Tag Archives: international law

A Truly Bizarre Critique of Kagan’s Approach to International Law

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Solicitor General (and Supreme Court nominee) Elena Kagan has taken some fire for her views relating to international law, which I would characterize as decidedly middle of the road.  Critics have urged that Kagan’s love of a certain foreign jurist is troubling, and that her “replacement” of constitutional law with international law was odd.  But in her written responses [PDF] to questions from Senator Grassley, Kagan again distanced herself from any approach (like Harold Koh’s) that would aggressively incorporate international law into domestic law:

I believe that the role of domestic courts is to decide the cases that come before them based on the law.  In some rare circumstances, United States law may require a court to look to foreign or international law to resolve the parties’ claims.  I do not believe, however, that courts should view their role as domesticating international law into U.S. law or as using their interpretive powers to promote the development of a global legal system.

That seems pretty reasonable to me.  But not to the Home School Legal Defense Association (HSLDA):

HSLDA has been concerned about Ms. Kagan’s nomination because of her support of international law over the U.S. Constitution while she was Dean of Harvard School of Law. Our concerns were not alleviated, but only grew with Kagan’s answers during her hearing.

***

We are concerned about Kagan citing foreign or international law as a Supreme Court justice because of the danger that could ensue if she ever cited the U.N. Convention on the Rights of the Child (CRC) as precedent in a Supreme Court opinion. This treaty could severely limit parental rights.

Wait, what?  HSLDA is worried that Kagan might incorporate some international law into Supreme Court decisions, which might include a particular treaty (the CRC), which might be somehow relevant to a decision of the Court, and might result in more limits on parental rights?

You know, I fancy myself a pretty conservative guy.  But if this is really the type of stuff that we have to worry about with Kagan, then I say go ahead and confirm her.

-Michael

The International Law Scholarship of Samuel Clemens

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Mark Twain’s recently re-released The Treaty With China: Its Provisions Explained is a fascinating read. As the Journal of Transnational American Studies, Spring 2010, writes:

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.

-Susan

America’s New International Law Expert: Lindsay Lohan?!

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I try not to pay too much attention to Hollywood gossip, but we here at The View From LL2 have a special interest in international law.  So I just wanted to welcome the newest member of the international law legal community, Lindsay Lohan.  From her recent tweets:

It is clearly stated in Article 5 of the U.N. Universal Declaration of Human Rights that….

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Lindsay, just as a heads up: the UDHR embodies aspirational principles of international law.  It might be better to look to the International Covenant on Civil and Political Rights instead.  See art. 7 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”).

Best of luck in jail, LiLo.

-Michael

Update: A friend of Lohan’s explains where Lindsay got her legal training: “She’s seen the movie ‘Chicago’ several times, so it’s not like she doesn’t know how this sort of thing works!”

Evil Lieberman Bill Would Introduce More International Law Into U.S. Courts

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Joe Lieberman introduced a controversial new bill today that would extend 8 U.S.C.  § 1481 to “terrorists”. In more obvious terms, the bill serves to strip terrorists of their U.S. citizenship. There are many reasons why this bill is dumb, some of which are mentioned here (including the fact that it might be unconstitutional). Even conservatives don’t like the thing:

John Bellinger, a legal adviser to the Secretary of State during the Bush administration, told the Huffington Post’s Sam Stein that the Lieberman bill “sounds like a draconian solution. I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision… It certainly seems like a far-reaching step.”

I was originally going to write a post about how this bill is actually rather meaningless, but Opinio Juris beat me to it.  Surprisingly, however, they overlooked the interesting consequence of the bill for international law scholars.  The bill would strip citizenship from anyone doing any of the following:

(A) providing material support or resources to a foreign terrorist organization;

(B) engaging in, or purposefully and materially supporting, hostilities against the United States; or

(C) engaging in, or purposefully and materially supporting, hostilities against any country or armed force that is—

(i) directly engaged along with the United States in hostilities engaged in by the United States; or

(ii) providing direct operational support to the United States in hostilities engaged in by the United States;

“Hostilities” are defined as “any conflict subject to the laws of war.”  Hmmm … what an interesting way to frame “hostilities.”  So basically, anytime a ‘terrorist’ is accused of being engaged in ‘hostilities,’ courts will have to determine if humanitarian law is applicable.  That means (I would imagine) looking to the Geneva Conventions, the Hague Conventions, and the many other treaties, etc. governing the laws of war.  Sounds like a Jessup problem in the making.

No doubt there are many U.S. District Courts that are excited about the prospect of diving into IHL.  Or maybe not.

-Michael

Update: Professor Steve Vladeck suggests that a lawyer filing an amicus brief on behalf of a terrorist organization could face automatic expatriation under this bill.

First President Steals Copy of Vattel’s Law of Nations, Uses It To Break Treaty With France

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On Oct. 5, 1789, President Washington checked out Vattel’s Law of Nations from the Manhattan library, and failed to return it. He has now wracked up a $300K late fee on that and another volume, although the odds of collecting on the debt are, as the library acknowledges, remote.

I’m not so disappointed in GW’s failure to return the book as I am in the fact he had to borrow a copy of Law of Nations at all. Surely the man should have possessed his own copy of the book. After all, Vattel was a significant influence on the U.S. Constitution — but then again, maybe GW only got around to reading it until after the Constitution had been finished up, and suddenly George found himself in charge of faithfully executing what was in it.

Even before George Washington was president, however, he would have dealt with people quoting Vattel at him. John Jay, the future first Chief Justice, wrote to GW, who was presiding over the Constitutional Convention, and made a recommendation to him regarding the requirements of holding office under the new Constitution. Jay’s letter borrows the phrasing of “natural born citizen” from Vattel’s Law of Nations:

“Permit me to hint, whether it would be wise and reasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

Still, perhaps George Washington made good use of his stolen copy of the Law of Nations. Less than four years after he checked it out, in 1793, Vattel played an important role in an early United States’ foreign affairs crisis, when the actions of the French ambassador, Edmond-Charles Genêt, threaten America’s neutrality to European conflicts. Hamilton and Jefferson wrote to Genêt, in which they defended the right of the United States to suspend the treaties in place between itself and France. Vattel, they conceded, had written that there was a “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” However, Hamilton argued that, although France may have had a right to changes its government, France did not have any right to force the United States to become involved in that civil conflict. If international law allowed for such a situation, “[t]his would be to give to a nation or society, not only a power over its own happiness, but a power over the happiness of other Nations or Societies. It would be to extend the operations of the maxim, much beyond the reason of it—which is simply, that every Nation ought to have a right to provide for its own happiness.”

This was (and is) a pretty subtle question of international law, really. In the case of a nation torn by civil war, to which faction is a duty arising to that country under international law owed? To the established government? To the belligerents? At what point do the belligerents become the establishment, and are therefore the inheritors of the rights and duties under treaties incurred by previous administrations?

Young America, following a policy of neutrality set by President Washington, simply did not want to become involved. Ambassador Genêt was less than impressed with the Washington Administration’s reliance on the subtleties of international law, however. He wrote back, angrily, accusing the federal government of “bring[ing] forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”

This all sounds pretty familiar, really. For as long as the U.S. has been a nation, it has been using complicated interpretations of international law in order to avoid duties incurred under treaties. And for all the haters out there who think America shouldn’t bother itself with international law, I say that if it was good enough for George Washington to steal, it’s good enough for us to pay attention to today.

-Susan

Brazil Gears Up to Punish the United States for Violating WTO Judgments

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In a dispute that’s been going on for years now, Brazil is preparing to levy tariffs on 102 different U.S. goods in retaliation for the U.S.’s refusal to comply with a WTO cotton subsidies decision back in 2005.  The WTO permitted Brazil to impose the sanctions, which will amount to about $830 million, in light of the U.S.’s resistance to removing illegal cotton subsidies. 

This whole kerfuffle has certainly made me look stupid, as I wrote a 2006 thesis examining the political reasons why the United States complied with the original ruling.  Although the U.S. did remove certain subsidies, it left others intact.  It’s those leftover subsidies that continue to bother Brazil. 

As I’ve mentioned before, this kind of countermeasure is interesting because it is perhaps the only form of pure “retaliation” sanctioned under international law that gets a stamp of pre-approval.  (The countermeasures rationale does, however, often serve as a post hoc justification for an act that would otherwise violate international law.). 

-Michael

Can the Mere Recognition of a State Be a Violation of International Law?

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In the past few days, Russia has purported to enter into several agreements with Abkhazia, an autonomous region in Georgia that had proclaimed its own sovereignty and is now attempting to achieve recognized statehood. These agreements include the establishment of direct air traffic between Russia and Abkhazia (including an obligation on Russia to help repair the airport there) and the formalization of Russian presence in Abkhazia with a 49-year lease on a Russian military base in the region.

Abkhazian leaders have also proposed a law allowing Russians to purchase houses in Abkhazia on the same terms as Abkhazian citizens.

According to Georgia, these agreements were “illegally signed by an occupying power and a puppet regime”. NATO has likewise denounced the pacts as illegal. Given that Abkhazia is merely a region of Georgia under international law, the pact with Abkhazia cannot change Russia’s status as an illegal occupier of Georgia – and a violation of Article 2:4 of the UN Charter. (For obvious reasons, this poses a large hurdle on Georgia’s accession to NATO. If Georgia did succeed, the U.S. and other NATO nations could potentially be obligated under international treaty law to go to war with Russia.)

A few days ago, the Georgian president, Mikheil Saakashvili, released a statement on Georgia’s relations with Russia:

Recognition of independence of regions of Abkhazia and South Ossetia was illegal and their occupation was illegal as well, although they do not call it occupation any more, they take the territory legally, but say it’s not occupation. What do you call it then, is it a military tourism? What are these Russian troops doing then illegally in the other country’s territory? The way Russian propaganda works is very clear – you blame someone of what you are doing or going to do.

Although Russia’s occupation of Abkhazia is plainly illegal, the accusation that the mere recognition of Abkhazia and South Ossetia is a violation of international law is a more intriguing claim. Can the recognition of a state be, in itself, an illegal act?

So far, only four states recognize Abkhazia: Russia, Nicaragua, Venezuela, and, as discussed previously on this blog, Nauru. For two of these states, recognition may have in fact been in violation of international law. Both Venezuela and Nicaragua are signatories to the Montevideo Convention, and under Article 11 of that treaty,

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

So at least in theory then, Venezuela and Nicaragua could be in breach of a treaty obligation, although not CIL. Russia, however, along with all other non-American states, is not party to the Montevideo Convention. How then could its recognition of Abkhazia violation international law? Even had Russia not formally recognized Abkhazia, it would be entitled under international law to treat Abkhazia has a pseudo-sovereign in certain respects. For instance, during the American Civil War, the United Kingdom did not recognize the Confederacy as a sovereign state, but did accord them a “belligerent” status that allowed for Confederate ships to enter into ports on the same terms as ships flagged by recognized states. Even today, many nations will recognize private contracts, such as marriage, that were entered into under the auspices of a non-state, even if for other purposes the non-state is denied to have any independent existence.

The power to recognize other states is a privilege of statehood — not a duty. Had the constitutive theory of statehood had become a controlling principle of international law, there would be a stronger foundation for President Saakashvili’s claims about Russia. Judge Lauterpacht, a proponent of the constitutive theory, even suggested that international law should impose a duty on states to recognize other states.

This idea never took hold, however, and instead, under the declarative theory, states can use whatever criteria they wish when deciding whether or not to extend recognition to a new state, even if it otherwise meets all objective qualifications for statehood. Customary international law is more or less settled today on a declarative approach to statehood that declares a state is a state when it satisfactorily meets certain indicia of sovereignty. A state, therefore, is any entity that possesses “a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.”

But this formulation is more of a definition of what a state should be than any sort of normative command constraining state behavior. Although an argument could be made that a state is in violation of international law when it purports to “recognize” an entity that does not possess these four criteria, I would expect many states to outright reject the validity of this norm — given how subjective evaluations of statehood often are, if 77 states recognize a state and 116 do not, would the 77 now be committing an illegal act? On the close cases, obviously not. But even defining what is and is not a “close case” is a tricky call.

What about a state’s recognition of the statehood of something unambiguously inapplicable? What would it mean for one state to recognize, say, a cruise ship as an independent state? Or how about something truly absurd – how about a toaster? Would this be an “illegal” act, or would it be more akin to a null command, something that is simply not cognizable under international law?

Obviously, there are a lot of actions a state could take as a result of its recognition of another state that would contravene international law. But the act of recognition or non-recognition in itself is harder to characterize as something that can be “illegal.”

Meanwhile, whether or not Russia’s recognition of it was justified, Abkhazia is attempting to obtain further international support for its claims to sovereignty, perhaps recognizing that having Russia as its patron is more likely to result in Abkhazia’s relegation to puppet state status than in true statehood. Currently, Abkhazian delegates are visiting foreign countries throughout South American, attempting to establish diplomatic ties with and, more importantly, receive recognition from nations there:

The agenda of the Abkhazian delegation’s working visit to the region includes the development of economic relations with Latin American countries, he said.
“We are looking for ways to fill our relations not only with political statements, but also with specific economic projects,” the acting foreign minister said.
During the tour of Latin America, the Abkhazian delegation will visit Venezuela, Argentina, Ecuador, and Bolivia.

Up until now, the recognition Abkhazia has received from other states has been either politically or monetarily motivated. By attempting to secure ties with other countries through “economic projects,” Abkhazia hopes to establish international recognition that is not merely nominal but also persuasive proof of its sovereignty. To this end, Abkhazia has made a point of emphasizing that it possesses both a moral right to its statehood as well as a positive claim to statehood under international law:

Abkhazia insists that the question of its recognition “be considered not only in terms of the right to self-determination, but primarily in terms of view of international law,” the acting foreign minister said.
“In both cases Abkhazia has indisputable arguments,” he added.

More and more, I am becoming convinced that Abkhazia and, to a somewhat lesser extent, South Ossetia, are positioning themselves in a manner that will eventually allow them to make legitimate claims to statehood. They are obviously a long ways off, I would not be surprised if, within the next decade, one or the both of them find seats in the General Assembly.

-Susan

Haiti, Humanitarian Assistance, and Extrinsic vs. Intrinsic Motivation: Why an International Law of Humaniatarian Assistance Would Reduce Foreign Aid

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Right now, thousands of individuals from at least a score of nations are in Haiti, having been rapidly deployed there to offer assistance to the millions of Haitians now homeless, injured, or worse, as a result of the recent earthquake. Hundreds of millions of dollars have been pledged in aid, with more donations pouring in every day.

In Haiti, as has been the case in the wake of many other recent natural disasters, the state practice of rendering aid to the devastated region is widespread and pervasive. However, as far as I am aware, not a single nation has announced that it is sending aid to Haiti because it believes international law requires that it do so. There is no opinio juris, but merely states acting on the basis of their own independent motivations. And yet, it seems that every state that can offer assistance is doing so — not to mention so is every international organization, NGO, and corporation out there. Sub-state entities are offering help, too; a search and rescue team from Fairfax, Virginia, has been sent down to Haiti to help victims trapped in the rubble. Hell, even tiny little Togo has offered aid, along with a number of other developing nations. For a more complete account of who is doing what, a very detailed listing can be found at Relief Web. The list is as impressive as it is diverse.

Although human rights play a very large role in today’s international law jurisprudence, I suspect that, at least in cases involving high profile natural disasters, placing an affirmative duty on states to provide humanitarian assistance would ultimately reduce the amount of aid rendered.

Simply put, there just is not a need to give such a principle the force of law. For many reasons, among them moral duty and political posturing, states are already adequately motivated to supply aid in times of humanitarian crisis.
Aid — in the form of money, food and water supplies, search and rescue teams, infrastructure support, medical personnel, and much more — was immediate and widespread. The difficulty in getting aid to Haitian citizens has nothing to do with foreign states failing to act in support and everything to do with the horrendous conditions on the ground.

But if rendering humanitarian assistance were made to be an affirmative duty under international law, all the reasons for which states now offer foreign aid would be vastly diminished, and the total amount of aid given would almost certainly decrease.

“Crowding out” — otherwise known as the motivation crowding effect, to distinguish it from other kinds of crowding out — holds that offering external rewards or punishments to encourage someone to perform a task can, somewhat counter-intuitively, actually reduce people’s incentives to act, as the extrinsic reward undermines their intrinsic motivation. Developed both by economists and psychologists, the motivation crowding effect theory is a widespread phenomenon that appears in many different situations: [PDF]

The basic idea that rewards, and in particular monetary rewards, may crowd out intrinsic motivation emanates from two quite different branches of literature in the social sciences. Thirty years ago in his book The Gift Relationship Titmuss (1970) argued that paying for blood undermines cherished social values and would therefore reduce or totally destroy people’s willingness to donate blood. Though he was unable to come up with any serious empirical evidence his thesis attracted much attention. A second literature stems from psychology. A group of cognitive social psychologists have identified that under particular conditions monetary (external) rewards undermine intrinsic motivation. The application of rewards for undertaking an activity thus has indirect negative consequences, provided intrinsic motivation is considered to be beneficial

…

[T]here exists indeed compelling empirical evidence for the existence of crowding out and crowding in. This conclusion is based on circumstantial evidence, laboratory evidence by both psychologists and economists as well as field evidence by econometric studies. The evidence refers to a wide variety of areas of the economy and society: children’s learning behavior; patients’ readiness to take prescribed medication; monetary and symbolic rewards for undertaking various laboratory tasks; the tendency to reciprocate in the laboratory setting reflecting work conditions in a firm; the amount of trust exhibited in a laboratory situation of incomplete contracts; the reaction of managers to various forms of supervision by their superiors; the preparedness to offer voluntary work; the observation of time schedules in daycare centers; the on-time flight performance in the airline industry; the readiness to accept nuclear waste repositories (and other locally unwanted sites); and the amount of civic virtue exhibited, in particular with respect to fulfilling one’s tax obligations (tax morale).

If offering humanitarian assistance to foreign nationals struck by disasters became a legally mandated duty, either as a part of customary international law or enshrined in treaties, I see little reason to believe that there would be any increase in the amount of aid rendered. In the wake of disasters, the citizens of states who were now obligated to send money to foreign countries would feel resentment, not generosity, towards those in need of aid. States could no longer compete for moral brownie points with one another, or use aid as a means of obtaining soft power to support their political agendas. All of these motivating factors are far more compelling reasons for states to give aid than would be international law, which is a notoriously flimsy motivator of state action.

States would likely still give aid, of course, if they believed they were required to by law. But they would give only enough to satisfy whatever their duty was, and would use clever lawyers to reduce the amount they were required to give, or to explain why a “humanitarian disaster” was not really a humanitarian disaster and therefore no duty to render aid existed.

-Susan

This Land Is Your Land: A Response to Susan

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“I’ve always said to my men friends, If you really care for me, darling, you will give me territory. Give me land, give me land.”

Eartha Kitt had it right: land is critical.  It’s certainly unfortunate that global warming is turning the country that gave us “.tv” into a modern-day Atlantis.  Even though that sucks, that doesn’t mean submerged island nations will get to dub themselves a “nation” even when their homes dip into the deep blue sea.

The territory requirement is an important one in international law.  Without a territory, a number of questions would arise surrounding any putative “state.”  If the measure of a government is its exclusive monopoly on force within its own territory, how would we measure the effectiveness of a landless regime?  As a sovereign nation, what rights would a landless nation really possess?  (After all, the principle of inviolability would become irrelevant.)  How would one define members of this transient state?  Could anyone simply declare themselves a member — or would a blood test or sacred oath be required?  How could a state be considered “independent” (another requirement of statehood) when its people necessarily fall under the control of another sovereign authority?

More importantly, granting statehood without territory would set a troubling precedent.  Does that mean that every group of people that lost its territory through troubling circumstances gets to call itself an independent state?  Welcome to the UN, Chechnya!  Can the Assyrians finally get a seat, too?  How about the Sahrawis?  And of course, we can all agree that Palestine would be a state, once and for all.

Moreover, the existence of some “sovereign-like” entities doesn’t really help the island nations’ case very much.  One could say that the United Nations and other intergovernmental organizations also exhibit sovereign-like characteristics.  (Heck, the U.N. even controls territory sometimes.)  Nevertheless, I don’t think anyone would argue in good faith that these pseudo-sovereigns deserve recognition as ‘states.’  The sandbar idea probably isn’t going to fly either.  After all, if there’s no requirement that land be inhabitable for a new nation to form, folks can start forming countries on the fly.  I could found Michaeland at the bottom of the Pacific, because who says the land has to be above water?

Unlike Susan, I find it difficult to imagine a future of landless territories.  Susan’s conception gives undue weight to a single characteristic of statehood:  the capacity to enter into relations with other states.  But, as Judge Jessup said, “[O]ne cannot contemplate a state as a kind of disembodied spirit . . . [T]here must be some portion of the earth’s surface which people inhabit and over which its Government exercises authority.”

-Michael

Climate Change and the Jurisprudence of Statehood: Is a State Without a Territory Still a State?

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I went to the program ASIL had yesterday on “Rights-Based Responses to Climate Change Induced Displacement,” which discussed the role of international law in handling ‘environmental migrants’ and internally displaced persons who are forced out of their homes as a result of conditions brought on by climate change. One of the speakers brought up an interesting scenario I had not considered before.

Rising sea levels may pose a serious risk to the national security of many island nations. For states such as the Bahamas and Tonga, a higher sea level is a grave threat, as the low lying parts of their territories that are at the greatest risk of going under tend also tend to be the areas of greatest habitation. But for other island nations, such as Kiribati, the Marshall Islands, the Maldives, and Tuvalu, climate change may pose a more severe and existential threat: these states may actually be at risk of becoming entirely submerged by rising sea levels. If these island states were to become completely swamped so that no part of their islands were above sea level, effectively leaving them with no physical territory to call their own, would they continue to exist as an entity recognized by international law?

Prof. Kälin mentioned the possibility of citizens of these at-risk countries becoming “stateless” if their islands go under. But statelessness, as he put it, could mean being without a nationality, not being without a state.  Even if an island nation were swamped, it does not necessarily imply that its government would not continue to exist.

Under international law, the traditional criteria for statehood does include “territory.” However, would such a formalist interpretation prevail after a climate related disaster sunk a whole nation? Or, in practical terms, would any state really have the callousness to stand up and announce, “It is unfortunate that the Maldives was submerged by rising sea levels, but we now object to its continued claims of statehood and UN Membership”? Maybe I am being too generous, but I doubt it.

There is also the possibility that any sunken nation could build up a tiny sandbar over the remains of their country, if the technical requirement of territory is found to be mandatory. There is no requirement that a state’s government be located within its territory, after all, merely that it have some. For instance, the recognized government of Somalia has in the past operated out of Kenya.

Additionally, although statehood as a fluid entity that exists as a corporate-esque structure rather than as bound to a specific geographical region has been a somewhat common science fiction trope, there is in fact some modest precedent for that idea under international law. The Order of Malta claims to be a non-state sovereign entity, and has permanent observer status with the UN. It has diplomatic relations with 103 states, and even issues its own currency and stamps. Although most international scholars reject the notion that the Order of Malta is an “actual” sovereign entity, it clearly does exhibit some sovereign-like traits in practice.

Perhaps a nation submerged by rising sea levels would face a future similar in some respects to the current status enjoyed by the Order of Malta, although it seems likely a formerly-territoried state would face far less objection to its continued claims of sovereignty. The theoretical underpinnings of statehood have always been forced to evolve and adapt to changing political structures, however; it is not too difficult to imagine a hypothetical future world in which the idea that statehood is dependent upon attachment to a patch of dirt is considered to be archaic.

-Susan