Author Archive for
Julian Ku

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

Would Secession by California and Oregon Be Legal?

by Julian Ku

imgresFollowing Donald Trump’s stunning election victory, ballot measures are already being proposed in California and Oregon to secede from the United States.  Ordinarily, one can just chuckle at these measures as the actions of a radical fringe, but it would be hard to overestimate the depth of anger and opposition to a President Trump in states like California, where he lost by probably 20 percentage points.  If such a measure got on the ballot, we might see a serious campaign akin to Scotland’s 2014 referendum on staying in the United Kingdom.

But it seems settled under US constitutional law that unilateral secession from the United States is unconstitutional.  In the 1869 case Texas v. White, the U.S. Supreme Court ruled:

When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Some might argue, however, that a unilateral secession by California is authorized by the international law right of self-determination.  This is a much more difficult point to analyze, but I think that neither California nor Oregon would qualify to exercise this murky international law right, at least with respect to seceding.  The Canada Supreme Court’s decision in the Quebec case is probably most on point here.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

In other words, international law guarantees to every state its “territorial integrity” and it can’t be overridden by “self determination” unless serious freedoms or discrimination against residents in the seceding region are being infringed.  Moreover, this right has generally only been exercised by states under colonization or foreign occupation.  The right might also exist if the state is facing the threat of egregious human rights violations (e.g. Kosovo), but the right in even that circumstance is controversial globally.

But I will admit I am not an expert on the international law of self-determination. If anyone has a good argument for why California or Oregon qualifies to exercise this right under international law, please feel free to share in the comments.

So I am going to go out on a limb here to say that a referendum to secede California or Oregon from the United States is both unconstitutional and unauthorized by international law.  Still, just getting such a measure on the ballot would be significant because they would force the U.S. government to take a position on the legality of such measures. This could affect US government positions on foreign self-determination movements in places like Hong Kong, for instance.

We live in interesting (and dangerous) times.

How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement

by Julian Ku

As regular readers of this blog probably guessed, I did not support Donald Trump for President (I didn’t support Hillary Clinton either, but that’s another story). I did, however, take the possibility of his election seriously and published a couple of posts (see this one here) analyzing the legal issues raised by his campaign promises to withdraw from existing U.S. international agreements such as the Iran Nuclear Deal, the Paris Climate Change Agreement, and the North American Free Trade Agreement.

In general, I concluded in my prior posts that President-elect Trump has the clear constitutional authority to withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement without seeking the approval of Congress.  It is somewhat less clear, but it is certainly possible that a President-elect Trump has the constitutional authority to withdraw from trade agreements like NAFTA without Congress, but that is less certain.

It is important to keep in mind that the reason a President Trump can unilaterally withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement is that President Obama chose to avoid submitting either agreement to Congress or the Senate for approval.  Indeed, President Obama’s lawyers went even farther to clarify that the Iran Nuclear Deal was a nonbinding political agreement and that the emissions targets in the Paris Climate Change Agreement were also legally nonbinding.

This important concession was made to avoid any need to submit these controversial agreements to approval by a (very) hostile Congress.  At the time, the legal sophistication and dexterity of the Obama team’s strategy was lauded, and I supported their legal position even though I disagreed with the policies embodied in the agreements.  But I warned that the cleverness of their legal positions came at a price: a future President could unilaterally undue both agreements without the approval of Congress and without even incurring US violations of those agreements since both are largely legally nonbinding.

Well, the day to pay the cost of this strategy is at hand.  Trump has won the presidency and there is no legal obstacle to his unilateral reversal of two of President Obama’s signature foreign policy achievements.  No filibuster will save them. And President Obama will have no one to blame but himself and his legal team for this fact.

The larger lesson from this saga is that legal rules and processes matter more than even we lawyers acknowledge.  A smart political achievement that cuts the corners on the law will come at a cost.  Past and future presidents should probably keep this in mind.

International Law and the U.S. Election: Trumpxit, Syria and State Marijuana Laws

by Julian Ku

Those of us here in the US are pretty obsessed with tomorrow’s U.S. presidential election (and from what I can tell, those of you outside the States are pretty interested as well). International law has not been a huge issue in the election, but I do think tomorrow’s result could have at least three big impacts on the international legal system.

Trumpxit

As I have noted in earlier posts, Republican nominee Donald Trump has been notable for pledging to renegotiate and possibly terminate numerous U.S. international agreements.  Most clearly, he has pledged to withdraw from the Paris Climate Change Agreement and the Iran Nuclear Agreement. He has also pledged at various times to withdraw from the North American Free Trade Agreement, the US-Japan Defense Treaty, and the North Atlantic Treaty Organization.

As a legal matter, there is no doubt in my mind that a President Trump would have the legal power to terminate the Paris Agreement and the Iran Agreement on his first day in office without any authorization by Congress.  Both of those agreements were concluded as sole executive agreements, and most of the provisions are also legally nonbinding political agreements.

I also think that under existing US precedent, a President Trump could unilaterally terminate US participation in NATO and the US-Japan Defense Treaty.  As I noted earlier, the US Supreme Court in Goldwater v. Carter refused to block a similar presidential termination of the US-Republic of China (Taiwan) Defense treaty and although that case is not entirely clear, it seems likely that the president can do this on his own.

As I also noted, however, it is much less clear if the President can unilaterally withdraw from NAFTA and other trade agreements because those agreements have been codified by statute.  This would raise the “Brexit” scenario currently embroiling the UK.

In any event, I think “Trumpxit” is probably one of the biggest consequences of electing the GOP nominee because his powers in this area are largely unilateral and do not require Congress.

US Military Action in Syria

As Deborah has explained on this blog in recent weeks, the US is currently engaged in some sort of “armed conflict” in Syria that doesn’t seem to clearly fit into the Geneva Convention’s categories for either international or non-international armed conflicts.  On a domestic legal front, the US Congress has not specifically authorized the action in Syria as well, making its domestic legality questionable at the very least.

The next President will have to decide how to frame the Syria conflict under international and US constitutional law. My guess is that both Clinton and Trump would follow the Obama approach of treating the conflict as a non-international armed conflict against the Islamic State that is authorized by the 2001 congressional authorization for the use of force.  But this is something the next President will have to engage with seriously, since there continue to be serious doubts about the legality of US actions in Syria.

More US Violations of Drug Control Treaty

Five more US states have referenda tomorrow to legalize recreational marijuana.  If approved, this would mean nine US states plus the District of Columbia have legalized recreational marijuana, and many more have legalized medical marijuana.

It seems clear that continued non-federal enforcement of marijuana prohibitions in these states would violate US obligations under drug control treaties.  There are at least three that arguably conflict with legalized marijuana: The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.  As this fine Brookings Institution report notes, the US is going to be in clear violation of these treaties soon and needs to renegotiate them to accommodate US state laws.  Presumably, this is on the agenda of the next President (low on the agenda, but on there somewhere).

Ratification of the Law of the Sea Treaty

Most projections indicate the US Senate will remain deeply divided (maybe even 50/50) between Democrats and Republicans.  If so, I don’t think there is a high likelihood that proponents of US ratification of the UN Convention for the Law of the Sea will have enough votes to push it over the 67 vote threshold.  We may see another effort, however, if the Democrats unexpectedly pick up a strong majority of seats (say in the 53 plus range).  There continues to be strong support in the US Navy and in US energy circles for US ratification so it is still on the agenda.

o o o

I am sure I am missing a few issues. Readers should feel free to add in the comments any other international law issues that are likely to be affected by tomorrow’s results.

How Dualism May Save the United Kingdom from Brexit

by Julian Ku

Early in my international law education here in the U.S, I learned that dualism was an unfortunate concept that led to the U.S. violating international law obligations by failing to enforce those obligations (usually treaties) domestically.  But today’s blockbuster decision from a UK court in Miller v. Secretary of State on Brexit should remind us that dualism can also work to protect international law. How?  Well, if a country has many international obligations but is now seeking to withdraw from those obligations, dualism makes it harder to withdraw from those obligations.

In Miller,  the court noted that although the UK Prime Minister usually has the unilateral authority to enter into and withdraw from treaties, that power cannot be used in anyway that would affect or change domestic UK law. Quoting an earlier decision, the High Court today noted that under the UK constitution, the Crown (through her ministers) has the sole and unreviewable power to make treaties. No Parliamentary assent or approval is needed. However,

[T]he Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.  Treaties, as it is sometimes expressed, are not self-executing.  Quite simply, a treaty is not part of English law unless and until it has been incorporated into law by legislation. 

(Citing J.H. Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 AC 418).

This basic principle seems to me crucial to the UK court’s holding today that the Crown (through her ministers) does not have the power to give notice under Article 50.  Although the Crown would ordinarily have this power, the fact that triggering Article 50 would alter the domestic law of the UK makes this a question for Parliament.

In the US system, the President holds similar powers as the Crown and has similarly exercised unilateral powers to withdraw from treaties.  But because treaties in the US have a vaguely monist character — they are self-executing and they have been approved by the Senate — it is harder to argue that the President cannot terminate treaties even if that termination would affect domestic US law. Why?  Because if the treaty was “monist” and self-executing when made, then it is less troubling to unmake that treaty without going back to Congress.  Unlike the UK, treaties are the supreme law of the land and directly preempt state law and earlier in time federal statutes.  The kind of argument wielded by the Court in Miller just wouldn’t have any purchase here.

In any event, I don’t want to stretch this argument too far.  The US may be facing its own Brexit moment soon if a President Trump makes good on his threat to withdraw the US from NAFTA.  And if that happens (god forbid), expect pro-NAFTA folks to raise the case for congressional approval of any termination.  But all in all, I think the dualist nature of the UK system aided the cause of the anti-Brexiteers in this case, which is a somewhat surprising result if you grew up learning that dualism was one of the great obstacles to a stronger international legal system.

Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

by Julian Ku

As we face the first U.S. presidential debate tonight (on my home campus of Hofstra University!),  the possibility of a President Trump seems more and more real.  Although U.S. election analysts all make Hillary Clinton the favorite, most of them continue to give Trump a very realistic chance of winning on November 8.  I am not a Trump supporter, but I think it would be irresponsible not to think seriously about the legal policy consequences of his election to the presidency.  In particular, candidate Trump has promised or threatened to withdraw the U.S. from numerous international treaties and agreements such as the North American Free Trade Agreement, the World Trade Organization, NATO, the U.S.- Japan Mutual Defense Treaty, the Paris Climate Change Agreement, and the Iran Nuclear Deal (I am sure I am missing a few more).  Unlike our friends in Britain who weren’t really planning for Brexit, I think those of us here in the U.S. should start planning, before it happens, for “Trumpxit.”

As an initial matter, we should consider to what extent a President Trump could unilaterally withdraw the U.S. from international treaties and agreements.  I notice that most commentary, including this scary piece by Eric Posner in the NYT from this past spring, assume the President has this unilateral power. But I do not think this issue is not entirely settled as a matter of U.S. constitutional law.

In the 1979 decision Goldwater v. Carter, the U.S. Supreme Court dodged the question of whether a President could unilaterally terminate the U.S.-Republic of China (Taiwan) mutual defense treaty without consulting or getting the approval of the U.S. Senate by invoking the political question doctrine and (in a concurrence) the judicial ripeness doctrine.  No U.S. court has, as far as I am aware, reached the merits of this question.  I think scholars are somewhat divided, and historical practice is mixed.

President George W. Bush did set a precedent in favor of presidentialism, however, by withdrawing from the Anti-Ballistic Missile Treaty in 2002 without getting the approval of the Senate and President Carter did likewise in the 1979 Taiwan defense treaty.    It seems likely that the president does have unilateral authority to withdraw the U.S. from treaties which specify terms for withdrawal and which don’t require further alterations or changes to domestic U.S. law.

Defense Treaties/Military Alliances

This suggests that a President Trump could terminate NATO and the US-Japan Defense Treaty pursuant to those treaties’ withdrawal provisions.  Interestingly, the NATO Treaty Article 13 specifies that “Any Party” can terminate their membership with one year’s notice.  That notice must be sent to the U.S. Government. So I guess a President Trump could give himself a one year’s notice?

Because the issue has not been settled by the U.S. Supreme Court, another Goldwater v. Carter type lawsuit could be brought.  It seems less likely that such a case would be dismissed on political question grounds given recent Supreme Court jurisprudence, but I think the smart money would be on a President Trump prevailing on the merits on a challenge to a presidential NATO or US-Japan Defense Treaty termination.

Nonbinding/Sole Executive Agreements

On the other end of the spectrum, I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.   This would be true, even if the agreements were treated as binding international agreements, since both agreements have withdrawal provisions.  Since the Senate or Congress never approved either agreement, there is no need to ask them for approval to terminate it either.

Trade Agreements 

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

For instance, in the most recent version of the “fast track” enacted by Congress to allow President Obama to finalize the TPP, Section 103(b) states:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

(Emphasis added).  This language means that there is at least a colorable argument in favor of requiring a President Trump to seek congressional approval before withdrawing from a trade agreement like NAFTA or the WTO.  To be sure, both trade agreements have specific withdrawal provisions similar to those found in the NATO treaty. But the fact that the president is acting pursuant to his congressional authorized “trade promotion authority” suggests that Congress did not necessarily delegate the power of termination to the President alone.

Moreover, the implementing legislation for some trade agreements further suggests Congress has reserved some residual “termination” power.  In Section 125 of the Uruguay Round Agreements Act, for instance, Congress may terminate U.S. participation in the WTO with a joint resolution of both Houses.  This does not necessarily mean the U.S. is automatically out, but since the President can’t (under the terms of the law) join the WTO until Congress approves, presumably withdrawing that approval terminates U.S. participation.  It is all somewhat uncertain, but again, I think there is colorable argument that a President Trump could not unilaterally withdraw the U.S. from the WTO,  NAFTA and other trade agreements.

O O O

None of this may matter, of course, if we get a President Clinton instead.  But as the possibility of a President Trump gets closer to reality, we need to start thinking about the legal authority he would have to fulfill his campaign promises, and the limits (if any) on that authority,

 

Ukraine’s UNCLOS Arbitration Claim Against Russia May Depend Upon Philippines-China Precedent

by Julian Ku

After months (or even years) of threats, Ukraine finally filed an arbitration claim against Russia under Annex VII of the UN Convention of the Law of the Sea.  According to this statement from the Ukrainian Ministry of Foreign of Affairs, the claim will focus on Russia’s actions in the maritime zones bordering Crimea.

Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones.  Ukraine seeks to end the Russian Federation’s violations of UNCLOS and vindicate Ukraine’s rights in the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine’s rights to the natural resources offshore Crimea which belong to the Ukrainian people.

I discussed Ukraine’s claim back in February here, as well as Russia’s likely response.  I can’t find a copy of the Ukrainian statement of claim online, but the MFA description sounds like it will be pretty similar to the approach pioneered by the Philippines in its claim against China.  Ukraine will seek to avoid Russia’s Article 298 declaration excluding jurisdiction relating to sea boundary delimitations by not asking the tribunal to rule on sea boundaries. Ukraine will not seek to have the arbitral tribunal declare that the annexation of Crimea is illegal. Rather, the focus will be on specific actions Russia has taken in the Crimea maritime zones, which Ukraine is going to assume is part of Ukraine.

It will be interesting to see if Russia responds at all to this arbitration, or whether they follow China’s example and simply boycott the arbitration process completely.  I am not sure Russia’s jurisdictional defense is as strong as China’s (which lost anyway), so I am betting Russia simply declares it will not even show up, while loudly declaiming the legality of their actions.  Stay tuned.

 

The Media Spotlight on Investor-State Dispute Settlement Just Got a Lot Brighter

by Julian Ku

Buzzfeed’s Chris Hamby is out today with the first installment of a promised four-part investigative report into the system of investor-state dispute settlement (ISDS).  Like all such reports, it needs a spectacular headline and summary to draw clicks, and this one’s a doozy:

The Court That Rules the World

A parallel legal universe, open only to corporations and largely invisible to everyone else, helps executives convicted of crimes escape punishment.

The article itself is much more fair and thorough than this ridiculous headline teaser suggests.  It contains lots of original reporting on three ISDS cases involving Egypt, El Salvador, and Indonesia where Hamby says actual or threatened ISDS actions allowed corporate executives to escape criminal punishment.

I have no reason to doubt the accuracy of Hamby’s reporting on these cases. But I do have two initial somewhat critical reactions:

  • ISDS does give foreign investors leverage with host nations like Egypt or El Salvador that they wouldn’t otherwise have.  But I think Hamby overstates the amount of leverage a real or threatened ISDS claim creates.  Foreign governments don’t immediately comply with all ISDS awards and collecting judgments against foreign sovereigns, even weak ones like Egypt or El Salvador, is no easy task given those states’ sovereign immunity legal defenses and the difficulty of seizing state-owned assets.  Moreover, research shows that ISDS shows that states win more often than investors do, or they at least prevail as often as investors do. (See Footnote 3 to this letter defending ISDS as well as this EU Commission report).  ISDS may have allowed some foreign investors to unjustly avoid liability for their actions, but it is hard to know (and Hamby’s article cannot prove) that such cases represent a majority, or even a meaningful percentage, of overall ISDS actions.
  •  I don’t have a problem with Hamby reporting on these cases where it seems ISDS has been abused.  But I think it is important to keep the larger context of ISDS in mind.  What would be the impact of not having ISDS at all?  Would it make cross-border investment less common?  A lot less common?  Would the elimination of ISDS result in more corruption as foreign investors feel a need to pay protection money to host countries rather than resort to legal means?  Would the elimination of ISDS result in simply more cross-border investment among “rich” countries with well-developed domestic legal systems such as the US and Europe to the exclusion of “poor” countries with developing legal systems?  In other words, ISDS may be bad in many ways, and much abused (although I doubt the abuse is as common as Hamby intimates), but would eliminating ISDS be worse?

I am not an uncritical cheerleader for ISDS. I am doubtful, for instance, that ISDS adds much to the (now pretty much dead) proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US.  And I have questioned the constitutionality under US law of the ICSID Convention’s requirement of automatic enforcement of ISDS awards.   But I do feel ISDS critics should eventually have to answer the question: If not ISDS, then what? And will that non-ISDS future be better or worse? Hopefully, one of Hamby’s remaining three parts will address this important policy issue.

China’s Vice-Minister for Foreign Affairs Casually Slanders the South China Sea Arbitral Tribunal

by Julian Ku

I have been trying to move on from writing about the blockbuster UN Convention on the Law of the Sea arbitral award on the South China Sea.  As our readers know, I have written way too much on this topic lately.  But the Chinese government’s outrageous statements criticizing the award deserve one last post from me before I head out for a South China Sea-free vacation this summer.

In particular, I wanted to turn our readers’ focus to statements such as those made by China’s Vice-Minister for Foreign Affairs, Liu Zhenmin, shortly after the award was released.  In his remarks denigrating the arbitral tribunal, Liu implied that the arbitrators may have been bribed to adopt the views of the Philippines in the award.  Below is an excerpt of a transcript of his remarks:

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services.

These comments are outrageous on so many levels.   Liu knows, or should know, that the arbitrators were paid by the government of the Philippines.  The tribunal announced publicly in its Rules of Procedure Article 31-33 that it was exercising its treaty powers under Article 7 of Annex VII to UNCLOS to require payment from both parties. But Liu also knows that the only reason the arbitrators received all of their compensation from the Phillippines government is because China refused to participate and refused to pay its share. If China had actually showed up, it would have been obligated under Article 7 of UNCLOS Annex VII to pay half of the fees.  There is no evidence, and Liu cites none, that any government other than the Philippines paid the arbitrators.  Liu also conveniently fails to mention his own government’s failure to pay its fair share.

Such payments are almost always made in advance of the award being issued, or even before the proceedings begin.  In other words, the payments could not influence the award’s contents because the Philippines did not know the content of the award before they made their payments.

This manner of compensating arbitrators is so standard and unremarkable that China’s own leading commercial arbitration organization, CIETAC, allows in Rule III.C.1 for one party to pay fees for the entire arbitration even if the other party does not show up and refuses to pay its own share.   This is essentially the situation that the Philippines found itself in.  It could continue to demand that the Tribunal seek money from China for its share of the expenses, or it could pay up. It chose to pay China’s share as well, and (as a reward) is now being lambasted by China for doing so.

Vice-Minister Liu is not a party hack who doesn’t know anything about arbitration.  He is, in fact, on the roster of arbitrators available for appointment by the Permanent Court of Arbitration and he is a arbitrator of the aforementioned CIETAC.  In other words, Liu knows exactly how arbitration works, and he is feigning ignorance in order to defame the character of the UNCLOS arbitrators.

In the same press conference, Liu also claimed that UNCLOS arbitration is some sort of aberration that has never happened before, unlike the more established ICJ or ITLOS systems.  On this point, Liu is flatly incorrect. In fact, there have already been seven UNCLOS arbitrations convened under the exact same rules that were applied to the Philippines/China arbitration.  In fact, as Liu well knows, the Chinese government freely chose arbitration instead of the ICJ or ITLOS for any dispute settlement under UNCLOS.

When acceding to UNCLOS, China could have chosen under Article 287 to specify the ICJ or ITLOS as its preferred forum for dispute settlement.  It did not do so, thereby forcing any dispute involving China to be sent to UNCLOS arbitration pursuant to Article 287(5).  In other words, the Chinese government made a conscious choice to avoid the ICJ and ITLOS for disputes arising under UNCLOS.  It is astounding for one of China’s leading diplomats to denigrate the integrity of a system of dispute settlement that China freely chose and in fact demanded.

Liu’s borderline defamatory remarks matter even if China and the Philippines eventually work out a settlement of their dispute.  Liu has knowingly denigrated the integrity of five arbitrators – three of whom continue to sit on the International Tribunal for the Law of the Sea – using facts he almost certainly knows are false. As the esteemed Professor Jerome Cohen of NYU has noted, in many jurisdictions, this could be enough to constitute defamation or slander.  Since Liu would have immunity for his remarks, perhaps the softer sanctions could be imposed, such as demanding his resignation from the PCA’s roster of arbitrators or perhaps his removal from the position as an Associate Member of UNIDROIT.  At the very least, this sort of casual character assassination should not be forgotten nor forgiven.

Assessing the Fallout from the South China Sea Award

by Julian Ku

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!

Dear Taiwan: The PCA Ruling Does Not Threaten Your Control Over Taiping Island

by Julian Ku

Itu Aba Island, also known as Taiping Island, is one of many disputed islands in the South China Sea. The island is administered and occupied by the Republic of China, but other countries, including Vietnam, the Philippines and the People’s Republic of China, also claim sovereignty. The site for the naval frigate terminal will likely be the area of the existing harbor, which is notably the only section with shipping access to the island through the coral reef.Much to many observers’ surprise, the first country to take aggressive action in response to the UN Convention for the Law of the Sea tribunal’s award this week was Taiwan.  New Taiwanese President Tsai Ing-wen’s government issued a blistering statement stating that the arbitral award was unacceptable and that it has no “legally binding force on the ROC.” It noted that the tribunal ruled that Taiping Island and other Spratly land features were rocks rather than islands.   “This decision severely jeopardizes the legal status of the South China Sea Islands, over which the ROC exercises sovereignty, and their relevant maritime rights.”

More significantly, President Tsai moved up the departure date of an ROC naval ship that was scheduled to conduct a patrol in that region.  In a speech made before the departure of the ship, she announced that the frigate was being dispatched to display Taiwan’s resolve in defending its national interests.  She further warned that the arbitral award had “gravely harmed” Taiwan’s rights in the South China Sea.

Tsai’s remarks were disappointing for those looking for the new president to moderate Taiwan’s expansive South China Sea claims. In fact, her statement was usefully trumpeted by the Chinese government and media as a sign of cross-strait Chinese solidarity.

I have never understood the Taiwanese government’s obsession with maintaining its expansive claims in the South China Sea.  It is a waste of government resources to protect a fishing industry that doesn’t really deserve so much protection.  I am particularly surprised that the current Taiwan president is acting so aggressively to protect Taiping Island’s status as an “island” under UNCLOS entitled to an exclusive economic zone.  As far as I understand it, Taiwan has not actually tried to enforce an EEZ around Taiping Island, nor has it tried to exploit any hydrocarbons or minerals in the EEZ.  So as a practical matter, the award will not require the Taiwanese government to change its policy much at all.  There is no “grave harm” to Taiwan’s national interests here.  In fact, the award should have almost no meaningful practical effect on Taiwan at all.

So why the big fuss? It is possible that Tsai is using the South China Sea issue to build a little goodwill in China.  It is also possible that Tsai is feeling pressure from legislators in Taiwan who have been accusing her of failing to adequately protect Taiwan’s interests in the South China Sea.  One former legislature even accused her of planning to lease Taiping Island to the U.S.

All of this is a missed opportunity.  Tsai could have issued a statement saying that Taiwan “respects” the ruling even though Taiwan is not bound by it. She could have then said that Taiwan will act in conformity with the award.  This would have required Taiwan to do nothing new, give up nothing at all. It would have curried favor for Taiwan in the international community, a place it desperately wants to be part of and needs the support of. Being the only country (?) in the world that sides unequivocally with China on this award is not a good look for Taiwan.  One hopes the Tsai government will re-think its approach.

Will Today’s Blockbuster South China Sea Award Save or Destroy UNCLOS Dispute Settlement?

by Julian Ku

I have been mildly obsessed with the dispute between the Philippines and China for over three years now. It touches on so many areas of my research interest: international courts, China, and the UN Convention of the Law of the Sea. So I am almost sad that the dispute, at least for legal purposes, finally ended today with the arbitral tribunal’s sweeping award in favor of the Philippines.

Since the beginning of the arbitration process, I have wondered what the impact of China’s boycott would be on the future viability of the UNCLOS system of dispute settlement. For the first two years of the dispute, I was skeptical that China would suffer any meaningful damage from defying the UNCLOS arbitral system. Thus, I wondered if, combined with Russia’s almost cavalier defiance of an ITLOS proceeding involving Greenpeace, the end result in this process would be a toothless UNCLOS dispute settlement process of little value or significance. This was one of the reasons I sharply criticized the Philippines for adopting a fruitless “lawfare” strategy.

Time will tell, but early reviews point to me being wrong. China is much more vulnerable to “shamefare” than I had imagined. The evidence for China’s vulnerability lies, I think, in the extraordinary over-the-top global public relations campaign to denigrate and delegitimize the award before it was even issued. If China thought the award would have little impact, it would not have dragooned its diplomatic service, its state-run media, and even its civil society into a huge, sometimes nasty PR effort against the award.

Still, the game must run its course. The key is how other nations not named the Philippines or the U.S. react to the award. If most key nations, including China’s regional neighbors, follow the line set out by the U.S. and call upon China to comply with the award, then China’s isolation on this issue will be significant.   The G-7 is expected to follow this path, and it is possible that Vietnam, Malaysia, Singapore, and Indonesia will do so as well. If South Korea, Australia, and India can also be brought on board, then China will have suffered a diplomatic as well as a legal defeat. Why? Because any aggressive Chinese action to respond to the award, such as by militarizing its artificial islands or even building new ones, will be framed as a further violation of China’s international obligations. China will have its own mini-Crimea crisis, and it will be hard for it to gain legitimacy for its actions.

On the other hand, no matter how many government press releases denounce China, it is hard to imagine China ever complying with the award. It can’t, even if it wanted to, since it has locked itself into a rigid public position against the award in front of the world and its own people. So the arbitral award will go unenforced and unimplemented for the foreseeable future. No matter how you slice it, an unenforced award is not a sign of a strong and effective legal system. UNCLOS dispute settlement can be ignored, not without cost, but certainly it can be ignored.

On balance, however, the UNCLOS system seems to have been strengthened by today’s ruling. The U.S. and other key countries seem to have rallied in support of it, and the tribunal’s findings seem to carry a fair amount of credibility with most governments. Indeed, the U.S. now seems to endorse the UNCLOS dispute settlement system with more vigor than one might expect for a non-party. It seems that UNCLOS dispute settlement will survive in a post-Philippines v. China world after all.