Professor Steven Ratner speaks at the recent discussion on Venezuela while fellow panelists, from left, Karima Bennoune, Julian Davis Mortenson, and Kristina Daugirdas listen.
By Bob Needham
Michigan Law
A faculty panel discussion on recent military activity in Venezuela agreed on one central point: The US clearly violated the law, both international and domestic.
The US incursion into Venezuela and arrest of its president, Nicolás Maduro, on drug trafficking charges raises a number of legal questions. But the five international law faculty experts who recently spoke to an overflow student audience unanimously criticized the actions.
“There are times when it is important not to complicate simple legal conclusions,” said Professor Julian Arato—director of the Center for International and Comparative Law and of the Program on Law and the Global Economy—who moderated the panel discussion.
“Our country’s attack on the sovereign nation of Venezuela was flatly illegal. It was a grave violation of the prohibition on the use of force— a fundamental tenet of our international legal order,” he said. “We have to face that fact and examine all of its consequences with our eyes wide open.”
Here are four key points raised during the discussion:
—————
1. The U.S. action violated the United Nations charter—and continues to do so.
Professor Kristina Daugirdas, the Francis A. Allen Collegiate Professor of Law, noted that the UN charter is the starting point for any discussion of the international use of force. The charter prohibits the “threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations.”
The charter permits two exceptions: when the UN Security Council has authorized the action, or when the action is taken in self-defense. “There was no Security Council resolution authorizing this action. There was no plausible argument on the basis of self-defense,” Daugirdas said.
The charter defines self-defense as a response to an armed attack, she noted. “It is not credible to describe drug trafficking into the United States as an armed attack…Responses to armed attacks, if they occur, also need to be necessary and proportionate. There, too, is a problem. Defending legally what the United States has done as self-defense in response to drug trafficking simply doesn’t pass the laugh test.”
Daugirdas also argued that the US continues to violate the UN charter by making credible threats to use unlawful force again. “I think there are lots of people both inside and outside the administration who don’t care about flagrantly violating international law, and that’s partly due to the sense that the United States can get away with it,” she said.
—————
2. The U.S. may legally prosecute offenses committed elsewhere—but it may not abduct suspects in those crimes.
Professor Steven Ratner—the Bruno Simma Collegiate Professor of Law and director of the U-M Donia Human Rights Center—addressed the legality of the US prosecuting drug crimes committed outside its borders. He said that both domestic and international law permit such prosecutions—but, just as clearly, abducting suspects in such crimes is not legal.
International law does not permit states to exercise their sovereign powers on the territory of another state without consent, he said. “This key rule goes to the core of the international system, in order for each state to have a monopoly on law enforcement within its own borders. Any other rule would mean that states could just nab their enemies off the territory of their neighbors, or even kill them,” he said.
“International law says that if a state wants custody of a suspect abroad, it must ask the other state to hand them over, or better yet, the state should conclude an extradition treaty to regularize the process…Indeed, the United States has had a treaty of extradition with Venezuela since 1922. That treaty, however, does not require Venezuela or the United States to extradite its own nationals.”
While the abduction is illegal under international law, Ratner added that, under Supreme Court precedents, the illegality is probably not sufficient to dismiss the case in a US court—although other states follow a different rule. Maduro might also argue that he is immune from prosecution as a foreign head of state, but a court might defer to the State Department’s view that he was not the legitimate leader when he was seized.
—————
3. It’s not just an international law issue.
Professor Julian Davis Mortenson, the James G. Phillipp Professor of Law, discussed some of the issues under US law raised by the action in Venezuela, starting with the basic tension between Congress’s powers as outlined in Article 1 of the Constitution—including the ability to declare war—and the president’s powers as outlined in Article 2. However, Mortenson explained that newer laws come into play as well.
The supremacy clause states that treaties must be considered “the supreme law of the land.” If the UN charter is considered a treaty, by violating that charter, the president is also violating his constitutional duty to execute the laws of the country, Mortenson said.
In addition, he said, the 1973 War Powers Resolution permits the president to use the armed forces in hostilities in three circumstances: under a declaration of war, with specific statutory authority, or in response to an attack. “Fairly read, this provision in the US code designates what the president has done here as beyond the president’s constitutional authorities in the view of Congress—which has the authority to designate rules and regulations for governance of the land and sea forces,” Mortenson said.
—————
4. Venezuela can be seen as part of a larger pattern.
Professor Karima Bennoune, ‘94, the Lewis M. Simes Professor of Law, placed the Venezuela incursion in a broader context: “The US military action in Venezuela and the subsequent developments are just one part of the [administration’s] assault on the rule of law,” she said, noting that just days later, “a late-night newsflash informed anyone who cared that the US was withdrawing from 66 international organizations and treaties, including the UN Framework Convention on climate change.
“Eviscerating the UN charter means we are wasting the lessons of brutal human history. The charter was drafted in the aftermath of World War II, which may have killed as much as 3 percent of the human population at the time,” Bennoune said. “We have to have the courage to defend these rules so that such lessons never need to be learned again.”
Michigan Law
A faculty panel discussion on recent military activity in Venezuela agreed on one central point: The US clearly violated the law, both international and domestic.
The US incursion into Venezuela and arrest of its president, Nicolás Maduro, on drug trafficking charges raises a number of legal questions. But the five international law faculty experts who recently spoke to an overflow student audience unanimously criticized the actions.
“There are times when it is important not to complicate simple legal conclusions,” said Professor Julian Arato—director of the Center for International and Comparative Law and of the Program on Law and the Global Economy—who moderated the panel discussion.
“Our country’s attack on the sovereign nation of Venezuela was flatly illegal. It was a grave violation of the prohibition on the use of force— a fundamental tenet of our international legal order,” he said. “We have to face that fact and examine all of its consequences with our eyes wide open.”
Here are four key points raised during the discussion:
—————
1. The U.S. action violated the United Nations charter—and continues to do so.
Professor Kristina Daugirdas, the Francis A. Allen Collegiate Professor of Law, noted that the UN charter is the starting point for any discussion of the international use of force. The charter prohibits the “threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations.”
The charter permits two exceptions: when the UN Security Council has authorized the action, or when the action is taken in self-defense. “There was no Security Council resolution authorizing this action. There was no plausible argument on the basis of self-defense,” Daugirdas said.
The charter defines self-defense as a response to an armed attack, she noted. “It is not credible to describe drug trafficking into the United States as an armed attack…Responses to armed attacks, if they occur, also need to be necessary and proportionate. There, too, is a problem. Defending legally what the United States has done as self-defense in response to drug trafficking simply doesn’t pass the laugh test.”
Daugirdas also argued that the US continues to violate the UN charter by making credible threats to use unlawful force again. “I think there are lots of people both inside and outside the administration who don’t care about flagrantly violating international law, and that’s partly due to the sense that the United States can get away with it,” she said.
—————
2. The U.S. may legally prosecute offenses committed elsewhere—but it may not abduct suspects in those crimes.
Professor Steven Ratner—the Bruno Simma Collegiate Professor of Law and director of the U-M Donia Human Rights Center—addressed the legality of the US prosecuting drug crimes committed outside its borders. He said that both domestic and international law permit such prosecutions—but, just as clearly, abducting suspects in such crimes is not legal.
International law does not permit states to exercise their sovereign powers on the territory of another state without consent, he said. “This key rule goes to the core of the international system, in order for each state to have a monopoly on law enforcement within its own borders. Any other rule would mean that states could just nab their enemies off the territory of their neighbors, or even kill them,” he said.
“International law says that if a state wants custody of a suspect abroad, it must ask the other state to hand them over, or better yet, the state should conclude an extradition treaty to regularize the process…Indeed, the United States has had a treaty of extradition with Venezuela since 1922. That treaty, however, does not require Venezuela or the United States to extradite its own nationals.”
While the abduction is illegal under international law, Ratner added that, under Supreme Court precedents, the illegality is probably not sufficient to dismiss the case in a US court—although other states follow a different rule. Maduro might also argue that he is immune from prosecution as a foreign head of state, but a court might defer to the State Department’s view that he was not the legitimate leader when he was seized.
—————
3. It’s not just an international law issue.
Professor Julian Davis Mortenson, the James G. Phillipp Professor of Law, discussed some of the issues under US law raised by the action in Venezuela, starting with the basic tension between Congress’s powers as outlined in Article 1 of the Constitution—including the ability to declare war—and the president’s powers as outlined in Article 2. However, Mortenson explained that newer laws come into play as well.
The supremacy clause states that treaties must be considered “the supreme law of the land.” If the UN charter is considered a treaty, by violating that charter, the president is also violating his constitutional duty to execute the laws of the country, Mortenson said.
In addition, he said, the 1973 War Powers Resolution permits the president to use the armed forces in hostilities in three circumstances: under a declaration of war, with specific statutory authority, or in response to an attack. “Fairly read, this provision in the US code designates what the president has done here as beyond the president’s constitutional authorities in the view of Congress—which has the authority to designate rules and regulations for governance of the land and sea forces,” Mortenson said.
—————
4. Venezuela can be seen as part of a larger pattern.
Professor Karima Bennoune, ‘94, the Lewis M. Simes Professor of Law, placed the Venezuela incursion in a broader context: “The US military action in Venezuela and the subsequent developments are just one part of the [administration’s] assault on the rule of law,” she said, noting that just days later, “a late-night newsflash informed anyone who cared that the US was withdrawing from 66 international organizations and treaties, including the UN Framework Convention on climate change.
“Eviscerating the UN charter means we are wasting the lessons of brutal human history. The charter was drafted in the aftermath of World War II, which may have killed as much as 3 percent of the human population at the time,” Bennoune said. “We have to have the courage to defend these rules so that such lessons never need to be learned again.”
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