Contemporary Practice of the United States Relating to International Law

Kristina Daugirdas; Julian Davis Mortenson

doi:10.5305/amerjintelaw.109.4.0873

¹ Steinhaur, Jennifer, Democrats Hand Victory to Obama on Iran Nuclear Deal, N.Y. Times, Sept. 10, 2015, at A1 Google Scholar. Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 109 AJIL 644, 649 (2015)Google Scholar. See also Joint Comprehensive Plan of Action, July 14, 2015, at http://www.state.gov/documents/organization/245317.pdf [hereinafter JCPOA].

² JCPOA, supra note 1.

³ Atomic Energy Act of 1954, 42 U.S.C. §2160e, amended by Iran Nuclear Agreement Review Act of 2015, Pub. L. No.114–17, 129 Stat. 201 (2015).

⁴ Id. § 135(b).

⁵ Id. §§ 135(c)(2)(A), (C).

⁶ Id. § 135(c)(2)(B).

⁷ Remarks on the Multilateral Agreement to Prevent Iran From Developing a Nuclear Weapon, 2015 Daily Comp. Pres. Doc. 493 (July 14, 2015). See also Background Conference Call on Iran, the White House (July 14, 2015), at https://www.whitehouse.gov/the-press-office/2015/07/14/background-conference-call-iran.

⁸ Morello, Carol & DeYoung, Karen, Historic Deal Reached with Iran to Limit Nuclear Program, Wash. Post, July 14, 2015 Google Scholar, at https://www.washingtonpost.com/world/historic-nuclear-deal-with-iran-expected-to-be-an-nounced/2015/07/14/5f8dddb2-29ea-11e5-a5ea-cf74396e59ec_story.html.

⁹ DeYoung, Karen, Lawmakers Urge Obama to Delay U.N. Vote on Iran Until Congress Weighs in, Wash. Post, July 16, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/lawmakers-urge-obama-to-delay-un-vote-on-iran-until-congress-weighs-in/2015/07/16/636cdcc0-2bfd-11e5-bd33-395c05608059_ story.html.

¹⁰ [Editors’ note: The referenced provision is paragraph 43(ii) of S.C. Res. 2231 (July 20, 2015).]

¹¹ Press Briefing by Press Secretary Josh Earnest, the White House (July 20, 2015), at https://www.whitehouse.gov/the-press-office/2015/07/20/press-briefing-press-secretary-josh-earnest-72015.

¹² Iran Nuclear Agreement Review: Hearing Before the S. Comm. on Foreign Relations, 114th Cong. (2015) (state ment of John Kerry, Sec’y of State of the United States) [hereinafter Kerry July 23 Testimony ]. See also Iran Nuclear Agreement, The Administration’s Case: Hearing Before the H. Comm. on Foreign Affairs, 114th Cong. (2015) (state ment of John Kerry, Sec’y of State of the United States). In remarks in September, Kerry reiterated the point: “So while it may not happen all at once, it is clear that if we reject this plan, the multilateral sanctions regime will start to unravel. The pressure on Iran will lessen and our negotiating leverage will diminish, if not disappear. Now, obviously, that is not the path, as some critics would have us believe, toa so-called better deal. It is a path to a much weaker position for the United States of America and to a much more dangerous Middle East.” Sec’y of State John Kerry, Remarks on Nuclear Agreement with Iran, U.S. Dep’t of State (Sept. 2, 2015), at http://www.state.gov/secretary/remarks/2015/09/246574.htm.

¹³ Kerry July 23 Testimony, supra note 12.

¹⁴ Id. See also Impacts of the Joint Comprehensive Plan of Action (JCPOA) on U.S. Interests and the Military Balance in the Middle East : Hearing Before the S. Comm. on Armed Serv., 114th Cong. 22–23, 28 (2015) (statement of Gen. Martin Dempsey, who noted that “[i]f followed, the deal addresses one critical and the most dangerous point of friction with the Iranian regime,” while cautioning that “there are at least five other malign activities which give us and our regional partners concern,” including the pursuit of ballistic missile technology, weapons trafficking, the use of surrogates and proxies, the use of naval mines and undersea activity, and malicious activity in cyberspace), available at http://www.armed-services.senate.gov/imo/media/doc/15-66%20-%207-29-15.pdf.

¹⁵ Cooper, Helen & Harris, Gardiner, Top General Gives “Pragmatic” View of Iran Nuclear Deal, N.Y. Times, July 29, 2015, at A10 Google Scholar.

¹⁶ Letter from Barack Obama, President of the U.S. to Jerrold Nadler, U.S. Congressman (Aug. 19, 2015), available at http://nadler.house.gov/sites/nadler.house.gov/files/documents/Letter%20to%20Congressman%20Nadler%20re%20jcpoa.pdf.

¹⁷ Id.

¹⁸ Weisman, Jonathan, In Letter, Obama Tells Congress U.S. Will Still Press Iran, N.Y. Times, Aug. 20, 2015, at A3 Google Scholar.

¹⁹ Peterson, Kristina & Lee, Carol E., Obama Secures Votes on Iran, Wall St. J., Sept. 3, 2015, at A1.Google Scholar

²⁰ Steinhauer, supra note 1.

²¹ Statement by the President, the White House (Sept. 10, 2015), at https://www.whitehouse.gov/the-press-office/2015/09/10/statement-president.

²² DeYoung, Karen, Administration Prepares to Implement Iran Nuclear Deal as Republicans Fail to Stop It, Wash. Post, Sept. 17, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/administration-prepares-to-implement-iran-nuclear-deal-as-republicans-again-fail-to-stop-it/2015/09/17/dc4053ec-5d81-11e5-9757-e49273f05f65_story.html.

²³ H.R. 3461, 114th Cong. (2015). See also Herszenhorn, David M., House Rejects Iran Nuclear Deal, N.Y. Times, Sept. 11, 2015, at A6 Google Scholar.

²⁴ H. Res. 411, 114th Cong. (2015) (finding that the president has not complied with section 2 of Inara). The White House rejected the idea that any side deals existed. The Historic Deal that Will Prevent Iran from Acquiring a Nuclear Weapon, the White House, at https://www.whitehouse.gov/issues/foreign-policy/iran-deal/q-and-a (last visited Oct. 29, 2015).

²⁵ DeYoung, supra note 22.

²⁶ See Daugirdas & Mortenson, supra note 1, at 650.

²⁷ JCPOA, supra note 1, at 16; S.C. Res. 2231, supra note 10, ¶¶ 11–12.

²⁸ See Daugirdas & Mortenson, supra note 1, at 650.

²⁹ Statement on the Adoption of the Joint Comprehensive Plan of Action to Prevent Iran From Obtaining a Nuclear Weapon, 2015 Daily Comp. Pres. Doc. 734 (Oct. 18, 2015); see also Memorandum on Preparing for Implementation of the Joint Comprehensive Plan of Action of July 14, 2015 (JCPOA), 2015 Daily Comp. Pres. Doc. 735 (Oct. 18, 2015).

³⁰ Erdbrink, Thomas, Iran Is Set to Put Nuclear Deal, Now Ratified, In Motion, N.Y. Times, Oct. 14, 2015, at A9 Google Scholar.

³¹ Id.

³² Gladstone, Rick, Iran Meets Atomic Agency Deadline for Material on Past Activities, N.Y. Times, Oct. 15, 2015, at A13 Google Scholar.

³³ IAEA Statement on Iran, Int’l Atomic Energy Agency (Oct. 15, 2015), at https://www.iaea.org/news-center/news/iaea-statement-iran-0.

¹ See Fact Sheet: President Xi Jinping’s State Visit to the United States, The White House (Sept. 25, 2015), at https://www.whitehouse.gov/the-press-office/2015/09/25/fact-sheet-president-xi-jinpings-state-visit-united-states [hereinafter Fact Sheet]; The President’s News Conference with President Xi Jinping of China, 2015 Daily Comp. Pres. Doc. 647 (Sept. 25, 2015) [hereinafter News Conference].

² Fact Sheet, supra note 1.

³ Id.

⁴ Id.; see also News Conference, supra note 1 (statement of Xi, as translated) (“China and the United States are two major cyber countries and we should strengthen dialogue and cooperation. Confrontation and friction are not made by choice for both sides. During my visit, competent authorities of both countries have reached important consensus on joint fight against cyber-crimes. Both sides agree to step up crime cases, investigation assistance and information-sharing. And both government[s] will not be engaged in or knowingly support online theft of intellectual properties. And we will explore the formulation of appropriate state, behavior and norms of the cyberspace. And we will establish a high-level joint dialogue mechanism on the fight against cyber-crimes and related issues, and to establish hot line links.”).

⁵ Remarks by the President to the Business Roundtable, 2015 Daily Comp. Pres. Doc. 624 (2015) [herein after Roundtable Remarks] (“We have repeatedly said to the Chinese government that we understand traditional intelligence-gathering functions that all states, including us, engage in. And we will do everything we can to stop you from getting state secrets or transcripts of a meeting that I’ve had, but we understand you’re going to be trying to do that. That is fundamentally different from your government or its proxies engaging directly in industrial espi onage and stealing trade secrets, stealing proprietary information from companies. That we consider an act of aggression that has to stop.”); see also Conference Call to Preview the Visit of President Xi Jinping of the People’s Republic of China, the White House (Sept. 22, 2015), at https://www.whitehouse.gov/the-press-office/2015/09/23/conference-call-preview-visit-president-xi-jinping-peoples-republic [hereinafter Conference Call] (containing a state ment from Deputy National Security Advisor for Strategic Communications Ben Rhodes that the U.S. concern about Chinese cyber activities is not “a matter of whether or not countries conduct traditional espion age”).

⁶ News Conference, supra note 1; see also id. (statement of Xi) (“With President Obama and I have on many occasions—and this is a long history—have exchange of views on this. I think it’s fair to say we’ve reached a lot of consensus on cybersecurity, including some new consensus. Overall, the United States is the strongest country in terms of cyber strength. China is the world’s biggest cyber country in terms of the number of Web users. We have more than 600 million of netizens. Our two sides should cooperate because cooperation will benefit both, and confrontation will lead to losses on both sides. We are entirely able to carry out government department and expert levels of dialogue and exchanges to strengthen our cooperation in many respects and turn the cyber security between the two countries into a new growth source, rather than a point of confrontation between the two sides. China strongly opposes and combats the theft of commercial secrets and other kinds of hacking attacks. The U.S. side, if has concerns in this respect, we can, through the exiting channels, express those concerns. The Chinese side will take seriously the U.S. provision of any information. Now, we have already, and in the future, we will still, through the law enforcement authorities, maintain communication and coordination on this matter, and appropriately address them. So, all in all, we have broad, common interest in the field of the cyber. But we need to strengthen cooperation and avoid leading to confrontation. And nor should we politicize this issue. During my current visit, I think it’s fair to say that the two sides, concerning combatting cyber-crimes, have reached a lot of consensus. Going forward, we need to, at an early date, reach further agreement on them and further put them on the ground.”).

⁷ Fact Sheet, supra note 1.

⁸ Nakashima, Ellen & Mufson, Steven, The U.S. and China Agree Not to Conduct Economic Espionage in Cyberspace, Wash. Post, Sept. 25, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/the-us-and-china-agree-not-to-conduct-economic-espionage-in-cyberspace/2015/09/25/1c03f4b8-63a2-11e5-8e9e-dce 8a2a2a679_story.html.

⁹ Readout of Senior Administration Officials’ Meeting with Secretary of the Central Political and Legal Affairs Commission of the Communist Party of China Meng Jianzhu, The White House (Sept. 12, 2015), at https://www.whitehouse.gov/the-press-office/2015/09/12/readout-senior-administration-officials-meeting-secretarycentral.

¹⁰ Nakashima, Ellen, U.S. Won’t Impose Sanctions on Chinese Companies Before Xi Visit, Wash. Post, Sept. 14, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/the-us-will-not-impose-sanctions-on-chinese-companies-before-state-visit-by-president-xi-jinping/2015/09/14/98a447e6-5b25-11e5-b38e-06883aacba64_story.html.

¹¹ Sanger, David E., Cyberthreat Posed by China and Iran Confounds White House, N.Y. Times, Sept. 15, 2015, at A6 Google Scholar.

¹² See Davis, Julie Hirschfeld & Sanger, David E., Obama and Xi Jinping of China Agree to Steps on Cybertheft, N.Y. Times, Sept. 25, 2015, at A9 Google Scholar.

¹³ See Nakashima & Mufson, supra note 8; see also U.S. Cybersecurity Policy and Threats: Hearing Before the S. Comm. on Armed Servs., 114th Cong. 74–75 (2015) (quoting Director of National Intelligence James Clapper as saying “it appears that the threat of potential economic sanctions, particularly imposing them right before the visit of President Xi, I think, got their attention”), available at http://www.armed-services.senate.gov/imo/media/doc/15-75%20-%209-29-15.pdf [hereinafter Hearing ].

¹⁴ See Nakashima & Mufson, supra note 8; see also Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 109 AJIL 643, 658 (2015)Google Scholar (discussing the content and scope of the executive order).

¹⁵ Nakashima, Ellen, U.S. Developing Sanctions Against China over Cyberthefts, Wash. Post, Aug. 30, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/administration-developing-sanctions-against-china-over-cyberespionage/2015/08/30/9b2910aa-480b-11e5-8ab4-c73967a143d3_story.html. See Press Gaggle with Press Secretary Josh Earnest en Route Dillingham, Ak, the White House (Sept. 2, 2015), at https://www.whitehouse.gov/the-press-office/2015/09/03/press-gaggle-press-secretary-josh-earnest-en-route-dillingham-ak (“I. .. don’t have much I can say publicly about any steps related to economic sanctions that we’re contemplat ing.”); see Daily Press Briefing, U.S. Dep’T of State (Aug. 31, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/08/246473.htm#China (“[W]e ha[ve] nothing to announce in terms of economic... sanctions. Certainly, that remains a tool in the proverbial toolbox when we look at these kinds of situations, but I’m not saying we’re moving forward in that direction.”).

¹⁶ Nakashima, Ellen, U.S. Won’t Impose Sanctions on Chinese Companies Before Xi Visit, Wash. Post, Sept. 14, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/the-us-will-not-impose-sanctions-on-chinese-companies-before-state-visit-by-president-xi-jinping/2015/09/14/98a447e6-5b25-11e5-b38e-06883aacba64_story.html.

¹⁷ News Conference, supra note 1.

¹⁸ Id.

¹⁹ See Hearing, supra note 13, at 54.

²⁰ Id. at 53.

²¹ Nakashima, Ellen & Goldman, Adam, In a First, Chinese Hackers Are Arrested at the Behest of the U.S. Govern ment, Wash. Post, Oct. 9, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/in-a-first-chinese-hackers-are-arrested-at-the-behest-of-the-us-government/2015/10/09/0a7b0e46-6778-11e5-8325-a42b5a459b1e_story.html. China has not indicated if it will prosecute these hackers. See id.

²² Nakashima, Ellen, China Still Trying to Hack U.S. Firms Despite Xi’s Vow to Refrain, Analysts Say, Wash. Post, Oct. 19, 2015 Google Scholar, at https://www.washingtonpost.com/world/national-security/china-still-trying-to-hack-us-firms-despite-xis-vow-to-refrain-analysts-say/2015/10/18/d9a923fe-75a8-11e5-b9c1-f03c48c96ac2_story.html.

²³ Id.

²⁴ Id.

¹ U.S. Ratification of the International Convention for the Suppression of Acts of Nuclear Terrorism, U.S. Dep’t of State(Sept. 30, 2012), at http://www.state.gov/r/pa/prs/ps/2015/09/247636.htm [hereinafter U.S. Ratification]; International Convention for the Suppression of Acts of Terrorism, Nuclear, opened for signature Sept. 14, 2005, S. Treaty Doc. No. 110-4, 2445 U.N.T.S. 89 Google Scholar [hereinafter NTC].

² George W. Bush, Letter of Transmittal, International Convention for the Suppression of Acts of Nuclear Terrorism, S. Treaty Doc. No. 110-4, 2005 WL 5653114 (July 12, 2007) [hereinafter Letter of Transmittal].

³ USA Freedom Act of 2015, Pub. L. No. 114-23, §§ 811–12, 129 Stat. 268, 309–13 (2015).

⁴ Letter of Transmittal, supra note 2, at III.

⁵ Id.

⁶ Id.

⁷ Id.

⁸ 154 Cong. Rec. S 9554-56 (daily ed. Sept. 25, 2008).

⁹ Id. at S9555; Letter of Transmittal, supra note 2, at III.

¹⁰ NTC, supra note 1, art. 23(2).

¹¹ 154 Cong. Rec. S 9555.

¹² See Implementation of Certain International Nuclear and Maritime Terrorism Agreements: Hearing Before the Subcomm. on Crime, Terrorism and Homeland Security of the H. Comm. on the Judiciary, 112th Cong. 26 (2011) [hereinafter Hearing on the Nuclear Terrorism Convention ] (statement of Thomas M. Countryman, Assistant Sec’y, Bureau of Int’l Security and Nonproliferation, U.S. Dep’t of State).

¹³ S. 1318 114th Cong. § 203(c) (2015).

¹⁴ Id. § 201(a) (“Penalties.—Any person who violates this section shall be punished as provided under section 2332a(a).”); 18 U.S.C. § 2332a(a) (“A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction. .. shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.”); Hearing on the Nuclear Terrorism Convention, supra note 12, at 2–3 (statement of Robert C. Scott, Ranking Member, Subcomm. on Crime, Terrorism, and Homeland Security).

¹⁵ Hearing on the Nuclear Terrorism Convention, supra note 12, app. 37 (response to hearing questions from Ronald Weich, Assistant Att’y Gen., Off. of Legislative Aff., U.S. Department of Justice); see also Ntc, supra note 1, art. 10(1) (stating that a state party shall, upon receiving information that a violation of the treaty has occurred, “take such measures as may be necessary under its national law to investigate the facts contained in the information”); Id. art. 5(b) (requiring states parties to make violations of the treaty “punishable by appropriate penalties which take into account the grave nature of these offences”); Letter from Judith C. Applebaum, Acting Assistant Attorney General, Department of Justice Office of Legislative Affairs, to Lamar Smith, Chairman, House Committee on the Judiciary (June 21, 2012), available at http://www.justice.gov/sites/default/files/ola/legacy/2012/10/31/06-21-12-ltr-re-hr-5889.pdf.

¹⁶ Hearing on the Nuclear Terrorism Convention, supra note 12, app. 37.

¹⁷ H.R. 5889, 112th Cong. (2012).

¹⁸ Leahy, Patrick, Letter to the Editor, Nuclear Terrorism Bill Delay Unwarranted, Wash. Times (Sept. 19, 2012)Google Scholar, at http://www.washingtontimes.com/news/2012/sep/19/nuclear-terrorism-bill-delay-unwarranted; Barnes, Diana, Adoption of Nuclear Security Pacts Stalls in Senate, Nuclear Threat Initiative (Sept. 27, 2012)Google Scholar, at http://www.nti.org/gsn/article/adoption-nuclear-security-pacts-stalls-senate.

¹⁹ Grassley and Whitehouse Introduce Legislation to Combat Nuclear Terrorism and Proliferation, Chuck Grassley (May 13, 2015), at http://www.grassley.senate.gov/news/news-releases/grassley-and-whitehouse-introduce-legislation-combat-nuclear-terrorism-and.

²⁰ See 161 Cong. Rec. S 4176 (daily ed. June 16, 2015) (statement of Sen. Reed) (“[W]e have been advised by the Department of Justice that these provisions are not necessary, given the scope of existing law with respect to terrorists and with respect to anyone who conducts a terrorist act.”); see also 18 U.S.C. §§ 2332(a), 2332b(a), 2332f(a), 2332h, 2339A, 2339B, 2516(1)(q), 3592(c)(9).

²¹ USA Freedom Act of 2015, Pub. L. No. 114-23, §§ 811–12, 129 Stat. 268, 309–13 (2015).

²² Id. § 811(a), 129 Stat. at 309 (implementing Ntc Article 2(1)(b), which states that a person commits an offense under the treaty when that person “uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material”).

²³ Id. § 811(a), 129 Stat. at 309 (implementing NTC Article 2(3), which states that “[a]ny person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of the present article” and NTC Article 2(4), which states that “[a]ny person also commits an offence if that person: (a) Participates as an accomplice in an offence as set forth in paragraph 1, 2 or 3 of the present article; or (b) Organizes or directs others to commit an offence as set forth in paragraph 1, 2 or 3 of the present article; or (c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1, 2 or 3 of the present article by a group of persons acting with a common purpose. .. “).

²⁴ Id. § 811(a), 129 Stat. at 309–10 (implementing NTC Article 9(1)(b), which requires that “[e]ach State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 when. .. (b) The offence is committed on board a vessel flying the flag of that State or an aircraft which is registered under the laws of that State at the time the offence is committed”).

²⁵ Id. § 811(a), 129 Stat. at 310 (implementing NTC Article 9(4), which requires that “[e]ach State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2 of the present article”).

²⁶ Passage of Implementing Legislation for Nuclear Security Treaties, U.S. Dep’t of State (June 4, 2015), at http://www.state.gov/secretary/remarks/2015/06/243196.htm.

²⁷ U.S. Ratification, supra note 1.

²⁸ Id.

²⁹ Id.

¹ Daily Press Briefing, U.S. Dep’t of State (July 24, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/07/245262.htm; see also No. 212, 24 July 2015, Press Release Concerning Turkey-Us Understanding on Countering Daesh, Turk. Ministry Foreign Aff. (July 24, 2015), at http://www.mfa.gov.tr/no_-212_-24-july-2015_-press-statement-concerning-turkey_us-understanding-on-countering-deash.en.mfa.

² Yeginsu, Ceylan & Cooper, Helene, U.S. Jets to Use Turkish Bases in War on Isis, N.Y. Times, July 23, 2015, at A1 Google Scholar.

³ See Senior Administration Officials on Counter-ISIL Coalition Efforts, U.S. Dep’t of State (July 28, 2015), at http://www.state.gov/r/pa/prs/ps/2015/07/245403.htm (stating that the “mechanisms [and] modalities” of Turkish-U.S. cooperation are still being discussed); Department of Defense Press Briefing by Pentagon Press Secretary Peter Cook in the Pentagon Briefing Room, U.S. Dep’t of Defense (Aug. 25, 2015), at http://www.defense.gov/News/News-Transcripts/Transcript-View/Article/614829/department-of-defense-press-briefing-by-pentagon-press-secretary-peter-cook-in [hereinafter Cook Press Briefing] (stating that U.S. “cooperation with the Turks. .. remains a work in progress. .. “).

⁴ Lamothe, Dan, Here Are the First Images of U.S. F-16 Fighters Flying from Turkey to Carry Out Airstrikes, Wash. Post, Aug. 13, 2015 Google Scholar, at https://www.washingtonpost.com/news/checkpoint/wp/2015/08/13/here-are-the-first-images-of-u-s-f-16-fighters-flying-from-turkey-to-carry-out-airstrikes.

⁵ Sly, Liz & DeYoung, Karen, Turkey Agrees to Allow U.S. Military to Use its Base to Attack Islamic State, Wash. Post, July 23, 2015 Google Scholar, at https://www.washingtonpost.com/world/middle_east/turkey-agrees-to-allow-us-military-to-use-its-base-to-attack-islamic-state/2015/07/23/317f23aa-3164-11e5-a879-213078d03dd3_story.html.

⁶ Incirlik AB Receives F-16 Forces in Support of Oir, U.S. Air Forces Central Command (Aug. 10, 2015), at http://www.afcent.af.mil/News/ArticleDisplay/tabid/136/Article/612987/incirlik-ab-receives-f-16-forces-in-support-of-oir.aspx.

⁷ US Begins Manned Airstrikes Against ISIS from Turkey into Syria, U.S. Air Forces Central Command (Aug. 13, 2015), at http://www.afcent.af.mil/News/ArticleDisplay/tabid/136/Article/613418/us-begins-manned-airstrikes-against-isis-from-turkey-into-syria.aspx.

⁸ Cook Press Briefing, supra note 3.

⁹ Yeginsu & Cooper, supra note 2.

¹⁰ The media has used the phrases buffer zone, protected zone, and safe zone interchangeably.

¹¹ See O’Toole, Molly, Pentagon Doesn’t Know If It’s Allowed to Defend Syrian Fighters or Turkish “Safe Zone”, Defense One (July 28, 2015)Google Scholar at http://www.defenseone.com/politics/2015/07/pentagon-approval-fight-syria/118675; Cunningham, Erin, U.S., Turkey Aim to Create Buffer Zone on Syrian Border. Nobody Knows How., Wash. Post, Aug. 13, 2015 Google Scholar, at https://www.washingtonpost.com/world/middle_east/us-said-it-will-create-a-safe-zone-on-syrian-border-but-nobody-knows-how/2015/08/12/4c7d0baa-37e4-11e5-ab7b-6416d97c73c2_story.html.

¹² August 2015 Monthly Forecast: Syria, Security Council Report (July 31, 2015), at http://www.securi-tycouncilreport.org/monthly-forecast/2015-08/syria_22.php.

¹³ See Sly & DeYoung, supra note 5 (explaining the safe zone long imagined by the Turkish government); Lamothe, Dan, The Many Complications of the U.S. Establishing a Military “Safe Zone”in Syria with Turkey, Wash. Post, July 27, 2015 Google Scholar, at https://www.washingtonpost.com/news/checkpoint/wp/2015/07/27/the-many-complications-of-the-u-s-establishing-a-military-safe-zone-in-syria-with-turkey (enumerating refugee numbers).

¹⁴ Turkey’s Erdoğan Demands Lifting of Hdp Deputies’ Immunity, Hurriyet Daily News (Turk.) (July 28, 2015), at http://www.hurriyetdailynews.com/erdogan-vows-more-military-ops-says-parliament-should-lift-im-munity-of-terrorism-linked-deputies.aspx?pageId=517&nID=86038&NewsCatID=338.

¹⁵ Barnard, Anne et al., Turkey and U.S. Plan to Create Syria “Safe Zone” Free of Isis, N.Y. Times, July 27, 2015 Google Scholar, at http://www.nytimes.com/2015/07/28/world/middleeast/turkey-and-us-agree-on-plan-to-clear-isis-from-strip-of-northern-syria.html.

¹⁶ Daily Press Briefing, U.S. Dep’t of State (Aug. 11, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/08/245937.htm.

¹⁷ Daily Press Briefing, U.S. Dep’t of State (July 27, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/07/245313.htm.

¹⁸ Cook Press Briefing, supra note 3.

¹⁹ Daily Press Briefing, U.S. Dep’t of State (June 29, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/06/244480.htm.

²⁰ Turbeville, Brandon, Nato’s Dream Coming True—Turkey Pushes for Syria No-Fly Zone; US Approves, Global Research (Can.) (Oct. 3, 2014)Google Scholar, at http://www.globalresearch.ca/natos-dream-coming-true-turkey-pushes-for-syria-no-fly-zone-us-approves/5406399 (quoting a statement by Syrian Foreign Minister Waleed Muallem in an interview with Lebanese television outlet Al-Meyadin). See also Ismael, Manal, Foreign Ministry: Syria Categorically Rejects Setting Up Buffer Zone on its Lands, Syrian Arab News Agency (Oct. 16, 2014 Google Scholar), at http://sana.sy/en/?p=15432 (citing letters from Syria’s Ministry of Foreign Affairs and Expatriates to the UN Secretary-General and Security Council, stating that “the Syrian government categorically rejects setting up any buffer or ‘safe’ zones” and will take “all necessary measures to preserve its national sovereignty, unity and territorial integrity”).

²¹ See Syria Safe Zone Would Require “Combat Mission”, the Daily Star (Leb.) (May 6, 2015, 8:11 PM), at http://www.dailystar.com.lb/News/Middle-East/2015/May-06/297071-syria-safe-zone-would-require-combat-mission-us.ashx (quoting U.S. Secretary of Defense Ashton Carter stating that “[w]e would need to fight to create such a space and then fight to keep such a space ...”).

²² O’Toole, supra note 11.

²³ Demirtaş, Serkan, Un to Decide on No-Fly Zone on Turkish-Syrian Border: Russian Envoy, Hurriyet Daily News (Turk.) (Sept. 22, 2014)Google Scholar, at http://www.hurriyetdailynews.com/un-to-decide-on-no-fly-zone-on-turkish-syrian-border-russian-envoy.aspx?PageId=238&NID=72007&NewsCatID=359.

² Although not authorizing the use of force, the Security Council has adopted resolutions condemning the violence in Syria, demanding compliance with international law, and declaring obligations to facilitate humanitarian access to people in need. SeeS.C. Res. 2139 (Feb. 22, 2014); S.C Res. 2165 (July 14, 2014); S.C Res. 2191 (Dec. 17, 2014).

²⁵ Demirtaş, supra note 23.

²⁶ Id.

²⁷ See Deeks, Ashley, A “Buffer Zone” Inside Syria, and Its Complications, Lawfare (Dec. 5, 2014 Google Scholar, 6:34 PM), at https://www.lawfareblog.com/buffer-zone-inside-syria-and-its-complications (distinguishing the legal implications of a buffer zone created to expel Isil—which may fall under the banner of self-defense—and a buffer zone created to protect Syrian civilians—which may rely on more controversial humanitarian justifications).

²⁸ Both the United States and Turkey have relied on a theory of self-defense under Article 51 of the UN Charter to justify air strikes against Isil in Syria. See Chargé d’affaires a.i. of the Permanent Mission of Turk. to the U.N., Letter dated 24 July 2015 from the Charge d’affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the President of the Security Council, Un. Doc. S/2015/563 (July 24, 2015), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2015/563; Permanent Rep. of the U.S. to the U.N., Letter dated 23 September 2014 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General, U.N. Doc. S/2014/695 (Sept. 23, 2014), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/695.

²⁹ Nichols, Michelle, United Nations Warns Turkey against Calling Buffer a “Safe Zone”, Reuters (July 28, 2015)Google Scholar, at http://www.reuters.com/article/2015/07/28/us-mideast-crisis-turkey-un-idUSKCN0Q225Z20150728 (“What you don’t want to do is call something a safe zone, people flee to it, but it hasn’t got sufficient protection.”).

³⁰ Cunningham, Eric, Turkey is Waging a Two-Front War. Some Worry It’s Only Making Things Worse, Wash. Post, Aug. 9, 2015 Google Scholar, at https://www.washingtonpost.com/world/middle_east/turkey-is-waging-a-two-front-war-some-worry-its-only-making-things-worse/2015/08/05/e68c47fd-9da1-4ab4-b64f-cf5765493e02_story.html.

³¹ Daily Press Briefing, supra note 17.

³² Daily Press Briefing, U.S. Dep’t of State (Aug. 3, 2015), at http://www.state.gov/r/pa/prs/dpb/2015/08/245625.htm.

³³ See Department of Defense Press Briefing with Brigadier General Kevin J. Killea, Chief of Staff Combined Joint Task Force-Operation Inherent Resolve via Dvidsfom Southwest Asia on Operation in herent Resolve, U.S. Dep’t of Defense (Aug. 21, 2015), at http://www.defense.gov/News/News-Transcripts/Transcript-View/Article/614489/department-of-defense-press-briefing-with-brigadier-general-kevin-j-killea-chie.

³⁴ The President’s News Conference, 2015 Daily Comp. Pres. Doc. 686 (Oct. 2, 2015).

³⁵ Id.

³⁶ Mazzetti, Mark & Baker, Peter, U.S. is Debating Ways to Shield Syrian Civilians, N.Y. Times, Oct. 22, 2015, at A1.Google Scholar

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Contemporary Practice of the United States Relating to International Law

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