Author: Duncan Hollis

by Duncan Hollis

The U.S. Supreme Court handed down its first-ever international family law opinion today in Abbott v. Abbott.  You can access the decision here.  In short, a 6-3 majority (authored by Justice Kennedy) found that the Hague Convention on the Civil Aspects of Child Abduction treats ne exeat rights (that is, rights to consent before the other parent takes the child to another country) as “rights of custody” rather than “rights of access.”  That interpretation has significant consequences as violations of custodial rights trigger a right of return under the treaty, whereas violations of access rights do not.  I’ve only had a chance to read the opinion quickly, so let me offer some initial reactions, and reserve the right to come back later with a more detailed analysis.

The Court uniformly accepts the use of foreign law to interpret treaties
First, as regular readers know, there’s a lot of controversy surrounding the use of foreign law by some members of the Court in recent years.  Indeed, Chief Justice Roberts, Justice Alito and Justice Sotomayor were all called on in their confirmation hearings to denounce the use of foreign and international law in interpreting the U.S. Constitution.  I’d expect Elena Kagan to get similar questions when her nomination comes before the Senate this summer.  But, in Abbott the Court ignores this controversy, and thereby suggests its limited only to the use of foreign law in interpreting the Constitution.  Indeed, every member of the Court in this case–in both the majority and the dissent–end up citing and relying on foreign law as a significant part of their analysis of whether the ne exeat right is a right of custody or not.  The majority heavily relies on the fact that most foreign courts to consider the issue have found ne exeat rights are rights of custody to support reaching the same conclusion. Stevens’ dissent, in contrast, contests the uniformity and strength of those views, while emphasizing other foreign court decisions taking the opposite position.  Thus, whether it’s Justices Scalia, Sotomayor, or Stevens, the Court seems clearly willing to accept and employ foreign law decisions when it comes to interpreting U.S. treaties and the statutes that implement them.  Indeed, as the dissent notes, the Court was willing to do this in Abbott even if it meant overruling almost all the U.S. Court of Appeals’ decisions that had found ne exeat rights were not rights of custody. 

A victory for Justice Sotomayor
Second, the case represents a victory for Justice Sotomayor, who, as I’ve noted before, dissented in the leading Court of Appeals decision on this topic, Croll v. Croll.  Justice Kennedy’s opinion covers much the same ground as her earlier dissent.  Indeed, although I haven’t re-read her dissent closely, it’s my sense that the Abbott Majority adopts both her method of analysis and her specific findings on this question nearly in toto, whether in looking at the treaty’s text, its object and purpose, the negotiating history, and other foreign law decisions.

This was a treaty interpretation case, not a custody case. 
Third, although this was the first international family law case to come before the Court, the opinion ends up being more about treaty interpretation than the custodial fight that generated the case itself.  Indeed, the Majority ends its opinion by noting that even if the treaty provides a right of return when custodial rights are violated (including the ne exeat right at issue here), the Hague Convention also provides exceptions to the obligation to return a child if the child might (a) face a grave risk of harm or an otherwise intolerable situation, or (b) have reached an age and sufficient maturity to express a preference on being returned.  As a result, even as the Court resolved the ne exeat treaty interpretation question, it left open whether or not the child at issue in this case actually had to be returned to Chile.  And given that the child in question is around 15 now, I suspect that continued litigation on his return may soon become moot since the treaty’s provisions only apply to children under the age of 16.  Thus, the Abbott case is likely to have any lasting influence in terms of its approach to treaty interpretation rather than any resolution of the difficult custody fight that brought the case to the court in the first place. Which brings us to my final point.

The Court takes treaty interpretation seriously
Both the majority and the dissent expend a lot of time and resources to figure out what was, by all accounts, a close question of treaty interpretation.  Although in the past, many have questioned if the Supreme Court’s interpretative method aligns with the international law rules on treaty interpretation, I don’t think this case suggests a deep departure from the international law rules.  Indeed, even though it does not reference them, the majority’s method largely tracks articles 31 and 32 of the Vienna Convention on the Law of Treaties, looking at the treaty’s text first, then the context (although I don’t think they ever call it that), the treaty’s object and purpose, state practice, the negotiating history, and the views of publicists on the question.  And, in those few areas where the Court takes into account factors left out of the VCLT (i.e., the Majority’s deference to the State Department’s view that a ne exeat right is a right of custody) the Majority does so with relatively little elaboration.  At the same time, the Court’s emphasis on the Hague Convention’s object and purpose may actually prove influential going forward.  The Court ended up its treaty analysis by suggesting that its interpretation made sense since, to hold otherwise, would have meant legitimizing many of the removals that the Court thought the Convention had been drafted to prevent.  That sort of approach runs counter to a purely textual interpretation and suggests, for better or worse, that the Court may demonstrate a more dynamic approach to treaty interpretation issues in the future.

by Duncan Hollis

My colleague David Post and I have an op-ed in today’s National Law Journal.  In it, we challenge the sufficiency of existing responses to cyberattacks, whether in terms of pushing for heightened security, more criminal law enforcement or applying the laws of war (if applicable).  Criminal law (and the laws of war for that matter) depends on identifying and holding actors accountable for their actions.  Given attribution problems that give cyberattackers virtual anonymity, we argue that these methods cannot effectively respond to such attacks, let alone deter them.  So long as the Internet’s architecture preserves an attacker’s identity, we claim that the law will need to look to alternative deterrent and regulatory models for regulating threats without regulating who (or what) causes them.  To that end, we flag the use of the SOS to deal with threats to life and property on the high seas as a useful analogue.  The SOS works, not by regulating the cause of any harm (e.g., hurricanes, pirates, equipment failure), but by imposing a duty to assist on all in a position to help when they hear the SOS call.  In doing so, the SOS mitigates the threat, with the assistance provided often saving lives and protecting property.  We argue a duty to assist could have similar functions in cyberspace, mitigating the effects of cyberattacks even where we cannot identify (and thus regulate) the actual attacker(s).  Indeed, we believe that if the duty to assist actually does mitigate the harm from certain cyberattacks (i.e., by ensuring bandwidth is available to overcome directed denial of service attacks, or by cutting off the pathway of an attack) it might actually deter attackers from launching those attacks in the first place.  In such situations, attackers may come to recognize that the desired effect cannot be achieved and not bother to even try to attack.  Or, if the attacker is an entity that might actually fall under a duty to assist (e.g., a national government) it might think twice before attacking in the first place.  After all, why make a mess that you know you’ll have a public duty to remediate?  For more details, you can read our op-ed here.

by Duncan Hollis

Harold Koh’s ASIL speech drew lots of attention for his defense of the legality of U.S. use of aerial drones.  But Koh also spent much of the speech explaining and defending the U.S. decision to reorient its relationship toward the International Criminal Court.   He noted U.S. attendance (as an observer) at the ICC Assembly of States Parties in November, and U.S. plans to send a delegation to Kampala, Uganda at the end of next month for the ICC Review Conference.  That meeting will be a “big” one as the parties take stock of how the ICC has fared over its first five years of existence, and, more importantly, endeavor to fulfill the Rome Statute’s promise that the Conference will produce an agreement on a definition for the crime of aggression.  Koh’s speech painted a positive picture of U.S. engagement with the ICC in the stock-taking exercise, but sounded a more cautionary note on aggression, asking various questions on how the parties would give content to the definition and who would actually apply it in practice. 

Although it doesn’t seek to answer Koh’s questions directly, this week, UCLA’s International Justice Clinic produced a report advising the United States on how to proceed in Kampala.  The report, authored by six UCLA students, suggests that the United States should promote (and certainly not block) consensus on those elements of the crime of aggression that can be agreed in Kampala, while leaving the harder, jurisdictional issue for later negotiation.  The report expresses concern that an “all or nothing” approach by the United States on aggression might derail U.S. efforts to reengage with ICC overall.  It goes on to make additional suggestions for building U.S. cooperation with the ICC, via direct engagement with the ICC prosecutor, legislative buy-in through Congressional representation on the U.S. delegation in Kampala, and better U.S. law enforcement accountability on international criminal law issues consistent with notions of complimentarity.  Readers wanting to read the whole report can find it here.

by Duncan Hollis

Today, U.S. News & World Report (USN&WR) officially released its 2011 rankings of American law schools.  This, in turn, led the legal blogosphere into its annual love-hate dance with the “overall” rankings–pouring over every move up or down the ladder, while simultaneously denouncing the ranking’s methodology and utility.  Lest our readers feel left out, I thought I’d flag the “new” International Law rankings that accompany the overall tiering.  NYU leads the pack, which actually seems quite sensible.  Although NYU lost a truly tremendous figure in Thomas Franck last year, it hired José Alvarez and Ryan Goodman to join the likes of Philip Alston, David Golove, Robert Howse, Benedict Kingsbury, Mattias Kumm, Andy Lowenfeld, Linda Silberman, and Joseph Weiler (and that’s only a partial listing of NYU’s international law faculty, not to mention their global visitors, clinicians, and institute folks who also spend time working on international legal issues there). 

I’ll leave to others to decide what to make of the remainder of the top 10 that’s available on the USN&WR website.  What I wanted to call attention to was the “premium” access list (i.e., the list for paying customers).  It details a fuller ranking of U.S. international law programs (here, for example, is where you’ll find my institution–Temple–coming in at No. 12, tied with Berkeley).  There’s something different, however, about the premium list this year.  In the past, USN&WR used it to list the “top 25″ international law programs.  This year, the list stops at 15 (actually 17 given tie scores).  What gives?  Was this a calculated effort by USN&WR to change the scope and value of these specialty rankings? Was it the result of some problems with the survey data (I believe these rankings are done almost entirely based on peer evaluations) that precluded offering a longer list?  Or, was it a result of some other methodological shift?  I couldn’t find anything on the USN&WR site that explained the change.  As a result, I’d welcome thoughts from readers on the topic.  In doing so, I’ll also open up the thread to more general comments about the accuracy, utility, and value (or lack of any of the foregoing) in ranking international law programs at U.S. law schools.

by Duncan Hollis

Putting aside events in Kyrgyzstan (which certainly bear close watching), the day’s big news for international lawyers was President Obama and Russian President Dmitri A. Medvedev signing two related international agreements on the reduction of nuclear armaments. The State Department has posted the originals of this new START treaty here (see here for the longer, more detailed Protocol to that treaty).  I’ll leave for later any substantive commentary on these agreements or their national security/foreign relations implications.  For now, let me give a quick kudos to whoever at the State Department managed to get these documents posted so quickly.  For years the major problem in U.S. treaty practice was getting access to copies of U.S. treaties.  The fact this treaty was signed and made publicly available only a few hours later suggests such information access problems are (hopefully) behind us.  Now, if they could only modernize the font — really, Courier typeface is such a relic of the Cold War.

by Duncan Hollis

I figure it’s never too late to catch up on some of last week’s April 1 reporting.  The Harvard Law Record got a great “scoop” with this story:

Speaking to a lunch seminar held by the National Security Law Association, Senator James Inhofe of Oklahoma, a member of the Senate Foreign Relations Committee, was shocked to discover that the term “self-executing” did not exactly mean what he had imagined when he voted for a new arms reduction treaty with Russia earlier this year.

Inhofe, a Republican, approved the treaty on the belief that the “self-executing” language had been sneakily inserted by members of his party in order to make the law ineffective upon passage.

“Wait, what?” the 75 year old lawmaker, who has served in the Senate for 16 years, exclaimed. “I literally thought ‘self-executing’ mean that the law would be dead on arrival. Well, this is embarrassing,” he admitted to the audience, which consisted primarily of law students and a reasonable number of Cambridge hobos, many of whom were the most amused at Inhofe’s error.

“I mean, this is pretty much foreign relations law 101,” said Jack McGrinty, a begging fixture in Harvard Square. “I bet he doesn’t even know the Senate has ultimate treaty-making authority. Well, at least this chump’s ignorance at least means that we now live in a safer world, for once”. He later added, “spare some change?”

All joking aside, I wonder how many U.S. Senators actually know what it means for a treaty to be non self executing  (or what criteria identify such treaties)?  They do have the advice and consent power after all.  On the other hand, a uniform definition may be pretty hard to come by when academics can’t even agree on a single definition, or two, or three, or four, or . . . well you get the idea.

by Duncan Hollis

A quick note for interested readers — the Texas Law Review has just published my latest article, Unpacking the Compact Clause.  They’ve posted a copy of it here as well.  My own abstract of the piece follows. 

The Compact Clause prohibits U.S. states from making “any Agreement or Compact with another State, or with a foreign Power” absent congressional consent. No one, however, has ever studied the Clause’s application to agreements by foreign powers with U.S. states (FSAs). The conventional wisdom views FSAs as infrequent, unimportant, and otherwise identical to those interstate compacts for which the Supreme Court has opined congressional consent is generally unnecessary.

My article explains why the conventional wisdom is wrong on all counts. For the first time, I present a typology of 340 FSAs and show how they are increasing in both number and importance. The states have simply not reported their practice to the federal government.

More importantly, my article introduces the idea that the Constitution contains not one Compact Clause, but two – one for interstate compacts and another for FSAs. Using text, history, doctrine, function, and structure, I demonstrate how Congress can dictate for itself when states must obtain congressional approval of FSAs, independent of the interstate compact doctrine devised by the Court. In doing so, my work aims to demonstrate that the Court is not the only actor that can construct constitutional meaning; Congress has its own powers to interpret the constitutional text outside the courtroom. Ultimately, my article shows that, despite some costs, a Foreign Compact Clause will benefit states, their foreign partners, the federal government, and even our understanding of federalism as a cooperative venture, rather than just a competitive one.

by Duncan Hollis

I thought ASIL and the program organizers did a wonderful job with this year’s Annual Meeting.  I particularly appreciated the opportunity to chair a panel, War and Law in Cyberspace.  In addition to a discussion of the technological capacities of cyberattacks and how they map onto the jus ad bellum and the jus in bello, we had a good discussion of what became the over-riding topic of this year’s event — unmanned aerial vehicles (if you’ve not read Jack Beard’s AJIL article on this topic, you should do so (but a subscription is required)).  Meanwhile, I learned about the following call for papers that may be of interest to some of our readers: 

The National Research Council (NRC) is undertaking a project entitled Deterring Cyberattacks: Informing Strategies and Developing Options for U.S. Policy. The project is aimed at fostering a broad, multidisciplinary examination of strategies for deterring cyberattacks on the United States and the possible utility of these strategies for the U.S. government. To stimulate work in this area, the NRC is offering one or more monetary prizes for excellent contributed papers that address one or more of the questions of interest found in its call for papers, which can be found here.

Abstracts of less than 500 words are due April 1, 2010. First drafts are due May 21, 2010, final drafts July 9, 2010. The broad themes of interest include
A. Theoretical Models for Cyberdeterrence
B. Cyberdeterrence and Declaratory Policy
C. Operational Considerations in Cyberdeterrence
D. Regimes of Reciprocal/Consensual Limitations Regarding Cyberattack
E. Cyberdeterrence in a Larger Context
F. The Dynamics of Action/Reaction in Cyber Conflict
G. Escalation Dynamics of Cyber Conflict

In the call for papers, a number of more specific questions are contained within each theme. A variety of relevant collateral issues are addressed as well.

For those of you subject to financial incentives, note the monetary prize! The NRC point of contact is Herb Lin, who can be reached at 202-334-3191, hlin [at] nas [dot] edu.

[UPDATE:  The deadline for abstracts has been extended to April 15.]

by Duncan Hollis

Today’s Financial Times has a story on how unhappy U.S. businesses have become about Chinese government restrictions interfering with their access to Chinese markets.  So, one can understand how U.S. exporters would welcome news that the United States and China are getting closer to including a Bilateral Investment Treaty (BIT).  And, let’s be clear, this would be the mother-of-all BITs, given the relative size and importance of the two economic markets.  Like other BITs, I assume this one would include provisions requiring national treatment and most favored nation status, both of which would constrain Chinese efforts to undertake protectionist behavior generally or against the United States specifically. 

In Today’s Guardian, however, Sarah Anderson ponders how a Chinese BIT might circle back and affect U.S. markets:

Similar to the investment chapters in US trade agreements, BITs give foreign investors the right to bypass domestic courts and sue governments in international arbitration tribunals. The United States has been at limited risk of being the target of such “investor-state” lawsuits because its 40 current treaty partners are nearly all developing economies with little investment in the US market. This lopsidedness has created a one-way street in favour of US corporations operating abroad. The China negotiations could change all that. Chinese investors have ploughed billions into the US economy, particularly in the financial industry. Under a treaty based on current models, these investors would have standing to sue the US government over breaches of a long list of host government obligations.

Of particular relevance to the China BIT is the obligation to provide foreign investors “fair and equitable treatment.” In some cases, tribunals have interpreted these vague terms to mean that a government must provide a stable and predictable regulatory environment. On this basis, they have ordered governments to pay compensation to investors who claimed that changes in regulations or tax policies had made their investments less valuable.

At a time when our regulations have just failed to prevent the worst financial crisis in nearly 80 years, predictability should not be a top priority. And indeed, the Obama administration is pursuing reforms that would have been quite unpredictable two years ago and which would strike at least a short-term blow to some Chinese investments. Take, for example, the nearly 10% stake in Morgan Stanley held by China Investment Corporation (CIC), a sovereign wealth fund. Recently, Goldman Sachs researchers estimated that proposed regulatory reforms could reduce Morgan Stanley’s annual earnings by 15%. President Obama’s plan for a Financial Crisis Responsibility Fee could cost the firm $800m, they predict, while the proposed “Volcker rule” to prohibit proprietary trading by banks could cost another $600m per year.

Could Chinese investors use a bilateral investment treaty to undermine such US financial reforms? Legal experts are divided. Some argue that a provision in current US treaties gives sufficient protection against claims related to financial stability measures. Others, such as Professor Robert Stumberg, director of the Harrison Institute for Public Law at Georgetown University, disagrees, pointing to language in the same provision that arbitrators could interpret as a self-cancelling loophole.

If the ambiguity isn’t fixed, investors could file their claims before a tribunal and let the commercial arbitrators decide. If the government lost, they’d have two choices: repeal the reform or pay off the foreign investors. Neither option would be a winner with the American public.

U.S. BIT negotiators have long discounted the chance that these treaties’ substantive provisions would ever be turned around and applied to U.S. markets and U.S. regulations (but insisting, of course, that the United States would be compliant if they did).  There’s certainly some precedent though for such proceedings and outcomes if we look to the NAFTA context.  I assume, however, the controversy those investor-state arbitrations have generated might be magnified a bit if, instead of neighboring Mexico or Canada, the investment came from a publicly-owned Chinese corporation.  Such concerns are likely to generate some strategic maneuvering in advance of the BIT’s conclusion.  For example, might a U.S.-China BIT be labeled non-self-executing, contrary to existing practice, which treats BITs mostly as self-executing treaties?  That might alleviate concern that an investor-state arbitration opinion would have the status of U.S. law and override earlier federal or state law.  On the other hand, it would also raise the prospect of U.S. non-compliance if it ends up on the losing end of an arbitration, especially if it has to rely on Congress to “do the right thing” and enact legislation to authorize U.S. compliance with such an opinion (and the BIT itself).  I must say this latter prospect is not terribly appealing to me; we’ve already seen in other contexts how difficult it is to get Congress to correct an on-going violation of a U.S. international law obligation.  Needless to say, the U.S.-China BIT negotiations bear watching.

by Duncan Hollis

The general consensus among comments to my post last week on the previously-unacknowledged U.S.-Japanese security agreements was “no big deal.”  These pacts reinforce an already well-developed practice of states doing deals–whether legally binding or political commitments–without U.N. registration or public disclosure.  Similarly, they reinforce existing views of Executive authority to conclude sole-executive agreements on defense-related matters for the United States. 

So, if everyone’s OK with such secret deals, how do we feel about secret negotiations?  If you’re the European Parliament (EP), the answer is apparently, “not too good.”  Last week the EP voted 633-13 (with 16 abstentions) to call for more transparency in on-going multilateral negotiations for an Anti-Counterfeiting Trade Agreement (ACTA).  The ACTA is a proposed agreement by OECD states to strengthen intellecutal property rights enforcement and combat counterfeiting and priacy of music, films, luxury brands, etc.  The ACTA negotiations have been on-going since 2007 (the next round begins April 12 in New Zealand) with all the participants agreeing to keep the negotiations confidential.  Members of the EP apparently have problems with this lack of transparency and want to see (and have the public see) what the negotiators are up to.  Here’s what the EP press release had to say:

The Commission and the Council should grant public and parliamentary access to the Anti-Counterfeiting Trade Agreement (ACTA) negotiation texts and MEPs should be fully informed in good time about their initiatives, says an EP resolution adopted on Wednesday by 633 votes in favour, 13 against, and 16 abstentions. Otherwise, Parliament “reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives.”

Parliament called on the Commission to continue the negotiations on ACTA and limit them to the existing European intellectual property rights enforcement system against counterfeiting” . . .  In its resolution, Parliament voices concern over the lack of transparency in the negotiations, and the fact that no parliamentary approval was sought for the negotiating mandate.  MEPs recall that, since the entry into force of the Lisbon Treaty on 1 December 2009, “the Commission has had a legal obligation to inform Parliament immediately and fully at all stages of international negotiations.”  ACTA provisions “should not affect global access to legitimate, affordable and safe medicinal products, including innovative and generic products”, says the resolution.

USTR is leading the talks for the United States, and it appears pretty tight lipped on the progress of negotiations.  That said, it appears they’ve taken precautions to keep at least some interested stakeholders in the loop — provided those stakeholders agree to keep mum on what they learn because of the negotiations’ “national security” implications.

Having done a fair bit of treaty negotiations when I served in the State Department, I’m certainly not a Wilsonian when it comes to such talks.  There’s a lot to be said for keeping talks confidential, most notably in allowing a more honest exchange of what positions parties believe they can accept without having to posture for domestic audiences.  Others, however, assume that when treaty obligations would directly effect individuals, the public has a right to know the proposed terms of any deal.  Here, the United States is apparently proposing to do this as a sole executive agreement, meaning that neither the Senate nor Congress would have to consent to the agreement.  Of course, that also means that the agreement would need to find its authority under existing U.S. IP laws or areas of sole executive authority.  If so, that seems to undercut any argument that the ACTA will have dramatic domestic impacts (at least for those in the United States).  Still, I’d be interested what others view as an acceptable line between public and confidential negotiations.  Am I being too kind to government interests in favoring a broad entitlement to confidentiality at least until the negotiators reach agreement on a text?  

Of course, whether or not you believe secret negotiations are appropriate may now be a moot point.  If the ACTA is any guide, the reality is that confidential multilateral negotiations are rarely confidential.  Leaks abound.  Indeed, the EP vote appears to have been a reaction to the latest in a long line of leaks about the various negotiating positions.  My My sense, moreover, is that this reflects a general trend in multilateral negotiations.  Bilateral negotiations (or those involving a handful of parties) may still get the benefits of confidentiality.  But once you get a certain number of participants involved (not to mention the stakeholders they consult, with or without confidentiality agreements), it becomes very hard to avoid leaks and other disclosures.  Now maybe some confidentiality is better than none.  But I believe that the age when multilateral negotiators could work largely in secret has passed.  And, if that’s the case, those going into such negotiations need to operate under a different set of assumptions in terms of the positions they advance, and the deals they cut.  In the information age, if those positions and deals are at all disputed, we should expect they’ll get posted somewhere on the Internet, and dispensed with remarkable rapidity to those interested (including, one expects, the Opinio Juris community).

by Duncan Hollis

Yesterday, the Japanese Government (now led by the Democratic Party after nearly five-plus decades of rule by the Liberal Democratic Party) confirmed that in the 1960s Japan and the United States entered into a series of secret defense pacts.  Specifically, a committee of scholars has identified various tacit agreements allowing U.S. warships to carry nuclear weapons into Japanese ports, granting unrestricted use of U.S bases in Japan in the event of a renewed Korean conflict, and requiring Japan to fund the clean-up of U.S. bases in Okinawa after it regained control over that territory in 1972.  For years, the Japanese government had denied these agreements existed, notwithstanding widespread suspicions that they did.  Thus, most of the media attention has focused on how yesterday’s disclosures will play out under the Japanese legal system (especially given the Constitution’s renunciation of war).  Others have asked if the admission signals some new shift in U.S.-Japanese foreign relations.

I’m curious, however, about two other issues.  First, what status, if any, did these pacts have under international law?  Although colloquially referred to as “secret treaties” in Japan, it’s not clear to me whether there were any actual treaties involved.  For starters, at least some of these pacts appear to have been the result of “unspoken agreement.”  Now, the Vienna Convention on the Law of Treaties did not rule out the possibility of oral treaties (see Article 3)  And scholars are quick to point out the existence of a few ”oral treaties” made over the years; many regard the Ihlen Declaration as an oral treaty rather than a unilateral declaration; and the Danes also reportedly settled their Great Belt bridge dispute with Finland via an oral agreement.   On the other hand, as I’ve noted previously, given how limited state practice is when it comes to oral treaties, I wonder whether international law really continues to treat these instruments as equivalent to those written treaties that do fall within the VCLT definition?

At the same time, some of the media reports have chosen to emphasize the fact that certain documents are missing from the archives, implying that there were written U.S.-Japanese agreements at one time, which have now gone missing.  Even if the United States and Japan concluded these pacts as written instruments, however, that does not necessarily accord them treaty status.  The United States has a long history of doing political commitments with foreign states that it denies impose any international legal obligations, even if they have significant political or moral force.  Moreover, the Untied States and Japan have a well-established record of concluding such political deals, most notably the Root-Takahira Agreement or the Lansing-Ishii Agreement.  Ultimately, therefore, the status of these newly disclosed secret pacts depends on U.S. and Japanese intentions.  Did they intend these deals would give rise to international legal rights and obligations?  Or, was the expectation that permitting nuclear warships in Japanese ports or accessing U.S. bases in the event of a Korean conflict represented a political policy decision that would not trigger international legal rules, but allow significant political ramifications to provide sufficient impetus for compliance by both sides.  

Even assuming, however, these pacts were (a) written, and (b) intended to have legal force, some might challenge their treaty status given that they were by all accounts secret deals.  I’m not sure, however,that this argument has much modern salience.  Of course, Woodrow Wilson’s first of his famous fourteen points insisted that we have “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”  And Article 102 of the U.N. Charter requires Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations.  However, as D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to have agreed with him based on its holdings in the jurisdictional phase of Qatar v. Bahrain).  Thus, I’m not sure the fact that these instruments were “secret” will deny them treaty status. The real problems lie, I think, with whether they were reduced to writing and the intentions of the parties.

Second, apart from the international legal status of these instruments, there’s the question of their status under U.S. law.  Under what authority did the United States conclude these deals?  If they were intended to be legally binding, were they done as executive agreements pursuant to the President’s foreign affairs or commander-in-chief powers? Or, was there some congressional authority that warrants considering them as congressional-executive agreements?  And even if they were not intended to be legally binding, I still think there are some interesting questions about the President’s constitutional authority to do these sorts of political commitments? 

The 1972 Case-Zablocki Act might provide some answers to these questions (at least as a matter of U.S. law).  It states in relevant part:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.

Thus, the statute appears to accept (and regulate) both unwritten and secret international agreements.  The problem here, however, is that the relevant statutory provisions of the Case-Zablocki Act most likely post-date the secret deals with Japan.  The statute was not enacted until 1972 (and it has been amended several times since).  As a result, it probably does little to illuminate the contemporaneous views of either the Executive branch or Congress (if Congress even new about these deals at all).  But even without a statutorily required disclosure, I hope we still might get more information on the U.S. position.  Indeed, now that the Japanese have come clean, will the Executive branch clarify either how it concluded these secret pacts under U.S. law or what status, if any, they believed them to have under international law?

by Duncan Hollis

One of the most fascinating topics (for positivists like myself anyway) is how customary international law incorporates a consensual element via the idea of persistent objectors.  Questions, of course, abound over why persistent objectors get an exemption from a customary rule, when subsequent objectors do not (unless other states acquiesce in the subsequent objector’s departure from the rule, or take it as the beginning of a movement towards a new customary rule, etc.)  In recent years, the implications of state decisions to opt-out of or simply not comply with customary rules have garnered increasing scholarly attention.  Most recently, Curt Bradley and Mitu Gulati have joined the conversation with their article, Withdrawing from International Custom.  That paper will be the basis of a scholarly roundtable this Saturday at Duke Law School, appropriately titled, Opting out of Customary International Law.  Although the papers for the roundtable aren’t publicly available yet, here’s the agenda.

Scholarship Roundtable: Opting Out of Customary International Law

9:15 am – 10:30 am Session 1: Justifications for and History of the Mandatory View
Papers:
Andreas Paulus, In Defense of Customary International Law
Amanda Perreau-Saussine, Changing the Rules
Anthea Roberts, Reflections on Bradley & Gulati’s Paper
Edward Swaine, Comment on Bradley and Gulati
Discussant: David Bederman

10:45 am – 12:00 pm Session 2: How Customary International Law Develops and Evolves
Papers:
David Bederman, Acquiescence, Objection and the Death of Customary International Law
Rachel Brewster, Withdrawing from Custom Through Treaty
Samuel Estreicher, Preliminary Observations on Bradley & Gulati
Christiana Ochoa, The Rule of Law, and the CIL Formation, Modification and Disintegration Process
Discussant: Anthea Roberts

1:15 pm – 2:30 pm Session 3: Considerations of Efficiency and Design
Papers:
Eugene Kontorovich, Inefficient Customs in International Law
Vincy Fon & Francesco Parisi, Stability and Change in International Customary Law
Larry Helfer, Comments on Bradley & Gulati
Joel Trachtman, Notes on How Persistent Objectors Play Chicken with Public Goods
Discussant: Paul Stephan

2:45 pm – 4:00 pm Session 4: Domestic Application of Customary International Law
Papers: Anthony Bellia & Bradford Clark, The Political Branches and the Law of Nations
John McGinnis, Domestic and Asymmetrical Withdrawal Rights from Custom
Paul Stephan, Disaggregating Customary International Law
Discussant: Ed Swaine

by Duncan Hollis

We here at Opinio Juris are thrilled to welcome Jan Klabbers as our latest guest blogger.  Professor Klabbers is professor of international organizations law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. This semester he’s also a Fellow in residence at NYU’s newly established Straus Institute for the Advanced Study of Law & Justice.  Professor Klabbers is one of the world’s leading experts in the law of treaties.  Check out his impressive and provocative The Concept of Treaty in International Law if you’ve never done so, or take a gander at his more recent work such as Treaty Conflict and the European Union.  As the EU-focus suggests, Professor Klabbers also specializes in international institutional law, having authored a series of books and articles on the subject, including Introduction to International Institutional Law.  Most recently, Professor Klabbers has ventured into the growing debate about constitutional theory and international law with a recently edited volume (where he was joined by Anne Peters and Geir Ulfstein), The Constitutionalization of International Law.

by Duncan Hollis

Back in 2008, I flagged the great service being done by the Squire Law Library at the University of Cambridge in compiling oral histories from some of the more eminent figures in international law. At the time, I focused on the recorded interviews with Sir Elihu Lauterpacht QC (although they’d also done one with Sir Derek Bowett, who passed away only a few months ago). 

Since then, the Library has done at least a couple more interviews that may be of interest.  They’ve posted a short interview with Martti Koskenniemi where he offers views on, among other things, the lasting influence of Sir Hersch Lauterpacht. They also have a more extensive interview with former ICJ President Stephen M. Schwebel, who talks about his own studies at Cambridge under Sir Hersch, Clive Parry and Robert Jennings, plus his early associations with folks like Sir Eli, Sir Derek, and Nagendra Singh.

Now maybe it’s the common connection to Cambridge, but I found these interviews quite striking in how small the international law community (or at least its English-speaking version) seems to have been in the years following WWII.  With all the specialization and fragmentation of the field today, the modern state of international law seems a far cry from the idea of a handful of generalists who taught or studied together.  That’s not to dismiss the utility of these stories or the project as a whole, but it does serve to mark how much the profession has (or is) changing.  In any case, I’m looking forward to seeing who else Cambridge pulls in for interviews in the coming years.