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

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

“Untreated Chronic Pain Violates International Law”

When I saw the above headline, it struck me immediately as a possible contender for the Most Absurd Claim To A Customary Norm of International Law Yet. (Even one of my long time favorites, the ATS case involving the use of under-aged camel jockeys, had a better basis.) Although there is a very good case to be made that, under international law, states have a duty to avoid causing chronic pain in their citizens, there is hardly one whit of support for the idea that they are obliged to treat it.

It turns out the story is based upon a Human Rights Watch Report [PDF] that presents access to narcotics and relief from chronic pain as a human right enshrined under international law. Somewhat surprisingly, HRW starts not with a CIL argument, but claims that that the right to treatment of chronic pain is a treaty based obligation. For this they cite a single paragraph of the preamble of the Single Convention on Narcotic Drugs of 1961, which provides that the signatory states are

Concerned with the health and welfare of mankind, [and]

Recogniz[e] that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes…

Unfortunately for the HRW report, however, the Convention was clearly not intended to address the availability of pain medication, but rather was entered into by states in an effort to curb cross-border drug trafficking. “Pain” or “suffering” is not mentioned again in the treaty’s text. Even giving it the most generous interpretation, all this language signifies is that the object and purpose of the treaty is to reduce world drug trafficking while not also prohibiting the legitimate medical use of narcotics.

The HRW report also undermines any claims that the Single Convention on Narcotic Drugs of 1961 is the basis of a customary norm that has developed since the treaty entered into force. According to the HRW report, “approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain.” Given the total absence of any opinio juris on the subject, a mere 20% compliance rate does not a norm make.

I will not even address the report’s batpoop crazy claim that the well established and more-or-less globally accepted norm against cruel, inhumane, and degrading treatment applies to chronic pain, because “[a]s part of this positive obligation [against CITD], states have to take steps to protect people from unnecessary pain related to a health condition.” Seriously, HRW?

I suppose I could accept that the right to treatment of chronic pain qualifies as an aspirational norm, albeit a pretty weak one. The World Health Organization does list codeine and morphine on its Model List of Essential Medicines, a list signifying those drugs which states should endeavor to make available to all of their citizens that need them. But that’s about the most I can say for the study’s claims.

Of course, all of this is definitely not to suggest that the report does not in fact identify a genuine problem. As HRW notes, “Burkina Faso estimates that 8 people need morphine per year. Gabon estimates 14. The Gambia, 31.” Hard to argue with a need for education and reform there. But by cloaking every worthy policy suggestion in a nonsensical guise of “international law,” HRW is actually undermining the rule of international law on the global plane.

-Susan

Samantar v. Yousuf…

… was anticlimactic. Although we succeeded in running into quite a few GW Law people, we did not succeed in getting seated. (I may have succeeded in getting frostbite, however.)

Poor Michael was #52 in line, and they only let a grand total of 50 in. So he has the distinction of being the second loser. Although the first loser had it worst — it was the second time in which he had been the first person to not get seated at a hearing. I will accept some responsibility for us missing the hearing, as I had the bright idea of changing our meet up time from 6am to 7am. Poor form, I know.

The guards stationed in front of the steps informed us that it had been less crowded for friggin’ McDonald than it was for Samantar, which is ridiculous, because it was rainy and cold and Samantar does not involve guns.

Also I still maintain that Michael lost his spot to Harold Koh, who came waltzing across the plaza with his entourage about five minutes before the oral argument started. Excuse me, sir, I do not believe that the U.S. is a party to this case, so you can just go wait in line with the rest of us, thank you very much.

Anyway, as a very poor consolation prize, we were at least in the first group for the silly 3-5 minute viewing exercise they have for tourists. Didn’t really see or hear much, though. The transcripts are up for the case now, but I think at this point I will have to put off reading it until tomorrow. Will probably have more thoughts then.

But I swear, if I ever find out that that class of 8-10 year olds that was let in got seated and we didn’t, I will lose all faith in American democracy.

-Susan

Samantar v. Yousuf, Last Minute Thoughts

There are two questions in Samantar v. Yousuf that I suspect almost certainly will not get addressed in the morning, at least not in any substantive way, but I’ll post them here now in the hope that I am wrong and I’ll be able to talk about them in greater length tomorrow. These would be:

(1) The statehood of Somalia v. Somaliland, and the ability of the former to adopt the acts of officials that took place in a territory it no longer has any control over, outside of legal fiction. Obviously even if they do bother with the question, the Court will end up punting it to the political branches and making their recognition the be-all end-all, but I would still love to see statehood get addressed in one of the Justice’s opinions. Even better would be for the Court to address the factual issues regarding Somalia or Somaliland’s existence or non-existence, but I won’t hold out hope for that.

(2) The Constitutional question of FSIA’s purported grant of personal jurisdiction over state officials via service of process. If petitioner succeeds on his arguments, there could be a problem with FSIA’s provision for service of process over foreign states — namely, service of process (done anywhere, not just tag-service) is considered sufficient for obtaining personal jurisdiction over a state. But if officials = state for purposes of the FSIA, allowing mere service to create personal jurisdiction for foreign official defendants would create a Constitutional due process issue.

I mostly want #2 to be addressed because I would love to see the Supreme Court finally address the giant gaping inconsistency in U.S. law that is our personal jurisdiction jurisprudence. Since personal jurisdiction is a question of Fifth (or Fourteenth) Amendment due process, if petitioner prevails, we could, at least theoretically, wind up with some interesting issues of the “Constitutional rights” of foreign states that have never had contact with the U.S.

At any rate, I’m sure there will be some amusement to be had tomorrow, out of the slight irony in the case that the side most heavily relying on the support of international law and argues that the court should find it has expansive powers to decide the questions involved is the side hoping that the Court does not find jurisdiction to hear an ATS/TVPA claim, while the side that is calling for a strict adherence to the separation of powers and arguing that any judicial interference would result in Dire Consequences is the side hoping that the court does hear the underlying claim. Strange bedfellows, and all that.

For what it’s worth, I’m rooting for the respondent. Jurisdiction should be found here — to do otherwise would lead to absurd results. That a given defendant claims to have been some sort of official office holder for some sort of government that may have once existed is not sufficient to give him a blanket claim to immunity in U.S. courts. Rather than making this a jurisdictional matter, this case should be heard on a substantive level, with the act of state doctrine helping to provide the proper rules of decision.

Plus, finally, the fact Samantar cherry picks between the multitude of “Somali” governments to find a couple that support his claim is hilarious. If you’re trying to claim sovereign immunity, referring to “the transitional governments,” plural, of your supposed State does not much help your case. If any warlord in Somalia with enough followers can claim to be the sovereign, why on earth should the FSIA or international law believe that Samantar managed to siphon off some immunity for himself?

-Susan

The Convention on Cluster Munitions Will Enter Into Force

Two days ago, the Convention on Cluster Munitions (the Oslo Agreement) achieved its 30th ratification — and therefore, by its own terms, enough support to becoming a binding international instrument on all ratifying nations. (Art. 17.) It will do so on Aug. 1, 2010.

Although 104 nations have signed the Oslo Agreement, it took Tuesday’s ratifications by Burkina Faso and Moldova to trigger the entry into force provisions. This brings the total number of ratifying nations to 30, and

include[s] states that led the “Oslo Process” effort to create the Convention (Norway, Austria, Holy See, Ireland, Mexico, and New Zealand), states where cluster munitions have been used (Albania, Croatia, Lao PDR, Sierra Leone, and Zambia), cluster munition stockpilers (Belgium, Denmark, France, Germany, Japan, Moldova, Montenegro, and Slovenia), as well as Spain, the first signatory country to complete destruction of its stockpile. Other ratifying states are: Burkina Faso, Burundi, Luxembourg, Macedonia, Malawi, Malta, Nicaragua, Niger, San Marino, and Uruguay.

Enough of those states have been involved in cluster bomb manufacture or stockpiling for the treaty to also embody some state practice in support of the norm. In fact, half of the fourteen countries that have actually used cluster bombs since the formation of the United Nations have now signed or ratified the treaty.

Of course, this still leaves the major manufactures of cluster bombs — the U.S., Russia, China, North Korea, Pakistan, India and Israel — who are not on board with the treaty.

Although the United States has not been a signatory, it has taken a few steps towards limiting the use of its own cluster munition resources. In early 2009, the Cluster Munitions Civilian Protection Act was introduced, but has since stalled in Congress. That legislation would have banned “most” uses of cluster munitions by the U.S. In March 2009, a separate bill was passed that banned all but a “tiny fraction” of cluster bomb exports.

The U.S. continues to maintain that cluster bombs are a legitimate military weapons, and that their absence would create a “capability gap” for military forces. Because the Oslo Agreement does not allow for any reservations — a practice the U.S. frequently resorts to when it does wish to enter a treaty of this nature — and because the U.S. has made clear it does not intend to enter into a complete abandonment of its cluster munitions programs, it is extremely unlikely that the U.S. will sign, let alone ratify, the treaty.

However, even if it does not participate in any actions on the international plane to reduce the harm to civilians caused by cluster bombs, the U.S. has repeatedly shown that, on the domestic level, it intends to regulate its own use of the weapons. Although the CMCP bill has stalled, in 2008, even before the drafting of the Oslo Agreement, Defense Secretary Gates issued a memo with regulations aimed at minimizing any potential harm to civilians caused by U.S. use of cluster munitions. [PDF]

-Susan

The International Law of Antarctic Whiskey of Historical Value

A New Zealand expedition is planning to drill for one hundred year old whiskey in Antarctica, from two crates left behind by the Nimrod Expedition in 1909.

The Nimrod Expedition, lead by Sir Ernest Shackleton, came within 97 miles of the South Pole before they gave up and came home. They’d originally brought with them 25 crates of McKinlay’s scotch, but two were found to have been left behind in the expedition’s Cape Royds base hut.

However, a century of ice and snow isn’t the only thing standing in the way of the whiskey’s recovery. International law may also pose a barrier, as the hut at Cape Royds has been designated an Antarctic Specially Protected Area (ASPA) under Annex V to the Protocol on Environmental Protection to the Antarctic Treaty. Art. 8(4) of the Annex requires that “Listed Historic Sites and Monuments shall not be damaged, removed or destroyed.” Although temporary removal of objects for conservation purposes is permitted, and taking samples of the whiskey for study would be permitted, the crates and most the whiskey are prohibited from being removed completely by any one party under current treaty law. Today, preservation of the hut is the responsibility of the New Zealand Antarctic Heritage Trust, hence their carrying out of the whiskey mission.

There are a couple sources of treaty requirements regarding Shackleton’s whiskey and other historical relics. Resolution 3 from ATCM XXXII incorporated the Guidelines on Preservation of Historic Areas, which states:

“To that end, Parties should notify the other Parties of the discovery, indicating what remains have been found, and where and when. The consequences of removing such remains should be duly considered. If items nonetheless were removed from Antarctica, they should be delivered to the appropriate authorities or public institutions in the home country of the discoverer, and remain available upon request for research purposes.”

Measure 5 of ATCM XXXII, “Revised Management Plan for ASPA 121 (Cape Royds),” is more specifially relevant to the McKinley whiskey, as it addresses the handling and conservation of artifacts from the Nimrod Expedition. The plan became effective in July, 2009. Section 7(vii) requires that:

“Material may be collected or removed from the Area only in accordance with a permit should be limited to the minimum necessary to meet scientific or management needs.”

“Any new artifacts observed should be notified to the appropriate national authority. Relocation or removal of artifacts for the purposes of preservation, protection or to re-establish historical accuracy is
allowable by permit.”

So while recovering a sample of whiskey with a syringe to take back for study would qualify as a “scientific need,” it or any other materials retrieved must remain in the hands of a public institution and be available to other nations for research purposes. Incidentally, I do not know exactly what “permits” are required or where they are obtained from, but I find it depressing to know that not even the remote icefields of Antarctica are free from the strictures of bureaucracy.

Finally, part of me suspects that the whiskey retrieval mission is less about getting a sample of historical whiskey and more about an awesome publicity campaign. Or possibly just part of an advertising war between whiskey makers — Jameson’s may dive into the sea during a storm to recover a barrel of their whiskey, but McKinlay’s can trump that by sending an expedition to Antarctica to retrieve Shackleton’s lost whiskey cache.

-Susan