The movement for a global currency tax gains momentum.

PARIS, Sept 1 (Reuters) - A group of 60 nations, including France, Britain and Japan, will propose at the U.N. this month that a tax be introduced on international currency transactions to raise funds for development aid, ministers said on Wednesday.

Speaking after a meeting in Paris, French Foreign Minister Bernard Kouchner said the group had agreed a common position for the United Nations Millenium Objectives summit on Sept. 21.

Ministers estimated the tax could raise as much as $35 billion a year for development aid.

“For every 1,000 euros the tax we are suggesting will bring 5 cents,” Kouchner told reporters. “It’s not a lot, but enough to get things going.”

I know this idea has been kicked around for a long time and it may or may not be a good idea.  To me, it has never been clear to me how exactly this would be implemented.  Would nations create a depositary to collect and distribute the funds or would it be given to existing U.N. agencies?  Would such an international agency have the authority to collect the funds directly from banks?  If not, how would you avoid the problem the U.N. has now in collecting member dues?  As a U.S. matter, a treaty or international agreement purporting to impose a tax directly would raise lots of interesting constitutional problems.

Our friends at the University of Goettingen in Germany have recently published another issue of the Goettingen Journal of International Law.  The latest issue contains lots of great stuff, including a series of articles focused on the recently concluded ICC Review Conference in Kampala (Talk about fast work!).  GoJIL, which is structured similarly to a U.S. law review, is still a new experiment for an European university, but they certainly have done a great job so far. And they promise more new stuff, including organizing an upcoming conference on “Resources of Conflict- Conflict over Resources.”  Their editors write:

We are proud to announce that the second Keynote-Speech will be delivered by Professor Marie-Claire Cordonier Segger, Director of the Centre for International Sustainable Development Law (CISDL) in Montreal, Canada; the first, as previously announced, will be delivered by Professor Bruno Simma, Judge of the ICJ. The response to our Conference’s Call-for-Papers was overwhelming and we are pleased to have some very distinguished scholars from all around the world present at the Conference and to publish their papers in a special issue in 2011. The Conference will take place from 7 to 9 October 2010; interested scholars and students are invited to attend the conference in the audience and can register on our website until 15 September 2010.

Via Jon Adler at Volokh, I note that the D.C. Circuit issued a fascinating series of opinions today on the effect of international law on the President’s execution of his warmaking powers.  As Steve Vladeck at Balkinization notes, the actual DC Circuit decision was simply a denial of a rehearing en banc of a panel’s earlier decision to reject a Gitmo detainee’s challenge to the legality of his detention under international law.  But the three members of the original panel, Judges Brown, Kavanaugh, and Williams, each appended a very long opinion explaining their further views on this case. While it is true none of it seems to be binding precedent, I hardly think the proper course for lower courts is just to ignore these opinions.  They plainly represent the views of a substantial number of the court’s judges and may eventually prevail.

The reason these opinions are important is that all are focused on the very important conceptual question of whether and how international law affects the President’s powers to conduct the war on terrorism under the authority granted to him by Congress in the September 11 resolution authorization the use of military force (the AUMF).  Two judges argue that customary law cannot limit the interpretation of the AUMF, and one judge suggest that, in some cases, it can.    For those of you outside the U.S. who wonder how the Obama Administration believes it has the authority to use targeted killings against Al Qaeda outside of Afghanistan, these opinions really offer the answer.  Whether or not international law recognizes an armed conflict against Al Qaeda, Congress plainly has authorized the President to engage in the use of military force against Al Qaeda.  On this theory, it really doesn’t matter whether there is an armed conflict as defined by international law. All relevant limitations stem from U.S. treaties and statutes, and not from customary law.

I think this view of how international law impacts the war on terrorism will ultimately prevail.  For the Guantanamo detainees (and for those targeted for killing by the Obama Administration), the correct strategy should be to emphasize their constitutional law arguments. I don’t think their international law arguments are likely to prove decisive.

Professor Pasha Hsieh of Singapore Management University School of Law has asked us to alert our readers about the following call for papers for the 2011 International Law Association Asia-Pacific Regional Conference scheduled for May 29-June 1, 2011 Taipei, Taiwan, Republic of China.

The Chinese (Taiwan) Society of International Law is pleased to hold the International Law Association (ILA) Asia-Pacific Regional Conference from Sunday, May 29 to Wednesday, June 1, 2011 at the Grand Formosa Regent Taipei, a Four Seasons Hotel, in Taipei, Taiwan, ROC. The theme of the conference will be Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges. This conference aims to provide a forum for international law stakeholders to explore the full range of international and transnational legal issues related to the Asia-Pacific region.

…

Proposals from both scholars and professionals are encouraged on any topic relating to international law with a focus on the Asia Pacific. Subject areas may include, but are not limited to, the following:

 General Public International Law

 The Use of Force

 Asia-Pacific Security

 Territorial Disputes

 Teaching and Research of International Law

 The Law of the Sea

 International Frameworks on Fisheries Conservation

 International Criminal Law

 International Protection of Human Rights

 International Economic Law

 The WTO, APEC and ASEAN

 FTAs and the Cross-Strait ECFA

 United Nations and Regional Organizations

 Private International Law

 Enforcement of Arbitral Awards and Court Judgments

Paper and panel proposals must be submitted electronically by December 20, 2010 to ila@nccu.edu.tw. A proposal of no more than 300 words should include the author’s name and full contact information. The conference committee welcomes proposal submissions and conference attendance from ILA members. The conference committee will select proposals and announce the outcome by the end of January 2011. Presenters are required to submit full, referenced papers by April 30, 2011. The Chinese (Taiwan) Yearbook of International Law and Affairs will publish the conference proceedings.

More details on the schedule and topics for papers can be found here.  Sounds like a great conference. I hope to attend myself!

I’m a little late (in blogospheric time) to comment on the ACLU/CCR lawsuit today challenging the legality of the Obama Administration’s policy on targeted killings of U.S. citizens. (Hat Tip WSJ Law Blog) Here is the complaint. It’s is not surprising. As I noted before, the ACLU has been making noises about this lawsuit for several months. And, at least with respect to the targeted killings of U.S. citizens outside an armed conflict, they have a pretty decent argument.

To their credit, the ACLU/CCR is making the narrowest possible legal challenge to targeted killings.  They are challenging ”the executive’s asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The challenge mainly rests on U.S. constitutional due process grounds and focuses only on the targeted killing of a U.S. citizen in Yemen, thereby sidestepping any confusion over the status of the war in Afghanistan or Pakistan.  The complaint also seems to concede that there might be circumstances where such a killing might be constitutional due to emergency circumstances or if the sufficient process was provided.  There is also a challenge based on international law and the Fourth Amendment, but I think the Due Process challenge is the strongest claim.

I am not an expert on declaratory injunctions, but I think that is going to be a problem, for reasons I can’t go into here in detail. I assume there will be a political question defense raised here, and I think declaratory injunctions are uniquely vulnerable to this type of defense. Second, although wisely styled as a rights-based challenge, there are lots of reasons to think the Obama Administration will point out it has broad authority from Congress to engage in this kind of targeted killing.  As a matter of domestic law, expect the Obama Administration to stand on pretty firm ground.

The main conceptual issue, though, is the problem of whether there really is an armed conflict outside of Afghanistan/Pakistan for the purposes of the war on terrorism.  If there isn’t, than presumably Congress’ authorization doesn’t extend to targeted killings to places like Yemen.  And the lack of an armed conflict would weaken the international legal foundation for targeted killings.

This has the potential to be a blockbuster lawsuit, forcing the centerpiece of the Obama Administration’s war on terrorism strategy to go under the legal microscope.  It could be a fascinating case, although I expect there to be innumerable procedural hurdles and delays before we get to any interesting parts of this case.

I don’t want to get into a pointless back and forth with Kevin on the significance of Bashir’s visit to Kenya. I don’t think the details of his visit change my views much. It still seems much more like a slap in the face than a sign of the ICC’s power. But I think we can agree to disagree on this one (UPDATE: See Kenya’s Defense of the Visit as Necessary to Regional Peace).  After all, there are more important issues afoot.  For instance, yesterday’s NYT contained a (to me) stunning column by columnist Nicholas Kristof calling Obama’s Sudan policy a “failure” that could lead to a horrific bloodbath as soon as next year.  Here’s a line to remember:

For all his faults, President Bush inherited a war in Sudan and managed to turn it into peace. Mr. Obama inherited a peace that could turn into the world’s bloodiest war next year.

I have never claimed to be a Sudan expert, but folks like Kristof (who style themselves as Sudan experts of some sort) are beginning to raise the alarm.  The question though is, what exactly is the flaw in the Obama policy?  Is it not being tough enough on Sudan? Or is it being too tough? Kristof can’t seem to decide. His complaint seems to be that Obama is unengaged. (This seems to be a common complaint about Obama, and I think it is unfair. I am not an Obama supporter, but he does have a lot on this plate right now).

In any event, I think we can all agree that the goal here is to prevent the outbreak of another civil war, which Kristof seems to think is imminent.  I can’t see how the ICC arrest warrant helps this goal, at least in the short term.  The better strategy (which does seem to be the Obama policy), is to acknowledge the ICC arrest warrant, but to de-emphasize its importance.  I doubt fulfilling the arrest warrant will be a condition or a requirement of any new peace deal or even any new engagement with the U.S.    I agree that this is pretty horrible on a moral level.  But when you have no other options (and military action is not an option for this president), you have to live with horrible if it prevents mass murder and genocide.

Lots of ironies in this story about Kenya hosting Sudan’s President Bashir at a ceremony celebrating the establishment of its new “U.S.-style” Constitution.

NAIROBI, Kenya - Kenya’s president signed a new constitution into law Friday that institutes a U.S.-style system of checks and balances and has been hailed as the most significant political event since Kenya’s independence nearly a half century ago.

Joining African leaders at the festivities was Sudan’s president who faces charges of genocide and crimes against humanity in connection with violence in Darfur, where U.N. officials estimate 300,000 people have died.

This is quite a slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant. If Bashir is not prevented from traveling to ICC signatories like Kenya, then the arrest warrant looks even more toothless. As far as I know, the ICC Statute does not contain any sanctions for parties that violate its terms, but I suppose other states or the Security Council could penalize Kenya and Chad for their violations.  I don’t see this happening, which offers yet another reason to think the entire plan to arrest Bashir was probably a dumb idea to begin with.

OK, that’s not exactly the title of this piece at Huffington Post, but the observations from Gary Arndt about Americans and the World sound true to me.  Arndt has been traveling around the world since 2007, for no particular reason (see his travel blog here and yes, I’m very jealous of his life). Here are some my favorites from his list of 20 Things He Learned Traveling Around the World. Most seem about right to me.

4) People don’t hate Americans. I haven’t encountered a single case of anti-Americanism in the last three-and-a-half years. Not one. (And no, I don’t tell people I am Canadian.) If anything, people are fascinated by Americans and want to know more about the US. This isn’t to say they love our government or our policies, but they do not have an issue with Americans as people. Even in places you’d think would be very anti-American, such as the Middle East, I was welcomed by friendly people.

5) Americans aren’t as ignorant as you might think. There is a stereotype that Americans don’t know much about the rest of the world. There is some truth to that, but isn’t as bad as you might believe. The reason this stereotype exists is because most other countries on Earth pay very close attention to American news and politics. Most people view our ignorance in terms of reciprocity: i.e. I know about your country, why don’t you know about mine? The truth is, if you quizzed people about third-party countries other than the US, they are equally as ignorant. When I confronted one German man about this, I asked him who the Prime Minister of Japan was. He had no clue. The problem with America is that we suffer from the same problem as the rest of the world: an obsession with American news. The quality of news I read in other parts of the world is on a par with what you will hear on NPR.

6) Americans don’t travel. This stereotype is true. Americans don’t travel overseas as much as Brits, Dutch, Germans, Canadians or Scandinavians. There are some good reasons for this (big country, short vacation time) and bad ones (fear and ignorance). We don’t have a gap year culture like they have in the UK and we don’t tend to take vacations longer than a week. I can’t think of a single place I visited where I met Americans in numbers anywhere close to our relative population.

….

12) Everyone is proud of where they are from. When you meet someone local in another country, most people will be quick to tell you something about their city/province/country that they are proud of. Pride and patriotism seem to be universal values. I remember trying to cross the street once in Palau, one of the smallest countries in the world, and a high school kid came up to me and said, “This is how we cross the street in PALAU!” Even crossing the street became an act to tell me about his pride in his country. People involved in making foreign policy should be very aware of this.

13) America and Canada share a common culture. This may irk Canadians, but we really do share a common North American culture. If you meet someone overseas, it is almost impossible to tell if they are American or Canadian unless they have a particularly strong accent, or they pronounce the letter “z.” It is easier to tell where in England someone is from than it is to tell if someone is from Denver or Toronto. We would probably be better off referring to a “North American” culture than an “American” culture. What differences do exist (Quebec being the exception) are more like differences between states and regions of a similar country.

….

17) English is becoming universal. I estimated that there were at least 35 native languages I would have had to have learned if I wanted to speak with locals in their own tongue. That does not include all the languages found in Papua New Guinea or Vanuatu or regional dialects. It is not possible for humans to learn that many languages. English has become the de facto second language for the world. We are almost to a point where there are only two languages you need to know: whatever your parents speak… and English. English has become so popular it has achieved an escape velocity outside of the control of the US and UK. Countries like Nigeria and India use it as a unifying language in their polyglot nations. Other countries in the Pacific do all their schooling in English because the market just isn’t there to translate textbooks into Samoan or Tongan.

In the interests of being fair and balanced (as always!), I thought I would post on this good response by David Bosco to Jeremy Rabkin’s recent essay on the International Criminal Court in The Weekly Standard (which I discussed here).  Although I am not totally convinced by it, I think Bosco offers the best possible defense of the ICC that would be persuasive to U.S. policymakers.  In a nutshell, he agrees with Rabkin (and many others), that the ICC effort to define aggression is a “dead end” and that it would ultimately favor non-state actors and terrorist organizations.  But he offers a measured defense of the ICC against Rabkin’s broader attacks. In essence, he seems to be saying that aggression is not much of a problem for the U.S. since it is staying out of the ICC and has successfully limited the jurisdictional scope of the ICC over aggression crimes.  Second, he points out that the ICC (contrary to Rabkin’s earlier predictions) has not proved to be an instrument of anti-American policy that has threatened any U.S. self-defense interests.

Bosco makes some good points.  But there is a certain irony in this kind of defense of the ICC for someone who (probably) supports eventual U.S. ratification of the ICC statute, since it depends on the U.S. continuing to stay out of the ICC.  It is true that the U.S. has not been the subject of an ICC investigation yet.  But I think even Bosco would concede that the main reason the U.S. has not been the subject of an ICC investigation is because the U.S. refused to join the ICC.  Had the U.S. joined the ICC, there is no question in my mind that the U.S. would be subject to numerous ICC investigations related to interrogation policy, Guantanamo, military commissions, targeted killings, and the Iraq and Afghanistan wars.  Bush administration folks would be under investigation, but so too would Obama administration folks.  If Bosco thinks differently, I would love to hear him explain why.  I seriously doubt, for instance, that the principle of complementarity under the ICC statute would have been satisfied in the case of the “torture memos.”

Indeed, for many ICC supporters, the whole point of the U.S. joining is to punish alleged U.S. wrongdoing and prevent future U.S. wrongdoing.  It is odd that the most persuasive defense of the ICC relies on its toothlessness and the fact that opponents of the ICC (like Rabkin) have successfully persuaded U.S. decisionmakers to stay out.

The WSJ has an article on the U.S. Defense Department’s push for a criminal prosecution of Wikileaks for releasing U.S. government documents on the Afghanistan war.

Several officials said the Defense and Justice departments were now exploring legal options for prosecuting Mr. Assange and others involved on grounds they encouraged the theft of government property.

Bringing a case against WikiLeaks would be controversial and complicated, and would expose the Obama administration to criticism for pursuing not just government leakers, but organizations that disseminate their information.

I agree it would be controversial, and probably counterproductive, to try to prosecute Wikileaks’ founder Julian Assuange.  But as a legal matter, I don’t think there are many obstacles to his prosecution under U.S. law, as conservative Marc Theissen argues here.

The most relevant law, the Espionage Act, would seem to cover Assange’s alleged conduct.

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States,…(b) receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, . . .  knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter;

Obviously, there is an intent issue here (Did Assange obtain the info for the purpose of or with reason to believe it would be used to injure the U.S.?), but I actually don’t think that would be a problem.  Wikileaks’ lawyer seems to think that the real problem is Assange’s nationality and the fact that Wikileaks does not have a presence in the U.S.  But this is not a problem at all.

The Espionage Act has long been held to apply to foreign nationals who commits acts while abroad (see U.S. v. Zehe, 601 F.Supp. 196 (D. Mass 1985).).  The only problem seems to be actually capturing Assange.  It is worth noting, of course, that abducting Assange, even in violation of the sovereignty of a country where the U.S. has an extradition treaty, would not prevent a U.S. court from trying him. (See U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)).  And finally, Wikileaks may or may not have a First Amendment defense, and even if it does, the precedent of NY Times v. U.S., 403 U.S. 713 (1971), (the Pentagon Papers case) only seems to prevent prior restraint.  Post-publication prosecution is probably OK under the First Amendment.

So Wikileaks really does have serious legal exposure, and pretty weak legal defenses. I hope they are getting better U.S. legal advice than the WSJ article describes. And if I were Assange’s lawyer, I would advise him to avoid the U.S., and international waters and airspace, for as long as possible.

I have been negligent in failing to post on two excellent assessments of the recent ICC Review Conference in Kampala and its ultimate decision on aggression.  Both assessments (one by Heritage’s Brett Schaefer and the other by George Mason’s Jeremy Rabkin) give the Obama Administration some credit for limiting the damage to U.S. interests at Kampala.  But both ultimately conclude (and I agree) that the ICC entering into the business of prosecuting aggression is bad news for U.S. interests and for the world.

Here is Schaefer:

Overall, the U.S. effort at the International Criminal Court Review Conference in Kampala was a qualified success. The outcome could have been much worse. While the conference adopted the Belgian amendment, creating a precedent for criminalizing the use of additional weapons as war crimes under the Rome Statute, the U.S. did succeed in minimizing the immediate risks to U.S. interests and nationals. The conference also passed a resolution that, if confirmed by future action by the states parties, would grant the ICC jurisdiction over the crime of aggression. Critically, the U.S. was successful in persuading the states parties to restrict the ICC’s jurisdiction over aggression in several significant ways that should help protect U.S. interests. However, the Obama Administration’s modest success in Kampala did little to address ongoing U.S. concerns about politicization of the court and illegitimate claims of ICC jurisdiction over U.S. service members and officials charged with war crimes, crimes against humanity, and genocide. The U.S. should not consider ratifying the Rome Statute until all of its serious concerns about the ICC are completely resolved.

Rabkin has a similar, but more critical take.  In his view, the entire ICC enterprise will result in no actual reduction in actions of military aggression, but simply weaken the ability of liberal democracies to resist war crimes, military aggression, and terrorist attacks.  Indeed, as he points out, the ICC continues to have no jurisdiction over non-state actors like Al Qaeda and very limited ability to punish states that support terrorist organizations.  The entire attempt to legally define and constrain aggression represents silly but dangerous wishful thinking.

What happened this summer was that the Obama administration decided it was easier not to disrupt this pleasant fantasy than to meet its responsibility to protect those who carry out the national security policies of the United States. Instead, the United States showed the world that it has rejoined the “international consensus” so rudely disrupted by the Bush administration. It will be years before we have to say we don’t actually share the premises of this latest dream of “peace through law.” And by then—we’ll have balanced the budget and gotten our debt under control, so we’ll be better able to confront this external challenge.

The problem is that, in the absence of a world legislature, advocates of international law tend to treat silence as consent (and they treat incoherent mumbling as equivalent to silence). That is how “consensus” leading to new “customary international law” gets established. A new “consensus” gained a lot of momentum at Kampala without any serious opposition from the United States. The world took another large step toward isolating and stigmatizing the American understanding of the “inherent right of self-defense.”

It will be important, in the next few years, to put the world on notice that we don’t, in fact, mean to go along with the subsequent stages of the project that the ICC represents. But we can’t now rely on the Obama administration to stand up for our sovereign rights. Time for others—especially in Congress—to start doing so before it’s too late to say, “We didn’t really mean it.”

As I have written before, there is surprisingly broad consensus in the U.S.  (among the spectrum of opinion that includes both Michael Glennon and Harold Koh), that the ICC’s crime of aggression was nothing but a disaster for the U.S. and for the ICC as well.  Although both Schaefer and Rabkin are writing from the right, I think their critiques accurately represent the U.S. political consensus.  The question for the new administration of 2017 (when aggression finally fully kicks in and when President Obama is finally out of office) is what to do about it.

In the first U.S. court opinion on piracy since 1820, a U.S. judge in Norfolk, Virginia has dismissed piracy charges against Somali defendants in United States v. Said. The Court held that attempted piracy is not piracy for the purposes of U.S. criminal law.  (h/t  Eugene Volokh).

As I mentioned in an earlier post, the relevant U.S. statute criminalizing piracy leaves its definition to “the law of nations.” I guessed (wrongly) that the Court would adopt a Sosa-like approach to incorporating norms of international law into U.S. law and find that attempted robbery at sea sufficiently well-accepted by contemporary international consensus to support a criminal law violation.  To my surprise, the Court seems to have held that it is obligated to use the definition of piracy as it was understood under the law of nations in 1819, when the U.S. piracy statute was enacted. It refused to rely on contemporary international definitions of piracy on the grounds that they are either irrelevant or too uncertain to constitute a clear definition.

I don’t know that much about the law of piracy under contemporary international law, but I am a bit surprised that there would be the lack of consensus on the question of whether attempt constitutes piracy.  My impression is otherwise, and in fact none of the sources the Court cites for the proposition that piracy is undefined under contemporary international law seem to be talking about the attempt issue.  Prof. Eugene Kontorovich has more discussion of the case over at the Volokh Conspiracy, and he seems to think that the Court is just wrong on this point.  Piracy definitions may be controversial, but probably not on this point.

And like Prof. Kontorovich, I am a bit unsure what I think of the result here.  I understand that a judge would want to give the benefit of any doubt to the criminal defendants here, but I am doubtful of the Court’s seeming embrace of the “frozen in 1819″ approach to interpreting the piracy statute.  Given explicit delegation of interpretive power by Congress, the international consensus and executive branch practice in favor of including attempts as part of “piracy,” I am tempted to side with the government here.  But the Court’s result is certainly defensible.  It is also appealable, although the government may not bother since they have plenty of other non-piracy charges to use against the defendants.

The WSJ has a nice discussion of the tricky legal arguments in the upcoming trial of alleged pirates in U.S. federal court.  Apparently, the prosecutors and defense attorneys are battling over the fact that U.S. statutes criminalizing piracy leave the definition to “the law of nations”.

Now the court in Norfolk must contend with the defense motion to dismiss the piracy charge, which would leaving only such lesser charges as attempted plunder.

The prosecution argues that U.S. courts should defer to international law, especially an 1982 U.N. Law of the Sea treaty the U.S. never ratified. Aping the 1958 Geneva Convention, it offers an expansive definition of piracy as any illegal acts of violence, detention or depredation committed for private ends on the high seas.

Defense lawyers balk at that suggestion. “We do not interpret U.S. law based on U.N. resolutions, but rather what Congress meant at the time,” says the public defender, Mr. Kamens.

I love that the defense lawyers are taking a page from Justice Scalia’s textualist approach to statutory interpretation. And it is a sort of compelling argument, although I’m not sure it is right.   Congress has criminalized “piracy as defined by the law of nations”.  It is certainly plausible that they intended to authorize federal courts to interpret the law of nations, as it evolved, when defining piracy.  But it is also plausible to me that Congress would have intended for the courts to apply only definitions of piracy at the time the statute was enacted, especially since this is a criminal statute.

In Sosa v. Alvarez-Machain, the Supreme Court considered the phrase “law of nations” in the quite different context of the Alien Tort Statute.  If we were to adopt that approach, the courts could only adopt definitions of piracy that are as well settled under the law of nations today as they were at the time the piracy statute was enacted.  I bet the lower and appellate courts that consider this question will follow the Sosa approach.  Which probably (although not necessarily) means the pirates here are out of luck.

State Seal of South Korea

Just in time for the 100th anniversary of the Korea-Japan Annexation treaty, a Korean scholar has new evidence that the treaty was never properly ratified by the Korean king. Hence, according to the scholar, the 1910 annexation treaty was never legal and Japan’s annexation of Korea was illegal (or at least not authorized by a treaty). (The current state seal of South Korea is shown here).

Lee Tae-jin, professor emeritus at Seoul National University, released historical documents that show the century-old annexation pact was void because Korea’s proclamation of the treaty lacked the nation’s state seal.

According to Lee, the original copy of the Korean proclamation contained only King Sunjong’s private seal, which was used solely for administrative approval. The Korean edict lacked his signature and the required state seal

In contrast, the Japanese edict of the treaty had Japan’s state seal and the signature of Emperor Meiji, who signed it with his personal name Mutsuhito.

Even assuming the Korean scholar is right about the wrong seal, it is not obvious to me that the entire treaty is invalid. It sounds like from the article that the wrong seal is on the Korean proclamation of the treaty, but not on the treaty itself.  This makes it seem like the ratification of the treaty may have been separately done (and according to Wikipedia, it was done by the Korean Prime Minister under the authority of Korea’s king). Or maybe the proclamations were the ratification instruments?

And even if it the wrong seal was used on the ratification, I am not sure the treaty is invalid.  Of course I don’t know what the law of treaties was in 1910, but let’s assume the law is similar to what the Vienna Convention on the Law of Treaties is today.  Under the VCLT Art. 11, “The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.” A seal may or may not be required for consent, but it seems that it would depend on the treaty itself.  I know that the U.S. has always used seals on treaty ratifications, but I wonder if its absence would necessarily negate the treaty ratification if, say, the President signed the treaty himself.  But maybe someone who has actually seen treaties ratified (Duncan?) could enlighten me here.

In any event, it is far less obvious that the annexation of Korea by Japan was “illegal” even without the treaty.  Conquest was, I believe, perfectly legal in 1910.  Still, it is fascinating that even today, this rather obscure legal point remains a point of huge contention between Japan and Korea.

Is this for real? .  A Phillippines newspaper is accusing a sitting Philippines Supreme Court justice with plagiarizing articles published in law reviews on matters of international law when he authored a key opinion for the court on reparations for comfort women.  The articles supposedly plagiarized include this one by Evan Criddle and Evan Fox-Descent in the Yale Journal of International Law (and featured here at Opinio Juris).

In what could possibly a first in the Supreme Court, a magistrate appears to have committed plagiarism in a decision on a diplomatically and politically sensitive case.

Newsbreak’s review of the decision penned by Associate Justice Mariano del Castillo on World War II comfort women showed that numerous parts were copied from three materials written by legal experts abroad without properly attributing these to the authors.

In April 28, the Supreme Court, through Del Castillo’s ponencia in the Vinuya v. Romulo case (G.R. No. 162230), junked the petition of 70 Filipino comfort women to compel the Philippine government to get a public apology from Tokyo and to provide reparation to victims of sexual abuse during World War II.

It sounds to me like some bad bluebooking, but perhaps it is more serious that that.

The U.S. Court of Appeals for the Eleventh Circuit upheld this week the conviction of “Chuckie Taylor” for violating the U.S. Anti-Torture Act, which implements U.S. obligations under the Convention Against Torture. Taylor is the son of former Liberian President Charles Taylor, currently on trial himself in the Sierra Leone Special Court. The opinion is a good and important one since this is the very first discussion of the Anti-Torture Act in a U.S. appellate court.  However, there is one glaring and annoying  (if largely inconsequential error). In rejecting one of Taylor’s appeals, the Court writes:

The only case Emmanuel cites in support of his contrary position is Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The Supreme Court did conclude in Hamdan that a conspiracy to violate the customary international law of war was not an offense punishable under that body of law in a military commission. Id. at 601-12.

Why is this annoying? Because that part of the Hamdan opinion is not a “holding” but merely the opinion of four members of the Court.  (See pp. 601-12 of Part V here).  Justice Kennedy pointedly did NOT join the Court on this point (see p. 638).  So this is a mistake, no doubt by an overworked law clerk (hey, I’ve been there!).  Still, worth a correction, if any law clerks out there are reading! (And don’t forget to cite us when you do!).

Yes, says Daniel Hannan, a journalist and British MEP.  At least under those famous Montevideo factors, now that the E.U. has recently acquired the capacity to sign treaties.

I don’t know if things are quite so easy. For one thing, the E.U. does not itself necessarily consider itself a state, and it is not exactly clear if other states recognize the E.U. as a state.  And if the E.U. is a state, what happens to all those member nations (with all those great soccer teams)?

But Hannan is right that the E.U. is certainly heading in the statehood direction, and that this will further complicate everyone’s relations with it for the near future.

I agree that the relatively slow progress in U.S. treaty-making is not all the fault of the sluggish Obama Administration.  The Senate no doubt is a big obstacle to treaty-making, .  Still, I think the idea that the U.S. should join treaties, simply in order to show the world that we are willing to join treaties, is a really bad principle to govern lawmaking.  Yet this is the main point of this op-ed in Politico.

As the Senate begins debate on the U.S.-Russia New START arms-reduction treaty, we must not lose sight of a glaring problem in our national security: the impact that the U.S. failure to join major multilateral treaties has on our capacity to exercise global leadership. This failure threatens to make us, in a sad parody of Madeline Albright’s famous phrase, the “dispensable nation.”

The world is not waiting for us. As it becomes clear the treaties we negotiate might never be ratified, our power to shape their formation will wane. The rest of the world will continue negotiating multilateral treaties to shape vital international issues — with or without the United States. This position is dangerous. Each of the threats we face today — terrorism, climate change, poverty, infectious diseases — can only be solved through global efforts and global rules.

…

It’s time for the Senate — and the White House — to expend the political capital necessary for treaty ratification. There are at least six multilateral treaties that have a reasonable chance of ratification and would demonstrate that the U.S. is back in the business of working with others: the Test Ban Treaty, the Law of the Sea Convention, the Landmines Treaty, International Labor Convention 111, the Women’s Treaty and the recently signed Disabilities Treaty. It is critically important the Senate moves forward on at least one and demonstrates that the U.S. will have a say in writing the rules of the world. Failure to do so risks undermining our capacity to achieve our national security goals.

I think treaties should be judged independently and based on their individual merits. I have simply seen very little evidence that joining treaties irrespective of its policy benefits for the U.S, can itself be a policy benefit for the U.S.  And I really doubt that ratifying the ILO or CEDAW would do much for our ability to write rules on nuclear testing or the law of the sea.  There are ways to get Republican Senators to vote for treaties, but this is not one of them.

The showdown between the ICC and its prosecutor Moreno-Ocampo over the trial of Thomas Lubanga Dyilo continues, as the Court ordered Lubanga’s release.  I assume Moreno-Ocampo will appeal (he has five days), but if his appeal is rejected, this could turn out to be a huge embarrassment for the prosecutor. In any event, it is certainly messy.

Judges at the International Criminal Court have ordered the release of a Congolese militia chief who used child soldiers in the Democratic Republic of the Congo’s civil war.

Sonia Robla, a court spokeswoman, said the decision was rendered Thursday after the prosecution refused to identify the identities of two witnesses during proceedings last week in the case of Thomas Lubanga Dyilo.

This web video nearly fooled people into believing France was about to pay Haiti billions in reparations for payments Haiti made to France ensure its independence. Yes, like that was going to happen. France quickly released a statement declaring the whole thing a hoax.

This hoax was so well done that it leads me to wonder what other interesting statements could be next? Japan apologizing to China for the Nanjing Massacre? North Korea apologizing to South Korea for the killing of South Korean sailors?  Palestinians recognizing Israel’s right to exist?