Author Archive for
Julian Ku

Does Greece Really Have a Legal Case for the Return of the Elgin Marbles? I Doubt It

by Julian Ku

Amal Alamuddin-Clooney, Kevin’s Doughty Street Chambers colleague, made news this week by visiting Greece as part of a legal team working for the return of the Elgin Marbles to Greece from Britain.  This is not ordinarily global tabloid fodder, but Alamuddin-Clooney’s recent marriage means she will draw media attention wherever she goes.

I don’t doubt her legal credentials (as well as that of her colleagues), but I do doubt the strength of their legal case for the return of the Marbles.  At the time the Marbles were removed from Greece, the Ottoman Empire had sovereignty over Greece and there is pretty decent historical evidence that Lord Elgin had their authorization to remove the Marbles, or if he did not have authorization, his removal was ratified by official acts of the Ottoman government.  (John Merryman seems to have made the most complete case here).

To be sure, there are strong moral arguments for the return of the Marbles to Greece. But Alamuddin-Clooney and her colleagues are hired for their legal expertise. On this front, I think they have a very tough case (which may be why they appear to have ruled out litigation already).  But I am open to counter-arguments (based on law, not on cultural nationalism) for the Greek case. .

Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.

 

The Allure of Sovereigntism: U.S. Progressives and Libertarians Unite to Oppose Investor-State Arbitration

by Julian Ku

For decades, investor-state arbitration has enjoyed broad support in the U.S. (among those elites who know and care about such things).  While there has been some backlash against investor-state in developed countries such as Australia arising out of controversial cases brought against it, the U.S. has remained pretty solidly in favor of it.  But there are signs that the opposition to investor-state arbitration has sprouted among U.S. elites more influential than more traditional critics like Ralph Nader and Pat Buchanan.  And, interestingly, voices from both sides of the ideological spectrum are invoking “sovereigntist” arguments to bolster their positions.

First, Harold Meyerson of the Washington Post started the ball rolling with this post calling on center-left and progressives to oppose the inclusion of investor-state dispute settlement (or ISDS) in the proposed Transatlantic Free Trade Agreement.  Predictably, he derides ISDS as pro-corporate giveaways.  But he also rings the sovereigntist bell in favor of  protecting the jurisdiction of domestic courts against extra-jurisdictional tribunals (e.g. international arbitral tribunals).

What is more surprising is that Daniel Ikenson of the influential libertarian (“liberal” for you Europeans out there) thinktank the Cato Institute has joined the fray with a manifesto for why libertarians should also oppose ISDS (at least in trade agreements).  Some of his arguments are tactical (they undermine political support for trade agreements and aren’t all that helpful anyway), but some are also sovereigntist as well.

Though I firmly believe the U.S. economy is racked with superfluous and otherwise unnecessary regulations, I do believe that a successful foreign challenge of U.S. laws, regulations, or actions in a third-party arbitration tribunal (none has occurred, yet) would subvert accountability, democracy, and the rule of law.” 

It is certainly unusual to hear a libertarian analyst decry a legal mechanism that would give businesses a new avenue to challenge unfair laws and regulations.  But the sovereigntist bell is alluring.  Because Ikenson’s position seems to go somewhat against his policy preferences, I find Ikenson’s opposition to ISDS a little more compelling than Meyerson’s.

It is worth noting that some of the same arguments against investor-state can also be raised against other proposed forms of international adjudication (e.g. the International Climate Change Court, the International Anti-Corruption Court, international human rights courts, etc).  Similar arguments, in fact, are being used by the Conservative Party in the UK to withdraw or limit the role of the European Court of Human Rights over UK law.   I wonder whether progressives like Meyerson will be so excited about protecting domestic laws and courts from international oversight in those situations.  I somehow doubt it.

Can a U.S. Judge Hold the Government of Argentina in “Contempt”?

by Julian Ku

In the latest round in the never-ending battle between Argentina and its holdout bondholders, a U.S. court has found Argentina to be in “contempt” for trying to circumvent that US court’s orders. Argentina has been outraged by such an order, arguing that a  state cannot be held in “contempt” because it is an affront to its sovereign dignity (with Argentina’s president denouncing the U.S. judge as “senile“).   Indeed, the Argentine government on Monday sent a very interesting letter to U.S. Secretary of State John Kerry setting out why it believes it cannot be subject to a “contempt” order in a domestic U.S. court.

The Argentine Republic notes that it is completely absurd for plaintiffs to argue that a local judge can hold a foreign State “in contempt”. This position can only arise from ignorance or a distorted view of the fundamental rules of international law currently in force and the peaceful coexistence of global order.

The principles on which international coexistence rests are reflected in the Charter of the United Nations. One of these principles refers to sovereign equality of all States and is expressly embodied in Article 2(1) of that Charter. This is a fundamental principle when it comes to determining what a State can or cannot do in relation to other States.

When any branch of government of a State denies “equal” status to another State, it not only manifestly violates international law but it also risks setting a precedent for the commission of similar violations of international law to its own detriment.

I think that Argentina’s argument that contempt orders and other judicial sanctions against it are violations of international law (even thought it has consented to that domestic jurisdiction) can draw some support from the statements of the U.S. government itself (which is quoted extensively in the letter).  The problem for Argentina is that the U.S. judicial system has not agreed with the U.S. government’s views on many of these questions.  So US law is no help to Argentina here (for the most part). And the U.S. government has almost no legal mechanisms to change the district court’s actions here, so the letter is largely for public consumption.

The harder question is whether (as Argentina argues) there is a generally accepted rule of international law that a court cannot hold a sovereign in contempt where that sovereign has consented to the jurisdiction of that court.  This is a tricky question and one worth thinking about further. I hope to post on that when I have had more time to digest it.

Does the Collective Self-Defense Justification Extend to Khorasan? If Not, Then Is There One?

by Julian Ku

I agree with Jens’ excellent post on the importance of the “unwilling or unable” standard to the US justification for legal strikes on non-state actors in Syria.  I agree this action may reveal state practice supporting (or rejecting) this legal justification.  I am curious whether the UK, France, or other states that may be participating in Syria strikes will embrace this theory. (I already know the Russians have roundly rejected this US justification). I also wonder whether this legal justification will weaken, as a policy matter, the ability of the US to effectively attack ISIS.

I do have one additional observation. Tacked on, almost as an afterthought, Ambassador Power’s letter notes that:

In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.”

The vague wording of the letter about Khorasan (threats to “the United States and our partners and allies”) as compared to the pretty specific language about ISIS’s attacks on Iraq  (“ to end the continuing attacks on Iraq, to protect Iraqi citizens, “) suggests that Khorasan is not currently engaged in armed attacks on Iraq.  This means that the U.S. is making a much broader international law claim than for its attacks on ISIS.  The U.S. is attacking Khorasan because, like Al Qaeda, it is a terrorist threat to the U.S. itself.  But no actual armed attacks have yet occurred (as far as I know).

It is therefore worth noting whether more  states object to the attacks on Khorasan than on ISIS, because the Khorasan attacks have a weaker international legal justification. My guess is that objecting states like Russia will not bother distinguishing between the two. But it will be interesting to see whether US allies will refuse to join strikes on Khorasan, even if they are willing to strike ISIS in Syria.

Dear News Agencies of the World: China Did NOT Breach Taiwan’s Airspace, Just Its ADIZ

by Julian Ku

Several news agencies (here and here) have suggested that recent reports of Chinese military aircraft entering into Taiwan’s Air Defense Identification Zone  is akin to a territorial incursion.  For instance, J. Michael Cole warns at the Diplomat, “If they were indeed intentional, the latest intrusions could signal a further denigration of Taiwan’s sovereignty….”  In my view, calling ADIZ intrusions a breach of “airspace” and a denigration of “sovereignty” overstates the significance of an ADIZ under international law.

Taiwan’s own government has used the phrase “airspace”, so reporters can’t be faulted for repeating this phrase. But legally speaking, entering an Air Defense Identification Zone is NOT the same as entering a nation’s territorial airspace.  For an island like Taiwan, such territorial airspace would presumably start  end 12 nautical miles from its relevant island coast.  An ADIZ is usually a much larger zone declared by countries in order to allow them to track and identify aircraft that come near their territorial airspace.  If you look at Taiwan’s ADIZ  (in red), you’ll notice it goes well beyond 12 20131209DEN0006Mnautical miles from Taiwan’s coast (in fact, it technically stretches into China itself!).  An ADIZ is adjacent to a nation’s territorial airspace.  Declaring an ADIZ is not by itself illegal because it is not a claim of sovereign control over the airspace.  Of course, nations with an ADIZ usually demand foreign aircraft identify themselves before entering their ADIZ, but nations do not usually claim the right to exclude other nations’ aircraft from their ADIZ, as if it was sovereign territory. (For a recent discussion of the legal issues in ADIZ declarations, see here).

Now, since China has usually been careful to avoid crossing into Taiwan’s ADIZ (or at least parts of Taiwan’s ADIZ), its decision to do so now is interesting and significant.  But it is not a territorial incursion and it is not (technically) breaching “Taiwan’s airspace”.  So news agencies should be careful not to report it as such.

Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

by Julian Ku

The New York Times is running a big report today on the U.S. plan to sign a “sweeping” climate change agreement without having to go to Congress for approval or ratification.  Instead of a typical treaty requiring ratification by the Senate, the U.S. has a different more creative strategy.

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Jack Goldsmith is already out with a typically smart analysis of this approach, and he concludes the new agreement is intended to sound like a big deal, but will be unlikely to commit the U.S. to do anything meaningful.  I think that is probably right, although I can’t really tell based on the incomplete details in this NYT article.  I think there might be a little bit of domestic legal effect, and may also create an important precedent on what the President can do to bind the US on the international level.

Surely, the President can sign a political agreement that pledges voluntary cuts and to channel money to poorer countries. Such an agreement would have no domestic legal effect until Congress acted to implement the legislation.   But can the President bind the U.S. under international law, even if it has no domestic legal effect?

The President can, in limited circumstances, bind the US under international law via a sole executive agreement.  It has done so especially in the areas of post-conflict settlements such as the famous Algiers Accords that released US hostages and also sent seized Iranian and US assets to an international arbitration tribunal.  US courts have given those agreements limited domestic effect.  But the line between what the President can do via a sole executive agreement and what he must do via a treaty is not completely clear (although there is a line!).  Maybe the President is claiming some delegated authority from the original 1992 Framework Convention, which might bolster his ability to bind the U.S. internationally. I don’t see any obvious basis in that treaty for this delegation, but I suppose experts on the Framework Convention might come up with something.

So I think the President might be able to sign the US up to a binding international agreement on climate change, but it would be pretty unprecedented and its legal effect uncertain.  Such an agreement would be unlikely to have domestic legal effect on its own, but the President could cite the agreement as the basis for executive orders he is already implementing on climate change.  I don’t think it would carry the policy much farther than he is already doing under creative interpretations of the Clean Air Act, but it might provide just a little bit more support for his domestic orders.

I think it will be important to look at the details of the proposed agreement, and to ask the US administration to explain its legal authority for the new agreement.  Will it be the 1992 Framework Convention?  Or is it going to be just the President’s general Article II executive power?  If the latter, this may be an important precedent for future sole executive agreements under the US Constitution.  In any event, President Obama is certainly exploring the outer limits of his Article II powers.

I’ve Thought About It Some More: And I Still Think Argentina’s World Court Lawsuit Against the U.S. is Bogus

by Julian Ku

Reasonable people can disagree about the legal merits of U.S. court judgments against Argentina requiring it to pay holdout creditor hedge funds. But I can’t say the same about Argentina’s recently announced claim against the United States at the International Court of Justice. Based on Argentina’s own description of its legal arguments, I stand by my earlier assessment: Argentina’s international law claim against the United States is frivolous and would have almost no chance of succeeding, even if Argentina somehow convinced the U.S. to accept ICJ jurisdiction.

Although Argentina’s complaint to the ICJ has not been publicly released, it is likely that Argentina will accuse the U.S. of allowing its court system to violate Argentina’s immunity rights as a nation-state and to interfere in Argentina’s ability to pay its non-holdout creditors through U.S. banks.

What makes this claim ridiculous is that Argentina chose to grant the U.S. judicial system a wide-ranging jurisdiction over bonds it sold to private investors. When issuing those bonds, Argentina promised that it had “irrevocably agreed not to claim and has irrevocably waived” immunity “to the fullest extent permitted by the laws of the U.S. and New York. Argentina also agreed to allow “any of its revenues, assets or properties” to be subject to judicial execution and enforcement to whatever degree permitted by U.S. law.

More on the Troubling, But Emerging Article II Humanitarian Intervention Power

by Julian Ku

Now that President Obama and his advisors have offered some more detail on the domestic legal basis for U.S. military’s action in Iraq, I think it is even more clear now than when I first posted on this subject that the administration is relying on some sort of Article II Commander-In-Chief power to “prevent an act of genocide” against a Iraqi minority group.  In reading the administration briefing, it is clear that the need to protect U.S. persons and property is a separate justification for a separate set of air strikes.  I don’t think the Administration is arguing that protecting U.S. life and property requires striking at the ISIS forces threatening the trapped Iraqi civilians.

Both Marty Lederman and Jack Goldsmith have also picked up on this point, with Goldsmith suggesting this would be a troubling extension of the President’s already expansive Article II Commander-in-Chief power. Ilya Somin dismisses this whole approach as going against the text of the Constitution.   I agree with Ilya that this approach is hard to square with either the text or even the history of Article II’s drafting and subsequent interpretations. And I also agree with Goldsmith that this expansion is troubling. But I also think that the President’s invocation of the need to “prevent an act of genocide” as the legal basis for air strikes, along with apparent acquiescence by Congress (so far), sets an important legal precedent for future U.S. presidents.

The Article II “Humanitarian Intervention” War Power

by Julian Ku

Assuming there really was authorization from the Iraqi government, I don’t have any doubt that the U.S. has the right under the international law to launch new airstrikes in Iraq.  But the domestic authority for the U.S. airstrikes is much more murky, and, as Ilya Somin argues here, Congress might need to authorize continuing military action.

Jack Goldsmith goes through the domestic legal bases for action here: the 2001 AUMF against Al Qaeda, the 2002 AUMF to conduct hostilities in Iraq, and the President’s inherent power under Article II of the U.S. Constitution. I agree with Jack that, for political reasons, the Administration seems to be relying on the President’s inherent powers under Article II of the Constitution rather than on either of the statutory authorizations passed by Congress.  But even under Article II, Presidents have usually cited rationales such as the need to act quickly to protect U.S. citizens and their property or to prevent an imminent attack on the U.S or a treaty ally, or a threat to U.S. national security.

But President Obama does not cite any of these reasons in his explanation of why he is authorizing airstrikes to prevent the deaths of the Iraqi civilians trapped in a mountain region.  Instead, he cited the need to “prevent a potential act of genocide” in his remarks yesterday. So it turns out that Article II also can be invoked for a purely humanitarian intervention where no U.S. citizens or property are threatened, and the national security interest is not cited.  While I do think there is a very plausible national security rationale for these airstrikes, it is worth noting that President Obama does not cite national security directly in his remarks.  When one looks back at his similar rationale for Article II-based airstrikes in Libya, I think one of President Obama’s legacies will be a new reading of Article II that will allow future presidents to use military force for humanitarian reasons without the authorization of Congress.

Here Comes That Frivolous Argentina ICJ Claim! Oh, And They Have No Jurisdiction Either!

by Julian Ku

As I noted last week, Argentina has been making threats to take the US government to the International Court of Justice over the results of US litigation over their 2002 sovereign debt default.  And so today, Argentina has made good on its threat by filing an application to the ICJ contending that “that the United States of America has committed violations of Argentine sovereignty and immunities and other related violations as a result of judicial decisions adopted by US tribunals concerning the restructuring of the Argentine public debt.”

As the ICJ’s press release notes, Argentina is seeking to found jurisdiction upon the U.S. deciding to grant consent to the case. But the U.S. has no obligation to give such consent, nor does it have any incentive to do so. Nor does Argentina (I suspect) really expect the U.S. to grant consent.  This is almost certainly a way to show its people and the world that it has a grievance, without actually ever having to test that grievance in a judicial proceeding.

And the fact that this lawsuit has no chance of getting to a court is probably a good strategy for Argentina. The actual specific claims are not yet available, but I have a hard time imagining they are anything but frivolous.  The only claim I am aware of that was raised by a commenter to my post last week is that Judge Griesa exceeded his jurisdiction by ordering third-party banks not to pay out moneys on bonds issued under foreign law.  This is an interesting argument, and even if it were plausible, I don’t understand why Argentina has not raised that argument directly to the U.S. courts. And this would still not impact the bonds issued under New York law.

Bottom line: there is no chance that Argentina gets the U.S. to accept jurisdiction before the ICJ. Expect more grandstanding from the Argentine government as it tries to use the ICJ as an international public relations platform.

Can International Law Be an Obstacle to Peace? Some Thoughts on Taiwan’s East China Sea Peace Initiative

by Julian Ku

I had the privilege today to attend a conference in Taipei today discussing the “East China Sea Peace Initiative”.  The ECSPI is Taiwan’s proposal to reduce and maybe even eliminate the confrontation between China and Japan in the East China Sea over the Diaoyu/Senkaku Islands.  The ECSPI is not all that complicated.  1) Shelve Territorial Disputes;and 2) Share Resources Through Joint Development.  There is more to the proposal (but not much more).  President Ma of Taiwan put his personal imprimatur on this initiative with a speech this morning.

As it was a conference sponsored by a foundation closely linked with the Taiwan government, no one at the conference had much to say that was critical of this initiative.  Of course, no scholar or speaker I saw today came from China os it is hard to know what they might have said. But there is nothing wrong or objectionable to the ESPCI.

What’s interesting about the “shelve disputes” strategy is that eschews the formal legal resolution of particular questions and suggests plowing forward despite sharp differences on legal rights and obligations.  For instance, the ECPSI recommends “joint conservation and management” of the living (mostly fish) and non-living resources (mostly hydrocarbons) of the East China Sea.  Yet this proposal is preceded by a fairly long statement of the justness of Taiwan’s legal claim to sovereignty over those same resources.

“Never compromise on sovereignty,” President Ma recommended today, but he also then suggested that countries can share and develop resources each country believes it has sovereign legal rights over.  Isn’t this really compromising on sovereignty, while at the same time denying you are compromising on sovereignty?

The idea that we can shelve (in this case) legal disputes in international relations is not one that originated with Taiwan, but it is not surprising that Taiwan is the country proposing this strategy.  After all, Taiwan itself is the living embodiment of the success of avoiding legal resolution of complex sovereign claims.  In its relations with China, it has agreed to shelve the question of Taiwan’s ultimate legal status in favor of increasingly close economic and other relations.  Interestingly, this approach would also eschew international arbitration or judicial resolution of these arbitral disputes, since such legal proceedings would adjudicate, rather than shelve, the sovereignty issues.  In reality, this approach suggest international law, which defines rights and obligations, is an obstacle to peace, rather than a facilitator of it.

I do hope Japan and China consider the Taiwan ECSPI.  But I have my doubts as the viability of continuing to “shelve” questions about sovereignty.  At some point, these questions will re-emerge and the “joint development” will actually result in giving up sovereign resources.   Some more stable equilibrium is probably needed.  My guess is that China feels the time for a new equilibrium is getting closer.