Author Archive for
Julian Ku

Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not

by Julian Ku

Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990.  But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.

It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.”  Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.”  The ICJ would seem to qualify as a “judicial settlement.”

The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction.  The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.

Is International Law….Law?

by Julian Ku

One of the many reasons I am so pleased that Opinio Juris can host this discussion on Anthea Roberts’ new (and award-winning) book is that it speaks directly to and about this blog’s core audience: students, scholars, and practitioners of international law from all over the world.  When we founded this blog in 2005, we hoped to use the internet to open conversations with other scholars in the United States.  We soon found that the global reach of this blog allowed us to engage scholars and practitioners all over the world, rather than just in the United States.

But over the years, we also learned that the “global” international law audience is narrower than it sounds. Our readership was and is heavily based in the United States, Europe, Canada, Australia, and New Zealand.  This relatively narrow global readership is probably explained (as I learn in Roberts’ book) by the closer ties of language, culture, and academic exchange that exist among “Western” international lawyers.  I also realize now that this is part of the phenomenon of different clusters of international law around the world that is so wonderfully documented and analyzed in Roberts’ remarkable new book.  Her study does more than any other single work to describe and explain a state of affairs many of us in the international law world had sensed but could never fully understand.  There is no doubt in my mind that Roberts has launched an important new challenge to the international law world that even calls into question the idea of international law as law.

Roberts’ prior work, which has now been developed and amplified in her new book, has also influenced my own recent research and writings on China.  The Middle Kingdom is extensively studied and analyzed in Roberts’ work, and it is a key player in her story about how international law seems to differ in meaningful ways across national borders and among ideological and cultural clusters. I am especially grateful that she sought in Chapter 5 to include China’s reaction to the arbitration case brought by the Philippines as part of her case study in how international lawyers can fall into different “silos.” Writing about that arbitration, as readers of this blog may be aware, has been a mild academic obsession of mine for years.

But I do not draw quite the same lessons from this case study as she does. In my view, application of her comparative approach to international law necessitates taking a neutral stance on what might be a better or worse interpretation of international law.  While I agree with one of her main claims – that there are many divergent versions of international law arising out distinct national and regional clusters – I am not sure all such divergences should be treated as good faith differences.  In the case of the South China Sea arbitration, I believe Roberts underplays the importance of how governments can use international law (and international lawyers) as tools in their global diplomatic and public relations campaigns.

Roberts specifically notes how Chinese international lawyers sought to “traverse [] divides” by publishing their views on the South China Sea arbitration in English to reach a global rather than simply a Chinese audience. This is true. But as she also understates the context of these various international law essays. The unanimity among Chinese legal scholars (and practitioners) was an important part of the Chinese government’ broader media campaign to discredit and denigrate the arbitration award and the arbitration process. Their unanimity was trumpeted on various Chinese media sites. It is hard not to see the academic consensus in China as a product (at least in part) of the Chinese government’s influence and control. (Such consensus is also striking in comparison to the quite different anti-government reaction of US scholars to the US defiance of the Nicaragua ICJ judgment).

The Chinese government’s public relations campaign also included slanderous statements suggesting the South China Sea arbitrators had effectively been bribed, and that the Japanese nationality of the individual who appointed the arbitrators undermined the impartiality of the arbitral process. The silence of the Chinese international law academic community in the face of these outrageous statements is also evidence of how important the government can be in shaping a national international law approach.

Thus, while I am very much on board with Roberts’ overall project, I am enough of a practicing lawyer to wonder whether comparative international law can allow us to assess right and wrong interpretations of international law, and whether government intervention should affect such judgments of even relative legal correctness. While I was sympathetic to the argument that the South China Sea arbitral tribunal lacked jurisdiction, I was (and remain) deeply skeptical of the subsequent Chinese argument that the arbitral tribunal’s award is not binding.  I think this is not just a different approach to international law arising out of distinct national or regional silo, but it is a weak, self-serving politically necessary and ultimately ridiculous legal argument. I would grade a student’s paper badly for relying upon this argument. But does comparative international law counsel me to be more sensitive and self-aware of differences in approaches to international law?  Or should the fact that the Chinese government’s attention and control of this discussion lead me to step out of my comparativist role, at least for a moment.

For instance, I also tried to “traverse divides” by publishing my views on how “ridiculous” China’s argument is, both in English, and in Chinese (thanks to an excellent Chinese student translator and the good offices of the Financial Times Chinese edition).  I was gratified that I drew responses from Chinese scholars and I continued my foray in Chinese with this sur-rebuttal.  But the Chinese language version of my essay and sur-rebuttal in the FT was blocked by Chinese censors and have been disappeared from the Chinese internet. The rebuttals of my argument by Chinese scholars, oddly enough, remain available. My argument is not unknown to Chinese scholars, but it clearly has been disapproved of by the Chinese government. That matters, because it deters a robust and meaningful intra-Chinese discussion of an important legal issue.

In other words, while I agree there is real value in a comparativist approach, should such an approach at least discount for governmental intervention to control and shape a national approach? Does such direct governmental intervention undermine the authenticity of a distinct national and regional approach to international law?

For the purposes of her project, Roberts does not have to answer these questions.  But those of us who have benefited from the data and insights provided by her work will have to grapple with such dilemmas.  Roberts teaches us that international law is not very “international.” Does this mean it is also no longer “law”?  She doesn’t say so, but I wonder if her excellent work will ultimately point us down that road.

Introducing the Opinio Juris/ EJIL:Talk! Joint Symposium on Anthea Roberts’ “Is International Law International?”

by Julian Ku

We are thrilled to announce that over the next few days we will be co-hosting with EJIL:Talk! a discussion of Anthea Roberts’ new prize-winning book Is International Law International? (Oxford University Press, 2017). The book has recently been awarded the American Society of International Law’s  2018 Certificate of Merit for “Preeminent Contribution to Creative Scholarship.” As the ASIL Book Awards Committee states:

In this book, Professor Roberts takes us along as she chases the title’s question down an international law rabbit-hole to reveal a topsy-turvy world in which international law is parochial and the invisible college is rendered visible. Roberts turns a beguilingly simple question into a globe-trotting, multi-method quest for a map of international law’s players and meanings. Simultaneously irreverent and serious-minded, Roberts develops an original research agenda that takes her and the reader through the migratory flows of international lawyers around the world, the divergent methods through which they are educated, and the different professional tracks through which they are socialized. The book does not just dissolve international law’s myths of universality; it is a nascent sociology of the field of international law and the beginning of a new field of comparative international law. In an era in which Western dominance over international law no longer looks certain, this book provides the tools for a more nuanced understanding of international law’s politics, revealing the deeper meanings and stakes of current debates.

To discuss the book’s findings and main claims, EJIL:Talk! and Opinio Juris have assembled a distinguished group of international lawyers from all over the world. The discussants on EJIL:Talk! will be Professors Hélène Ruiz Fabri (Max Planck Institute Luxembourg for Procedural Law) , Vera Rusinova (National Research University ‘The Higher School of Economics’, Moscow), Bing Bing Jia (Tsingua University, Beijing). On Opinio Juris, the discussants will be Professors Paul Stephan (University of Virginia), Julian Ku (Hofstra Law School) and Marko Milanovic (University of Nottingham). . We are grateful to all of them for taking part in this discussion.The symposium will open with a post later today on both blogs by Anthea introducing her book. Readers are invited to join the discussion with comments on the posts.

International Law Pays No Homage to Catalonia’s Declaration of Independence

by Julian Ku

International law is famously mushy and subject to a variety of interpretations.  But there are some issues upon which there is more consensus under international law, such as the illegality of Russia’s annexation of Crimea.  But is there any reasonable argument favoring the legality of the Catalan Parliament’s recent declaration of independence from Spain?  I don’t think so.

At the outset, it is worth reminding ourselves, as Chris does in this post on Crimea, that there is no right to secede under international law. Chris argues that secession is a factual question: it has either occurred or it has not occurred.  But he says that legality of secession remains contested by international lawyers.

I agree with Chris that there is no right to secede under international law (see my post on Calexit here), but I would add that secession is generally only legal under international law when the parent state gives consent to secession.  Such consent might occur after a civil war or rebellion, but it seems a necessary formality to legalize a secession.  On the flip side, as is the case in both Spain or the United States, the domestic law of a parent country usually prohibits secession absent such consent.  Section 2 of the Spanish Constitution of 1978 begins by declaring that is based on “on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards.” Similarly, the U.S. Supreme Court decided in the 1869 Texas v. White decision that “[w]hen Texas became one of the United States, she entered into an indissoluble relation,”

Thus, there is no international legal right to secede, and it is usually (and appears clearly) illegal for Catalonia to do so under Spanish constitutional law.  It is for this reason that I do not think there is any reasonable argument that the Catalan declaration of independence is lawful or protected by international law.

The Catalans might (and do) fall back on invocations of the international right of self-determination.  Such a right does indeed exist under international law, but it is highly doubtful that such a right justifies secession in the case of Catalan. The right of self-determination does not guarantee the right of secession.  Moreover, as the Supreme Court of Canada rightly held in the case of Quebec:

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.

Unlike Serbia under Milosevic with respect to Kosovars, Spain is a state which has granted Catalonians representation on the basis of equality and without discrimination. It is also not a situation of decolonization, as Professor Sterio explained on OJ here.   I just don’t see a credible argument here that the situation of the Catalonians triggers some kind of “external” right of self-determination.

Does this matter? At the margins, the lack of legality for the Catalans’ declaration of independence probably bolsters the unwillingness of any foreign state to recognize Catalonia as an independent state. I am doubtful legality is decisive here, but it certainly weakens what is already a pretty weak Catalan case for independence.

A Farewell Note from Professor M. Cherif Bassiouni

by Julian Ku

As most of our readers know, Professor M. Cherif Bassiouni, a leading figure in the creation of the field of international criminal law, passed away yesterday at the age of 79. Professor Bassiouni had a large email list of friends and acquaintances, and his email account sent out one last posthumous message last night. We are posting it here for those of you who did not receive it. Please feel free to leave any notes and comments below on your memories of Professor Bassiouni or how his work affected you. 

Dear Secretary Tillerson (and the World Media): Qatar is NOT Under a “Blockade”

by Julian Ku

Longtime readers of this blog may have noticed that one of my pet peeves is the incorrect usage of international legal terms in public and diplomatic discourse.  Hence, Israel did NOT commit “piracy” during the 2010 Gaza flotilla raid despite lots of governments claiming otherwise.  Cuba is not under a “blockade” despite tons of Cuban government propaganda otherwise. So you can imagine my dismay when U.S. Secretary of State Rex Tillerson issued this statement yesterday calling the situation in Qatar a “blockade.”

We call on the Kingdom of Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt to ease the blockade against Qatar. There are humanitarian consequences to this blockade.

(Emphasis added). Global media is using the term  “blockade” as well.

I don’t doubt that Qatar is under severe economic pressure.  It is reported that all of Qatar’s neighbors in the Gulf have cut off air, land and sea trade with Qatar.  Saudi Arabia has blocked the only land border into Qatar, which is a peninsula.  But as powerful as these economic pressures are, they do NOT constitute a blockade as defined by international law.  As this definition from the Max Planck Institute Encyclopedia of Public Law explains:

A blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy and neutral from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.

There is no evidence, as far as I know, that Saudi Arabia and other Gulf nations are preventing “vessels and/or aircraft of all nations” from entering Qatar ports.  Instead, the Gulf nations are simply preventing anyone in their territories from traveling to or trading with Qatar.  A blockade would mean that the Gulf nations actually used military force to interdict all shipping and flights into Qatar by any nation and through international waters.  Israel has essentially established such a blockade of the Gaza Strip, but that has not happened to Qatar (yet). Until that happens, there is no blockade.

Why is it so shocking that Secretary Tillerson did not recognize this legal distinction? Because the U.S. frequently engages in economic sanctions of the sort currently being imposed against Qatar.  The U.S. has either strict economic sanctions or full-scale embargoes on countries like North Korea, Cuba, and Iran.  Cuba in particular has tried to label the US embargo on it as a “blockade” even though the U.S. does not use military force to prevent other countries from trading with Cuba. The U.S. should not and cannot water down the legal definition of “blockade” without imperiling an crucial tool in its diplomatic toolbox.   Moreover, since “blockades” are traditionally seen as an “act of war,” they would probably constitute a “use of force” under Article 2(4) of the U.N. Charter.  The U.S., more than any country, should want to maintain the legal right to impose embargoes.

So please, Secretary Tillerson, consult your many talented and knowledge State Department lawyers.  Qatar is NOT being blockaded, and the U.S. (of all countries) should avoid saying so.

Emailing Does Not Pass the Kiobel Test: US Court Dismisses ATS Case Against Anti-Gay Pastor

by Julian Ku

Distracted by #ComeyDay and other international crises, I missed this recent U.S. federal court decision in Sexual Minorities of Uganda v. Livelydismissing an Alien Tort Statute lawsuit on Kiobel extra-territoriality grounds.  While using unusually critical language to denounce U.S. pastor-defendant Scott Lively’s involvement in Uganda’s anti-homosexual laws and actions, the U.S. District Court for Massachusetts held:

…Defendant’s status as an American citizen and his physical presence in the United States is clearly not enough under controlling authority to support ATS extraterritorial jurisdiction. The sporadic trail of emails sent by Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669.

What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor, did not provide any

financial backing to the detestable campaign in Uganda, he directed no physical violence, he hired no employees, and he provided no supplies or other material support. His most significant efforts on behalf of the campaign occurred within Uganda: itself, when he appeared at conferences, meetings, and media events.

On these facts, this seems like the right result.  Kiobel requires something more than communications from the United States to “displace the presumption against extraterritoriality.” But caselaw continues to be a little muddy and I fully expect this to be appealed.

 

Actually, President Trump CAN Unilaterally Withdraw the U.S. From NATO

by Julian Ku

The estimable professor-pundit Daniel Drezner has a typically smart blogpost on President Trump’s refusal to affirm the U.S. commitment to Article 5’s collective defense provision of the North Atlantic Treaty.  I don’t have a problem with his views here, but I can’t help jumping in to correct this paragraph from his post:

So why is this such a big deal of a story? The United States is a member of NATO, which means that Article 5 is legally binding whether Trump says so out loud or not. Unlike NAFTA or the Paris climate treaty, I’ve been assured by smart lawyer types that Trump cannot unilaterally withdraw.

[Emphasis added].

Actually, as a matter of U.S. constitutional law, Drezner and his smart lawyer friends have things kind of backwards here, at least with respect to NAFTA and NATO. The broad consensus view is that the President has the unilateral authority to terminate a treaty pursuant to that treaty’s termination provisions or consistent with international law.  This means that as long as the President follows Article 13 of the North Atlantic Treaty — which requires the U.S. provide one year’s notice before termination — President Trump can terminate US membership in NATO without first getting consent from the Senate or the Congress as a whole.

The U.S. Supreme Court has never ruled on this question definitively, but it strongly hinted that the President has this power in its seminal 1979 Goldwater v. Carter decision refusing to require senatorial consent before President Carter’s termination of the U.S.-Republic of China (Taiwan) Mutual Defense Treaty.  The American Law Institute’s newly approved section on Treaties in the forthcoming Restatement (Fourth) on U.S. Foreign Relations Law explicitly endorses the President’s unilateral treaty termination power, and this was not even a change from the earlier Third Restatement.

Terminating NAFTA is the more complex problem, as John Yoo and I have argued here.  Although the President also has the power to terminate NAFTA’s international agreement status, he has to separately nullify the domestic legal effect of NAFTA. Some of that might be done via executive action, but it is our view that he will need another statute to completely eliminate all domestic legal effects of NAFTA.

It is also worth noting that the President’s unilateral termination power calls into question those who criticized President Obama for failing to submit the Paris Agreement to the Senate on the theory that this would have somehow insulated Paris from a unilateral President Trump termination.  In fact, President Trump could have terminated the Paris Agreement unilaterally, whether or not it was approved by the Senate.

None of this is meant to encourage or endorse any of President Trump’s actual or threatened treaty terminations.  But as a matter of U.S. constitutional law, there is no reason to doubt he can take the U.S. out of NATO, Paris, and many other international agreements.

Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)

by Julian Ku

Grand Justices of the Constitutional Court, Judiciary Yuan, Republic of China – Taiwan

In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.*  I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here.  But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here)  cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.**  But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point.  Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).

I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision.  But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision.  The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way.  I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority.  No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.

There are, of course, international relations implications from this decision.  Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia.  This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.

*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.

**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.

American Law Institute Approves First Portions of Restatement on Foreign Relations Law (Fourth)

by Julian Ku

Big news (for international law nerds)! The full membership of the American Law Institute has approved the first three sections of the new Restatement of U.S. Foreign Relations Law (Fourth).  This is the first official change to the venerable Restatement (Third) that was approved by the ALI back in 1987.  Summaries of the changes to the newly approved sections on Jurisdiction, Treaties, and Sovereign Immunity are linked here.

The Restatements are supposed to “restate” the law in the United States.  But it is influential in shaping the law, especially in this area, since U.S. courts frequently cite the Restatement on questions of international law.  It is an important statement of where U.S. courts are, and will likely go, on questions of foreign relations and international law in the near future. As such, the Restatement should be interesting to non-US scholars as well.

The Restatement (Third) has been subjected to some pretty tough academic criticism over the years, but (from what I can recall), these three topics have not  been particularly controversial.  I am a member of the ALI and I have attended some of the meetings during this drafting process, but I haven’t been paying as much attention as I should have.

I will say that one general trend I have noticed in the new sections has been to cut back on statements in the comments of Restatement (Third) that may have gone beyond the caselaw at the time or no longer reflect current caselaw.  For instance, the new Restatement eliminates a comment in Restatement (Third) that suggested there are no subject-matter limitations on the treaty power (which itself departed from the Restatement (Second).  The Fourth Restatement says nothing about this point, which is probably the smart thing given there has been really no caselaw on this one way or the other from the Supreme Court or lower courts.

Having said that, I will note that Georgetown law professor Carlos Vazquez has already published a criticism of the newly approved sections on the self-execution doctrine.  I won’t go into his criticisms here, but they do suggest the new Restatement is unlikely to completely settle the continuing debate over the nature of this tricky doctrine.

There is a lot here to digest. At this point, I will simply salute the scholars who have made this project happen, all of whom I think we can count as prior contributors to and friends of the blog: Sarah Cleveland, Paul Stephan, Bill Dodge, Anthea Roberts, David Stewart, Ingrid Wuerth, Curt Bradley, and Ed Swaine. Of course, Duncan was also involved and I am sure other members of the OJ community.  There is more to do, of course, but what has been completed so far is a great achievement and one that will last for at least another thirty years, if we are lucky.

Why It Doesn’t Seem to Matter that the Syria Strikes Violated International Law

by Julian Ku

Over at Vox, I have published an essay fleshing out the thoughts I first published here on the legality of the recent U.S. cruise missile attacks on Syria and the international reaction to it.

President Donald Trump’s surprising decision to launch a cruise missile strike on Syria was sharply criticized by Russia as a “flagrant violation of international law.” While it might be tempting to dismiss this claim as mere Putinesque propaganda, on this question at least, Russia is almost certainly correct. In the view of most international lawyers, the US strike on Syria is a crystal-clear violation of the UN Charter. So why doesn’t anybody, except Russia and some international lawyers, seem to care?

The uncomfortable answer seems to be that, at least with respect to this question — can a state use military force against a regime that uses banned weaponry against citizens? — international law simply doesn’t matter very much. And this suits the United States and the Trump administration just fine.

Please read the whole thing. I am especially pleased with this line, drafted with the assistance of one of the very smart editors they have over there:

So the UN will not become an irrelevant bystander, but neither will it operate as the final authority on the US decision to use force. This may not be ideal, but one important lesson of the reaction to the Syria strikes is that we should all start getting used to this reduced role for the UN, and stop the unrealistic fetishization of Article 2(4).

Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments

by Julian Ku

The blogosphere is now so fast that we can get an enormous sampling of expert opinion in a very short time. So within 24 hours of President Trump’s military strikes on Syria, we have already heard from former Bush State Department Legal Advisor John Bellinger, former Obama State Department Legal Advisors Harold Koh and Brian Egan, former DOJ officials and law profs Jack Goldsmith and Ryan Goodman, as well as numerous law profs and other experts including our very own Deborah Pearlstein and Edward Swaine. The bottom line: Almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter and many think it also violates the U.S. Constitution.

Most of what I have to say I said in 2012-13 on this issue, but I am struck by one group of important actors who seem relatively untroubled by the “illegality” of the U.S. strikes under the UN Charter: states.  With the notable exception of the Russian government, very few states have come out to criticize the U.S. strikes as a violation of international law. No one is saying it is illegal, but it is striking how few are willing to say it is illegal.  I’ve gathered a few statements and links below.

China’s Ministry of Foreign Affairs:

Q: Does China consider the missile strike on the Syrian airbase to be within the scope of international law? Or do you think it violates existing rules about intervention in other country’s sovereign territory?

A: The Chinese side has always stood for a political settlement of the Syrian issue. Under the current circumstances, we hope all parties can keep calm, exercise restraint and avoid escalating the tension.

The latest developments in Syria highlight once again the urgency of resolving the Syrian issue through political means. We call on all parties not to walk away from the process of political settlement.

 

France and Germany (President and Chancellor):

The joint statement by Mr Hollande and the German chancellor Angela Merkel said that “President Assad alone carries responsibility for these developments” with his “repeated use of chemical weapons and his crimes against his own people.”

United Kingdom Defence Minister:

The UK says it “fully supports” the US missile strike in Syria and has urged Russia to put more pressure on the Assad regime to end the civil war.

The US targeted an air base it says was responsible for a chemical attack which killed dozens of civilians.

Defence Secretary Michael Fallon said the UK was not asked to take part but backed the “wholly appropriate” strike.

European Union, President of European Council:

“US strikes show needed resolve against barbaric chemical attacks. EU will work with the US to end brutality in Syria.

Turkey, Deputy Foreign Minister:

TURKEY: NATO ally Turkey, which is a key player in the Syria conflict and has endured choppy relations with Washington recently, welcomed the strikes as “positive.” The deputy foreign minister added: “We believe that the Assad regime must be punished completely in the international arena.”

Turkey called for a no-fly zone in Syria in the wake of the US strike.

Japan, Prime Minister

JAPAN: Prime Minister Shinzo Abe said that Japan “supports the US government’s resolve that it will never tolerate the spread and use of chemical weapons.”

This survey is not comprehensive and some large players, like India, have yet to weigh in.  But it seems only Russia and Iran have condemned the strikes vigorously.  The general support for the attacks in Europe, the Middle East, along withChina’s acquiescence, seems to show that many states are not very troubled by the violation of Article 2(4) most scholars think has occurred here.  Is this because it is a one-off attack? Or does it suggest Article 2(4) has very little pull with many foreign governments these days?

On the domestic US law front, FiveThirtyEight has counted 69 senators have already issued statements supporting the Syria Strikes and while there are critics on constitutional grounds, it doesn’t seem like close to a majority in Congress.

Of course, none of this means that the experts are wrong on the law. But it is at least worth noting the limited impact of the law so far on governmental actors, as the debate on the legality of the Syria Strikes continues.