Compelled Diplomacy in Zivotofsky v. Kerry

To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President’s power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?

In a new essay in the NYU Journal of Law & Liberty, I discuss the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point. The essay is available here.

 

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The Problem with a Grand Bargain on the Senkaku Islands

Lately there have been a variety of proposals for cooperative solutions to the Sino-Japanese dispute over the Senkaku Islands, but these proposals seem to suffer from a common problem in that they misapply international law in ways that uniformly disfavor Japan. Today I published a short article with The National Interest to explain this point; it’s available here.

 

 

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Back From Japan: What I Learned

Recently I went to Japan as part of a small group of American academics and researchers who are interested in Japanese foreign policy. During the trip, we met with officials from the Ministry of Foreign Affairs, Ministry of Defense, Coast Guard, and Cabinet Secretariat to discuss recent developments in regional security and U.S.-Japan relations. Unsurprisingly, many of the meetings focused on the Senkaku Islands. In this post, I’ll share a few things I learned.

There’s Still “No Dispute”

During the meetings, it quickly became apparent that some media outlets in the West haven’t accurately characterized current Japanese policy. Tokyo’s longstanding position has been that there’s “no dispute” over the Senkakus—the territory belongs to Japan and there is nothing to negotiate or even talk about. This view is of course controversial in China, which also claims the Islands, and the two sides have been engaged in a fairly protracted and tense standoff as a result. To reduce tensions and improve bilateral relations, China and Japan jointly released a four-point statement on November 7th. Sources ranging from The Diplomat to The New York Times reported the statement as evidence of a significant shift in policy: Japan would now recognize the existence of a dispute. On this view, the recent statement was a major concession to China because recognizing a dispute might open the door to bilateral negotiations that could have only one effect—namely, an erosion of Japan’s effective control over the territory.

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