In this post, we explain why we believe that the agreement is likely a lawful “sole executive agreement” that the president need not submit to Congress and then analyze the relevance of recent reforms to the Case-Zablocki Act for the transparency of the agreement and an important related agreement that is being negotiated pursuant to it.

Terms of the Agreement

Although the United States has not released a copy of the agreement, Ukraine has done so. It calls for the United States and Ukraine to establish a Reconstruction Investment Fund in the form of a limited partnership. The details of the fund agreement are being negotiated separately as part of what is referred to as the “LP Agreement” (“LP” is for “Limited Partners”). The LP Agreement will be concluded between a U.S. government agency, the United States International Development Finance Corporation, and a Ukrainian agency.

The United States and Ukraine will each make contributions to the fund “in accordance with the terms of the LP Agreement.” The agreement further states that the value of any future military assistance that the United States provides to Ukraine will be treated as U.S. contributions to the fund. The agreement does not, however, obligate Ukraine to reimburse the United States for prior military support.

The U.S.-Ukraine partnership that administers the fund will issue licenses and special permits for resource extraction in Ukraine subject to revenue sharing arrangements. The United States and its designees are expressly allowed “to negotiate for, in accordance with the terms of the LP Agreement, offtake rights on market-based commercial terms during the term of such license or special permit.” This will potentially give the United States access to rare earth minerals and other resources, which the Trump administration has indicated is one of its goals in making the agreement. The agreement recognizes, however, that “Ukraine has, in accordance with international law, sovereignty over its natural resources located in its territory as well as in its territorial waters.”

The United States makes no security guarantees in the agreement, and, more generally, makes little in the way of firm commitments in it (more on this below). The chief benefit of the agreement to Ukraine comes not from any U.S. concessions but rather from the fact that it gives the United States a continuing stake in Ukraine’s survival and prosperity. The agreement appears to envision that such a stake could be longstanding: It does not specify an end date or permit unilateral withdrawal but instead states that it shall remain in force “until such time as the Parties agree to its termination.”

In a fact sheet relating to the agreement, the White House emphasized this point, stating that “this partnership sends a strong message to Russia—the United States has skin in the game and is committed to Ukraine’s long-term success.” Consistent with this idea, the agreement says that the parties view it as an “expression of a broader, long-term strategic alignment between their peoples and governments, and a tangible demonstration of the United States of America’s support for Ukraine’s security, prosperity, reconstruction, and integration into global economic frameworks.”

The fact sheet contains additional language that is likely to be heartening to Ukraine, referring, for example, to “the large-scale destruction caused by Russia’s full-scale invasion.” It also makes clear that “[n]o state, company, or person who financed or supplied the Russian war machine will be allowed to benefit from the reconstruction of Ukraine, including participation in projects supported by fund resources.”

Sole Executive Agreement?

The agreement says that it will enter into force after “each Party has completed its internal procedures for entry into force.” For Ukraine, the agreement “requires the ratification of this Agreement by the Verkhovna Rada [Parliament] of Ukraine.” But there is no sign that the Trump administration plans to seek the consent of Congress or the Senate. That raises the obvious question: Under what domestic legal authority can the president conclude the agreement? 

As we have explained at length in prior work, under the U.S. Constitution, the president can lawfully make an agreement without congressional consent if it is a nonbinding agreement (i.e., one not governed by international law) or if it is a binding agreement that falls within the president’s constitutional authority to make sole executive agreements. We believe that the agreement falls into the latter category.

The agreement is governed by international law because it includes commitments that are clearly intended to bind the parties. Yet these binding obligations are largely one-sided. The agreement specifies many binding obligations for Ukraine (e.g., “The Government of Ukraine shall take all steps to empower its agencies and instrumentalities to execute and implement this Agreement . . . .”). 

By contrast, the only binding obligations on the United States that we can discern concern non-substantive matters relating to consultation, negotiation, and interpretation. For example, the agreement states that “the Parties shall consult and negotiate in good faith . . . .” and that “the Parties shall endeavor to agree on the interpretation and application of this Agreement and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.” 

The other obligations that the United States assumes in the agreement appear to be nonbinding. Article II, for example, states that “it is the policy of the Parties to have the United States International Development Finance Corporation [and its Ukrainian counterpart] . . . conclude [the aforementioned LP Agreement]” (emphasis added). The United States also “affirms that it has put in place the necessary measures . . . to execute and implement this Agreement and the LP Agreement.” No new measures, this seems to assert, are needed. Throughout the Agreement, the United States “affirms” and “expresses its expectation,” but does not commit to new binding obligations beyond the non-substantive ones noted above. 

In sum, the arrangement imposes legal obligations on both parties, which makes it a binding agreement under international law, even though many of the provisions—including nearly all those pertaining to the United States—are nonbinding. Notably, the obligations assumed by the United States—consultation, negotiation, and interpretation—all appear to fall within the president’s powers over diplomacy and related matters and can thus be made by the president under Article II without congressional consent. Because the agreement does not appear to create binding obligations on the United States that require congressional consent, we conclude that the administration likely has the authority to conclude it as a sole executive agreement.

That said, the agreement envisions the negotiation of additional agreements, including the LP Agreement, that may require congressional authorization or approval.  If obligations or entitlements addressed in the additional agreements concern matters that are not within the president’s independent authority and are not within the scope of a prior congressional authorization, the agreements would need to be submitted to Congress or the Senate for approval. It would not matter if these additional agreements were authorized by the initial U.S.-Ukraine agreement, since a sole executive agreement cannot validly authorize presidential actions that fall outside of the president’s independent authority.

Transparency Requirements

In December 2022, Congress revised the 1972 Case-Zablocki Act to impose new transparency requirements on international agreements made by the executive branch. (We previously discussed the statute here and here.) Under these rules, the executive branch is required to disclose to Congress and to publish certain binding and nonbinding executive agreements within specified time periods. 

As an “international agreement” within the terms of the Case-Zablocki act, the U.S.-Ukraine Agreement is subject to its reporting and publication requirements. Because Ukraine has made the agreement public, these transparency requirements are less critical than they might otherwise be. The revised rules do require the executive branch not only to disclose the text of the agreement but also to offer a “detailed description of the legal authority” that provides support for the agreement. That would be helpful here, as it would clarify whether the agreement is being concluded as a sole executive agreement instead (for example) on the basis of a prior congressional authorization—and, if the latter, which statutes the executive branch believes authorize the agreement. Ukraine’s disclosure does not absolve the executive branch of its legal obligation to observe these requirements.

The transparency requirements could become even more important when it comes to the LP Agreement. That agreement is subject to the same transparency requirements—and thus must be reported to Congress and published. Perhaps Ukraine will again make the agreement public. After all, much of the value of the agreement to Ukraine is the public show by the United States of a long-term investment in Ukraine. But the American public should not have to rely on a foreign partner to publish the agreement in order to learn what commitments the executive branch has made on the United States’ behalf. (As we recently discussed, this concern about transparency also applies to an agreement that the administration has made with El Salvador concerning the detention of migrants—an agreement that is highly relevant to pending litigation but that the administration is trying to keep secret.)

The ability to conclude some agreements without seeking the Senate’s or Congress’s approval has given the executive branch valuable flexibility in international relations. The transparency requirements that Congress has imposed to ensure some degree of accountability for these and other agreements have not always worked as they should—and we have long advocated improvements, many of which were made by Congress in 2022. Some have questioned whether these transparency requirements are worth the trouble—after all, many agreements concluded by the executive branch provide for run-of-the-mill cooperative endeavors that are unlikely to trigger objections. The recent decisions by the Trump administration to use such agreements to make major foreign policy commitments on behalf of the United States confirm the importance of these transparency rules.

The post The U.S.-Ukraine Agreement: Legality and Transparency appeared first on Just Security.

Congress in December 2022 enacted a sweeping new transparency statute for international agreements made by the executive branch. (We previously discussed the statute here and here.) This law imposes on the executive branch a duty to disclose to Congress and to publish certain binding and nonbinding executive agreements within specified time periods. This post explains the potential relevance of this law to the dispute over the mistaken deportation of Kilmar Abrego Garcia.

The Trump administration has stated in litigation that Abrego Garcia, an El Salvadoran national, was accidentally included in a group of over 200 migrants transferred to El Salvador, where they are being held in a large prison known as the Terrorism Confinement Center. Abrego Garcia should not have been removed because an immigration judge years earlier had granted him a withholding of removal to El Salvador due to a danger of persecution, and the government never appealed that decision.

Lawyers for Abrego Garcia have been seeking to have him returned to the United States, and the Supreme Court has said that the government is obligated to take steps to “facilitate” his release from El Salvador’s custody. To date, however, the executive branch has taken no apparent steps to comply with the directive, contending that Abrego Garcia is now subject to El Salvador’s sovereignty and is out of U.S. control.

The 2022 statute could play a role in the dispute because it might be a mechanism to force disclosure of any U.S.-El Salvador agreements connected to the detention facility and its operation in El Salvador. In exchange for housing the immigrants for a year, the administration has reportedly paid El Salvador $6 million. There is almost certainly some sort of written agreement between the two countries memorializing this arrangement, but the details of the agreement have not been disclosed by the administration. It is possible that these details will be disclosed in the Abrego Garcia litigation (the judge has allowed Abrego Garcia’s lawyers to engage in discovery), but that is far from certain.

The contents of any such agreement could be very relevant to the Abrego Garcia litigation. For example, El Salvador’s ministry of foreign affairs has said that it has agreed to house the individuals for one year, “pending the United States’ decision on their long term disposition.” El Salvador’s president has similarly stated on social media that the detainees are being housed at the confinement center “for a period of one year (renewable).”

These statements suggest that the administration still has control over the fate of the detainees, which contradicts the administration’s contention to the contrary. The text of the agreement could make clearer the scope of ongoing control that the United States may have over the fate of those it has sent to El Salvador for detention.

Under the 2022 transparency rules, the executive branch has transparency duties for both binding and nonbinding agreements. With respect to binding agreements, it must disclose them to Congress on a monthly basis and publish them within 120 days after they enter into force. As far as we know, the executive branch has not yet disclosed the agreement to Congress.

It is possible that the executive branch views the agreement as not legally binding. But even if so, it still has a duty under the statute to disclose and publish nonbinding agreements if they “could reasonably be expected to have a significant impact on the foreign policy of the United States.” The State Department’s regulations specify that among the factors to be considered in determining whether an agreement is covered include “whether, and to what extent, the instrument . . .  affects the rights or responsibilities of . . .  individuals in the United States; . . . and is of Congressional or public interest.” An agreement to house a large number of migrants removed from the United States to a notorious supermax prison in another country plausibly meets this standard.

But even if the administration maintains that the El Salvador detention agreement does not qualify under the statutory standard, there is yet another statutory route for its disclosure. The new transparency rules require the executive branch to disclose a nonbinding agreement if it is “the subject of a written communication from the Chair or Ranking Member of either of the [congressional foreign affairs] committees to the Secretary.” In other words, the Democratic minority leaders in the foreign affairs committees (Rep. Meeks in the House and Sen. Shaheen in the Senate) have a statutory right to obtain a copy of the agreement. Using this statutory provision, Sen. Shaheen has in fact now requested a copy of the agreement. Importantly, unlike the publication requirements, the requirements concerning disclosure of agreements to Congress apply even to classified material.

If the executive branch fails to comply with these statutory requirements (which seems quite possible), members of Congress should not allow the matter to drop.  Congress’s new transparency rules are designed precisely for the current situation, in which the executive branch has made a significant, controversial, and potentially illegal agreement, and there is a pressing need for congressional, public, and judicial scrutiny of its contents. At a minimum, highlighting the administration’s failure to comply with the new statute would heighten the suspicion of illegality around this matter, which could be relevant to its resolution as it returns up the chain of appellate review to the Supreme Court.

IMAGE:  U.S. President Donald Trump greets Nayib Bukele, El Salvador’s president, as he arrives at the West Wing of the White House in Washington, DC, US, on Monday, April 14, 2025. (Photo by Al Drago for The Washington Post via Getty Images)

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On Jan. 17, Director of National Intelligence Avril Haines quietly issued a clarification of an Intelligence Community Directive concerning the obligations of former government employees who are bound by “prepublication review” requirements. This is an important step toward fixing a deeply broken system, and one that will make a difference to the ability of millions of former government employees who once held top secret/sensitive compartmented information (TS/SCI) security clearances to write and speak. 

Background

The U.S. government requires that current and former U.S. government officials who have or had TS/SCI clearance submit their writing for review by the U.S. government prior to publication. This lifetime preclearance requirement currently applies to millions of former government employees. (In 2014, over five million people held security clearances—or 1.5 percent of the entire U.S. population.)

For nearly a decade, we have written about the many problems with this system, which we have argued constitutes the largest system of prior restraint on speech in U.S. history. Among other things, we have explained that the system doesn’t just apply to national defense information, is plagued by an absence of binding and consistent rules, is subject to unnecessary and seemingly opportunistic delays, drives talent away from government service, leads to an impoverished public discourse, and causes many former government officials to simply opt out. 

Directive 711

In July 2024, DNI Haines signed Intelligence Community Directive 711, establishing new requirements for intelligence community (IC) administration of prepublication reviews. It was the first IC-wide guidance on prepublication review. It included a few of the reforms we had proposed—including procedural steps that promised to bring greater uniformity to a process that had been highly decentralized and inconsistent. It thus represented some progress in the direction of fixing a badly broken system.

But, as we wrote last year, Directive 711 also contained speech-harming provisions and was, we concluded, very disappointing. The pertinent provision provided that a covered official had a duty to submit for prepublication review: 

non-official material that a fully-informed person granted access to covered intelligence might reasonably deem to contain or be derived from covered intelligence and that is intended for disclosure to, or discussion with, one or more individuals not authorized to access covered intelligence, or which is intended for public dissemination. [C.3]

This provision recognizes that a publication that may appear to not contain or be derived from classified information based on what the covered official knows could nonetheless contain classified information when viewed in the context of materials unknown to the official. In that light, Directive 711 appeared to require a former official to submit for prepublication review material that they believed contained no classified information if “a fully-informed person granted access to covered intelligence might reasonably deem to contain or be derived from covered intelligence.” 

We previously explained the conundrum this provision puts former official in:

There is no way that the vast majority of employees and former employees can know that broader context when deciding whether to submit material for prepublication review. If former employees are confident based on their information set that the material they wish to publish does not contain and was not derived from classified information, how could they know whether someone with “full” information might reasonably reach a different conclusion? They cannot.

And yet that is what the directive appears to require those covered by the directive to do. The duty to preclear is tied to what a “fully-informed person granted access to covered intelligence” knows. Past or present employees who are confident based on their government experience and general knowledge that a publication contains no classified information have, it seems, a duty to preclear unless they are also confident that a “fully-informed person granted access to covered intelligence” would also conclude that the writing contains no classified information. This is literally an impossible standard to satisfy—no partially informed person can know what the fully informed person might reasonably conclude. The directive therefore seems to require those covered by it to preclear practically every publication with any conceivable connection to government work or even a government program on which the person did not work, even if there is no reason for the person to think that the publication contains or derives from classified information. And, relatedly, it appears to give the government a basis to require preclearance of practically any writing it likes.

We added:

It is conceivable that the ultimate aim of Directive 711 is to encourage employees to preclear if they are not sure if a publication contains classified information. That would be a more reasonable standard. But that is not what the language says. If that is what the directive nonetheless aimed to achieve, ODNI should clarify the relevant preclearance standard. As it is, the directive embraces an extreme duty to preclear for the entire IC that will chill likely speech to an unprecedented degree.

The Clarification 

The Jan. 17 clarification seeks to address the problem that we, and surely others, identified. It states, “Some have interpreted the standard to be very broad and to ultimately require that all materials be submitted for prepublication review because it is impossible to know what a ‘fully-informed person’ would conclude. This memorandum seeks to clarify this standard.”

The clarification is worth quoting in full (broken into paragraphs for ease of reading):

The standard outlined in section C.3. is intended to mean that current or former personnel need not submit material for prepublication review if the material could not reasonably be deemed to contain or be derived from covered intelligence. In determining what “might reasonably be deemed” to “contain or be derived from covered intelligence,” reasonableness should be judged by what a clearance-holder with access to relevant information, knowledgeable about intelligence activities and classification of information, might reasonably deem to contain or be derived from covered intelligence. In other words, where a person seeking to publish material thinks the material is or is likely to be unclassified, but also believes an informed intelligence professional might reasonably conclude otherwise, the person should submit the material for prepublication review. 

For example, when a former officer seeks to publish information concerning an intelligence activity, an aspect of which has been officially acknowledged and believes explanatory information about how that intelligence activity may have been undertaken is likely unclassified, the former officer should submit the material for prepublication review if they believe an informed intelligence professional might reasonably conclude that the explanatory information was not included in the official acknowledgement and remains classified. In contrast, if the person seeking to publish the material has a factual basis to believe that a reasonable, informed intelligence professional would not determine that the material is classified, the material need not be submitted. 

This standard may be met, for example, where the intelligence material in question is sourced to an unclassified official acknowledgment of the U.S. Government and does not disclose additional intelligence or intelligence-related information than the official acknowledgment on which it is based. This standard reflects the reality that the U.S. Government relies on current and former personnel every day not to disclose classified information to those not authorized to receive it, while also recognizing that when there may be doubt about whether information slated for publication is classified, the prepublication review process should be invoked to ensure that the correct decision is made and avoid harm to national security.

We believe this clarification is a major improvement over the original, though not ideal. 

The clarification makes plain that the covered officer need not do the impossible and make prepublication review decisions based on what a “fully-informed person granted access to covered intelligence might reasonably deem to contain or be derived from covered intelligence” would conclude. That language is still in Directive 711, but the clarification explains that it is “intended to mean that current or former personnel need not submit material for prepublication review if the material could not reasonably be deemed to contain or be derived from covered intelligence.” 

This clarification appears to shift the reference point for submission from the impossible-to-know information set of a hypothetical fully informed person to what a “reasonable” intelligence officer would believe. As the clarification explains, “reasonableness should be judged by what a clearance-holder with access to relevant information, knowledgeable about intelligence activities and classification of information, might reasonably deem to contain or be derived from covered intelligence.” A lot of work here is being done by the term “reasonableness,” but the clarification seems to mean the clearance-holder who believes the publication contains no classified information need not submit for preclearance review unless that person “also believes an informed intelligence professional might reasonably conclude otherwise, the person should submit the material for prepublication review.” 

How to know what “an informed intelligence professional might reasonably conclude”? There is no concrete guidance here, and we are not sure that such concrete guidance would be possible. But the examples suggest that it is the clearance holder’s beliefs that matter. Prepublication review of a publication that the clearance holder thinks contains no classified information is necessary only if the clearance holder otherwise “believe[s] an informed intelligence professional might reasonably conclude” otherwise (emphasis added). The validity of this belief appears to turn on an objective reasonableness assessment.

If this seems confusing, that’s because it is. It is very hard to articulate a standard that gives freedom to publish while at the same time protecting classified information, since what counts as classified is often elusive and sometimes based on information unknown to the clearance holder. The clarification reduces the incidence of effective prior restraints by shifting the preclearance standard from one that over-incentivizes submission—because it relies on an impossible-to-satisfy state of knowledge—to one that requires fewer submissions based on a less demanding but still vague reasonableness test. The clarification is designed to require prepublication review “when there may be doubt about whether information slated for publication is classified,” based on what a reasonably informed clearance holder would know. That is much closer to a defensible line than the original directive, but in its vagueness and uncertainty it will surely chill or delay speech unjustifiably.

The clarification closes with an important note: “[I]f covered personnel publish non-official material without receiving clearance from the appropriate IC element through prepublication review, they remain personally responsible for ensuring that no classified information is disclosed.” In other words, the clearance holder is ultimately responsible for ensuring that no classified information is disclosed. If the clearance holder misjudges and declines to submit for prepublication review a writing that in fact contains classified information, that person remains on the hook for criminal, civil, and administrative remedies. In this sense, prepublication review, with all of its foibles that we have detailed in past writings, is a kind of safe harbor.

***

We have written a lot about how the preclearance review process could be improved, and will not repeat those arguments and proposals here. The main takeaway from the ODNI clarification is that the original Directive was ambiguous and possibly overly demanding, and that the standard for prepublication review is basically the clearance holder’s reasonable belief about whether the writing might contain, or be derived from, classified information. This is far from crystal clear, but it is much better than what came before.

IMAGE: A close up of the tab from a confidential file folder. (Getty Images)

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The leader of HTS, Ahmed al-Sharaa, met in mid-December with the United Nations special envoy to Syria, Geir Pedersen. Days later, the United States sent a high-level delegation to meet with al-Sharaa, after which the United States dropped a $10 million bounty it had placed on him. The European Union, too, has promised to ease sanctions on Syria in return for “positive steps” to establish an inclusive, rights-respecting government.

All of this raises several pressing questions: is HTS now the new government of Syria under international law or is the toppled Assad regime still the government? Alternatively, is there perhaps no government currently at all? Do systematic human rights violations committed in the past by HTS preclude its recognition now? Do doubts about HTS’s hold on power make these questions premature?

Many practical issues emerge that depend on the answer to those questions. For example, who now controls Syria’s government assets? Who can enter into contracts or international agreements on its behalf? Who is responsible for complying with Syria’s international law obligations? Who will represent the government in the case before the International Court of Justice (ICJ) brought by Canada and the Netherlands to challenge the Assad government’s brutal, systemic torture program? Who is directly responsible as a matter of international law for ensuring that such human rights abuses do not recur throughout the country?

As we outline in our forthcoming law review article, Recognition Rules: The Case for a New International Law of Government Recognition, it turns out that international law does not have clear or satisfactory answers to these questions. Government recognition in contested situations like those in Syria today is not decided by a centralized authority. Rather, it is determined by individual States, each one making its own decision about which government to recognize. Each international organization, too, has its own system for determining which government represents a State—and sometimes there is even a lack of consistency within a single organization such as the United Nations. This can lead to absurd situations. Myanmar, for example, is represented by one entity in the UN’s legislative chamber, the General Assembly, while another entity defends it before the UN’s court, the ICJ. The lack of coherence in the recognition of governments has profound consequences for the international legal system and demonstrates the need for a better approach toward government recognition under international law.

Government Recognition and Why It Matters

Government recognition is the formal acceptance of a political entity as the representative of a sovereign State. In most cases, government recognition is a matter of course because the domestic legal process, whether democratic or otherwise, results in the selection of a government accepted both domestically and internationally.

But that’s not always true. In just the previous decade and a half, government recognition has been hotly contested in (chronologically) Libya, Yemen, Venezuela, Myanmar, Afghanistan, and Niger. In circumstances like these—now including Syria—the issue of which entity, if any, should be recognized as the lawful government of the State transforms from an internal political dispute into an issue of international law and foreign affairs. The reason is rooted in the inextricable relationship between State recognition and government recognition: while the former involves the recognition of the “primary units of the global order,” the latter implicates the recognition of “the institutions that have standing to act in the name of those units,” as professor Brad Roth has explained.

While the international law of State recognition is largely settled, government recognition is not. There are only a few clear bars on an entity being recognized as a government, and government recognition has, as professor Rob Sloane has written, “remain[ed] discretionary, often influenced if not dictated by foreign policy objectives,” rather than being guided by legal principles. Effective control over most or all of the territory of a State is an almost universally accepted precondition for recognition of a government, but States, international organizations, and other actors have frequently disfavored sole reliance on this criterion in favor of a myriad of additional factors pertaining to “legitimacy,” which seeks to incorporate not just factual determinations, but normative judgments regarding, for example, how the putative government acquired control and whether it respects democracy and human rights.

As we outline in our forthcoming article, this legal uncertainty matters because crucial authorities and responsibilities necessarily attach to government recognition. One of the most important is the authority to consent to military intervention: because the concept of “consent” is under-theorized, it is ripe for manipulation in the context of government recognition. In Yemen, for example, a Saudi-led coalition launched a military intervention in 2015 aimed at restoring the government of former President Abdrabbuh Mansur Hadi with his “consent,” even though Hadi had lost control, resigned the presidency (though he later retracted his resignation), and fled the capital never to gain back that control. Indeed, Saudi officials later placed Hadi under house arrest even as the five participating States continued to rely on his consent for their intervention.

Recognized governments also have the authority to incur international legal obligations in treaties and commercial contracts, control State assets such as natural resources and funds owed from prior international agreements, and represent their respective States in international bodies like the ICJ and the General Assembly; at least some of their officials, moreover, are entitled to immunity from foreign criminal jurisdiction. At the same time, governments have a duty to uphold their respective States’ international human rights and international humanitarian law obligations, raising questions as to whether the Taliban regime in Afghanistan is directly bound by such obligations given that it has not been recognized by any other State.

The immense stakes of government recognition makes confusion dangerous in other contexts. Some governments with little to no control over the territory of a State are recognized, as was true for a time of Juan Guaidó, the head of the opposition-controlled National Assembly in Venezuela, following that State’s disputed presidential elections in May 2018. On other occasions, governments with no significant competitor for control over the territory of a State are not widely recognized (if at all), such as the Taliban in Afghanistan in the past (1996 – 2001) and today (2021 – present). What’s more, some States and international organizations may recognize one government of a State while others simultaneously recognize a different one. Such disagreements about government recognition can produce conflicts extending far beyond the State in which recognition is contested. All of this demonstrates the need for a fundamental change in the international law and diplomacy of government recognition.

The Need for a New Approach, Beginning with Syria

The situation in Syria presents both significant dangers and an opportunity. Assad is living in exile in Russia. As of mid-December, he and Russian President Vladimir Putin had apparently not yet met, but Putin said that they plan to do so. Russia is currently withdrawing its forces from Syria, in accord with HTS statements calling on Russia to “reconsider its presence” in the State. While current signs are that HTS hopes to establish a constructive relationship with Russia, it is conceivable that Russia might claim the right to retain some presence or use military force in Syria—including against HTS—based on Assad’s consent or on the lack of an officially recognized government.

Meanwhile, there are some promising signs in Syria, though nearly all close observers are quick to note that the former rebels are still largely untested. HTS has won significant good will, both at home and abroad, after freeing thousands of political prisoners, and many Syrian refugees have begun to return home. Following meetings with members of the toppled Assad government, interim prime minister Bashir has promised to restore public services across Syria, a process which is already well underway in Aleppo. In Damascus itself, banks and businesses started to reopen just three days after the fall of the Assad regime.

Yet while many Syrians are joyful, others remain cautious. With Assad ousted, several armed groups exercise control over different areas of Syria, including in Damascus, and minority ethnic and religious groups fear repression in light of the human rights records of armed groups like HTS. Syria’s Alawite minority community, once dominant, now fears retaliation. HTS’s leadership has sought to reassure minorities, including Alawites, Christians, and Druse, that they will be protected from violence. Other areas of potential concern include al-Sharaa’s placing foreign fighters in positions of power in the new armed forces, and suggesting that elections may not be possible within the next four years. Also still unsettled is how those who were part of the Assad government will be treated and who will be held accountable for the horrific human rights violations inflicted upon Syrians by the Assad regime.

Meanwhile, foreign military forces continue to play a major role in Syria. Israel launched nearly five hundred airstrikes against military targets and deployed ground troops beyond the demilitarized buffer zone for the first time since the end of the 1973 October War. Turkey is expected to play a major role in the formation of the new Syrian government. It may be incentivized to recognize a government more amenable to negotiating favorable agreements on matters of defense and maritime boundaries. In the meantime, it has continued to wage war against Kurdish forces backed by the United States in northern Syria. Outgoing U.S. Secretary of State Antony Blinken has suggested that the United States would recognize a future Syrian government only if it is “credible,” “inclusive,” and “nonsectarian.” The European Union has made similar remarks. Russia, meanwhile, has undertaken internal procedures to remove HTS as a designated terrorist group.

This could lead to conflict—if Russia, Turkey, the United States, the United Kingdom, or European Union were not to recognize the same government. Especially if sanctions are lifted, any uncertainty over the legitimate government of Syria could lead to new and significant fights over who has the right to control Syrian assets. And if there is a lack of clarity about who is the legitimate government, it will remain unclear whether the rebel forces now in control can sign binding international agreements with the many States with which they are now in discussions.

But this potential for significant disruption also offers an opportunity. In our law review article, we argue for a new, practical way forward for government recognition. Our argument has two elements—one procedural, one substantive. Procedurally, we argue for greater international coordination and centralization of the process of government recognition to avoid the chaos that can result from the highly decentralized process that now exists. We explain that the United Nations Credentials Committee is a “ready-made forum” to address matters of government recognition, and we recommend that the Committee be empowered—via Security Council resolution—to make government recognition decisions (as approved by the General Assembly) that are binding on all components of the United Nations as well as every United Nations member State. Under this approach, all the rights and responsibilities that accompany government recognition would be granted to the government recognized by the Committee. While it is unlikely that this procedural reform will happen in the short term, States could accelerate the process now by pledging to adhere to the Credentials Committee’s recognition decision on Syria and by seeking to coordinate their recognition decisions among one another in the meantime.

Substantively, we argue that government recognition decisions should primarily turn on effective control of the State. Specifically, we argue that the Committee (and, in the meantime, individual States and other organizations) should require sustained effective control as a prerequisite for government recognition and rely on legitimacy in only a narrow set of circumstances (as outlined in our article). This is not because we are unsympathetic toward the normative values motivating arguments for relying more heavily on legitimacy. Rather, it is because government recognition functions to allow governments with radical differences in their cultural, political, historical, and moral commitments to converse before international bodies and enter into agreements with one another. Any effort to define the appropriate scope of a legitimacy-based criteria in government recognition would likely fail because it demands at least some amount of agreement about normative principles that sharply divide States in the international system to this day. And failure to agree can place States in conflict with one another, with the effect of undermining international peace and security.

Some may worry that focusing on effective control gives up the leverage for reform that might be had by refusing recognition unless a government meets certain legitimacy criteria. But individual States would retain the ability to use other international law and diplomatic tools distinct from government recognition to further their normative goals. They could, for example, refuse to engage in diplomatic relations with the new government or impose sanctions unless the government respects the rights of minority communities. States could also put in place countermeasures against the government for any ongoing internationally wrongful acts, including human rights violations or support for terrorist activities.

Applied to Syria, this approach would argue for States to determine which entity exercises the most extensive and sufficient level of effective control over Syria. At present, HTS and Kurdish-led forces both exercise substantial control over large amounts of Syrian territory, but HTS controls the four largest cities—Aleppo, Damascus, Homs, and Latakia—and therefore the areas in which the majority of the population resides. Assuming this control is maintained and stabilized, relying on effective control would counsel in favor of recognizing HTS as the government of Syria, with all the State authorities and responsibilities—including the obligation to ensure compliance with international human rights and humanitarian law obligations—that entails.

Image: A woman takes a selfie as people wave independence-era Syrian flags during a demonstration celebrating the fall of Syrian president Bashar al-Assad at Ummayad Square in the capital Damascus on December 27, 2024. Islamist-led rebels took Damascus in a lightning offensive on December 8, sending president Bashar al-Assad fleeing and ending five decades of Baath rule in Syria. (Omar Haj Kadour/AFP via Getty Images).

The post Should the Rebels be Recognized as the New Government of Syria? How International Law Could Provide a Clearer Answer appeared first on Just Security.

Despite the arrest warrants, the deportations have continued. A new report from the Yale School of Public Health Humanitarian Research Lab identified 314 individual Ukrainian children that Russian officials transferred from Ukraine to Russia for coerced adoption and fostering, acts that likely constitute grave violations of international law.

What are the report’s key findings? And how might they contribute to efforts toward accountability, including potential new criminal charges against Russian officials?

Joining the show to discuss the report are Oona Hathaway and Nathaniel Raymond.

Oona is a Professor at Yale Law School and an Executive Editor at Just Security. Nathaniel is the Executive Director of the Humanitarian Research Lab and a Lecturer in the Department of the Epidemiology of Microbial Diseases at the Yale School of Public Health.

Show Notes:

• Oona’s Just Security article (with Madeline Babin and Isabel Gensler) “New Report Documents Russia’s Systematic Program of Coerced Adoption and Fostering of Ukraine’s Children”
• Just Security’s Russia-Ukraine War coverage
• Just Security’s International Criminal Court coverage
• Just Security’s International Law coverage
• Music: “Broken” by David Bullard from Uppbeat: https://uppbeat.io/t/david-bullard/broken (License code: OSC7K3LCPSGXISVI)

Listen to the episode, with a transcript available soon, by clicking below.

The post The Just Security Podcast: Russia’s Program of Coerced Adoption of Ukraine’s Children appeared first on Just Security.

Today, the Yale School of Public Health Humanitarian Research Lab released a new report detailing evidence of Russia’s system of coerced deportation and naturalization, reeducation, fostering, and adoption of Ukrainian children. The researchers at the Humanitarian Research Lab – which uses open-source information to document humanitarian crises throughout the world – drew on a variety of sources, including commercially available satellite imagery, verified open-source media, Russia’s own child placement databases, and Russian government documents and communications. Based on this information, the researchers identified 314 individual Ukrainian children that Russian officials transferred from Ukraine to Russia for coerced adoption and fostering, acts that constitute grave violations of international law.

In March 2023, the International Criminal Court (ICC) issued arrest warrants for the war crimes of unlawful deportation and transfer of Ukrainian children against Russian President Vladimir Putin and Presidential Commissioner for Children’s Rights Maria Lvova-Belova. The new Humanitarian Research Lab report adds evidence that the Russian Federation has engaged in the systematic, intentional, and widespread coerced adoption and fostering of children from Ukraine. The evidence could lead to additional charges against Putin, Lvova-Belova, and other officials involved in the extensive forced relocation program for war crimes and crimes against humanity. While the acts described in the report likely would not provide the sole basis for criminal charges of genocide, the report’s findings could, together with additional evidence, support a broader case of genocide. The actions also likely violate Russia’s obligations as a State Party to the United Nations Convention on the Rights of the Child (CRC).

New Details on the Coerced Deportation of Children from Ukraine to Russia

The new report builds on the Humanitarian Research Lab’s prior report, released on Feb. 14, 2023, describing the Russian effort to carry out the systematic deportation of Ukraine’s children. (The February 2023 report was followed in November 2023 by a report on Belarus’ collaboration with Russia.) The February 2023 report found that more than 6,000 children between the ages of four months and 17 years had been transported to 43 Russian-operated camps and facilities since the launch of Russia’s full-scale invasion of the country in February 2022. The transferred children underwent political reeducation and in some cases were prevented from returning to Ukraine. The February 2023 report was almost immediately followed by ICC Prosecutor Karim Khan’s announcement that the Pre-Trial Chamber of the ICC had approved arrest warrants for Putin and Lvova-Belova – the first warrants issued in the ICC investigation into the situation in Ukraine.

Today’s report is among the most detailed and comprehensive public efforts taken to date to track Ukrainian children subject to Russia’s systematic deportation. It offers new details tracing the framework of governmental actions, laws, procedures, and systems that have enabled Russia to relocate children from Ukraine to Russia in a targeted program of coerced adoption and fostering of those children with Russian citizens.

The report identifies and chronicles the experiences of 314 individual Ukrainian children subject to Russia’s program of relocation, guardianship, adoption, and fostering. It tracks their passage from the occupied Donetsk and Luhansk oblasts (regions) to midpoint locations in Russia before they were placed with Russian citizens or placed in institutions and listed on Russia’s adoption databases. It shows that Russian Federation-flagged military transport planes under the direct control of Putin’s office transported groups of children from Ukraine. It describes how Russian Federation-controlled databases obfuscated Ukrainian children’s identities, including their nationality, in order to facilitate their placement with Russian families and to conceal the government’s program of coerced adoption and fostering. The Yale Humanitarian Research Lab team created dossiers of each child identified in the report containing detailed identification for the ICC Office of the Prosecutor (OTP).

Legal Significance of the Report’s Findings

This latest report has substantial implications for ongoing and future legal accountability efforts seeking to address Russian-perpetrated atrocities in Ukraine. The findings could position the ICC Prosecutor to levy additional charges against Putin, Lvova-Belova, and other Russian officials for war crimes and crimes against humanity. (The ICC has jurisdiction over the situation in Ukraine, because Ukraine accepted the Court’s jurisdiction over alleged crimes committed on Ukrainian territory with two declarations in April 2014 and September 2015.) The details presented in the report also may provide evidence that could, together with additional evidence, support a broader case of genocide. The unlawful actions also likely constitute violations of Russia’s obligations as a State Party to the CRC.

War Crimes

The ICC has already issued arrest warrants against Putin and Lvova-Belova for the war crimes of unlawful deportation of a population (children) and unlawful transfer of a population (children) from occupied areas of Ukraine to the Russian Federation. This report provides new and more detailed evidence to support those charges. It also potentially subjects additional Russian officials involved in the unlawful deportation detailed in the report to war crimes charges.

The 1949 Geneva Conventions (GCs) and their Additional Protocols (APs) established an extensive framework of rules and protections intended to limit the collateral effects of armed conflict and protect civilians not participating in hostilities. These protections include a prohibition on the forced movement, transfer, or deportation of civilians in international armed conflicts – subject to limited exceptions under international law. Codifying these principles, the Rome Statute – the treaty that created and governs the ICC – establishes the corresponding war crime of “unlawful deportation or transfer” (Article 8(2)(a)(vii)) under ICC jurisdiction.

The war crime of “unlawful deportation or transfer” involves five elements: (1) The perpetrator deported or transferred one or more persons to another State or to another location; (2) such person or persons were protected under one or more of the Geneva Conventions of 1949; (3) the perpetrator was aware of the factual circumstances that established that protected status; (4) the conduct took place in the context of and was associated with an international armed conflict; and (5) the perpetrator was aware of factual circumstances that established the existence of an armed conflict. As detailed in the new report, the Russian Federation’s systematic transfer of Ukrainian children to Russian territory to undergo a targeted program of coerced reeducation, fostering, and adoption meets all five elements.

According to the report, Russia has seized at least 314 children in Ukraine. Russia collaborated with occupation authorities to then transfer these children to Russia to place them with citizens of Russia or in State-run institutions where they were later listed on Russian adoption databases. The Ukrainian children in Russian custody qualify as “protected persons” as established by Article 4 of GCIV, which defines protected persons as those persons who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” The targeted program of coerced reeducation, fostering, and adoption took place in the context of the international armed conflict between Russia and Ukraine, and the officials involved in the program were aware of those circumstances.

The report found that once the children were in Russia, the Kremlin refused to release critical identification information for the children to authorities, such as the International Committee of the Red Cross’ Central Tracing Agency (CTA), and deliberately concealed the children’s national identities. This refusal grossly violates the API Article 78(3) prescription requiring the transmission of identification information to the CTA. The intentional obfuscation of critical identification information and the naturalization of Ukrainian children further contributes to the war crime of unlawful transfer or deportation by facilitating the permanent relocation and absorption of Ukraine’s children into Russia during an international armed conflict – actions undertaken with the Russian perpetrators’ awareness of the children’s protected status within the context of an international armed conflict.

While international law permits narrow exceptions to the prohibition on non-consensual transfers during armed conflict, such as allowing parties to evacuate children for “compelling reasons” of health or medical treatment, Russia’s actions do not fulfill the requirements for these exceptions. By forcibly transferring Ukrainian children into Russian systems of reeducation and coerced adoption and fostering, the Russian government has failed to uphold its legal obligations to relocate the separated children to a neutral country and to prevent family separations in cases where guardians are known – two parameters required by GCIV Articles 24 and 49 as well as API Article 78 (to which Russia and Ukraine are State Parties) for permissible temporary child evacuations.

Moreover, international law requires that the occupying power arrange for the continuation of separated children’s education during evacuations “as far as possible” by “persons of a similar cultural tradition” (GCIV Article 24). The parties must also refrain from changing the child’s personal status, including her or his nationality (GCIV Article 50). In addition, all relocations must be intended to be temporary. The Russian institutions that received Ukrainian children have subjected the children to pro-Russian reeducation programs with the goal of “Russification.” This, in combination with Russia’s naturalization of Ukrainian children to erase their national identity and enable their permanent placement with Russian families, flagrantly contravenes GCIV’s safeguards in cases of permitted child evacuations.

Crimes Against Humanity 

Russia is prohibited under customary international law from committing crimes against humanity and its officials are liable for any such crimes committed in Ukraine under the Rome Statute. The United Nations General Assembly, through the endorsement of international legal principles recognized by the Nuremberg Tribunal, and the International Law Commission have incorporated the crime against humanity of deportation as a principle of customary international law. Article 7 of the Rome Statute defines crimes against humanity to include the “deportation or forcible transfer of population” if “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The crime includes the “forced displacement” of people “by expulsion or other coercive acts from the area in which they are lawfully present without grounds permitted under international law.”

The ICC evaluates five elements to determine whether the crime against humanity of deportation or forcible transfer of population has been committed: (1) The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts; (2) such person or persons were lawfully present in the area from which they were so deported or transferred; (3) the perpetrator was aware of the factual circumstances that established the lawfulness of such presence; (4) the conduct was committed as part of a widespread or systematic attack directed against a civilian population; and (5) the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. As today’s report explains, Russia’s actions meet all five of these elements.

First, Russia has forcibly transferred children through coercive acts without grounds permitted under international law. According to the ICC’s Elements of Crimes, forcible transfer includes both physical force and the “threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.” The report details 314 children, the majority of which have been taken from institutions in occupied regions and put into Russia’s foster and adoption system. It also reveals how, through coercion and duress, Russia has encouraged and orchestrated the movement of hundreds of Ukrainian children to Russia or Russian-occupied territory. As explained above, despite Russian posturingas a benevolent actor promoting child welfare, there are no grounds under international law that permit Russia’s coerced transfer of Ukrainian children to Russia.

The second and third elements of the crime against humanity of forced population transfer require that the Ukrainian children were lawfully present in the area from which they were deported or transferred; and that the Russian actors involved were aware that their presence was lawful. According to the report, the 314 children deported were Ukrainian citizens and lawfully residing within Ukraine. The Humanitarian Research Lab assessed to a high degree of confidence that these children were from Ukraine and that Russian federal government officials were aware of their Ukrainian origin by reviewing official statements and documents, including public records from Russian adoption databases. Other public actions confirm that those who orchestrated the transfer acted knowingly, including Putin’s decree to expedite and simplify the naturalization of Ukrainian children after government officials identified naturalization as the biggest barrier to adoption by Russian families.

The fourth and fifth elements of the crime require that Russia’s conduct was committed – and that Russian officials knew it was committed – as part of a widespread or systematic attack directed against a civilian population. The transfer of the children took place during the full-scale invasion of Ukraine, which began in February 2022, and it was part of a program of widespread or systematic attacks directed against Ukrainian civilians. The program of coerced transfer of children was also itself widespread or systematic, as documented in the report. An extensive Russian bureaucracy created and carried out a program that transferred Ukrainian children to Russia for adoption and fostering with citizens of Russia. That program was facilitated by Russian legal and policy changes designed to enable and expedite the program.

Genocide

Genocide is prohibited by customary international law, the United Nations Genocide Convention, and the Rome Statute, all of which apply to Russia for its actions in Ukraine. As the International Law Commission makes clear, the prohibition on genocide is one of the peremptory norms of international law, from which there can be no derogation. The Genocide Convention, to which Russia is a State Party, prohibits the forcible transfer of children from one ethnic, national, or racial group to another. Article 6(e) of the Rome Statute incorporates that same language, under which the forcible transfer of children is a genocidal act.

The report chronicles in detail Russia’s use of physical force and coercive tactics to facilitate the transfer of Ukrainian children to Russian facilities and guardians, denying their ability to reconnect with their Ukrainian families. Russia has engaged in a larger mission to “Russify” these children and supplant Ukrainian identity with Russian identity.

It is extraordinarily difficult to prove the specific intent to destroy a group in whole or in part that is required to demonstrate genocide. For this reason, and because no international tribunal has ever convicted someone of genocide for the forcible transfer of children, it is unlikely that the evidence in the report of forced relocation of children from Ukraine to Russia would, on its own, be charged as genocide. Nonetheless, the facts documented in this new report would, together with additional evidence, provide support for a broader case of genocide.

United Nations Convention on the Rights of the Child (CRC)

Russia’s forced deportation, reeducation, and adoption and fostering of children from Ukraine further violates many of its obligations under the CRC, including the explicit prohibition of the transfer and non-return of children abroad (Article 11). In addition, Russia’s intentional obfuscation of Ukrainian children’s identity on adoption databases, including by concealing their nationality to facilitate their adoption into Russian families, contravenes its CRC obligations to preserve the child’s nationality, name, and family relations (Article 8(1)). Many of the Ukrainian children listed for adoption or placed in Russian families were naturalized in a process enabled by new Russian legislation expediting the citizenship process. Adoption law in Russia authorizes adoptive parents to change the child’s surname, first name, patronymic, and date and place of birth. Consequently, it will be difficult or impossible for the Ukrainian families of the transferred children who are adopted to locate them. The children who have retained Ukrainian citizenship have been subjected to pro-Russian reeducation. These actions violate Russia’s responsibility under the CRC to preserve the children’s identification information, combat the transfer and non-return of children abroad, and consider the importance of continuity in the child’s ethnic, cultural, and linguistic background and upbringing.

As a State Party to the CRC, Russia must regularly report to the Committee on the Rights of the Child, which engages in dialogue with the State Party to address concerns as well as issues recommendations on State conduct. The Committee also has the authority to conduct inquiries into allegations of grave or systematic rights violations under the CRC – including violations of international humanitarian law to which Russia must adhere under CRC Article 38(1). In January 2024, the Committee concluded its consideration of the combined sixth and seventh periodic report of the Russian Federation submitted in 2019. Its concluding observations expressed deep concern about the situation of children in Ukraine. The Committee has not established the due date of the eighth periodic report, which will provide an opportunity for the Committee to further investigate Russia’s ongoing abuses in Ukraine.

Conclusion

The Yale School of Public Health’s Humanitarian Research Lab’s new report reaffirms that the Russian Federation has engaged in the systematic, intentional, and widespread forced transfer of children from Ukraine to Russia. It provides more detailed, granular information regarding the fates of specific children subject to non-consensual relocation and the responsibility of individual Russian officials for those acts. It makes clear that the children whose forced removal from Ukraine is documented in the report have endured coerced reeducation, adoption, and naturalization. The report’s findings, while devastating, provide the necessary foundation to hold those responsible for these actions accountable for their gross violations of international law perpetrated during Russia’s unlawful war of aggression in Ukraine.

IMAGE: Ukrainian flags in memory of soldiers who died during the war against Russia are seen on the Maidan Nezalezhnosti on July 29, 2023 in Kyiv, Ukraine. (Photo by Andriy Zhyhaylo/Obozrevatel/Global Images Ukraine via Getty Images)

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The verdict offers a rare glimmer of hope for accountability for those who have suffered human rights violations due to the actions of U.S. companies. Filed in 2008, the case is the first in which a jury has found a private company complicit in the U.S. government’s post-9/11 program of torture. It remains unclear whether this could be the beginning of a revival of the Alien Tort Statute (ATS), the law under which the case was brought – or whether this will prove a tantalizing but fleeting victory.

The Rise and Fall of the Alien Tort Statute

The jury’s verdict in Al Shimari et al v. CACI was based on claims made under Alien Tort Statute, a law passed by the First Congress as part of the Judiciary Act of 1789. The ATS allows foreign nationals to seek redress in U.S. courts for violations of international law, or as the statute puts it, “the law of nations or a treaty of the United States.”

The Alien Tort Statute first came to prominence in 1979 with another case filed by the Center for Constitutional Rights (CCR) – the same nonprofit that pursued the Al Shimari case. Filártiga v. Peña‑Irala, filed by Peter Weiss and his team at CCR, on behalf of Paraguayan national Joel Filártiga, a prominent political activist, and his daughter Dolly Filártiga against Paraguayan police officer Américo Norberto Peña‑Irala, who tortured Dolly’s brother Joelito Filártiga to death in Paraguay “in retaliation for his father’s political activities and beliefs.” The case led to a landmark decision by the Second Circuit Court of Appeals, awarding damages of over ten million dollars – a sum never collected, as Peña‑Irala had been deported from the United States by the time the case was decided. The case set off a host of lawsuits over the course of decades, as plaintiffs who had nowhere else to turn sought to use it to achieve accountability for violations of international law that would otherwise have gone unaddressed.

The ATS has faced setback after setback over the last two decades. In 2004, in Sosa v. Alvarez Machain, the U.S. Supreme Court permitted suits under the ATS to continue – a victory for a human rights community that had expected much worse. The Court, concluding that the ATS was merely jurisdictional, outlined a two‑part test for determining whether a claim is actionable under the ATS: first, the international norm at issue must be “specific, universal, and obligatory,” and, second, it must be a proper exercise of judicial discretion. The limited the kinds of claims that could be brought to the federal courts under the Statute to only those based on the very most established international law prohibitions.

A much bigger blow, however, came in 2013 with the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. There, the Court concluded that the ATS cause of action did not apply to wholly extraterritorial conduct. Only claims that “touch and concern the territory of the United States . . . with sufficient force,” it explained, would displace the “presumption against extraterritoriality;” and “mere corporate presence” in the United States was insufficient. The Court seemingly placed the nails in the coffin in a series of subsequent cases – in 2018 in Jesner v Arab Bank, PLC, the Court held that an ATS suit could not be brought against a foreign corporation for conduct outside the United States. In a subsequent pair of cases that went to the Court in 2021 – Nestlé USA, Inc. v. Doe and Cargill Inc. v. Doe – the Court held that the statute did not apply to wholly extraterritorial conduct by U.S.-based corporations. This left many wondering what, if anything, might be left of the ATS.

Resurrection of the ATS? Al Shimari et al v. CACI

In 2008, the CCR filed suit federal court in Virginia on behalf of four Iraqi men who had been held and tortured at Abu Ghraib. The complaint alleged that CACI Premier Technology, Inc., which had been hired by the U.S. government to provide interrogation services at Abu Ghraib, had conspired to torture the plaintiffs and subject them to cruel, inhuman, and degrading treatment – including beatings, sexual abuse, forced nudity, and other acts – in violation of international law. (The plaintiffs did not sue the U.S. government or its employees because of the longstanding principle of sovereign immunity, a doctrine that generally immunizes the State and its agents from civil suit. A decision in this case by Judge Leonie M. Brinkema in 2019, however, cast doubt on that principle in cases involving peremptory norms (jus cogens violations). Other defendants were originally part of the suit, but the Court ordered the claims against them dismissed without prejudice in 2008. The District Court dismissed all claims against CACI International with prejudice in 2013.)

The underlying facts of the case, as summarized by the U.S. Court of Appeals for the Fourth Circuit Court of Appeals in 2016, are as follows:

The plaintiffs alleged in their complaint that CACI interrogators entered into a conspiracy with low-ranking military police officials to commit abusive acts on the plaintiffs, in order to “soften up” the detainees so that they would be more responsive during later interrogations. The plaintiffs further alleged that they were victims of a wide range of mistreatment, including being beaten, choked, “subjected to electric shocks,” “repeatedly shot in the head with a taser gun,” “forcibly subjected to sexual acts,” subjected to sensory deprivation, placed in stress positions for extended periods of time, deprived of food, water, and sleep, threatened with unleashed dogs and death, and forced to wear women’s underwear.

Additionally, the plaintiffs alleged that CACI interrogators “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees that clearly violated the Geneva Conventions, the Army Field Manual, and the laws of the United States.” […] The plaintiffs contend that these acts of abuse were possible because of a “command vacuum” at Abu Ghraib, caused by the failure of military leaders to exercise effective oversight over CACI interrogators and military police.

The case has undergone more twists and turns than this article can summarize. (CCR’s case page includes a case timeline, together with large numbers of the case files.) According to CCR, the 16 years of litigation entailed “more than 20 attempts by CACI to have the case dismissed.” A previous trial ended in a mistrial after a jury failed to reach a verdict.

CACI’s principal defense at trial was the “borrowed servant” doctrine – a rule that can allow an employer to avoid liability for the unlawful actions of its employees if those acts were committed while under the control of a “borrowing” employer. CACI suggested that the U.S. Army exercised control over CACI interrogators when any unlawful conduct occurred and therefore CACI could not be held liable. The jury rejected that defense, finding CACI responsible for its employees’ conduct. It found that the company was liable under the Alien Tort Statute for conspiracy to commit torture and cruel, inhuman, or degrading treatment of the plaintiffs (the aiding and abetting claim had been dismissed before the case reached the jury.)

It is hard to overstate how unusual such a verdict is. In reviewing every single ATS suit brought in the entire history of the ATS, for our article, Has the Alien Tort Statute Made a Difference?, my coauthors and I found only 25 ATS cases that resulted in monetary judgments that were not subsequently overturned. We were also able to document 33 ATS cases that settled before reaching a judgment on the merits; such settlements were offered by corporations seeking to avoid bad publicity and precedents.

The Al Shirmari case may help chart a path for plaintiffs and their lawyers seeking a way to navigate the constraints imposed by the Supreme Court’s embrace of the presumption against extraterritoriality for the ATS, first in Kiobel, and most recently in Nestlé. In rejecting CACI’s motion to dismiss after Nestlé, the district court highlighted the substantial U.S. connections in the case, even though the torture itself took place abroad. The court distinguished the facts of the case from Kiobel, Jesner, and Nestlé at some length, noting in particular that the alleged torts were “committed by U.S. nationals, acting under a U.S. government contract, and in foreign territory controlled by the U.S. government.” Under these circumstances, it concluded, the presumption did not properly apply.

What will come next is as yet unclear. It is possible that CACI will decide to settle the suit and pay the plaintiffs some or all of the amount awarded by the jury. Or it may appeal it to the Fourth Circuit, seeking to have the verdict overturned. In the meantime, however, the human rights community should relish this rare victory – and the vindication it represents.

IMAGE: Empty cells are shown here Apr. 17, 2003, inside the Abu Ghraib Prison, 10 km. west of Baghdad, Iraq. (Photo by Marco Di Lauro/Getty Images)

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On July 12, Director of National Intelligence Avril Haines signed Intelligence Community Directive 711, which establishes new requirements for intelligence community (IC) administration of prepublication reviews. It is the first IC-wide guidance on prepublication review, and it will lead to changes in the much-criticized (including by us) system of prior restraint on speech that applies to millions of current and former U.S. government employees. The directive includes a few of the reforms we have proposed and in some procedural respects represents small steps in the direction of fixing a badly broken system. But it also contains very disappointing speech-harming provisions, and even the potential improvements will depend on how individual intelligence elements implement the directive. On the whole, the directive is very disappointing.

Background on Prepublication Review

The U.S. government requires prepublication review for written works by certain current and former U.S. government officials. Those subject to prepublication review, including most former employees who have or had top secret/sensitive compartmented information (TS/SCI) clearance (us included), are required to submit prior to publication a vaguely defined and often sweeping range of material to the agency that issued the security clearance, which is typically the agency for which one worked. What precisely must be submitted differs from agency to agency (at present, each agency has its own policy). Many agencies, in their policies or as a matter of practice, require prepublication review of any material, whether fiction or nonfiction, that might be related to an employee’s government service. And the obligation applies for the rest of one’s life.

We have previously written about the problems with this system, which we have argued constitutes the largest system of prior restraint on speech in U.S. history. In particular, we have criticized the preclearance system’s lack of clear and reasonable standards or adequate process, and the chilling effect the attendant prior restraint has on the speech of millions of former government employees. And we have offered specific proposals for how to improve it.

We made many of these arguments in an amicus brief we submitted to the U.S. Supreme Court in support of the unsuccessful petition for certiorari in Edgar v. Haines. The government’s reply brief in opposition, filed with the Court in April 2022, noted that the House and Senate intelligence committees had called in 2017 for the director of national intelligence to issue “‘an IC-wide policy regarding pre-publication review’ with ‘improve[ments] to better incentivize compliance and to ensure that personnel fulfill their commitments.’” The brief stated that the Office of the Director of National Intelligence (ODNI) “has informed this Office that its review of IC prepublication-review policies is ongoing and that it is in the process of responding to that congressional request.” More than two years after the Court denied certiorari, this intelligence community directive is the IC’s response.

Limited Uniformity

Existing prepublication review policies are highly decentralized. Each agency has established its own system with its own procedures and its own rules about what must be precleared. That has meant that someone who had TS/SCI clearance to work at the Department of Defense may, for example, have to submit materials for review that someone with similar clearance at the State Department would not. (Some officials have clearances through multiple agencies, which further complicates the process.) Review of similar documents may take two weeks at one agency and two months at another. A piece of writing may be easily cleared by one agency and held up for review or cleared only with specific revisions by another.

The new directive “applies to the IC, as defined by the National Security Act of 1947” and to other elements that may be designated by the president as an element of the IC. The stated aim of the directive is to establish “uniform prepublication review rules among IC elements” (D.2). To do this, the directive requires IC elements to “establish a prepublication review process or modify their current prepublication process in a manner that is consistent with [the directive], including by creating or maintaining a public-facing website” (D.4). This should provide greater uniformity to a process that has been riddled with inconsistencies.

The directive only applies going forward, however. It “does not alter the responsibilities or obligations of individuals under law, federal regulation, or contract, including existing U.S. Government nondisclosure agreements (NDAs)” (D.16). That said, the directive provides that, “[u]pon request of covered personnel, IC elements shall afford covered personnel who have signed NDAs that predate this ICD an opportunity to sign new NDAs consistent with this ICD and cancel the prior NDAs.”

The uniformity imposed by the directive is limited. The directive by its terms “applies to the IC, as defined by the National Security Act of 1947” and to other entities so designated by the president. It defines “covered personnel” to include those “whose access to covered intelligence was or is sponsored by an element of the IC,” including those located outside the IC (C.2). Another part of Directive 711 states:

Current or former personnel who were not employed by an IC element (e.g., congressional staff or industry personnel) shall contact the employing entity’s security office, or the Defense Counterintelligence and Security Agency for industry personnel, to determine which IC element sponsored their clearance, and shall submit the prepublication review requests to the IC element or department that sponsored their clearance. [D.3.c]

These provisions seem to mean that anyone whose access to covered intelligence was sponsored by an element of the IC is subject to the directive. But the directive does not appear to apply to those with access to classified information if their clearance was sponsored by an element outside the IC.

It thus seems doubtful that the directive applies to executive branch officials whose security clearances were sponsored by a non-IC element of the Defense Department, the State Department, or likely many other departments. And the extent to which the directive applies to White House staff (such as the members of the National Security Council) is unclear. It likely applies to the many White House officials (especially on the National Security Council) detailed from IC agencies who received their clearances from those IC agencies. But it seems not to apply to the many members of the White House staff who are not detailees from IC agencies and who did not receive clearances from an IC element. (A prominent example of this gap would be former National Security Adviser John Bolton, who got caught up in a highly dysfunctional preclearance review process entirely within the White House.)

This means the government will continue to apply inconsistent prepublication review standards even after this directive, though there will be greater uniformity within the IC. This non-uniformity is likely not fixable by the director of national intelligence (whose jurisdiction is basically limited to the IC). The president could close the loophole with an executive order akin to Directive 711 that applies to all persons whose clearances are not sponsored by an IC element. Unfortunately, we cannot recommend that course of action because the directive has too many shortcomings as currently written to justify its extension.

A Disappointingly Broad Duty to Preclear

Directive 711 provides that it applies to:

non-official material that a fully-informed person granted access to covered intelligence might reasonably deem to contain or be derived from covered intelligence and that is intended for disclosure to, or discussion with, one or more individuals not authorized to access covered intelligence, or which is intended for public dissemination. [C.3]

We fear that this strangely worded passage imposes a novel and super-broad speech-harming duty to preclear.

The passage recognizes an important fact about the preclearance review process: A piece of information in a publication may appear to not contain or be derived from classified information based on the information set of the current or former employee and yet concern classified information when viewed in the context of the wide range of other materials unknown to the employee. There is no way that the vast majority of employees and former employees can know that broader context when deciding whether to submit material for prepublication review. If former employees are confident based on their information set that the material they wish to publish does not contain and was not derived from classified information, how could they know whether someone with “full” information might reasonably reach a different conclusion? They cannot.

And yet that is what the directive appears to require those covered by the directive to do. The duty to preclear is tied to what a “fully-informed person granted access to covered intelligence” knows. Past or present employees who are confident based on their government experience and general knowledge that a publication contains no classified information have, it seems, a duty to preclear unless they are also confident that a “fully-informed person granted access to covered intelligence” would also conclude that the writing contains no classified information. This is literally an impossible standard to satisfy—no partially informed person can know what the fully informed person might reasonably conclude. The directive therefore seems to require those covered by it to preclear practically every publication with any conceivable connection to government work or even a government program on which the person did not work, even if there is no reason for the person to think that the publication contains or derives from classified information. And, relatedly, it appears to give the government a basis to require preclearance of practically any writing it likes.

In short, ODNI has opted for a regime that gives absolute priority to security over speech, and that maximizes the IC’s opportunity to see in advance every publication by every person who has ever held a TS/SCI clearance to ensure that the publication does not contain classified information. The security maximalism of the “fully-informed person” standard denies any role for First Amendment values. Moreover, it ignores that excessive restrictions might, in fact, jeopardize security. Indeed, it is far from clear that the directive will achieve its aims. If the massively overbroad new standard is taken literally, the IC will be swamped by a resource-stretching avalanche of preclearance requests for publications that raise no conceivable security concerns. But since the standard is impossible to satisfy if taken literally, many employees will surely put their own glosses on it or decline to comply, possibly to the detriment of national security.

It is conceivable that the ultimate aim of Directive 711 is to encourage employees to preclear if they are not sure if a publication contains classified information. That would be a more reasonable standard. But that is not what the language says. If that is what the directive nonetheless aimed to achieve, ODNI should clarify the relevant preclearance standard. As it is, the directive embraces an extreme duty to preclear for the entire IC that will chill likely speech to an unprecedented degree.

Other Elements of Breadth in the Prepublication Review Obligation

Directive 711 imposes a broad prepublication duty in other respects as well.

The directive’s demanding objective standard appears to require preclearance for a current or former employee who wishes to “publish” information that appears in classified documents but is also widely publicly known, even if not officially acknowledged. In practice, this means that those who worked on matters that have been widely reported cannot speak about matters that everyone already knows, disabling their participation in public discourse. (The problem is exacerbated by the fact that, as the litigation over the targeted killing policy in the Obama administration shows, what constitutes “official acknowledgement” is not always clear.) If one accepts that a former employee’s implicit confirmation of widely known but not officially acknowledged classified information could harm national security, one may think this is a reasonable restriction. The two of us have differing views on that question. But whatever one’s views, there is no doubt that this is a significant implication of the new directive.

The directive also applies to a vast array of materials that includes but is not limited to “works of fiction or non-fiction, such as: prepared oral statements, resumes, editorials, videos, books, scholarly papers, scripts, screenplays, interviews, speeches, newsletters, websites, social media postings, brochures, graphics, briefings, articles, presentations, book reviews, or remarks for panel discussions” (C.3.b). In short, it is not limited to nonfiction materials. Nor is it limited to works intended for “publication” in the traditional sense, as it applies to, among other things, “remarks for … discussions.” This broad range of covered materials is not new, but it is noteworthy.

Prior Restraint of Members of Congress

As noted above, Directive 711 provides that:

[c]urrent or former personnel who were not employed by an IC element (e.g., congressional staff or industry personnel) shall contact the employing entity’s security office, or the Defense Counterintelligence and Security Agency for industry personnel, to determine which IC element sponsored their clearance, and shall submit the prepublication review requests to the IC element or department that sponsored their clearance. [D.3.c]

Some commentators maintain that members of Congress are granted access to classified material “by virtue of the constitutional offices they hold.” But even those who advocate this view acknowledge that the access does not entitle members to sensitive compartmented information. Members are granted access to specific compartments by the executive branch based on a need to know a particular category of information. Congressional staff must apply for both TS/SCI security clearance and access to specific compartments. A condition of access to the information contained in those compartments, whether by members or staffers, is the signing of a non-disclosure agreement (NDA) that can, the directive makes clear, subject them to lifelong prepublication review obligations.

“[P]ersonnel … not employed by an IC element,” the directive explains, are subject to prepublication review through a process established by the element that provided the security clearance. Members and staff have long been signing NDAs as conditions of access to TS/SCI information that likely have contained similar obligations. Nonetheless, the implications of imposing on members and staff an expansive obligation to preclear “publications” through the IC for a lifetime are significant. Recall that the directive applies to “non-official material” that is the basis for mere “discussion” of the material. So if a member of Congress who had access to TS/SCI materials wants to discuss related matters, that discussion is now clearly subject to prepublication review by the agency that granted classified access to the information. If, for example, members wanted to criticize the U.S. program of torture at CIA black sites—a subject of significant disagreement between the CIA and Senate—they must submit their remarks to the CIA for clearance in advance. (If the remarks are made on the floor of the House or Senate, they would be protected by the Speech or Debate Clause, but that protection does not apply more broadly.)

On the Slightly Brighter Side

The new directive does contain improvements.

It states that the “purpose of prepublication review is to ensure the protection of classified government information, including intelligence and intelligence-related information, that upon disclosure reasonably could be expected to cause damage to the national security” (D.1). It also provides that the review should be “impartial, and free from political or policy bias” (D.5). These commitments should go without saying, but there is plenty of anecdotal evidence that the prepublication review process has been used for suppression of information that is not classified but that the government simply does not want made public. The tussle over the clearance of John Bolton’s book, for example, seemed to show that the Trump administration was holding up clearance at least in part because the material in the book cast Trump and his administration in an unfavorable light. Whether the prepublication review process will in fact be less susceptible to such viewpoint discrimination is, however, unclear, given that agencies remain in full control of their own review processes.

The directive also contains procedural improvements. It requires all IC elements to create a public web page for their prepublication reviews, give prompt acknowledgement of the receipt of a prepublication review request, and provide notice if the material has to be referred to another element. The directive also prohibits showing submitted material to those not involved in the review. One of us experienced this problem firsthand, discovering that a submitted book manuscript had been circulated far beyond those involved in the review of the manuscript for possible disclosure of classified information.

The directive requires each element to establish an appeals process. Up to this point, there has been no such process. The only option available to someone who was improperly refused permission to publish was to sue the government or proceed with publication and accept the consequences that might follow. The directive says that the submitter has 60 business days to appeal, that the IC element “shall strive to provide a final determination within 30 business days from receipt of the appeal” (D.10), and that the IC element must establish an “Appellate Authority” to handle such appeals (D.12). Beyond that, the directive does not specify how the appeals process should work or the standard of review that should be applied, and it does not bind the IC to any time limitation to resolve the appeal. Like much else in the directive, therefore, the effectiveness of the appeals process will depend entirely on how it is implemented in the agencies—which means that the end result is likely to be uneven at best.

Further Reform

There are several opportunities for further reform beyond those already mentioned.

First, the government should consider a temporal limit on who is subject to prepublication review. The new directive still applies to millions of former U.S. government employees who have not served for a decade or more, and whose access to classified information is so dated as to be practically irrelevant. It is a huge waste of the government’s time to review most materials written by such people and a huge burden on their free expression to mandate preclearance in this context.

We favor limiting the scope of those subject to prepublication review to those whose TS/SCI clearance has been active within the last 10 years, perhaps subject to discrete and targeted exceptions for certain super-sensitive programs. This would allow the government to focus on those who most likely possess information that could do harm to U.S. national security, justifying the prior restraint on their speech. It is important to understand that limiting the temporal scope of those obligated to submit to prepublication review would not mean that those without a prepublication duty could publish classified information. Any unauthorized disclosure of classified information is a crime, subject to prosecution under a number of federal statutes, including the Espionage Act. Prepublication review is an exceptional ex ante prophylactic measure whose justification weakens over time.

An alternative would be to make prepublication review optional for those who have not had access to classified information for a decade or more but offer them a safe harbor if they choose to submit material for review. Under this approach, they would no longer be obligated to submit materials for prepublication review, but they would be permitted to do so. If they voluntarily submitted material, that material, once cleared, could not be the basis for any future criminal, civil, or administrative punishment.

Second, the new directive is clearer that prepublication review should be carried out expeditiously, but it does not provide any binding limits. It provides that short, time-sensitive requests “shall be handled as expeditiously as practicable” (D.4.a) but does not specify what that means. It also states that if any review exceeds 30 business days, “the receiving IC element shall immediately notify the submitter with a status update and reason for the delay and then provide an update every four weeks thereafter” (D.4.b). This is an improvement over the status quo, but it is unlikely to prevent endless delays—a problem that has plagued the current system. In Freedman v. Maryland, the Supreme Court held that prior restraints must yield a determination “within a specified brief period.” The directive should be updated to include binding outer time limits, so that former employees are not left at the mercy of a process that can drag on indefinitely. Creating certainty would also incentivize better participation. As it is, many of those subject to prepublication review simply ignore the requirement because it is so cumbersome and unpredictable.

Third, the creation of an appeals process is a step forward, but leaving it up to the agencies to design and manage the appeals process makes the step a very small one. One stated goal of the directive is to create greater consistency across the many IC units. At a minimum, the directive should have provided more uniform standards—including the standard of proof and firm time limits for resolution of the appeal. For some matters, it may have been possible to create a centralized appeals process, though a central appeals body might have to rely on specialized expertise located within the agencies. As written, the directive will be interpreted differently by the many different IC elements, without any mechanism to identify or resolve those inconsistencies.

Conclusion

Directive 711 contains modest procedural improvements. But the core preclearance standard is exceptionally broad, and the efficacy of the core procedural improvement—an appeals process—will turn on the almost-certainly uneven implementation of the directive by the agencies. Considered in the round, the new directive is a missed opportunity.

The post The ODNI’s New and Disappointing Prepublication Review Process appeared first on Just Security.

In December 2022, Congress enacted sweeping transparency reforms for executive agreements, which took effect in September 2023. In this post, we assess how well this new transparency system is working based on publicly available information. As we will explain, the law has led to substantially more transparency for these agreements, as Congress had intended. In at least one respect, however, the executive branch’s compliance raises questions for Congress to consider, and there are other aspects of the new transparency regime that could be improved. As Congress knew when it enacted the law, more work remains to be done.

Case-Zablocki Act

Since World War II, the vast majority of international agreements concluded by the United States have been done as “executive agreements” rather than as Senate-approved treaties. Many of these executive agreements are authorized or approved by statutes (“congressional-executive agreements”), but others are concluded based on authority conferred by treaties (“treaty-based executive agreements”) or on the President’s independent constitutional authority (“sole executive agreements”).

The Case-Zablocki Act, first enacted in 1972, requires that the State Department report these various executive agreements to Congress. Until recently, the Act required reporting within 60 days after the agreements took effect. Another related statute has long required publication of the agreements on a State Department website within 180 days after they took effect.

The State Department’s reporting of agreements has often been late or incomplete, and Congress has amended the Case-Zablocki Act on a number of occasions in an effort to improve compliance, without much success. Over time, State Department regulations also exempted many categories of agreements from publication, such that the public was often not given information about what was being reported to Congress. Moreover, although in its reports to Congress the State Department included a brief background statement containing a citation of its legal authority for concluding the agreements, these background statements were not made public.

In addition to these limitations on transparency, neither the Case-Zablocki Act nor the publication statute covered non-binding agreements concluded by the executive branch, even though these agreements have grown over time and often resemble binding executive agreements in form and substance. We discussed some of these deficiencies in transparency in a law review article we published in 2020. More recently, we published another article discussing the increasing use of non-binding agreements by the executive branch, including by various administrative agencies.

Recent Amendments

In December 2022, Congress amended the Case-Zablocki Act to impose significant new transparency mandates for both executive agreements and some non-binding agreements. The revised Act now requires the State Department to transmit executive agreements to Congress on a monthly basis. In addition, the Department is required to transmit to Congress “qualifying non-binding instruments,” which are defined as non-binding instruments that “could reasonably be expected to have a significant impact on the foreign policy of the United States” or that are subject to a written communication from the chair or ranking member of the congressional foreign affairs committee.

For both the executive agreements and the qualifying non-binding instruments, the executive branch is supposed to include a “detailed description” of the legal authority that provides support for the agreement or instrument. When the legal support is Article II of the Constitution, moreover, the executive branch must explain its basis for relying on it. The revisions to the Act also require publication of most of what must be reported to Congress, including the descriptions of legal authority. These changes took effect in September 2023, and the State Department enacted regulations implementing them the following month. The regulations include, among other things, a list of factors that the executive branch must consider in determining whether a non-binding instrument is one that could reasonably be expected to have a significant impact on the foreign policy of the United States.

Transparency Reforms Prompted by the Statute

After six months of reporting and publication, we can begin to assess the executive branch’s compliance with the new statute. There have been substantial and important improvements, and a few disappointments.

Government Organization

The government appears to have organized itself to better serve the transparency and accountability aims of the new law. The State Department issued updated regulations in light of the statute and has been engaging with the dozens of agencies that conclude binding and non-binding agreements to ensure that they are aware of the new requirements. The Secretary of State has appointed a Chief International Agreements Officer, as required by the revised law.  The Department of Defense has also appointed a Chief International Agreements Officer of its own, as required. Other agencies are likewise making progress on this requirement. This is an important structural improvement, ensuring that there is someone accountable for compliance with the new law, as well as preexisting reporting obligations.

Publication of Binding Executive Agreements

The State Department has improved the public transparency of executive agreements. Starting in October 2023, it began publishing on a website the information that it was reporting monthly to Congress about executive agreements. (The actual text of the agreements unfortunately appears on a different website.) Between October 2023 and March 2024, the Department reported 36 executive agreements as well as the legal authority for the agreements in terms of citations without further explanation.

This website a major improvement in international agreement accountability. The government in the past published only about half of its binding executive agreements. Public access to the other half depended on enterprising private sources that were available only by paid subscription. At least as important, the legal authority for each agreement is now published, as the new law requires. This legal authority, which is usually but not always statutes, was previously conveyed to Congress but not made public. As directed by the new law, the citations are also more specific than they were in the past, indicating the specific section of a statute that the executive branch is relying on.

These changes are important for several reasons. They allow the public to know what executive agreements the government is making in its name. And they allow significantly broader scrutiny of the legality of binding executive agreements. Our previous work provided empirical and conceptual reasons to think that many executive agreements lacked a solid legal basis but noted that it was hard—due to resource constraints and imprecise legal citations—for the relevant congressional committees to scrutinize the legality of the agreements. The somewhat more elaborate citations, and especially their availability to the public, should in theory permit scholars and other experts to assess and criticize executive branch legality claims and bring doubtful ones to the attention of Congress. It also presumably requires the executive branch to focus at least a bit more thoroughly on the legal basis for such agreements—something that our prior work suggested it was not always doing.

One could argue that even the slightly more elaborate and now public explanation of the legal authority for agreements does not meet the new statutory requirement for a “detailed description” of such authority. A citation by itself might not amount to a description, let alone a detailed one. A separate issue is that when the Department cites to Article II of the Constitution, its explanations for why it is doing so have been cryptic—for example, just a reference to the “conduct of foreign relations,” even though there is no such general power listed in Article II, or to the provision in Article II directing that the President is to take care that the laws are faithfully executed.

There are ways that Congress could require further specification of legal authority, as we explained in our 2020 article, The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis. But for now the question is best left to negotiation over time between congressional staffers and the State Department. This is a new statutory regime, and the executive branch has made a number of important changes in its practice to comply with it. Congress was not specific about what it wanted the legal citations to look like, and it might be burdensome to require the State Department to give lengthy explanations for the legality of each agreement. Providing the specific statutes that the executive branch is relying on, and making them public, is at least a very good first step.

Publication of Non-Binding Agreements

The Department has another website that contains the texts of the qualifying non-binding instruments that it reports to Congress. Between October 2023 and March 2024, the Department reported 32 such instruments from several executive branch agencies. This is a major improvement since non-binding agreements in the past were generally available to Congress and the public only if an agency decided to publish them voluntarily. Few chose to do so, meaning that Congress and the American public were left in the dark even about important non-binding agreements. This new system for publicizing binding and non-binding agreements is a revolution viewed from this perspective.

It is noteworthy that, even though the Department is obligated to report only “qualifying non-binding instruments”—those deemed “significant” or subject to a communication by the Chair or Ranking Member of the House Foreign Affairs Committee or Senate Foreign Relations Committee—it is reporting nearly as many such instruments as executive agreements (which are not subject to a significance threshold).  There are, therefore, likely many more non-binding agreements concluded than is reflected in the number of reported agreements. This fact supports a critical empirical finding from our article, The Rise of Nonbinding International Agreements: non-binding instruments increasingly have become a central part of U.S. diplomatic relations.

But State Department practice on another aspect of its statutory duties concerning non-binding agreements is disappointing. The revised Case-Zablocki Act and the State Department’s regulations require a “detailed description” of legal authority for these instruments, just as for binding executive agreements. The Department has decided to comply with this obligation with a blanket assertion of authority that it includes in each monthly report to Congress and on the public website.  That blanket statement provides, in full:

Unless otherwise indicated, the following statement of legal authority in accordance with 1 USC 112b(a)(1)(A)(iii) applies to all listed instruments: The authority to enter into non-binding instruments with foreign states and other foreign actors in connection with the conduct of foreign relations derives from the President’s powers under Article II of the Constitution. The President has authority under Article II to represent the nation in foreign affairs, including the authority to communicate with foreign governments and to determine the form and manner in which the Executive engages in diplomacy. As applied to the entry into non-binding instruments with foreign states and other foreign actors in connection with the conduct of foreign relations, these authorities are exercised on a day-to-day basis by the agencies and departments of the executive branch under the general supervision of the President as Chief Executive, and in consultation with the Secretary of State.

Unless otherwise indicated, no new or amended statutory or regulatory authority is anticipated to be required to implement the listed instruments.

This statement may meet the letter of the law, but it almost certainly does not satisfy its spirit. That said, given that non-binding instruments do not purport to change the law, it is unclear what other information Congress was seeking with respect to the executive branch’s legal authority to conclude them.

What Remains To Be Done

Despite the substantial improvements in the transparency regime for executive agreements and non-binding instruments, additional changes should be considered.

First, as already noted, Congress might wish to insist that the reporting of the legal basis for both binding and non-binding agreements be more specific or detailed. The blanket assertion of a single legal basis for non-binding agreements is particularly uninformative and appears inconsistent with Congress’s intent.

Second, while the executive branch is to be commended for complying with the statutory requirements, the design of the public websites leaves a great deal to be desired. In order to access a binding executive agreement, one must click on the link for the month, find the agreement in a list, and then go to another website to find the text of the agreement. To find a non-binding instrument, one must click on the link for the month and then open zipped files of all the instruments for that month. It is impossible to search on these websites for a particular subject or country. While searching the posted agreements at this early stage is not difficult, given that only six months of reports have been posted, that will become more and more cumbersome over time. Moreover, the separation of the legal citations from the text of the agreements makes accessing the relevant legal basis for a given binding agreement more difficult than necessary. Likely a private company like HeinOnline will download and catalog these agreements and introduce a search function, but that will mean that only members of the public with access to a paid subscription service will be able to have functional access to the agreements.

Third, as we pointed out at the time the law was passed, there are significant gaps in the law’s scope. Most important of all, the Department of Defense (DOD) and Intelligence Community (IC) are exempted from the reporting requirements for non-binding instruments even though it appears likely that the DOD concludes more non-binding instruments than the rest of the U.S. government combined. That is a loophole that Congress should consider closing. If there are particular concerns relevant to the DOD or IC, those could be addressed when drafting an expansion of the reporting requirements. Through FOIA litigation, we have received thousands of the non-binding instruments concluded by the DOD, and we are unaware of any good reason to exclude the DOD from the transparency requirements for its unclassified instruments. The DOD and IC are, indeed, already subject to all other Case Act requirements. They are simply excluded from the coverage of non-binding instruments in the new law.

IMAGE: The U.S. Department of State is seen on January 6, 2020 in Washington, DC. (Photo by Mark Wilson/Getty Images)

The post Transparency of International Agreements Under the Revised Case-Zablocki Act: An Assessment After Six Months appeared first on Just Security.

Who pays for the terrible destruction wrought by war? Throughout history, reparations following interstate conflict have proven troublingly elusive for most victim States. Today, Ukraine faces this same challenge. As the conflict rages on, Ukraine is demanding accountability and reparations for the damage done by Russia’s manifestly illegal invasion. In November 2022, the United Nations General Assembly responded by resolving that Russia “must be held to account for any violations,” and that it “must bear the legal consequences of all of its internationally wrongful acts, including making reparation for the injury.” Ukraine has also secured the support of the Council of Europe for the establishment of a damage registry to accompany a yet-to-be-created compensation mechanism.

Even with widespread international support for war reparations, finding the money to fund them is difficult. Despite international pressure, Russia has made clear it has no intention of stopping the war or paying reparations. And because it maintains one of five permanent seats on the U.N. Security Council, Russia can veto any enforcement action by the U.N. As a result, any proposal for a mandatory compensation commission of the kind established by the Security Council in the wake of Iraq’s invasion of Kuwait would also be dead on arrival.

In the face of this impasse, many have argued for what seems like an obvious solution: simply seize the hundreds of billions of Russian central bank assets already frozen in the West and turn them over to Ukraine. And, indeed, the U.S. Senate Foreign Relations Committee has recently  endorsed a plan to do just that. However, as we will explain, this seductive approach clearly violates international law. Taking such unlawful action—even as a response to Russia’s own illegal aggression—could lead sovereign States to think twice about putting assets in the United States in the future, thus reducing the dollar’s sway and limiting the potential bite of U.S. monetary sanctions. (Indeed, European finance ministers have raised concerns about even taxing the profits on the frozen assets, warning that doing so could undermine the euro as a store of value.)  It could also risk unleashing extrajudicial expropriation of assets, including U.S. assets, by other countries around the world. The better answer, we argue here and in a forthcoming article in the Stanford Law Review, is to rely on legitimate, collective countermeasures to continue to freeze Russian central bank assets until Russia meets its obligation to pay reparations.

The Wrong Answer: Seizing Frozen Assets

Numerous diplomats, policymakers, and scholars have called for seizing the estimated $300 billion in Russian sovereign assets frozen in the wake of the 2022 invasion and transferring them to Ukraine as reparations. The United States appears poised to heed that call with the small fraction of Russian frozen assets subject to U.S. jurisdiction. But this approach would just respond to one international law violation with another.

Faced with a wrongdoer unwilling to pay and a victim with limited capacity for self-help, the widely held impulse to seize (rather than merely freeze) these assets and transfer them to Ukraine is understandable. Doing nothing, after all, would further undermine international law’s centuries-old principle that injured States have a rightful claim to reparation. Lawbreaking States’ obligation to pay reparations has been recognized repeatedly by international tribunals since at least 1928, when the Permanent Court of International Justice issued its seminal Factory at Chorzów decision. Yet apart from a handful of exceptions in the aftermaths of WWII and the Cold War, this obligation has rarely been enforced against recalcitrant States.

But seizing the frozen assets outright is not the answer. The principal reason is the doctrine of sovereign immunity, which demands that States and their assets enjoy immunity from other States’ jurisdiction and acts of execution or enforcement. (Similar concerns, it is worth noting, do not apply to seizure of the assets of Russian oligarchs, because those assets are privately held.)

The U.N. Convention on Jurisdictional Immunities of States and Their Property, understood by the International Court of Justice (ICJ) to “shed light” on customary sovereign-immunity rules, provides no exception that would permit the seizure of Russian central bank assets. Some commentators have sought to dodge the doctrine by arguing that sovereign immunity applies only in judicial proceedings, and thus has no application to unilateral executive seizure of assets (an approach taken by draft legislation in Congress). But this argument does not pass muster in view of the animating principles of sovereign immunity and the Convention’s broad definition of a “court” as “any organ of a State, however named, entitled to exercise judicial functions.” However institutionally veiled, sovereign asset seizures are of a judicial nature; they are premised on a finding of culpability or wrongfulness of the kind usually entrusted to the judiciary. In any case, cutting out courts in an attempt to avoid international legal constraints could introduce domestic constitutional concerns, although whether foreign sovereigns have due process rights is an open question.

Some proponents of the seize-and-transfer approach respond that seizure can be characterized as a “countermeasure”—an otherwise unlawful action that is only permissible because it is taken against another State for its internationally wrongful act and is meant to induce that target State to comply with the law. Here, these proponents argue, States can seize Russia’s assets even though doing so would normally be illegal because the seizures are meant to bring Russia into compliance with international law.

But this argument ignores a key requirement: lawful countermeasures must be, as far as possible, reversible in their effects. The whole point of countermeasures is to persuade the wrongdoing State to stop breaking the law. Once they do, the countermeasure is supposed to be reversed and everyone goes back to following the law. Outright asset seizures don’t fulfill this requirement.  Once States seize Russia’s frozen assets, sell them off, and give them to Ukraine to rebuild, there will be nothing left to give back to Russia if and when it finally stops waging its illegal war and pays reparations. As a result, seizures cannot be lawful countermeasures, no matter how much we might wish they were.  Sadly, then, the plan endorsed by the Senate Foreign Relations Committee would break international law—and it would do so for very little gain. As the draft legislation recognizes, only 1 to 2 percent of the frozen assets are subject to the jurisdiction of the United States.

(Part of) The Solution: Using Collective Countermeasures to Continue to Freeze the Assets

The solution instead is to rely on collective countermeasures to continue to freeze the Russian central bank assets. The ongoing freeze allows those assets to serve as leverage to bring Russia to the negotiating table, while preserving them for Ukraine’s use after the war is over.

This approach, too, begins with the frozen central bank assets. But it does not simply call for seizing them.  Instead, States would continue to hold the assets in a frozen state. Since freezing assets, even for an extended period, is much more easily reversible and more defensible as compliance-inducing, it can be justified as a lawful countermeasure.

These freezes need not be lifted as soon as the war finally ends; instead, the assets can be frozen until Russia agrees to meet its obligation to provide reparations. True, countermeasures doctrine calls for reversing the action taken as a countermeasure once the internationally wrongful act has ceased. However, in this case, the failure to pay reparations is itself an unlawful act intertwined with Russia’s underlying aggression. Hence, we argue, assets may remain frozen unless and until Russia finally makes good on its international obligation to pay reparations for the harm done in its unlawful war.

In order for this to work, however, there is an important legal hurdle to clear: There are serious questions about whether third States can put in place countermeasures if they themselves have not been directly harmed.  The International Law Commission’s Draft Articles on State Responsibility, which articulate most authoritatively the rules governing the invocation of countermeasures, are clear that injured States may put in place countermeasures against the States that harmed them.  But the Draft Articles are explicitly agnostic with regard to a question critical to the viability of a multilateral countermeasures-based response to Russia’s aggression. This raises an important question for our approach (a question proponents of seizures must also address): Are countermeasures taken by third-party States who have not suffered direct material injury allowed?

The answer to this question matters, as the collective character of the asset freezes is critical to their efficacy. Ukraine itself has jurisdiction over only a fraction of the more than $300 billion pool of Russian assets frozen worldwide. Alone, Ukraine could do relatively little to vindicate its reparation claims.

Fortunately, the ILC’s Draft Articles did not foreclose the development of customary international law to permit collective countermeasures. And in fact, especially given the support for and deployment of such countermeasures by both Western and non-Western States in recent years (most notably against Syria and, of course, Russia), a survey of State practice since the adoption of the Draft Articles supports the conclusion that customary international law does allow for collective countermeasures against violations of obligations erga omnes, which are obligations arising “towards the international community as a whole.”

In fact, this “collectivist” approach has already begun to take hold in the cyber context. A discussion on collective countermeasures convened in 2022 under the auspices of the Oxford Process on International Law Protections in Cyberspace suggested two tiers of collective countermeasures, with those responsive to violations of erga omnes obligations seen by most participants as within the scope of existing countermeasures doctrine.

In light of these developments in State practice and opinio juris, it appears that collective countermeasures may, as a matter of contemporary customary international law, be employed not only to put an end to initial breaches of fundamental international norms, but also as a legitimate means of securing reparations for States that are victims of such breaches.

The Draft Articles themselves make clear that non-injured States may demand reparations when “acting in the interest of the injured party.” One recent ICJ decision corroborates this conclusion. In The Gambia v. Myanmar, the ICJ found that the Gambia had “standing to invoke the responsibility of Myanmar for the alleged breaches of its obligations,” rejecting Myanmar’s argument against the “entitlement of ‘non-injured’ States to claim reparation on behalf of alleged victims who are not their nationals” and disregarding Myanmar’s warning that allowing “non-injured” States to invoke its responsibility “would lead to a proliferation of disputes.”

That decision coheres with the ICJ’s broader recognition of States’ “legal interest” in violations of obligations erga omnes. Such violations–including the fundamental prohibition on the use of force enshrined in the U.N. Charter–contravene every State’s interests in upholding the international legal rights and values they embody. Absent an appeal to judicial or Security Council authority, collective countermeasures are the only viable means by which a non-materially injured State may give effect to these legal interests.

As with any internationally wrongful conduct, a violation of an obligation erga omnes places the responsible State “under an obligation to make full reparation.” The Draft Articles call this obligation the “immediate corollary” of a State’s responsibility–suggesting it is part and parcel of the erga omnes violation from which that responsibility arises, and thus susceptible to collective countermeasures within the narrow framework sketched above.

Some argue that even this limited role for collective countermeasures risks unleashing an escalatory spiral of States acting against each other in bad faith. But one might fear similar abuse, if only to a lesser degree, of States’ fairly settled prerogative to deploy first-party countermeasures. At the same time, a prohibition on collective countermeasures might impose its own costs by “depriv[ing] states of opportunities to engage together on their shared governance project” in order “to rally behind the violated norms and to insist that these norms apply equally to all states,” as Professor Monica Hakimi has argued.

Without resort to collective countermeasures, weaker States are likely to be left with little or no redress even for some of the most serious possible breaches of international law. The requirement of a violation of obligations erga omnes limits the use of collective countermeasures and helps to prevent the feared spiral of reprisal while still allowing such countermeasures to play a role in remedying this inegalitarian reality. Similar concerns motivate the proposal we make in our article to institutionalize collective countermeasures with the participation of the U.N. General Assembly.

Finally, it is worth noting that continuing to freeze the assets is entirely compatible with the European plan to set aside the profits from Russian frozen assets to help fund Ukraine. That plan, which preserves the frozen assets themselves, does not face the same concerns about reversibility that the plan to seize the assets altogether does.

A Role for the General Assembly

How, then, to translate collective countermeasures into reparations? We propose that the General Assembly play a central role in establishing a reparations mechanism relying on ongoing collective countermeasures by recommending the creation of a registry of frozen Russian sovereign assets—through an agreement between the U.N. and consenting States which specifies that States registering frozen assets agree to either transfer assets to a future U.N.-approved authority or reparations mechanism, or to unfreeze the assets upon a U.N. determination that Russia has otherwise satisfied its reparations obligation. The participating States could also agree to cooperate with international justice mechanisms such as the International Criminal Court or other international tribunals, should compensation be awarded as a result of the ongoing prosecutions.

This frozen asset registry, which could be established as a companion to the newly created registry of claims, would deliver Ukraine an invaluable bargaining chip in peace negotiations with Russia, rendering collective countermeasures more effective. Organizing each State’s countermeasures under a central authority would strengthen commitment to a particular theory of collective countermeasures and clarify the stakes for Russia, possibly increasing the likelihood that Russia would cooperate.

This approach provides some assurance that Russia will not have to negotiate preconditions of ending asset freezes with each individual State, but rather with a single entity, reducing transaction costs. This approach also increases the transparency and, relatedly, legitimacy of collective countermeasures. Because the agreement would stipulate no transfer of funds without Russian consent, the measures remain reversible, and a transparent asset registry paired with a damages registry assuages possible concerns that countermeasures against Russia could grow disproportionate to the damages. Finally, placing all the frozen assets under one umbrella further incentivizes Russia to consider agreeing to a reparations mechanism that would be funded by those assets.

Drawbacks and Response

Relying on collective countermeasures to secure reparations has one big drawback—Ukraine’s mounting needs are serious, and collective countermeasures do not promise immediate relief. We argue that it is nonetheless the best way forward. Ad hoc legislative proposals to seize Russian assets may provide money to Ukrainians now, but they undermine the very international legal legitimacy that has proven Ukraine’s greatest asset in the war.

Seizing assets also does little to confront a broader set of concerns about uncompensated international law violations for other victim States. Keeping this larger picture in view is not only important as a matter of equity and justice; it is also in the best interest of Ukraine, which must maintain unprecedented levels of global support for its ongoing self-defense and its efforts to hold the architects of this illegal war accountable for the extraordinary harm they have done.

Our approach offers a replicable template for the pursuit of accountability in other contexts. By seeking to induce Russian compliance here, the international community could set an important precedent for a more robust approach to upholding the reparations obligation in the future. Collective countermeasures could then be used to recognize and relieve harms suffered due to future State violations of obligations erga omnes. Once created in the context of the current conflict, a collective countermeasures mechanism with the support of the General Assembly would be added to the menu of institutional options for obtaining reparations in future conflicts.

* * *

This proposal does not deliver all that Ukraine and its allies wish. While collective countermeasures provide an invaluable tool for enabling States that are not a party to the conflict to support Ukraine’s demands for accountability for Russia’s violations of erga omnes obligations, applied properly they do not offer Ukrainians the immediate support they want and need. Russia’s assets will be indefinitely frozen, but Ukraine will not receive reparations unless and until Russia finally agrees to a reparations scheme. Yet a system of collective countermeasures, institutionalized through the U.N., can create pressure to bring Russia to the table. And by relying on and developing a doctrine that could be employed by other States in the future, rather than depending on one-off (and illegal) legislative proposals to seize Russian assets, it charts a path not only for repairing the harms suffered by Ukraine but for repairing the losses suffered by any other State subjected to an unlawful war in the future.

Authors’ Note:  This article draws on a forthcoming article in the Stanford Law Review: War Reparations: The Case for Countermeasures.

IMAGE: A person walks past a hospital destroyed by a Russian missile attack in the town of Selydove, Donetsk region, amid the Russian invasion of Ukraine on February 16, 2024. (Photo by ANATOLII STEPANOV/AFP via Getty Images)

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