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North Korea and the Law on Anticipatory Self-Defense

North Korea and the Law on Anticipatory Self-Defense

Media reports over the last few weeks indicate that the already tense relationship between North Korea and the United States is getting worse. Now that North Korea is nearly ready to test an intercontinental ballistic missile, the United States has said that it will get more confrontational. U.S. Secretary of State Rex Tillerson even suggested that U.S. military action against North Korea is “on the table.” Such talk is sometimes part of a broader strategy to pressure other countries to negotiate, whether at the Security Council or elsewhere. But it can also be a precursor to war. And it comes at an acute time for the law on anticipatory self-defense.

As readers of this blog no doubt know, Article 51 of the UN Charter recognizes that states have an “inherent” right to use force in self-defense “if an armed attack occurs.” There is an ongoing debate about whether and, if so, when Article 51 permits states to use force to avert an attack that has not yet occurred. Claims for interpreting Article 51 expansively—to permit defensive force even if the attack is only speculative—have been made with respect to “rogue” states that are developing nuclear weapons. In this post, I situate the North Korea case within that debate and explain why the United States might find it to be a particularly challenging case in which to press its expansive claim.

I. The Law on Anticipatory Self-Defense

A. A Restrictive Position

 The majority view on anticipatory self-defense is probably a restrictive one: that anticipatory self-defense can be lawful only if an attack is truly “imminent”—as in, about to occur. Under this view, states may not use force unilaterally to nip in the bud latent threats or attacks that are still conjectural. They must instead address those situations using non-forcible means or by obtaining the UN Security Council’s authorization.

That position finds support in various authoritative texts, including texts that specifically address situations involving the acquisition of nuclear weapons. In 1981, Israel bombed an Iraqi nuclear reactor that seemed ready to produce weapons-grade uranium. The UN Security Council “strongly condemn[ed]” the operation as a “clear violation of the Charter.” In 2004, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change likewise asserted that anticipatory self-defense is lawful “as long as the threatened attack is imminent” (para. 188). The Panel distinguished those cases from situations in which “the threat in question is not imminent but still claimed to be real: for example, the acquisition, with allegedly hostile intent, of nuclear weapons-making capability” (para. 188). It explained that non-imminent threats ought to be addressed without force or through the Security Council.

Indeed, the Security Council has repeatedly taken steps to prevent specific states from acquiring nuclear weapons. The Council has issued numerous resolutions condemning or authorizing sanctions against North Korea for conduct relating to its nuclear program. Likewise, the Council authorized sanctions against Iran, until it agreed to subject its program to stricter international oversight. And after the 1991 Gulf War, the Council imposed intrusive measures on Iraq to prevent it from obtaining nuclear weapons. This practice shapes expectations about the proper locus of decisionmaking authority. It suggests that the decision to sanction a state that might be acquiring nuclear weapons falls, at least in the first instance, to the Security Council, not to states acting unilaterally.

The debate surrounding the 2003 Iraq war arguably also supports that view. Part of the justification for the war was that the use of force was necessary to contain Iraq’s nuclear program. The United States claimed to be acting pursuant to the Security Council’s authorization. But most states disagreed with that claim and vociferously condemned the war. They did not believe that the Council authorized the use of force or that force without the Council’s authorization was justifiable in this instance.

B. A Permissive Position

However, the restrictive position on anticipatory self-defense is being contested. As Michael Reisman and Andrea Armstrong showed in their 2006 article, several states have expressly claimed the right to use force in anticipatory self-defense, without limiting that right to truly imminent attacks. In December 2016, the United States drew on Sir Daniel Bethlehem’s piece in the American Journal of International Law to articulate this legal position:

When considering whether an armed attack is imminent …, the United States analyzes a variety of factors. These factors include ‘the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.

Notice that “imminence” here does not have its ordinary meaning. By the United States’ account, it would permit defensive force to prevent attacks that are still fairly conjectural.

In January 2017, the United Kingdom endorsed a very similar legal position. U.K. Attorney-General Jeremy Wright purported to limit the most expansive implications of the U.K. claim. He underscored that “[i]t is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.” But his language just begs the question of when a threat has materialized. In the context of nuclear weapons, the threat could be said to materialize—and to justify defensive action—once a state that has demonstrated a hostile intent comes close to acquiring nuclear weapons. At that point, the risk of a potentially devastating attack increases. And waiting for the threat to become more operational might deprive the defending state of a meaningful opportunity to protect itself, without significant death or destruction. The U.S. and U.K. legal position thus creates space to justify anticipatory actions against states like North Korea.

To be sure, most states have not expressly endorsed that position. But as Jacob Katz Cogan and I have shown, most have also stayed silent in the face of actions that reflect it. Two examples are particularly relevant to the North Korea case. First, in 2007, Israel reportedly attacked a partially constructed nuclear facility in Syria. Although the UN Security Council condemned a very similar operation in 1981, states were almost completely silent about the 2007 action. Second, media reports indicate that Israel and the United States repeatedly attacked Iran’s nuclear program, as the Security Council was pressuring it to accept more international oversight. These attacks varied in their severity, but at least some of them caused physical destruction or death. Again, the response was muted.

My point here is not that the permissive position on anticipatory self-defense is the best articulation of the law. My point is that the law on anticipatory self-defense is potentially in flux. It might already be shifting or might soon shift from the restrictive position toward the more permissive one. Moreover, for the time being, a state that uses force in anticipatory self-defense might be able to calibrate its action such that it falls in a legal grey zone—in which it foregoes the legitimizing effect of having the law on its side but also avoids the verbal or material blowback of a violation. The operation would not be widely accepted as lawful, but neither would it be widely treated as unlawful.

II. The Prospects for U.S. Strikes against North Korea

Given that the United States has itself advanced the permissive position on anticipatory self-defense, North Korea could present something of a test case. The United States might try to exploit the legal grey zone or press for its position on the law. Those moves are unlikely to succeed for at least three reasons. First, using force to curtail North Korea’s nuclear program would be operationally difficult and present a serious risk of an escalation in violence. Antony Blinken, a State Department official in the Obama administration, recently explained:

Much of North Korea’s nuclear complex is concealed underground, inside mountains or in places unknown to United States intelligence. Meanwhile, the country is making rapid progress with mobile missiles powered by solid rocket fuel that can be rolled out of hiding and prepared for launch in minutes.

Moreover, as Max Fisher put it, “[a]lmost any plan would bring a high risk of unintended escalation to all-out war, analysts believe.” Thus, low-level, one-off operations—of the sort that were used against Syria and Iran—appear to be infeasible against North Korea. This matters from a legal perspective because other countries might have a harder time averting their gaze if the anticipatory action is a major military operation or risks triggering a broader war. Indeed, part of the justification for permitting anticipatory force in this context is that the operation mitigates the damage that would occur if the nuclear threat becomes more operational. That justification is less convincing if the anticipatory action itself causes or leads to enormous damage.

Second, the Trump administration has shown little interest in, and has at times been outright hostile toward, international law and international institutions. Those who have a stake in preserving these arrangements and who worry about their deterioration during a Trump administration thus have reason to push back against the United States—to resist an operation that they might otherwise tolerate because they view it as evincing a blatant disregard for the law. The 2003 Iraq war might be instructive. Once the United States indicated that it was prepared to go to war, no matter whether it obtained a contemporaneous Security Council resolution authorizing force, other states (both on and off the Council) were more intent on isolating the United States and demonstrating their own commitment to the Council’s primacy in this area.

Third, the United States might now try to rally other states to support or tolerate a defensive operation. But this would require a serious diplomatic effort. The United States would likely have to persuade its allies that the alternatives to defensive force—including action through the Security Council—are either inadequate or infeasible. At the moment, the United States seems ill-prepared to undertake this effort. The U.S. State Department is, by many accounts, in disarray and sidelined from U.S. foreign policy decisionmaking. Moreover, Secretary Tillerson reportedly has isolated himself from career officials who might otherwise guide him in developing an effective diplomatic strategy.

III. Where Does This Leave Us?

To be sure, the United States might still use force to try to curb North Korea’s nuclear threat. This scenario would try the jus ad bellum’s resilience and the United States’ commitment to it. Though the United States has violated the jus ad bellum before, it has also consistently engaged with and demonstrated its overall support for the regime. I argued last month that there are reasons to believe that the Trump administration will be different.

Alternatively, the United States might forego military action against North Korea. In this event, North Korea’s nuclear program would still present a serious security threat. And again, the United States would be, at least for the moment, poorly positioned to lead a broad-based, multilateral initiative to contain that threat. Unless other countries step into the breach, the situation on the Korean Peninsula is likely to deteriorate even further.

[via EJIL: Talk!]

http://www.dipublico.org/105600/north-korea-and-the-law-on-anticipatory-self-defense/

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Treaties in Constitutional Time

Treaties in Constitutional Time

by John Parry [John Parry is the Associate Dean of Faculty and Edward Brunet Professor of Law at the Lewis & Clark Law School. This is the fourth post in our symposium this week on treaty supremacy.]

David Sloss’s fantastic new book restores order and sanity to the confusion that pervades constitutional doctrine on the status of treaties. The great achievement of this book is its insistence on clear thinking about treaties and their interaction with federalism (supreme law of the land or not?) and separation of powers (who implements a treaty?). Where many writers push these questions together, Sloss distinguishes strongly between federalism questions about treaty supremacy and separation of powers questions about self-execution and treaty implementation. Read this book, and you will never, ever carelessly put those concepts back together.

Having separated these issues, Sloss traces their development from the founding era until just about the present day, and he unearths 8 distinct – and often inconsistent – constitutional doctrines about the status of treaties. Each doctrine represents a different arrangement of constitutional forces that push the status of treaties in one direction or another. Most important for contemporary law, he demonstrates, are two related ideas: the assertion that the intent of the treaty makers, whether or not stated clearly, should control the decision on self-execution, and the claim that a ratified treaty might not be supreme federal law binding on the states, despite the language of the supremacy clause. Neither idea, he makes clear, can claim any historical legitimacy, and neither idea is desirable.

Although Sloss does not hide his doctrinal preferences, his overwhelming goal is to untangle and explain the strands of these doctrines. He deliberately does not push many of the normative claims about treaty doctrine that he has advanced in numerous articles over the past 15 or more years. For example, Sloss is a prominent critic of the claim that the intent of the treaty makers determines whether a treaty is self-executing. The Death of Treaty Supremacy details the origins of the intent theory in a 1920s law review article by Edwin Dickinson that was picked up by state department lawyers to serve the cause of executive discretion, and then was tucked by some of those same lawyers (scarred survivors of the Bricker debates) into the Second Restatement of Foreign Relations Law, apparently under the noses of most observers. Intent survived into the Third Restatement and emerged triumphant in the Supreme Court’s 2008 Medellín decision. Sloss does not conceal his justified dislike of the intent doctrine, and he points out that the one step intent approach collapses two distinct inquiries: (1) determining what the treaty requires of the Unites States (an international law question about obligation), and (2) asking who in the federal government can or should carry out that obligation (a domestic separation of powers question). At the same time, however, Sloss’s commitment to analytical clarity also leads him to develop an argument for the constitutionality of the very same intent doctrine that he sees as a betrayal both of original understanding and longstanding practice.

By and large, in short, Sloss successfully puts his descriptive and analytic goals – clear thinking about treaties and the reasons for and results of doctrinal change – above his normative claims about what the doctrines ought to be. The result is a book that demands and deserves broad attention.

Despite my general agreement with Sloss’s analysis and conclusions, I do not quite agree with his historical narrative, particularly on the significance of Chief Justice Marshall’s 1829 opinion in Foster v. Neilson decision for the development of self-execution doctrine. Most commentators identify Foster as the origin of American self-execution doctrine, with perhaps a brief nod to the Chase and Iredell opinions in the much earlier Ware v. Hylton decision (in which Marshall was involved as an attorney). Sloss devotes many pages to Foster, and he provides what I think is the best modern description of what was going on in that opinion and how to interpret Marshall’s relatively brief analysis.

Yet Sloss’s discussion of Foster comes out of turn. As a participant in the Virginia ratification debates, the Ware v. Hylton litigation, and the 1800 debate over the extradition of Jonathan Robbins, Marshall knew what was at stake in the controversy over the status of treaties. In particular, as Sloss makes clear, republican members of Congress asserted the institutional interest of the House of Representatives in a narrower self-execution doctrine that would preserve its legislative authority and give it the ability to participate in (and perhaps frustrate) treaty implementation.

But Foster did not follow immediately on the heels of these events. Instead, two things happened. First, in 1815-16, Congress debated the status of treaties and its own role in treaty implementation with respect to the post-War of 1812 commercial treaty with Great Britain. In that debate, moderate members of Congress worked out the contours of self-execution doctrine in terms remarkably similar to those that Marshall would later use in Foster. Their views represented a compromise between the hard line federalist and hard line republican positions that characterized earlier debates. They also linked self-execution doctrine to the last in time rule, as a way of preserving congressional power against the necessary effects of self-executing treaties. The opinion in Foster and the Court’s subsequent last-in-time opinions follow these positions. (Contrast the effort of the Third Restatement of Foreign Relations Law to weaken the last in time rule, based on an internationalist suspicion of parochial legislators – or so I would argue.)

Second, in the 1820s, federalist lawyers began to write treatises even as their party disintegrated around them. These treatises, including Chancellor Kent’s, advanced hard line federalist positions about the treaty power and usually mischaracterized the results of the earlier congressional debates. Marshall had been, of course, a federalist, but his opinion in Foster has little or no overlap with the claims of the treatise writers. To the contrary, as I already asserted, his tone was far closer to that of the moderate republicans in the 1815-16 debate. Familiarity with those debates, combined of course with his own long-past experiences, could have steeled Marshall to resist lingering federalist claims.

Putting events in this order highlights the importance of extra-judicial activity to the debate over treaty status. Sloss certainly appreciates the importance of extra-judicial activity, but I think the debate over the constitutional status of treaties that took place outside the courts is more significant than he might allow. In some contrast to Sloss, I would contend that the text and original understanding of the Constitution generated greater ambiguity than certainty about treaty status and implementation. In the founding era, the status of treaties as supreme federal law was clear, but the relative implementing roles of the federal branches was not. Conflicting and ambiguous statements abound in the historical materials and early debates. As a result, government officials across the branches had to work out their respective roles over time. Most of the action on these issues, therefore, has taken place outside the courts: in the halls of Congress, the White House, and the State Department, and it has reflected shifting policy judgments and political calculations. The Supreme Court has tended to ratify the results of those extra-judicial activities (and sometimes has resisted them). But it has never led.

Note, as well, that the constitutional vacuum responsible for generating these ongoing debates has led directly to the critical modern developments that Sloss portrays in his book: the use of changed circumstances (such as the rise of the United States to great power status and the contemporaneous explosion of international human rights discourse) to generate further changes in treaty doctrine and the surprising vulnerability of the doctrine that treaties are supreme federal law binding on the states, which became drawn into these debates when it became politically expedient to do so.

I also wonder about Sloss’s treatment of more recent history. He jumps from the drafting of the Second Restatement of Foreign Relations Law all the way to Medellín v. Texas. Medellín is, of course, a significant case and a critical part of Sloss’s story, for the Supreme Court simultaneously embraced the intent doctrine and undermined the supremacy of treaties, even as it also raised doubts about judicial deference treaty interpretation. Yet other events also deserve mention.

Sloss has little to say about the Third Restatement of Foreign Relations Law, which displays a confusing approach to self execution, in tension with the Second Restatement. Under the most plausible interpretation of the Third Restatement, all treaties are supreme and preemptive, but non-self-executing treaties are not enforceable in federal court, even if they create rights and remedies (which perhaps are enforceable in some other fashion). The Reporters Notes push back even more against the Second Restatement and in favor of self execution, probably representing an internationalist valorization of treaties as superior legally and normatively to the actions of national legislatures (and also accommodating the executive power necessary to international cooperation). What happens to these claims?

In addition, few commentators accept Medellín as the harbinger of a new, stable doctrine of treaties. To the contrary, the decision has been extremely controversial. The Senate responded, as Sloss notes, by making express self execution statements when ratifying certain treaties, and even supporters of the result in Medellín have had to work hard to justify it in ways that are more satisfying and coherent than the Court’s actual analysis. The issues of treaty supremacy and implementation that Medellín failed to settle are playing out now in the drafting of the Fourth Restatement of Foreign Relations Law. I’d like to read Sloss’s thoughts on these unfolding developments. He’s said a little in other venues, and hopefully he will return to the fray in future articles.

Finally, I want to suggest a slightly different frame of analysis for these ongoing debates about treaties. The different approaches to the status of treaties that have emerged over time reflect tensions – sometimes subtle but sometimes not – in the basics of American political theory. How should we balance international obligations with internal political structure, without a clearly correct constitutional approach and faced instead with a set of choices that represent different accommodations of the relevant actors: president, congress, courts, and states? These are foundational questions. Without underlying consensus on those issues, treaty law will never be stable, and the instability of treaty law itself provides insight into those underlying tensions.

[via Opinio Juris]

http://www.dipublico.org/105198/treaties-in-constitutional-time/

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President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

As we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

[via Opinio Juris]

http://www.dipublico.org/104666/president-trump-could-and-might-actually-unilaterally-recognize-jerusalem-as-the-capital-of-israel/