The Volokh Conspiracy

Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Is this right? Paging our very own Eugene Kontorovich, a leading authority on piracy law!  Over at Opinio Juris, Julian Ku and Kevin Jon Heller discuss the opinion.  Myself, I plan to re-watch South Park.

If you’re interested, I’ll be on C-SPAN Book TV tomorrow, Sunday, February 24, at 1:20 pm, talking about my book, Living With the UN: American Responsibilities and International Order.  It runs about half an hour, and though I have no idea whether I’m especially interesting on the program, I very much enjoyed doing it – I thought the interviewer was terrific (and I can’t seem to find his name on the website) and asked excellent questions.

The book itself has three agendas.  The first is to sketch out an account of international relations in which the US has a dual role in the world system – as both hegemonic actor and biggest player in the UN system.  The UN system of collective security is guaranteed by the US as the hegemon that provides important global public goods – a large part of the world can pay lip service to UN collective security, but at the end of the day depends upon the US.  The book’s second agenda is to give an account of the UN and its deep dysfunction.  The book’s third agenda is to give a critique of the Obama administration’s dealings with the UN – a quite sharply critical one.  The book urges the US to deal with the UN on the basis of its distinct parts and functions – always to engage with the Security Council; selective engagement with particular organs of the UN that work reasonably well; and disengagement with parts of the UN that are always going to end in trouble.

The book came out from Hoover Institution Press in mid-2012, but I think seems surprisingly more relevant in the second Obama administration.  I plan to start blogging on topics related to US-UN relations, of which there are many these days.  Here is a link to the video of the interview; it was recorded on February 8 and aired February 24, 2013.

As Kristen Boon reports over at Opinio Juris, the United Nations yesterday asserted complete legal immunity from any liability or claims arising from the Haiti cholera epidemic, which reportedly was the result of infected UN troops who were part of the United Nations Stabilization Mission in Haiti.  The United Nations benefits from a special treaty, the UN Convention on Privileges and Immunities, dating back to 1946 as part of the creation of the UN; it provides the UN with absolute immunity in national courts worldwide.  Lawyers for various Haitians infected with cholera submitted claims to the UN, working with a Boston-based NGO, the Institute for Justice and Democracy in Haiti (IJDH). Professor Boon explained the filing in an OJ post in October last year:

IJDH filed the complaint under a standard clause in the Status of Forces Agreement (SOFA), signed by the UN and Haiti, that provides for a third party claims procedure before a standing claims commission for disputes of a private-law character.  No such commission has been established in Haiti, nor, it appears, anywhere despite a 1996 decision by the Secretary General that the standard provision should be retained so that the UN does not act as its own judge.  To date, according to the lawyers, the UN acknowledged receipt of the claim, but it has not responded on the substance.   Moreover, there is very little information available on the procedure through which the UN considers such claims internally.  The IJDH lawyers, understandably, have expressed dismay by the lack of transparency with which the case is being assessed.  Indeed, the UN’s handling of this high profile claim stands in stark contrast to its stated position on the rule of law and procedural regularly in other contexts.

Yesterday, then, the UN responded to the claims with a letter under the signature of the UN’s Under-Secretary for Legal Affairs – the UN’s general counsel – Patricia O’Brien. The letter talks about the good things the UN sees itself as having done in Haiti in relation to the cholera epidemic.  But the key legal assertion is a brief paragraph:

With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters.  Accordingly, these claims are not receivable, pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946.

Section 29 says that the United Nations will “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. (Emphasis added.)  The UN’s position appears to be that

the cholera claim is in the nature of a public (rather than a private law claim cognizable under Section 29) due to the political and policy issues it raises.   Nonetheless, there is no explanation in the letter itself as to why this should be considered a public law dispute.

One key element of a public law claim would presumably be that the dispute arises between a state and the UN, but in this case it is absent because Haiti expressly elected not to participate in this dispute.  Perhaps another rationale is that the claim involves public law because the cholera outbreak arose pursuant to a Status of Forces Agreement with Haiti.

Professor Boon suggests that many public law claim elements are missing here and, as she points out, the net result is that

the claimants have no venue to pursue their case.    The UN’s decision cannot be appealed.  Moreover, if the UN were sued in a national court, it would assert its privileges and immunities which would shield it from jurisdiction.   Although the Model Status of Forces Agreement  provides for a standing claims commission, no such commission has ever actually been established in any context.   There is a well developed practice of adjudication by local claims boards for routine claims and injuries that occur during Peacekeeping Missions, although in this case, it appears that such a board in Haiti would not have jurisdiction due to the complexity of the case in addition to the level of compensation sought.

Why would the UN adopt such an uncompromising line?  Professor Boon is sympathetic to the plight of the individual Haitians in this situation, but in her post last year, she identified three reasons why the UN might be unwilling to get involved in any form of dispute resolution here.  I’m not quite sure where I’d come out on this matter, but it bears noting that the UN’s concerns are not minor, and are easily understood as weighty reasons of state:

• First, the UN has taken the position that cholera was not conclusively introduced by the Nepali peacekeepers, and consequently, an open question remains as to ultimate responsibility.
• Second, the financial implications for the UN are profound. Not only will a settlement create a huge financial burden on the organization, but it might deter future peacekeeping efforts.
• Finally, the case is precedent setting. It will unquestionably influence how mass claims against the UN are lodged and resolved in the future.

The effects into the future might well be very bad, if it were to make future peacekeeping more difficult; peacekeeping operations is one of the few bright spots of the organization, despite its difficulties.  In my own book on US-UN relations, Living With the UN: American Responsibilities and International Order, published by Hoover Press last year, I included a chapter on internal UN governance and noted just how appallingly bad it is.  Legally and managerially, it’s a world unto itself.  The notion of accountability as a matter of simply keeping track of the money – auditing and internal fiscal mechanisms standard to corporations – is widely understood to be dodgy at very best.  Such things as financial disclosure of conflicts and the like by the organization’s senior staff is piously urged, but it remains voluntary and is not widely done.

Academics like studying the UN mostly because they’re interested in deep issues of international law and organizations, or exciting topics in international relations.  Not very many people are interested in the most basic mechanism for understanding of all, ‘follow the money’.  Fewer still are interested in the budgeting, accounting, and fiscal management issues. It’s a pity, because in the UN’s case, following the money internally is a highly informative public choice approach to understanding the incentives of the internal actors.  (I do have to say that though my book is mostly witheringly critical of both the UN and the Obama administration’s approach to it and its issues (“a book only John Bolton could love,” as one reader told me, and an “acerbic essay,” as Michael Ignatieff remarked in passing in the New Republic), I have great admiration for Joe Torsella and the work he and his staff do as the US government’s representatives on UN management issues. It’s a thankless task, and yet they slog away, trying to get the UN to be more accountable for its resources and better managed.)

I will be speaking at several law schools and universities in Ohio and Florida the week of March 18th (our spring break). All events are free and open to the public. Always happy to meet readers of the Conspiracy. Additional information at the links.

March 18th, Case Western Reserve University Law School (noon), “Piracy and the Limits of International Law.”

March 18th, Ohio State University, The New Palestinian State.

March 19th, Ohio University, “Disputing Occupation: Israel’s Borders in International Law”

March 21st: Florida International Law School, “Israel & International Law.”

Human Rights Watch has just released a report on Israel’s recent “Pillar of Defense” operation to suppress rocket fire from Gaza. The report concludes that 18 airstrikes violated international law by not being properly targeted. I do not know if 18 is a little or a lot for an operation of this scale, as there an no good comparative data (though the report is released as Afghanistan says yet another NATO airstrike hit a house with innocent women and children inside.)

The report, by its description of its methods, appears to be a hit piece. Here is what the report said about the group’s investigative method (emphasis added):

Human Rights Watch sent detailed information about the cases to the Israel Defense Forces (IDF) on January 14, 2013, requesting further information. At a meeting on January 24 and in subsequent phone conversations, the military spokesperson’s office told Human Rights Watch that the military chief of staff had ordered a general (aluf) to conduct an “operational debriefing” (tahkir mivtza’i) concerning “dozens” of Israeli attacks during the conflict, including the cases Human Rights Watch investigated, which would be completed by late February.

Because previous Israeli “operational debriefings” involving attacks were not conducted by trained military police investigators or dedicated to investigating alleged laws-of-war violations, Human Rights Watch has decided to publish its findings rather than wait for their results.

In other words, HRW received high-level and consistent cooperation. A meeting between HRW and the IDF took place on Jan 24 (just 10 days after HRW asked for further information), and were told that the IDF would have a more detailed response by late February after its own investigations were over. One month is not a long time to wait, certainly not covering an incident that occurred months ago.

It is completely baffling why HRW, would rush to publish their report a mere two weeks before they could hear in full Israel’s response to their allegations. Furthermore, HRW’s explanation why they chose not to wait lacks any coherence. What is so special about designated military police as opposed to toeher investigators? And even if the IDF investigations were not conducted by trained military police, it is unquestionable that the IDF investigators would have access to sources HRW does not. One would expect that an organization whose influence is completely based on their reputation for objectivity and thoroughness would wish to have all the facts before rushing to publish.

Well-meaning observers are often puzzled why Israel sometimes does not cooperate with the multitudinous foreign investigations into its military operations. The minimal lack of procedural fairness investigations such as HRW’s is surely one reason for their reluctance.

Hat tip: Gidon Shaviv

Despite the recent United Nations Human Rights Council’s report, France and many other European countries are against attempts to revive the peace process, end the occupation and remove settlements. They prefer a “long-term stalemate” (which sounds like Boogie Yaalon’s “long term conflict management plan“). Outside pressure to push peace could backfire and benefit hardliners on both sides, according to European journalists interviewed recently by Reuters.

Of course, I am not talking about Israel’s occupation of parts of the League of Nations Mandate for Palestine previously occupied by Jordan, but rather about Turkey’s occupation of a full-fledged EU member state.

In other European contortions, while France bombs terrorists “on the footsteps of Europe” in Mali, thousands of Hezbollah members operate openly in Europe. Their activities are now known to include bus bombing. France and other European powers have long been reluctant to declare Hezbollah a terrorist organization – apparently because they only kill Jews, and most elsewhere, according to an astounding analysis in the New York Times:

There’s the overall fear if we’re too noisy about this, Hezbollah might strike again, and it might not be Israeli tourists this time,” said Sylke Tempel, editor in chief of the German foreign affairs magazine Internationale Politik.

Europe has recently been indicating that it will be pressuring Israel to take so-called risks for peace. But Europe is not unbiased, nor is its attitude towards Israel driven principally by Israel’s actions. European actors are driven by political agendas, fear, and a variety of factors. And given their fear of taking on Turkey, or even Hezbollah, they are ill placed to talk about risks for peace.

No, not Mali. Rather, the Gulf of Aden. A French fishing trawler sank a Somali pirate mothership during an exchange of fire. Several of the alleged pirates were killed; expect lawsuits about the French use of excessive force. Of course, Somali pirate apologists like to say that they have been driven to crime by massive overfishing in Somali waters by European vessels, with Spain and France among the worst offenders. The overfishing is real, but the pirate motives aren’t. They are in it for the money. (H/T: my friends at Neptune.)

The Geneva Convention is generally thought to apply to Israel’s occupation of the West Bank – that portion of the League of Nations Mandate for Palestine previously occupied by the Jordan. This is important because the legal argument against settlements is that they violate Art. 49(6) of the Fourth Geneva Convention, a provision which did not reflect prior international law.

Art. 2 of the Convention provides:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Because the West Bank was not part of the sovereign “territory of a High Contracting Party” (or of any country) in 1967, and Israel has argued that “occupation” within the meaning of the Convention can only exist in such territory. Of course, most international lawyers disagree, though in the years after 1967, some very prominent ones agreed.

What is more interesting is what people thought the provision meant before 1967, that is, before they knew the identity of the alleged violator. There is very little written on this, and few have looked at pre-1967 sources. However, one quite serious (pro-Israel) blogger has unearthed this intriguing discussion from Hans Kelsen in 1952, which clearly does not assume that the occupation of non-sovereign territory has the same consequences as the occupation of sovereign territory:

The principle that enemy territory occupied by a belligerent in course of war remains the territory of the state against which the war is directed, can apply only as long as this community still exists as a state within the meaning of international law. This is hardly the case if, after occupation of the whole territory of an enemy state, its armed forces are completely defeated to that no further resistance is possible and its national government is abolished by the victorious state. Then the vanquished community is deprived of one of the essential elements of a state in the sense of international law: an effective and independent government, and hence has lost its character as a state. If the territory is not to be considered a stateless territory, it must be considered to be under the sovereignty of the occupant belligerent, which—in such a case—ceases to be restricted by the rules concerning belligerent occupation. This was the case with the territory of the German Reich occupied in the Second World War after the complete defeat and surrender of its armed forces. In view of the fact that the last national government of the German Reich was abolished, it may be assumed that this state ceased to exist as a subject of international law.

There is a lot of research to be done in this vein. I recently came across a discussion in the U.N.’s International Law Commission from 1950, as part of the drafting of the Draft Declaration on Rights and Duties of States. There were quibbles from countries such as France about whether annexation is always banned, or whether there might be various exceptions.

In response, the Secretary observed: “It might be suggested that in order to constitute a crime under international law an annexation must be carried out through the use of armed force, with a view to destroying the territorial integrity of another State.” [See I Yearbook of Int. Law Comm. 137 (1950).]

Indeed, it was not surprising that there was some confusion and concern about the extent of an annexation norm, since as the delegates admitted, there were some “frontier adjustments” made by the Allies after WWII.

Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation.

Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes the power to make peace, as Madison noted in the 1790s. Just as war does not need to be formally declared, peace can be established without a treaty. There may be international law advantages to a treaty, but peace could be created simply through a the cessation of hostilities, an executive agreement (such as an armistice), and so forth. Thus legislation dealing with the loose ends of a war would be independently justified, to some extent, by the War Power, as the Supreme Court recognized in Woods & Cloyd v. Miller.

Indeed, aside from the treaty with Britain, the Treaty Power would be an incomplete basis for legislating “peace conditions,” as it would potentially be difficult to exercise in cases of debilitatio, the collapse or disintegration of the enemy government.

The Constitution gives the Federal government numerous express powers for directly regulating transborder phenomenon, including war and foreign commerce. The difficulty with the potentially broad uses of the Treaty power today is that they deal with purely internal phenomenon, which are only of general “concern” to foreign countries.

The Supreme Court has denied certiori in a pair of Fourth Circuit piracy cases, which raised questions about the Define and Punish power and how federal courts determine international law when incorporated into a federal statute. I had previously argued that the decisions below were clearly correct.

Somali pirates, and the broader contexts of state failure and the maritime economy, are the subject of the new documentary film “Stolen Seas.” It has just had its first U.S. release at Cinema Village in New York. The filmmaker quite adventurously spent significant time with Somali pirates on land and at sea, to good effect. He also less adventurously interviewed me. Hopefully it will get wider release and I’ll be able to see it for myself.

France is fighting a rather serious war in Mali. What does international law say about this go-it-alone incursion into a foreign country? Given the controversy over recent interventions with mixed motives, such as the U.S. war in Iraq, it is worth consider the international legal basis for the assault and its conduct.

I. Security Council Resolution.
France has invoked the U.N. Security Council Res. 2085, passed on Dec. 20th, as the basis for their intervention. However, this is not so simple. Yes, the Council did use its Chapter VII authority to “authorize the deployment” of foreign forces to Mali – just not French force. Rather, the entire resolution is about green-lighting the African-led International Support Mission in Mali (AFISMA), a ECOWACS effort. France is not part of AFISMA, or of ECOWACS. Only AFISMA is authorized to “support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups.” (Par. 9b).

As for other U.N. member states, the resolution merely calls on them to provide logistic, training and other kinds of “support” to the ECOWACS mission (par. 14). France is not providing support, it is taking the lead role in direct combat operations. Indeed, it jumped in before AFISMA got there, because it judges the U.N. authorized African effort would be too little, too late.

Alas, an authorization by one group of countries to intervene is not a carte blanche to all interested parties, and we will have to look elsewhere for France’s authority. One should add that this aggressive reading of UN resolutions is a bit ironic given France’s criticism of US readings of resolution before the Iraq War.

II. Third-party defense: Mali’s invitation.
France’s use of force in Mali is a lot less troublesome because it was done at the invitation of the government of Mali. Every nation has the inherent right of self-defense, recognized by Art. 51 of the U.N. Charter; the charter also allows states to come to the defense of others. This kind of thing should raise no eyebrows.

There are two wrinkles in the current situation worth mentioning. First, the Malian leadership was, at least until France’s invasion, not recognized by the international community, or France for that matter, as the country’s constitutional government. Last March, a group of soldiers lead by junior officers overthrew the democratically elected government. The action met with broad international condemnation. France, for example, proclaimed that it “condemns this forceful overthrow of the constitutional order in the strongest possible terms. It calls for the restoration of the constitution and institutions.” The military junta agreed to put in a puppet prime minister for to head an interim government pending elections, easing some international concerns. But then the army sacked the new interim prime minister in December, in what I would call a “re-coup.”

Indeed, the ECOWACS forces were first being sent to Mali to topple the government they are now coming to assist. The dubiousness of the government may be way France makes its weak Security Council resolution claim.

France is of course free to recognize anyone it wants as the legitimate government of Mali, and one does not need to be to “legit” to be a legitimate government. I do not know the status of EU, French or US relations with the government. But it is at least not fully satisfying if the invasion of Mali, and bombardment of its cities at the risk of innocent casualties, is authorized by a new half-baked junta. We wouldn’t want that to become a rule, to put it mildly.

There is a further wrinkle: France is helping Mali against an internal threat. The International Court of Justice, however, ruled that “self defense” within the meaning of the UN Charter only applies to foreign invasion. Now of course it said that in an advisory opinion which in no way binds France, or any other country. Moreover, it was the opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, so the reasoning was probably of a very sui generis kind (and was criticized as such by Judges Buergenthal and Higgins).

III. Self-defense.
France has also described the action as one of its own self-defense. The defense minister has said that they were acting quickly to prevent the creation of “a terrorist state at the doorstep of France and Europe.” Of course, this would expand the concept of anticipatory self-defense beyond any broad contours suggested for it, and should probably not be understood as a legal justification, rather than an explanation of why it choose to intervene in this former colonial conflict, and not, say, the much bloodier one in its former colony of Syria.

IV. Conclusion.
Whatever reservations one might have about the legitimacy of the Malian military-run government, they do appear to be the de fact authority in the country to the extent there is one. Certainly in the absence of protest by any other claimants to official authority, French action does not seem to violate international law in any formal way. However, its invocations of Security Council resolutions and self-defense are as spurious as superflous.

NEXT WEEK: Hopefully some discussion of France’s use of force, especially given it is conducting operations against ununiformed combatants in civilian population centers. I would like to know more about the extent of civilian casualties, but doubt there will be an international inquiry.

I want to thank Eugene and Nick for graciously inviting me to guest blog here.

One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers.  This question is also pending before the Supreme Court in Bond v. United States, in which the cert. petition challenges the constitutional power of Congress to enforce the international Chemical Weapons Convention, a treaty the United States entered into in 1993.  The Court has already re-listed Bond an exceptional six times for the Court’s consideration at conference – a strong signal that at least some Justices consider these issues extremely serious ones.

The most momentous argument the Bond petition raises follows the novel solution to “the treaty problem” developed in a provocative article by Nick Rosenkranz, Executing the Treaty Power.  Distilled to a sentence, Nick’s argument (which he will explain more fully in his own posts) is that a treaty cannot change the balance of federal-state power established in Art. I, which enumerates Congress’ specific powers.  More specifically, if Congress legislates to enforce a treaty, Congress is limited to the powers it otherwise has in Art. I; the treaty itself does not permit Congress to enact legislation it would otherwise be constitutionally forbidden to enact.  In a few posts, I’ll suggest why I think Nick’s analysis is ultimately unconvincing.

The treaty-power issue is part of the larger set of questions about how the outward looking aspects of the Constitution — its structure of powers for international relations, foreign affairs, war, and the like — relate to the Constitution’s inward looking structure of powers over purely domestic matters.  In starting to think about these issues, it’s essential to understand  that ensuring that the United States would be able to credibly make and faithfully honor international agreements was one of the central purposes driving the creation of the Constitution.  This aim was not just one of many desirable goals the Constitution was designed to help achieve; it was one of the central animating causes that led to the calling of the Constitutional Convention, the abandonment of the Articles of Confederation, and the overall design and structure of the Constitution.  See here for a full history.

Today, it is easy to forget how fundamental it was to the Constitution’s design that the U.S. be able to make and honor treaties.  The most important treaty in U.S. history is still the Treaty of Peace with Great Britain in 1782, which ended the Revolutionary War.  The inability of the U.S. to honor its obligations under the Treaty, and the resulting national-security threat to the U.S. from British retaliation for the inability of the U.S. to honor its Treaty commitments, was one of the major events behind the Constitution’s creation.

The Treaty recognized the independence of the U.S. and our claim to expansive boundaries.  On the British side, an essential demand was that the U.S. override  state war-time confiscation laws that had eliminated or reduced pre-War debt obligations of American debtors to British creditors.  In the Treaty, the U.S. agreed to do so to ensure these debts would be honored in full; as part of the pact, the British also agreed to withdraw from their forts in the northwest of the U.S.  But all that Congress could do, under the Articles of Confederation, was to ask the states to honor these international commitments the U.S. had made, and Virginia (whose citizens owed the largest portion of these debts) refused to do so.  In retaliation, the British refused to withdraw from their forts and held the security of the U.S. hostage.

Notice that the Treaty regulated property or contract claims — debts — that are ordinarily regulated under state law.  In addition, this problem of states undermining the capacity of the U.S. to honor its treaty obligations and be a credible nation in world affairs, with consequences to both the security and economic prosperity of the country, was a general problem under the Articles (for a fuller history on the Treaty of Peace, see the magisterial article on the history of the treaty power:  David Golove, Treaty-Making and the Nation).

Numerous provisions reveal the extent to which the Constitution was designed to remedy this defect.  Although treaties were made difficult to enter into, requiring 2/3 support in the Senate for ratification, the Constitution sought to ensure that the U.S. would have the capacity to honor valid treaties.  Thus, the Constitution expressly makes treaties part of the “supreme law of the land;” the Art. III federal judicial power expressly extends to cases arising under treaties, to ensure their effective enforcement; the states are expressly denied power to enter into treaties; and the states are also denied power to enter into international compacts without congressional consent.

In addition, the Constitutional Convention explicitly debated but rejected the proposal to  limit the subject matter of treaties into which the U.S. could enter, because of the view that the U.S. needed to have the power to decide over time the subject on which it would be desirable to enter into treaties to promote the  interests of the U.S.  Moreover, the Founding Era is overflowing with statements and positions that express the necessity and importance of the Constitution enabling the U.S. to honor its treaty commitments.   As just one brief glimpse, here is what Federalist Papers #22 (by Hamilton) has to say:

 The treaties of the United States, under the present Constitution [of the Confederation], are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation.

This brief account of the historical problems and context against which the Constitution was crafted is necessary to set the stage for considering Nick’s approach to the “treaty problem.”

Yet pushing back against all this history and original understanding is the kind of intuition or anxiety that fuel’s Nick’s argument and related ones that have arisen throughout U.S. history:  if no limit on the treaty power and related national powers exists, can’t the national government subvert the federal/state balance of power that the Constitution also works so hard to establish?  To make this concrete, let’s assume Congress does not have the legislative power to abolish the death penalty in the states.  If the U.S. then enters into a treaty on this subject, can Congress now legislate to abolish the death penalty?  Or, to take the issue in Bond itself, if Congress would not otherwise have the power to regulate an individual’s possession and use of toxic chemicals, can Congress gain this power as a means of implementing the Chemical Weapons Convention?

The issue takes on even more heightened stakes with the rise of human rights treaties the U.S. has signed in the post-WWII era.  If Congress would not otherwise have the power to legislate in these areas, can it do so as a means of implementing these treaties?   These questions illustrate the tension or puzzle or conundrum about the treaty power.

This post has gone on long enough in providing the historical perspective needed to assess Nick’s argument.  In subsequent posts, I will offer my reasons for not being persuaded by Nick’s approach to the treaty power.  I will then suggest some alternative approaches.

I’m delighted to see Rick Pildes will be guest-blogging, and the exchange with Nick on the Treaty Power will be a treat.

I would invited them to consider an aspect of the question that has long interested me:
What is the relationship between the Offenses Power, the Treaty Power, and the Foreign Commerce power? All three might overlap at their edges (assuming they are not entirely congruent), and the extent of the overlap would say a lot about the extent of the other powers. If for example, the Foreign Commerce power is even broader than the Interstate one, then the scope of the treaty power becomes even less important.

Hamilton, as I’ve mentioned before saw the Treaty Power as in some ways ways being not coterminous with the Foreign Commerce power, and my understanding of the Offenses Power has always been that it was distinct from the Treaty Power. An example of how such delimitations might matter would be whether the courts can consider, as they sometimes do, unratified treaties in determining the “Law of Nations.”

UPDATED with minor edits.

Continuing the analysis of possible Art. I authority for applying the Material Support of Terrrorism statute to three Somali nationals fighting on behalf of al-Shabab in Somalia, with no identifiable link to the U.S. – other than being brought here for trial.

War Powers
The U.S. is not at war with Shabab. They are at war with our pals, Somalia’s notional Transitional government, in a civil war to which we are not a party. It is important to distinguish enemies in the “really hate” sense to war in the constructive or declarative sense.

True, Shabad has aligned itself with Al-Queda. Do the War Powers allow banning anyone in the world from fighting in a conflict to which the U.S. is not a party, but on behalf of a force sympathetic or allied with forces hostile to the U.S.? I don’t know, but my first reaction is that is a stretch. By such logic one could say that the ACA, by making healthier Americans, would make for better soldiers.

Note how this discussion recapitulates government’s move in Hamdan II: first it the argued “material support” rule was an exercise of Offenses Clause powers, then in last minute downgraded D&P to second-stringer, and brought out the general war powers for Art. I support.

With the Supreme Court having declared a limit on the Commerce Clause, the Treaty Power may remain the broadest, least defined governmental power. I do not think general treaties denouncing terrorism would be enough; they specifically do not do what the U.S. wants to do here – establish universal jurisdiction over the crime. Much easier would be to sign a quick executive agreement with the nominal government of part of Somalia, over which the U.S. presumably has a lot of control as it struggles between being nominal and dead.

To be sure, a non-treaty treaty with a non-governing government could be an illustration of the possible excesses of the Treaty power as broadly interpreted. But it might serve the government in a pinch.

Protective Jurisdiction
Assuming their is an Art. I basis, one might ask whether this application of the law would be consistent with international law. Lacking a universal jurisdiction crime, the next fall-back would be “protective jurisdiction.” Definitions of the protective principle require the acts to be “directed against the security of the state” or certain core interests (Restatement). Classic examples have a tight nexus: espionage, counterfeiting. Designation as a foreign terrorist, on the other hand, only requires a determination that the group “threatens” the national security of U.S. or its nationals. I don’t think “threaten” in this context requires any particular intent. Moreover, posing some danger to some U.S. nationals overseas would probably not qualify for the invocation of the protective principle either.