The conflict between China and Vietnam: law and power

Earlier this month, China sent an oil rig to waters off the Paracel Islands in the South China Sea (upper left box on the map). Vietnam sent ships to intercept the oil rig, but they were repelled by Chinese naval vessels. In Vietnam, outraged citizens rioted, destroyed Chinese property, and killed some Chinese nationals. China has threatened unspecified sanctions against Vietnam, apparently moving troops to the border, while Vietnam has moved to bring the riots under control.

The Paracel Islands are within Vietnam’s 200 nautical mile Exclusive Economic Zone and on its continental shelf, so minerals in the area belong to Vietnam under the UN Convention on the Law of the Sea, which both Vietnam and China have ratified. What is the basis of China’s claims? In fact, China has never provided an official legal justification for its claims. Two scholars, Florian Dupuy and Pierre-Marie Dupuy (gated), who scoured Chinese sources have suggested the Chinese claims are based on “history”: that China has always controlled the South China Sea, or the islands that dot it. But, as they explained, this type of argument is not recognized under UNCLOS or traditional principles of public international law.

China has not backed down but instead seems to be considering economic sanctions against Vietnam, which is highly dependent on Chinese trade, much more than China is on Vietnam. See this graph.

A terrible decade for the Executive Branch in foreign relations cases before the Supreme Court?

That’s the conclusion of Ingrid Wuerth, writing at Lawfare. And she singles out Chief Justice Roberts as one of the main skeptics of an argument that I made with Cass Sunstein in 2007. We argued that courts should defer to the executive branch on issues touching on foreign relations, just as they do under Chevron and related doctrines in (domestic) administrative law cases. Our argument was normative, based on the executive’s responsibilities and expertise, but we argued that it was consistent with the cases (a widespread view at the time). Wuerth notes that over the last decade the Court  has discounted the executive’s views in numerous cases, including Kiobel, Morrison, Medellin, BG Group, and Zivitofsky, plus some early war-on-terror habeas cases.

All of this raises some interesting questions. One is whether the Court has in fact cut back on executive power or just hasn’t advanced it as much as the executive would like. A rule that the executive always wins is not the same as a rule of broad but not unlimited deference.

But assuming Wuerth is right, what’s the explanation? Some hypotheses:

1. The executive has lost prestige, thanks to its excesses against Al Qaeda, its failures in Afghanistan and Iraq, and perhaps even a perception that it has gone too far domestically.

2. The Court has gained confidence despite declining popularity, maybe because some aggressive decisions have not spurred pack-the-court style backlashes or because the executive and legislative branches are too divided to counter the Court.

3. The anti-executive tendency is the result of temporary partisan alignments. The Court was somewhat more liberal during the Bush administration and so perhaps uneasy with some of his policies; now right-wing justices are looking for ways to undermine Obama.

4. The justices share the public’s view that the U.S. should withdraw from many of its foreign commitments and turn inward. Weakening the executive is a step in that direction.

5. Originalism/formalism/textualism is in the air, and ( as scholars have long agreed) the modern system of executive power does not draw much support from the text of the Constitution or founding-era understandings.

The right to be forgotten

That’s the colorful term in Europe for the right to eliminate unwanted information about yourself on the Web. The European Court of Justice enforced that right Tuesday, holding that a Spanish data privacy authority acted properly to compel Google to remove from its search results links to old articles about a Spanish lawyer’s debt problems.

Jonathan Zittrian criticizes the ECJ’s ruling as being both “too broad” and “curiously narrow” because it could censor the republication of public records and because it does not force the newspaper that Google linked to do take down its own pages. But that’s because the ECJ endorsed a balancing test–your privacy interest versus the public’s interest. It sensibly recognized that people get their information about others by using search engines, not usually by looking back through newspaper websites. Search engines are a greater threat to one’s privacy, while newspapers shouldn’t be forced to respond to complaints about reports when they are just doing their job.

My argument can be found on Slate.

John McCain, Schmittian Humanitarian

It’s a new category in political philosophy. His proposal for rescuing the Nigerian girls, from the Kansas City Star (with my annotations):

‘If they knew where they were, I certainly would send in U.S. troops to rescue them, in a New York minute I would, without the permission of the host country,’ McCain said Tuesday. Referring to Nigeria’s president, McCain added: ‘I wouldn’t be waiting for some kind of permission from some guy named Goodluck Jonathan.’ [!!]

… McCain, the 2008 Republican presidential nominee, said the United Nations’ charter gives the United States, the authority to mount a military rescue of the girls. [Actually, no.]

‘It’s a crime against humanity to kidnap hundreds of young girls,’ McCain said [maybe]. ‘That gives any nation, if they can, the license to stop a crime against humanity [no it doesn’t]. That’s the United Nations charter [no, it’s not], not John McCain’s policy. It’s the same reason we should have, if we could have, gone in and freed the people of Auschwitz and Dachau.’

McCain said Obama shouldn’t worry about whether the Nigerian government would approve or disapprove of a U.S. military intervention into the country’s affairs. The president didn’t seek approval from Pakistan before he sent U.S. troops into that country to get Osama bin Laden.

‘I would not be involved in the niceties of getting the Nigerian government to agree, because if we rescue these people, there would be nothing but gratitude from the Nigerian government, such as it is,’ McCain said. [Like in Iraq, or maybe Afghanistan?]

And Obama shouldn’t worry about what the Senate and the House of Representatives would say if he exercised his authority as commander-in-chief and sent American troops into Nigeria.

‘If we rescued these young girls, an appetite for that?’ McCain said ‘It’d be at the high point of the president’s popularity.’ [Carl Schmitt would be proud.]

 

Reply to Coates’ Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications

John Coates wrote a valuable paper criticizing the use of cost-benefit analysis for financial regulations. Glen and I have now written a response, which is posted on SSRN. We make six arguments:

1. The uncertainty of valuations–the major reason Coates cites for his opposition to financial CBA–is not an argument against CBA but a reason to support research to produce better valuations.

2. The “centrality” of the financial system, which for Coates is a reason not to use financial CBA, is in fact a reason for using it. The greater the impact of a proposed regulation, the more likely that an expensive CBA is cost-justified.

3. Against Coates, we argue that the focus on people (rather than things) does not distinguish financial regulation from other types of regulation.

4. Also against Coates, we argue that the speed with which financial markets change does not distinguish it from other types of regulation for which CBA is used (notably, antitrust regulation).

5. Ultimately, the objections that Coates raises to financial CBA are really objections to CBA (in general) or even regulation (in general). They are too broad to single out financial CBA.

6. Alternatives to CBA proposed by Coates–reliance on “expert judgment” or “conceptual CBA”–are either circular or not that different from CBA after all.

All that said, we share Coates’ skepticism about judicial enforcement of financial CBAs, and prefer instead to see development of institutional capacity in the executive branch.

Putin as the “Good Hitler”

I doubt that this Putin defender did Putin any favors by comparing him to the “good” pre-1939 Hitler.

The article attacked [a critic of Putin] as “hell-spawn” and suggested that if Hitler had only stopped in 1939, he would be considered a “good Hitler.”

“One should distinguish the difference between Hitler before 1939 and Hitler after 1939 and separate chaff from grain,” Mr. Migranyan wrote. If Hitler had stopped after the “bloodless” reunification of German lands, including Austria and the Sudetenland, with the mother country, “he would have gone down in the history of his country as a politician of the highest order.”

The analogy here is that Putin is merely unifying Russian lands and not invading foreign countries for predatory reasons, which makes him a great statesman rather than, um, a Nazi.

I have said before that I think that Putin is punishing Ukraine for turning west and in this way issuing a warning to other neighbors. This is realpolitik without ideology. The “good Hitler” view is that Putin is an ideologically committed nationalist who seeks to create a greater Russia. The views are not the same. The nationalist will want to purge Russia’s minorities as well, or at least give them second-class status (or I suppose third-class status to the extent their status is already second-class); and will want to annex Russian-dominated territories of even friendly countries. The pre-1939 Hitler was not good, of course; the Nuremberg laws and Kristallnacht were in the past, and invasion of Eastern Europe and enslavement of Slavs were always part of the plan. He created a dictatorship, slaughtered his political opponents, and bullied his neighbors. Hitler’s militant style of nationalism couldn’t stop at the borders of German-speaking lands. Maybe Russian nationalists too will want to settle Russians in other areas.

Whatever his intentions, Putin has unleashed this virulent, self-destructive style of nationalism. Let’s hope he can (and wants to) put it back in the bottle.

The Yugoslav wars: lessons for Ukraine

My former student Matthew Parish, an expert on the conflict in Yugoslavia, points out the parallels in a very good article. Does the West’s intervention in the Yugoslav civil war provide a basis for a more muscular intervention in Ukraine, or the opposite? That intervention, though late and halfhearted, ultimately restored peace, but it also exacerbated conflict in the short term and may have planted the seeds for further conflict in the long term. Bottom line:

Proxy wars are a common cause of ethnic conflict. Serbia stoked foment in Bosnia and Croatia, as part of a vision for an enlarged Serbia-dominated territory. Russia is intervening by proxy in Ukraine, through support for the militia of a so-called People’s Republic of Donetsk. … The suffering caused by proxy state aggravation of ethnic hostility is immense. Nevertheless the international policymaker must be realistic about what can and cannot be achieved through intervention. Ethnic hostilities, whether between Bosnian Muslims and Serbs, Russians and Ukrainians, or Sunni and Shi’a, once evoked become phenomenally hard to quell. In time the inter-ethnic violence they engender precipitates permanent political changes. Hand-wringing and ineffective western foreign policy instruments, such as sanctions and diplomatic isolation, matter little when weighed against the strategic goals mandated by the Realpolitik of the countries with real interests in the dispute.

This, at its heart, is the most compelling argument against western humanitarian intervention. Humanitarianism is a laudable motive, but no substitute for raw strategic interests. Absent genuine geopolitical interest in another country’s conflicts, the West should stay out of others’ civil wars lest it risks exacerbating them and contributing to chaos through elicitation of false hopes. This may be the most important lesson from the Balkan wars of the 1990s for the ethnic conflicts and civil wars infecting the world in 2014.

Why hasn’t NHTSA advised GM owners to park their cars?

Remember the scandal over the faulty GM ignition switch? If you believe Congress and the press, GM’s Ions and Cobalts are rolling death traps. I argued in Slate that the statistics show they are not. The incremental effect of the faulty ignition switch on the risk of getting killed in an accident is close to zero. Two members of Congress asked NHTSA why it hadn’t told people to stop driving the cars until they’re repaired. In response NHTSA explains:

gm recall

In other words, the cars aren’t dangerous. So to all appearances this really was a classic Kuranian-Sunsteinian availability cascade.

 

 

Who’s the hypocrite? South China Sea ed.

Map of South China Sea

Source: BBC

While all eyes are turned to Ukraine and Nigeria, China’s disputes with its neighbors continue to fester. The latest is the ramming of Vietnamese vessels by Chinese vessels in the South  China sea. China claims a big chunk of that body of water–meaning the unoccupied islands on it and the minerals underneath it. The U.S. argues, very plausibly (see map  above), that China’s claim violates the UN Convention on the Law of the Sea, which limits coastal countries to undersea minerals only a few hundreds of miles out rather than the vast distances that China claims. So do China’s neighbors–Vietnam, the Philippines, Malaysia. But the funny thing about the U.S. argument is that the United States itself never ratified UNCLOS, instead declaring some parts of it that it liked “customary international law,” not the rest. So who’s the hypocrite?

No one. Not China, not the U.S. The villain is UNCLOS itself,  which attempts to settle all the world’s maritime disputes in a single multilateral document. (Well, almost all; it punts a few of them.) The problem is that territorial and maritime disputes in different parts of the world are not susceptible to simple principles like equidistance lines and uniform territorial seas and economic zones. They are all local and contextual. And unlike domestic legislation, there is no practical way to amend and update it; it’s frozen in stone. The U.S. probably should ratify UNCLOS but little pieces of the treaty bother important constituencies and so the executive branch has reasonably announced its acceptance of the rules that are not controversial. China should probably not have ratified the treaty, which lays down rules inconsistent with its claims–the treaty not surprisingly favors countries with huge coasts like the U.S. unless, as in China’s cases, other landmasses lie a short distance away–but back in the 1990s it was intent on being a good citizen while it was accumulating power. Now the government has little choice but to selectively violate terms it can’t live with.

Here’s more on the topic.

The New World Order Is Dead

That is the (partial) title of a piece I wrote for Foreign Policy. Every so often I make this argument; it works better when the world seems to be crumbling around us. If the center holds, consider it a prediction. May be lurking behind a pay- or registration-wall.

The argument is that in the 1990s, it appeared that there was emerging a “new world order” characterized by (1) international tribunals (along with the Security Council), (2) human rights, (3) international criminal justice, and (4) free trade and foreign investment protection. This was a liberal order, which led to the question why non-liberal countries would comply with it. In the legal academy, all answers were suggested (“networks,” “internalization,” “naming and shaming” by NGOs, “fairness,” and so on) except the obvious one, which is U.S. power. Countries acquiesced in an order because they feared the consequences of dissent. Now that U.S. power is declining, all the pillars of the new order except trade are collapsing. Odd, too, how in retrospect all those scholars, acting entirely independently and in good faith, seem like the U.S. government’s in-house ideologists.

The U.S. Constitution is too hard to amend

Or so I argue in Slate, provoked by Justice Stevens’ proposal to amend the Constitution so as to reverse various losses he suffered when he served on the Court. Whatever you think of Stevens’ arguments, amendment just isn’t going to happen. There is an interesting question how exactly to measure “amendability.” Here is a good paper on this topic by Tom Ginsburg and James Melton. It is nonetheless clear that the U.S. is an outlier.

Justice Scalia’s counterideological snafu

How is it possible that Justice Scalia and his clerks missed the error in his statement that the EPA had tried to use cost-benefit analysis to justify the regulation at issue in Whitman? How did the other justices and their clerks miss it, too? The answer is that the mistake made no difference whatsoever to the legal analysis. It signifies nothing about anything except that people sometimes make mistakes.

One of the many ironies of the argle-bargle in the press and the blogs–aside from the several listed by Jonathan Adler–is that everyone gets the political valence of the mistake wrong. The narrative is that the mistake exposes once and for all what we knew all along: that Scalia allows his political biases (or even partisan biases) to guide his legal reasoning. But Scalia was objecting to EPA’s use of cost-benefit analysis–a decision-procedure normally favored by conservatives and loathed by most (although not all) liberals–when the statute (in his view) did not allow for it. Scalia’s preferred resolution of this case would have sent the regulation back to EPA for revision, it is true. But it would also have required EPA in the revised regulation to impose stricter controls at greater cost to industry.

Indeed, the majority makes just this point. In response, Scalia denies that his interpretation would lead to overregulation, but I confess I can’t follow his convoluted reasoning. If the EPA, wielding cost-benefit analysis, chose the most efficient regulation, then any other regulation must by definition be less efficient (or I suppose equally efficient, which I think is Scalia’s limited claim, but that also seems quite unlikely). If downstream states are going to reach attainment at higher cost to upstream states, then this cost will be passed on to industry in upstream states. Because statutes are written in broad terms and directed at reducing harmful activity, CBA typically leads to less regulation than that required by a literal interpretation of a statute, not more. That’s why liberals have traditionally been hostile to it.

EPA v. EME Homer City Generation: a cost-benefit presumption?

Many years ago, Cass Sunstein wrote a paper called Cost-Benefit Default Principles, which argued that regulatory agencies are free to use cost-benefit analysis when statutes are ambiguous. EPA v. EME Homer City Generation seems to confirm this thesis, but arguably goes beyond it, at least if you accept Scalia’s argument that the text is clear and clearly forbids EPA to take account of cost. The case may instead stand for the existence of a stronger cost-benefit presumption that entitles a regulator to use cost-benefit analysis unless Congress explicitly forbids it to. Thus, a “gap” is not needed. The justification would be that Congress ought to direct regulators to take account of costs, perhaps that cost-benefit analysis is a quasi-constitutional commitment, so statutes should be “interpreted” as much as possible to avoid conflicting with this commitment.

Cost-benefit analysis as a constitutional commitment, quasi- or other? Could there be a justification for such a claim? Possibly. Consider the longstanding worry that the New Deal regulatory state gave excessive discretion to regulators, and the defunct efforts to rein them in with the nondelegation doctrine. Scalia’s insistence on deferring to the text, however loopy the text might be, is one possible response, but a more realistic one, I think, is rather to confine regulators’ discretion by insisting that they use cost-benefit analysis. The Court did not go quite so far, but took a step in that direction.

Ukraine and the International Criminal Court

Ukraine has asked the ICC to investigate whether the government of President Viktor Yanukovich committed crimes against humanity from November 2013 until the collapse of his government in February. Although Ukraine has not ratified the Rome Statute (and may indeed not be permitted to under its constitutional law), it has take advantage of a provision of that treaty that allows the ICC to investigate crimes in non-member countries that request its aid.

Ukraine should be careful what it wishes for. If the ICC takes the case (which, for various technical reasons, it may not), Ukraine might find itself in a position similar to that of Uganda. Uganda also referred its conflict with a rebel group, the Lord’s Resistance Army, to the ICC, which accepted jurisdiction. But when Uganda tried to settle the conflict under its amnesty law, the ICC refused to withdraw arrest warrants it had issued. Critics now blame the ICC for prolonging the war. Whatever the merits of their criticisms, the Ugandan government is certainly unhappy with the ICC, calling it a tool of imperial powers. For a damning indictment of the ICC’s involvement in Uganda, see this piece by Adam Branch (who also argues that the ICC has helped legitimate Uganda’s repressive government by agreeing to investigate only the rebels).

Similarly, if the ICC gets involved in Ukraine, and issues arrest warrants against Yanukovich and/or his supporters or members of his former government, the Kiev government may be unable to offer terms of settlement that the other side will agree to, while angering the Russians and for that matter everyone who wants to see the conflict end. Here’s betting the ICC will say “thanks but no thanks.”

 

Conspiracy Theories & Other Dangerous Ideas by Cass Sunstein

There is much of interest in this excellent new book by Cass Sunstein. The preface contains a defense of the different roles of the academic–to challenge conventional wisdom–and the public official, who must often keep his opinions to himself for the sake of operating in a team. People like Sunstein who move between academic and public roles face numerous challenges–both from the public, who see in the academic writings evidence of ideological extremity and from (naive) colleagues, who expect the advocate of (impractical) X to champion it public life even if it would bring down the ship of state. These divergent reactions are difficult to handle; few people handle it as gracefully as Sunstein has. A whole book could be written about those less graceful individuals, many of them also law professors, who traveled between law schools and various recent presidential administrations.

A few comments on Chapter 1, on conspiracy theories, which has received outsized attention:

1. Are conspiracy theories important or are they just little clumps of seaweed in the vast and bottomless ocean of public ignorance?

2. I can’t help thinking that there would be even more conspiracy theories ruining public life if people heeded calls from academics and politicians to become more involved in political debate.

3. Can “cognitive infiltration” (an unfortunate choice of words, I think, with its unnecessary sinister overtones) really work? The idea is that anonymous government agents could penetrate chat rooms and answer craziness with reason. But conspiracy theories seem to answer a deeper need than the desire for truth. N.B.: I suspect that government officials, on their own time, and not as part of formal programs, already do this, leading one to wonder how often Man-Who-Was-Thursday scenarios erupt in these chat rooms.

Like everything Sunstein writes, this book is well worth your time.

Paroline v. United States

A good case for a class on remedies, it features an unusual harm. “Amy,” a victim of child pornography, is emotionally traumatized when she learns that thousands of people view images of her on the web. Paroline is one of those people, and she seeks restitution from him. It’s not entirely clear to me that he even contributed to the harm, but if he did, determining how much money he should pay her on account of that contribution is a challenge. What is unusual about Amy’s injury is that it requires a large number of contributors but above a threshold additional contributors do not increase the harm. Some thoughts on the case at Slate. There is a good academic paper on the topic, making a similar argument, by Jenna Sheldon-Sherman.

Anne-Marie Slaughter: How to save Ukraine

First, attack Syria (?):

It is time to change Putin’s calculations, and Syria is the place to do it…. Equally important, shots fired by the US in Syria will echo loudly in Russia. The great irony is that Putin is now seeking to do in Ukraine exactly what Assad has done so successfully: portray a legitimate political opposition as a gang of thugs and terrorists, while relying on provocations and lies to turn non-violent protest into violent attacks that then justify an armed response.

Second, send covert U.S. troops into Ukraine:

Putin may believe, as Western powers have repeatedly told their own citizens, that NATO forces will never risk the possibility of nuclear war by deploying in Ukraine. Perhaps not. But the Russian forces destabilizing eastern Ukraine wear no insignia. Mystery soldiers can fight on both sides.

Why would this work?

Putin … measures himself and his fellow leaders in terms of crude machismo.

Then maybe a hot-pepper eating contest between Putin and Obama would do the trick?

That’s all I can think of to say. Or you could read Robert Golan-Vilella.

How many ways can a Supreme Court justice say nothing at all?

From Justice Kennedy in Paroline v. United States:

1. A “court should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”

2. “The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role.”

3. A “court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.”

4. A court should “set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses.”

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School