Still, the Gaza conflict has plainly drawn the attention of the global community of international and criminal law scholars. I think these kinds of statements will have, and are already having, an impact on world opinion and the Israeli government. So it is worth taking a look.
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According to Standard & Poor’s, Argentina has defaulted on at least some of its sovereign bonds, after last minute negotiations failed to reach a deal with its holdout bondholders, who had won a series of victories in U.S. court. Although there are reports that some U.S. banks representing the rest of the bondholders are exploring ways to buy out the holdout bondholders on Argentina’s behalf (no doubt by having Argentina borrow even more money to do so), Argentina seems ready to go to the mattresses, so to speak. Or, at least in this case, to take the U.S. to the ICJ:
[Argentina Cabinet Chief] Capitanich said Argentina would denounce the “vulture funds” before the International Court of Justice at The Hague and the United Nations General Assembly.
Argentina has been going all out to try to convince other countries and the international community to support its cause including full page ads in major US newspapers, a diplomatic offensive at the recent Organization of American States meeting, and finally this threat to sue the U.S. government for failing to reign in its courts in the holdout creditor litigation against Argentina.
As far as the ICJ goes, this is a pretty idle threat. The ICJ would not have compulsory jurisdiction over the U.S. in this matter, so at best the ICJ would be asked to issue an advisory opinion. But even in that case, what exactly is Argentina’s claim? That the U.S. has violated international law by blocking some of Argentina’s debt payments? What international law obligation is being violated? Until someone explains what the legal theory is, I will classify this part of Argentina’s campaign to justify its latest default as just more hot air.
Yukos Shareholder Wins $50 Billion Arbitration Award Against Russia (Yes, that’s Billion With a “B”)
Some lawyers at Shearmen & Sterling are no doubt celebrating what may be the largest single arbitration award in history (text of award here). Their client, a shareholder of the expropriated Russian oil company Yukos, has won a $50 billion award against Russia in an investor-state arbitration (seated at the Permanent Court of Arbitration) under the Energy Charter Treaty. Michael Goldhaber at the American Lawyer has the first and fullest coverage of this historic award.
There are lots of legal battles ahead. Enforcement is going to be challenging, as it always is against sovereign states. And the award has some very interesting observations on legal issues such as the “unclean hands” doctrine under international law. But for now, this is quite a victory for the plaintiffs to savor and it is already taking a toll on Russia’s stock market. (And it is a rough few months for the folks over at Cleary Gottlieb, who are also representing Argentina in its unsuccessful battle with its holdout bondholders).
Professor Yann-huei Song of the Academia Sinica here in Taipei has notified me of the recent passing of his friend and fellow Law of the Sea scholar William T. Burke of the University of Washington. His Seattle Times obituary is here. Professor Burke’s academic publications included The Public Order of the Oceans (coauthored with Myres S. McDougal), published in 1962 and revised in 1987, and The New International Law of Fisheries(1994; translated into Japanese, 1996). Before joining the UW faculty in 1968, Professor Burke taught at Yale Law and Ohio State Law. There is a nice 2008 profile of him in the UW alum magazine here. The following is a personal note from Professor Song:
We both are students of the New Haven School for the legal studies, where I met Professor Myres S. McDougal when attending the annual policy science meeting held at Yale Law School. His book entitled THE NEW INTERNATIONAL LAW OF FISHERIES: UNCLOS 1982 AND BEYOND (Oxford: Clarendon Press, 1994) is one of the most authoritative textbooks for students who are interested in studying the international fisheries law. In addition, the book he co-authored with Myres S. McDouglas, THE PUBLIC ORDER OF THE OCEANS, A CONTEMPORARY INTERNATIONAL LAW OF THE SEA (Yale University Press, 1962), is a classic writing on law of the sea issues with the application of the new policy-oriented approach to the law of the sea. This book is one of four volumes in which McDougal and his associates approached the entire field of international law. I met Professor Burke also at the UC-Berkeley’s Law of the Sea Institute’s meetings. As far as I can remember, he was critical to the US government’s position and policy of fisheries and law of the sea issues at the time.Students of international law, in particular, international fisheries law, have been influenced by his writings. If I have the honour, on behalf of the international law of the sea community, in particular, the Chinese (Taiwan) Society of International Law, I wish to express our heartfelt condolences to the family of Professor Burke for their sad loss.
So I managed to anger lots of folks (mostly on twitter) with my post Friday (republished in the Diplomat and RealClearWorld yesterday) on the international legal problems created by any Japanese intervention to defend Taiwan from an attack by China. I don’t mind angering people (especially on twitter), but I do want to make sure they are angry with me for the right reasons. Many readers seem to think I want China to invade Taiwan, which is in fact the complete opposite of my policy goal. So let me offer some clarifications of my position on policy, and a few rebuttals of legal responses to my arguments.
1) Policy: I am squarely in favor of U.S. military intervention to defend Taiwan against any PRC military attack. I am even in favor of intervention in the case of a declaration of independence by Taiwan as long as Taiwan acts in a responsible way so as not to threaten China’s national security.(My only hesitation on this is the cost to the US, but not on the merits of Taiwan’s case). Given how strong China is these days, I am pretty sure Taiwan could not be a real military threat to China (nor would it want to be). Whether the US would actually protect Taiwan is the zillion dollar policy question that I don’t have the answer to. I hope it does, but I don’t know if it will.
2) Law: However, my favored US policy is in deep tension with, or even direct conflict with, traditional understandings of the international law governing the use of force. For those of us who love and cherish Taiwan, it is no use pretending as if the law supports a US or Japanese military intervention to defend Taiwan. It doesn’t. It would be better for all concerned if we faced this legal problem head-on rather than try to come up with complicated not-very-persuasive workarounds. Here are the two most obvious workarounds, raised in this very angry and excited post by Taiwan-expert J. Michael Cole:
a) Responsibility to Protect and Humanitarian Intervention
Here is a simple response: R2P are non-binding principles that, even if they were binding, seems to require Security Council consent. Humanitarian intervention remains deeply contested and doubtful in international law, and would not apply to Taiwan in any case until it was probably too late. Kosovo is a great example of how contested this doctrine is. Syria is another.
b) The ROC is a separate legal entity.
I get that this is a complicated issue, but I don’t think I am “misreading” historical documents when I write that i) the US recognizes the PRC as the government of China and that the US accepts that Taiwan is part of China; 2) Japan recognizes the PRC as the government of China, and Japan accepts that Taiwan is a part of China. Sure, neither country recognizes that Taiwan is a part of the PRC, but both the US and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity. We can futz around the details, but there is a reason why neither the US nor Japan (nor almost anyone else) have diplomatic relations with Taiwan.
Here is one interesting and unexpected policy consequence of Taiwan’s current legal position: it would be safer from a legal perspective for Taiwan to declare independence, since that would protect it from this legal problem I’ve identified. Of course, that legal position would probably be the least safe from a policy perspective, since it is the mostly likely to spark a Chinese attack.
Which brings me to my real point: the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force. The decision on whether to defend Taiwan should not depend on workarounds for Article 51. It should depend on the combination of moral values and national interests the US and Japan consider worth protecting here in Taiwan. I think Taiwan is worth protecting, but it is important to recognize that the law is not on Taiwan’s side.
Harry J. Kazianis, the managing editor of The National Interest, has a smart post discussing the risk that the U.S. is taking if it tries to take more aggressive action to counter China in the South China Sea. Essentially, he argues the U.S. has no effective strategy to counter China’s “non-kinetic” strategy to subtly alter the status quo by using non-military assets to expand control and influence in the region. I agreed with Kazianis all the way until he offered his own solution:
There only seems one solution to the various territorial disputes in the region—specifically, what some are calling “lawfare.” All of the various claimants that have disputes with China in the South China Sea should appeal collectively to any and all international bodies that could possibly hear their claims. Only together can they hope to get Beijing to halt its aggressive actions.
He goes on to cite the Philippines claim against China in the UN Law of the Sea arbitration system as a possible model for other nations.
“Lawfare” or international law litigation is not going to be an effective counter to China here for at least two reasons (one legal, one policy-based):
- 1) China has opted out of any “compulsory” system of international dispute resolution that would rule on its territorial claims in the South China Sea (or anywhere, for that matter). This “opt-out” is perfectly legal and may very well prevent the Philippines from even making their full case to the UNCLOS arbitration tribunal. There are no other legal institutions that have jurisdiction. So the only way “lawfare” can work here is if China consents to arbitration. But if Kazianis is right that this is a strategy by China’s neighbors to block its expansion, then why would China ever agree to arbitration?
- 2) Even if compulsory jurisdiction were somehow found in one of these international bodies, there is very little chance that China would feel compelled to comply with any negative ruling. This is not a China-specific problem, but rather a problem almost every country faces when considering arbitration over territorial disputes. The effectiveness of tribunals in these contexts is highly limited since they depend for enforcement on the individual state-parties. This is why voluntary arbitration tends to work better than compulsory arbitration in these kinds of territorial disputes. The U.S. and Canada, for example, have managed to settle (most of) their often contentious land and maritime borders through a combination of non-arbitral commissions, and then special bilateral arbitrations. In the famous “Gulf of Maine” case, the U.S. Senate actually approved a special treaty with Canada to send a maritime dispute to a special chamber of the ICJ. Although clunky, this model is far more likely to succeed in getting state compliance.
So while I agree with Kanianis and other commentators that China needs to be deterred from its current strategy in the South China Sea, I am fairly confident the use of “lawfare” will not be a way to accomplish this goal.
Why Japan Would Violate International Law If It Militarily Intervened to Defend Taiwan (But Why Japan Should Do So Anyway)
I’ve been swamped with various projects and distractions here in Taiwan (mostly food-related), so I didn’t notice until today this very interesting Zachary Keck post about how Japan’s recent decision to re-interpret its constitutional provision to allow expanded overseas military activities would enable Japan to help defend Taiwan against an attack from China. It’s a fascinating post, but it also made me think of an interesting wrinkle that cuts against his argument. It is almost certainly true that international law prohibits any military action by Japan (or the US) to defend Taiwan from a Chinese attack.
In his post, Keck notes that Japan’s decision to reinterpret its constitution does NOT allow Japan to fully exercise its rights to collective self-defense under international law, but it does allow Japan to provide military support to allies where Japan itself is threatened. But he then argues that even under this more narrow “collective self-defense” right, Japan could (and probably would) intervene to assist Taiwan in a military defense against a Chinese invasion.
I think this could be right as a matter of Japanese constitutional law if an invasion of Taiwan could be plausibly construed as a threat to Japan, but there is a strange international law flaw to this argument. Under black-letter international law, Japan cannot use military force in Taiwan absent China’s consent, even if the Taiwan government requests its assistance. Why? Because the UN Charter’s Article 51 only authorizes an act of “collective self-defense if an armed attack occurs against a Member of the United Nations.” Taiwan is not a member of the United Nations, and to make matters worse from Taiwan’s perspective, Japan recognizes the government in Beijing as the rightful government of China, and Japan further recognizes that Taiwan is part of China.
So unless Japan is able to plausibly claim that an attack on Taiwan triggers Japan’s own inherent self-defense right (and I think this is a non-starter as a legal argument), and unless a Chinese invasion could be said to justify humanitarian intervention (another very difficult argument), Japan would violate the U.N. Charter if it used military force in a way that violated the territorial integrity of another UN member (China). Japan could not invoke its collective self-defense rights unless it recognized Taiwan as an independent nation. And even that would probably not be enough to satisfy international law requirements, since Japan’s unilateral recognition of Taiwan as an independent state would necessarily satisfy international law either. And good luck, Taiwan, getting U.N. membership.
By the way, this analysis applies equally (or even with greater force) to the United States. The U.S. quasi-defense guarantee to Taiwan has it completely backwards (from a legal point of view):
- If Taiwan declares independence, the U.S. has signaled it would not consider itself bound to defend Taiwan against a Chinese invasion. Yet that would be (at least in theory) one state (China) committing aggression against another state (Taiwan), and almost certainly illegal.
- If Taiwan keeps the status quo and does not declare independence, and China still invades, the U.S. has signaled that it would come to Taiwan’s defense. But that would be one state (China) using force within its own territory to put down secessionists (a la Ukraine) and almost certainly legal.
So the U.S (and maybe Japan) are now committed to defend Taiwan only in a situation that would require the US and Japan to violate the U.N. Charter. It’s international-law-bizarro world!
Of course, this bizarro-from-a-legal-point-of-view policy suits U.S. purposes, since it is the policy most likely to avoid military conflict with China. But it also reveals how use of force rules in the U.N. Charter have little relevance to shaping the behavior of the U.S., Japan (and probably China) in any conflict over Taiwan. Japan and the US should (and probably are) ready to ignore these legal rules when making their determinations about whether to defend Taiwan. And all in all, that’s a good thing (especially while I am still here in Taipei!).
The Supreme Court Misses an Opportunity to Place Constitutional Limits on the Treaty Power in Bond v. United States
My co-author John Yoo and I have a piece up on Forbes today arguing that the U.S. Supreme Court missed a grand opportunity in Bond v. U.S. to place constitutional limits on the treaty power. We take aim at Missouri v. Holland head-on. We criticize the interpretation of the Chemical Weapons Convention Implementation Act adopted by the opinion for the Court of Chief Justice Roberts and argue this decision has echoes of his opinion in Sebelius on the Affordable Care Act. Here is an excerpt:
Holmes was wrong in 1920, however, and the Obama administration is wrong today. The Founders’ original understanding supports a federalism limitation on the treaty power, and this is especially compelling in light of today’s far-reaching and ambitious modern treaties. Unfortunately, the Court’s opinion refused to directly reject Missouri’s mistaken approach.
The conflict between China and Vietnam over a Chinese oil rig has (thankfully) calmed down a little bit, with fewer reports of rammings and water cannon fights in the South China Sea. But the war of press release and government-sponsored editorials has heated up and all of them are wielding international law as a weapon of authority and legitimacy.
Vietnam’s government has been flooding the Internet with various articles, interviews, and statements accusing China of violating international law by moving an oil rig into waters Vietnam claims as its own. See here, here, and here. In general, these are pretty effective, although I do think Vietnamese scholars lose a bit of credibility when they insist that China has “no legal grounds” for its actions. Meanwhile, the Philippines has continued its steady drumbeat of legal articles, including this fascinating essay by Philippines Supreme Court Judge Antonio Carpio.
China has struck back with several English-language articles of its own from Xinhua, the official Chinese news agency. These have been much less effective or credible, and not just because China has a weaker (although not indefensible) legal position. Here’s a doozy from the opening paragraph of a recent Xinhua offering:
China’s repeated rejection of Manila’ s plea for arbitration in the dispute in the South China Sea is by no means defiance of the tribunal in The Hague. On the contrary, it shows China’s respect for international law.
I understand what they are trying to say, but this argument just sounds bad. China has no legal obligation to participate in the UNCLOS arbitration, but its non-participation is hardly a sign of respect for international law when that arbitral tribunal has the power to determine its own jurisdiction.
This Xinhua essay on the Vietnam dispute is much better. Most importantly, it relies on China’s territorial claim to the Xisha (Paracel) Islands as the basis for China’s right to place the oil rig. It does not claim any rights here flow from the so-called “Nine Dash Line” that often gets all the press and is undoubtedly the weakest part of their legal argument. It focuses on the threats to the safety of Chinese sailors and workers, and Vietnam’s legal obligations under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.
Of course, international law is not China’s strongest suit here. But it is interesting to see how China is using international law to support its actions. Moreover, all China has to do is muddy the waters by establishing that international law does not plainly compel any particular outcome (as Vietnam and the Philippines seem to argue). If the international legal arguments are fought to a draw, China is in a good position to win the overall game.
So, Professor of Law, what are you going to do after you retire from your tenured post teaching and finish writing all the articles and books you want to write? Well, I guess I’ll become President (of Malawi)!
On Saturday, [Peter] Mutharika, now 74, a soft-spoken professor with a proper English-educated accent and who smoked a pipe while he taught in the 1970s, shocked many of his former colleagues and students when he was officially named the southeastern African country’s president after a tumultuous election that took more than a week to resolve.
It was an ascent to power just three years after his formal retirement from Washington University.
Congrats to Professor (er, I mean President) Mutharika! It is not very often that a professor of international commercial law and contracts becomes a head of state. It sounds like there are many serious obstacles facing him (and only a few of those are related to his background as a U.S. law professor), but I am sure all of us in the U.S. law academy wish him the best!
There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea. Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.
What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done. Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction. Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”
At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction. Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone. So I think we will see a rerun of the Philippines arbitration. Vietnam will constitute a tribunal, China will not participate, and away it goes.
Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China. I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.
Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts. This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas. It is not a slam-dunk, but it certainly could be a plausible claim.
I am doubtful that an additional arbitration will lead to China backing down. Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines. The extra added pressure of a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned. I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.
I’ve been settling into my digs this summer at the National Taiwan University College of Law as a visiting research fellow with the support from a grant from the Taiwan Fellowship. Mostly, I’ve been spending my time eating my way through what I believe is the best Chinese food scene in the world (I am posting pictures of my eating exploits on my facebook page for those interested in Chinese food).
But in between absurdly delicious meals, I have also been following the anti-Chinese riots in Vietnam that have caused over 500 different businesses to be shut down there over the past week and thousands of Chinese and Taiwanese nationals to flee Vietnam. Those violent riots were apparently in response to China’s placement of an oil rig in disputed South China Sea waters.
The lively Taiwanese media has been following these riots with much more intensity than their Chinese counterparts, because a large proportion of the burned or trashed businesses are actually owned by Taiwanese nationals, with Chinese workers or managers administering it for them. TV news here is filled with pictures of Taiwanese flying home with harrowing stories of dodging rioters by hiding in trash cans, etc. Their plight has caused some soul-searching here in Taiwan because Taiwan’s status as a non-country that is recognized in Vietnam only as a province of China means they receive the blowback for China’s actions and Taiwan’s government has limited means to respond and protect their own nationals. (Their foreign ministry did helpfully issue stickers to their nationals saying, in Vietnamese, “I am from Taiwan”. Reminds me of the time I was told to put little Canadian flags on my backpack when I wandered through sketchy areas of Egypt).
In addition to advising their nationals to emphasize their “Taiwaneseness”, the Taiwan government’s main action has been to invoke the 1993 Taiwan-Vietnam Investment Promotion and Protection Agreement (in Chinese). The Taiwan government is using this agreement as proof that it can protect and seek compensation for its nationals abroad.
This is sort of like a bilateral investment treaty, but not quite, because of Taiwan’s odd non-country status. It is technically an agreement between the “Taipei Economic and Cultural Office in Vietnam and the Vietnam Economic and Cultural Office in Taipei” which means it is an agreement between two quasi-government agencies, and not the governments as a whole. This means it is unlikely to be governed by international law, although the agreement doesn’t choose any governing law either. Moreover, the agreement does not provide for referral to an ICSID tribunal for any investor claims against the host government (in this case Vietnam). Rather, it seems to allow for referral to arbitration under the “1988 International Chamber of Commerce” Rules.
Moreover, such referrals seem to require the mutual consent of the parties in Article 8. This might allow Vietnam to block a referral to arbitration by a Taiwanese investor. (Oops! This provision refers to disagreements between the two parties to the agreement, not the investor and the host state. Sorry about the misreading. But I think my larger critical take stands). Since the Agreement doesn’t otherwise waive Vietnam’s state immunity, I am not confident about the ability of an investor to enforce any awards from an ICC tribunal without such consent anyway.
In other words, I am skeptical that the Taiwan-Vietnam Agreement is going to be very effective at winning compensation for investors. Instead, if I was a Taiwanese investor, I would think about invoking the Vietnam-China BIT. True, that agreement is limited to natural persons and economic entities who have the “nationality of the People’s Republic of China”, but it is not entirely clear this would exclude the PRC’s “Taiwanese compatriots” who are officially treated in China as “nationals” for some purposes. Even if this argument doesn’t fly, many of the Taiwanese companies in Vietnam may have Chinese national employees or entities that could make a claim on their behalf. Of course, this would be pretty bad PR here in Taiwan, where no one really wants to be associated with the Chinese government. But if they managed to get an ICSID tribunal constituted, a Taiwanese investor has a much better chance to forcing Vietnam to pay out compensation under the Vietnam-China BIT than the Vietnam-Taiwan agreement. Another example of why being a non-state is such a pain for Taiwan and the Taiwanese.