obama Administration’s decision not to intervene so far, the United States might try to fulfill its Article 5 obligations through means other than combat.

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The Senkaku / Diaoyu Islands Dispute

Posted on September 30, 2012 by Ryan Scoville

I’d like to share a couple brief thoughts on the Senkaku / Diaoyu Islands dispute, which has intensified pretty dramatically in recent weeks. The islands together comprise only seven square kilometers and have supported virtually no economic activity other than the collection of guano and bird feathers, but China and Japan both vigorously claim them as their own. This disagreement has been intractable for a variety of reasons. One is the economic stakes—sovereignty over the islands will dictate rights to potentially massive oil and gas deposits under the East China Sea, so there is no financial incentive for conciliation. Another reason is historical animosity—having suffered from Japanese colonialism and militarism during much of the first half of the twentieth century, China is particularly keen on defending against what it perceives to be expansionist Japanese territorial claims. Finally, the dispute is intractable for legal reasons, as I hope to illustrate below.

First some historical background: Chinese sailors reportedly used the islands for a number of purposes for centuries, but Japan formally annexed them in 1895 and then, at the end of World War II, transferred administrative authority to the United States. A 1968 study first raised the possibility of extensive oil and gas resources around the islands. Approximately four years later in 1972, China objected to Japanese sovereignty, and the United States returned the islands to Japanese administration. To demonstrate its control, Japan has since leased the islands to private businessmen, built a weather station and heliport, conducted land surveys, and patrolled the surrounding waters. China has consistently objected that these activities are irrelevant, at least in part because the annexation was illegal and Japan never had sovereignty to begin with.

International law’s indeterminacy seems to have complicated efforts to achieve a resolution. For example, one possible solution would rely upon the doctrine of “acquisitive prescription”—the international law equivalent of adverse possession. This doctrine holds that a state that neglects to contest a claim of sovereignty over a portion of its territory will lose that territory if another state publicly exercises authority over it for a sufficient period of time without interruption. Acquisitive prescription has come up in a variety of comparable situations before, such as Britain’s dispute with Argentina over control of the Falkland Islands. In the Senkaku Islands dispute, the argument would be that even if China had original sovereignty, Japan publicly asserted control through annexation in 1895, and China effectively ceded sovereignty by failing to object to annexation or otherwise assert its authority from 1895 to 1945. The doctrine’s contours, however, are poorly defined. Unlike many domestic adverse-possession doctrines in the United States, for example, international law does not identify the length of time necessary for acquisitive prescription to occur. Thus, while 1895 – 1945 might seem like a long time, there is simply no firm basis for saying whether it is sufficient. The result is that neither side can identify with any objectivity the strength of their legal position. This in turn deters the two sides from consenting to adjudication in the International Court of Justice. The stalemate thus continues.

[Update: I recently completed a more extensive analysis of the legal claims; the article is available here.]

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Diplomatic Premises Immunity in the Case of Julian Assange

Posted on August 16, 2012 by Ryan Scoville

For the past two months, Julian Assange has been staying at Ecuador’s embassy to the United Kingdom to avoid arrest in England, extradition to Sweden on sexual assault charges, and possible extradition from Sweden to the United States for charges connected with Wikileaks’ disclosure of State Department cables in 2010. The UK has demanded that Ecuador hand over Assange, but today Ecuador officially refused. In response, British officials have threatened to suspend the embassy’s diplomatic immunity so that they can enter the embassy grounds and make the arrest.

The dispute raises a question that Britain has encountered before. In 1984, during an anti-Gaddafi demonstration outside the Libyan embassy in London, someone inside the embassy shot and killed a British law enforcement officer who was policing the protest near the embassy grounds. The British government, however, had no legal means of arresting the shooter. The Vienna Convention on Diplomatic Relations had established that the premises of a diplomatic mission “shall be inviolable,” that “agents of [a] receiving State may not enter them, except with the consent of the head of the mission,” and that the premises “shall be immune from search . . . .” Libya, moreover, refused to allow entry and search. This dissatisfying result eventually led Parliament to pass a law called the Diplomatic and Consular Premises Act of 1987. The Act provides that embassy grounds are not to be regarded as a foreign state’s diplomatic premises unless accepted as such by the British Secretary of State, and that the Secretary can withdraw his acceptance if doing so “is permissible under international law.” The result of a withdrawal is that the land on which the embassy is located “ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law,” including the robust immunity provisions of the Vienna Convention. The Act thus creates a way for the British government to circumvent the inviolability principle. If the law had been in place prior to the shooting in 1984, the thinking went, the government could have entered the Libyan embassy and arrested the shooter. Now British officials are relying on the law as the basis for their threat to enter Ecuador’s embassy and arrest Assange.

I see a potential difficulty with the threatened usage: It is unclear that withdrawing acceptance of the embassy premises would be compatible with international law in the circumstances, as the Act requires. First, the Vienna Convention strongly suggests that sending state conduct cannot justify the denial of premises immunity. The inviolability principle has no express exception other than the consent of the sending state itself. And although embassy personnel must “respect the laws and regulations of the receiving State” and not use the premises “in any manner incompatible with the functions of the mission,” nothing in the Convention provides that failure to honor such obligations entitles a receiving state to disregard inviolability. Indeed, the travaux preparatoires states that the failure to use embassy grounds for legitimate purposes “does not render . . . [the] inviolability of the mission premises . . . inoperative.” Even if one were to consider Ecuador’s conduct a fundamental breach of the Convention, the UK could sever diplomatic relations, but the Convention would still require the British government to “respect and protect the premises” of the Ecuadorean mission. Second, given that sending-state conduct cannot justify the denial of premises immunity, it is questionable that the British government can accomplish the same result by withdrawing its acceptance of the embassy grounds. The entry of premises rendered non-immune by the withdrawal of acceptance is in form different from entry into immune premises, but in effect indistinguishable. If governments can withdraw acceptance too easily, inviolability seems to lose much of its meaning.

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