Author Archive for
Julian Ku

The Syria Attacks: Haven’t We Had These Debates Already?

by Julian Ku

Reports of another horrific use of chemical weapons against civilians in Syria seems to have affected President Trump. In comments today, President Trump said the chemical attacks against civilians “crossed a lot of lines for me” and changed the way he views Syria and leader Bashar al-Assad. Although it is always hard to interpret the President’s comments, he did cite his “flexibility” to change his policies. One might interpret this to mean that the U.S. my change course and directly use military force against the Assad government in Syria.

As tragic as this latest attack is, I also feel like I am in a time-warp that has sent me back to 2012-13 when similar chemical weapons attacks led to similar global outrage which led to an American debate about whether to launch military attacks on Syria.  President Obama famously decided to launch such strikes (without Congress or the UN) and then changed his mind and sought congressional consent.  He never got that, but he did work out an agreement with Russia and the Assad government to remove Syria’s chemical weapons capability.  That didn’t work out as well as he hoped (to use a tragic understatement).  But the factual and legal issues are almost identical today.

So as a service to readers, let me just link to some of the legal analysis we posted back then, much of which still applies today. Updates of course will be necessary, but this is the right place to start.

I argued in 2012 that a strict reading of the U.N. Charter prohibited any U.S. strike on the Syrian government without consent from the U.N. Security Council.  This would be the case even if the Syrian government used chemical weapons against civilians during its civil war.  Former top UK legal adviser Daniel Bethlehem took issue with my formalist reading of the U.N. Charter.

Kevin wondered why the use of chemical weapons itself was so significant as opposed to the civilian deaths it caused.  Put another way, he pointed out that the use of chemical weapons, however horrible, was not necessarily any more of a war crime for legal purposes that the use of non-chemical weapons against civilians and non-combatants.  He also points out in a later post that the Rome Statute does not single out chemical weapons use alone as a crime, despite an initial proposal by drafters to do so.

Finally, we held an “insta-symposium” on Syria with many great contributions from scholars, legal and non-legal, on the difficult questions raised by the Syria conflict.  A list of those posts can be found here at the bottom of the first post in that symposium, from Stephanie Carvin.

Hopefully, this will help all of us refresh ourselves for the great Syria intervention debate, Round II (Donald J. Trump edition).

The Unattractive Question is Back: SCOTUS (Again) Considers Corporate Liability Under the Alien Tort Statute

by Julian Ku

Today, the U.S. Supreme Court agreed to hear the case of Jesner v. Arab Bank in order to resolve a single issue: “[w]hether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.” This post will briefly review the case and offer a quick assessment of the ATS corporate liability issue.  Longtime readers will not be surprised to read that I side with the Defendants on this issue, although I will also add that I think my side on this case will have an uphill battle to prevail in the high court. 

Should the Court have agreed to hear the case?

The Court’s decision to hear the case is a bit surprising given that it had refused to hear at least two cases raising the same issue in the previous two terms.  On the other hand, the Court’s decision to hear the case is also quite understandable given the fairly sharp split between lower circuit courts on the question. Such an enduring split among the opinions of lower courts is always an important factor for the Court in deciding whether to hear a case. The rather dramatic divisions among judges on the Second Circuit Court of Appeals on this issue probably caught the Court’s attention as well.

Still, it is also worth noting that the Court granted cert on this exact same issue not six years ago when it first agreed to hear Kiobel v. Royal Dutch Petroleum in the fall of 2011.  The parties submitted briefs and held oral arguments on the corporate liability issue itself.  But during argument, the Court decided that the question of whether the Alien Tort Statute has extraterritorial reach needed to be resolved first, and sent the case back for re-argument the next term.  That re-argued case eventually became the 2013 Kiobel decision sharply limiting the extraterritorial scope of lawsuits brought under the ATS to cases that “touch and concern” the territory of the U.S.  The corporate liability issue was left fully argued and untouched.

To be sure, since 2013, several other circuit courts have issued opinions on the corporate liability issue and all have split from the original Second Circuit Kiobel decision denying corporate liability under the ATS. And the Court may have a new member by the time Jesner v. Arab Bank is decided.  So while that is a possible reason for reversing course and granting cert, it is still unusual for a Court to hear a case on the exact same issue it already heard in argument a few years ago.

What Law Should Determine Whether Corporations Should Be Liable Under the Alien Tort Statute?

One of the more annoying hard-to-explain legal issues in ATS cases is also one of my favorite law-nerd issues: what law should govern?  On its face, the ATS calls for the application of “the law of nations” but courts have long disagreed about whether international law also applies to questions such as standards for aiding and abetting liability and whether a corporation can be liable.  ATS plaintiffs have typically argued that these questions should be governed by domestic law, that is to say, federal common law. Under federal common law, corporations are typically liable for torts and application of this law would almost certainly favor the plaintiffs on this question.

But the Court has never fully resolved this issue.  To me, it has always seemed that any questions affecting the substance of a case against an ATS defendants should be governed by international law, as the ATS’ text seems to demand.  The temptation to fill in the many gaps left by international law with U.S. common law is strong, but the ATS clearly sought to ask US courts to apply international law.  Getting past that textual directive will be difficult for me, and I suspect the textualist-oriented justices on the Court.

Will Justice(?) Gorsuch’s Vote Matter?

The circumstances of this grant for cert, which occurred after several prior opportunities were rejected, does not bode well for respondents.  Nor is the fact that the cert grant adopts the petitioners’ phrasing of the issue word-for-word.  I would be particularly troubled by the Court’s decision to phrase the question as whether the ATS “categorically” forecloses corporate liability. This is plainly language structured to favor the plaintiffs’ case.

My views on the ATS corporate liability question should be well known to most OJ readers.  I think the issue of corporate liability should be governed by international law and that the strict standards for recognizing an actionable norm under the Court’s prior decision in Sosa precludes recognizing an ATS cause of action against corporations.  I joined a great amicus brief saying basically that in the original Kiobel case back in 2012.

I have also recognized, however, that this is pretty formalistic argument that is unusually unattractive to most observers. Still, the international norms haven’t really changed since 2012.  Plaintiffs will not be able to cite to many (or any) sources that hold corporations liable for violations of international law norms.  But they can still pound the table and simply say it is ridiculous to “immunize” corporations for torts, which I think still has quite a bit of force.  The response has got to be that corporations are often liable for torts, but not always.  Even under domestic law, the U.S. Supreme Court has foreclosed corporate liability for certain statutes (like the Torture Victim Protection Act) or for constitutional norms in the context of Bivens actions).

This leads me to Judge/Justice Gorsuch.  Since the case will be heard next term, Judge Gorsuch will have a chance to rule on the case if he is confirmed.  Will he be willing to sign on to a formalistic/textualist interpretation that is extremely normatively unattractive?  I don’t know enough about Judge Gorsuch to know, but I am not sure this will matter. My guess is that Justices Roberts and Kennedy were sufficiently repulsed by the idea of ruling against ATS corporate liability back in 2012 that they sought (and found) a different way of resolving the case.  I suspect (without having any inside information) that they would like to find an out again.  If they can’t, I can see a 6-3 opinion for the plaintiffs, with Chief Justice Roberts writing an opinion that he tries to make as narrow as possible.

So that’s my first take on Jesner v. Arab Bank.  I will no doubt be back for more. Stay tuned!

Will International Law Matter to the Trump Administration?

by Julian Ku

There are lots of panels and conferences being held around the U.S. (and maybe outside the U.S.) on the new Trump Administration’s policies and their impact on international law. I would like to recommend our readers view some or all of the video from this half-day conference recently hosted in Washington D.C. by the Federalist Society and the American Branch of the International Law Association.  Entitled “International Law in the Trump Era: Expectations, Hopes, and Fears,” the conference has lots of interesting scholars and former U.S. government officials participating.  All of the panels look great, but it is hard to avoid highlighting the panel discussion below with friend of blog John Bellinger and Georgetown lawprof Rosa Brooks tackling the question everyone is asking:

Strangely Enough, President Trump Can Use His Executive Power Over Immigration to Advance Human Rights and Battle Corruption

by Julian Ku

statue-of-liberty-1210001__340The legal battle over President Trump’s recent executive order has cast a spotlight on the president’s broad and potentially abusive powers over U.S. immigration laws.  But it is worth remembering that this power can be used in many different ways, including in ways that the President’s critics would support.  This past December, Congress delegated to the president broad discretionary powers to use his executive power over immigration to protect international human rights and to battle against corruption. These powers could advance the protection of human rights far more effectively than any Alien Tort Statute lawsuit.  But a successful use of this new law would require President Trump and his critics to work together. And this prospect seems awfully hard to imagine right now.

Enacted as part of the FY 2017 National Defense Authorization Act and modeled on a similar law targeting Russia only,  the “Global Magnitsky Human Rights Accountability Act” delegates to the President broad powers to impose targeted sanctions on foreign persons who commit or materially assist the commission of “gross violations of internationally recognized human rights” or “acts of significant corruption.”  In particular, the President is authorized to deny or revoke visas to foreign “persons”, or simply deny them entry.  A foreign “person” is specifically defined to include dual nationals.  (The exercise of this power might sound familiar to those of us still wrestling with the impact of last week’s immigration order.)

The Global Magnitsky Act goes farther than visa denial, however, and also authorizes the President to block “all transactions in property” of a foreign person that are in the United States or are in the possession of a U.S. person.   “Blocking” means that the property is frozen so that the owner cannot exercise any power or control over it despite still retaining title.

In order to impose such sanctions, the President simply needs to determine, based on “credible evidence,” that a foreign person either is “responsible” for a “gross violation[]” of internationally recognized human rights or acted as an agent for that person.  The same “credible evidence” standard applies to sanctions for corruption, or “materially assisting” corruption.

Taken together, it is hard to read this law as anything other than a grant of highly discretionary or possibly unreviewable power for the President to block the entry and/or freeze the assets of any foreign national he thinks is connected to human rights violations or corruption.  It might be unreviewable because courts are hesitant to review presidential exercises of a delegated power to impose sanctions, and even if it did, it would be nearly impossible for a court to find the lack of “credible evidence”.

Thus, President Trump has a new sweeping, possibly unreviewable power to deny entry into the U.S. and/or freeze the property of foreign nationals on the basis of human rights violations or corruption.  Previously, the President would have had to invoke a “national emergency” under the International Emergency Economic Powers Act to impose such sanctions, and violations of human rights were not specifically authorized as the basis for imposing such sanctions.  The Global Magnitsky Act thus hands President Trump a pretty powerful tool to support and advance the cause of international human rights.   Will he use it?

It is hard to predict anything for certain about our new president, but the statute does build in some mild procedural encouragements for him to use this new power.  For instance, the President must issue a report to four congressional committees (Senate Banking, Senate Foreign Affairs, House Finance, and House Foreign Affairs) reporting on sanctions he has imposed within 120 days of the law’s enactment (April 7, 2017).  Moreover, the President must also respond within 120 days to any request by the chair and ranking member of one of the congressional committees to impose human rights sanctions.  If the chair and ranking member of one of the House committees and one of the Senate committees sends him a request to impose corruption related sanctions, he must also respond within 120 days.  The Assistant Secretary of State for Democracy, Human Rights, and Labor is authorized to submit the names of possible sanctions targets to the Secretary of State for review. Moreover, nothing in the statute prevents the President from acting on his own.  Human rights NGOs, many of whom are the Trump administration’s fiercest critics, could also submit lists if they choose.

Even if President Trump uses this power, will it have any effect? How many “gross violators” of human rights or corrupt foreign government officials want to enter the U.S. or have property or assets here?  It is hard to say for sure, but the number is probably more than zero.  It might even be a lot more than zero.  In any event, it is also worth noting that the sanctions imposed by the Global Magnitsky Act are almost as severe as any judgment that could be collected in a lawsuit brought under the Alien Tort Statute.  Will petitioning the White House to impose sanctions replace ATS lawsuits?  Probably not, but if used aggressively, the Global Magnitsky Act would have a much greater impact in support of international human rights than any five ATS lawsuits put together.

It is still too early to tell how this law will work in practice.  But human rights and anti-corruption NGOs should be dusting off their political lobbying skills and start approaching the State Department and the chairs and ranking members of the relevant congressional committees with names. Since Maryland Senator Ben Cardin sponsored the Global Magnitsky Act and is the ranking member of the Foreign Affairs Committee, I bet he would be more than happy to submit some names to President Trump.    Such lobbying is a lot easier than filing an ATS lawsuit, and has a much higher chance of having a real impact.   But it will also mean petitioning an unpopular president to exercise his much vilified executive powers on their behalf. Will a future photo from the Oval Office depict President Trump signing a Magnitsky Act executive order while officials from Amnesty International and Human Rights Watch stand beside him to applaud him?  As I said, this is awfully  hard to imagine today, but stranger things have happened.

Why You Shouldn’t Panic Over President Trump’s Draft Executive Orders on Funding for International Organizations

by Julian Ku

Because I am on sabbatical this semester, I have been lying low during these first few (very busy!) weeks of the Trump administration.  But I have noticed that the sheer volume of Trump administration actions, and reactions to its actions, is confusing both its supporters and its critics.  While Trump has already taken actions that are worthy of severe criticism (see, e.g., his much-maligned immigration executive order), some of his other proposed actions are being overblown as further threats to the Republic.  This type of overstatement and mischaracterization is as damaging to Trump’s critics as they are to the Trump administration itself.

For instance, two draft Trump executive orders on international organizations and multilateral treaties leaked late last week causing a flurry of instant condemnation on social media and elsewhere.  The initial reports about these orders, especially on twitter and in headlines, suggested that Trump would by executive order “to dramatically reduce funding of United Nations.”  New York Magazine’s summary of the draft order is particularly sensational:

….Donald Trump is preparing to decimate this tool of American hegemony [the U.N.] — and global peacekeeping and poverty reduction — with a stroke of his pen.

The Trump administration has drafted an executive order that would radically reduce American funding of the U.N. and other international organizations. The order would terminate all U.S. funding to any international body that meets any one of a long list of criteria. Among other things, the order would bar American funding of any organization that gives full membership to the Palestinian Authority or Palestine Liberation Organization, supports programs that fund abortion, or that is “controlled or substantially influenced by any state that sponsors terrorism.” (Emphasis added).

The problem with this summary is that it is totally inaccurate.  The actual draft executive order simply forms a committee to study and provide recommendations on whether and how to cut U.S. funding to the U.N. and other international organizations.  The order does not “terminate” anything with “a stroke of a pen.” Its most aggressive section would simply require the Committee to “recommend appropriate strategies to cease funding” international agencies that grants membership to the Palestinian Authority or supports terrorism.  Funding for these agencies is already prohibited by U.S. statute, so this is really an order to think of ways to comply with U.S. law.  To be sure, the order takes a much harsher and negative view of funding international organizations than prior U.S. administrations, but the order is hardly the end of the United Nations as we know it.  This is especially true if we recall that Congress, and not the President, has the power to fund or not fund international organizations like the U.N..

The draft executive order on multilateral treaties is potentially more significant because the President has broad powers to withdraw from treaties.  But the order itself simply creates another committee to review U.S. participation in all multilateral treaties that the U.S. is negotiating, in the process of considering ratification, or already ratified and joined.  The committee is instructed to recommend whether the U.S. should continue negotiating, ratifying, or being part of those treaties.

The only unusual part of this process is to elevate treaty review to an interagency committee. But such a review process is reasonable for any new administration.  The only real action in the draft order is a moratorium on submitting new treaties to the President or the Senate absent a committee recommendation.  This might slow down the already slow treaty ratification process, but given the glacial pace of Senate consideration of most treaties, I doubt this “moratorium” will have much an effect.

There is plenty to criticize and even protest in the new Trump administration’s flurry of executive orders and statements.  But Trump’s critics need to carefully distinguish between what is truly troubling and what bears watching, and what is not really significant. Otherwise, they risk undermining their credibility and the effectiveness of their critiques.  These two draft executive orders bear watching as a signal of the new administration’s priorities.  But they are not a cause for panic.

So everyone take a step back, and read beyond the headlines or twitter summaries before reacting and overreacting.  There is and will be plenty to criticize in the new administration.  Save your ammunition for when it is truly needed.

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

by Julian Ku

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

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

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

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

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

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

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

Would Secession by California and Oregon Be Legal?

by Julian Ku

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

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

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

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

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

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

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

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

We live in interesting (and dangerous) times.

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

by Julian Ku

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

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

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

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

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

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

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

by Julian Ku

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


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

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

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

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

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

US Military Action in Syria

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

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

More US Violations of Drug Control Treaty

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

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

Ratification of the Law of the Sea Treaty

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

o o o

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

How Dualism May Save the United Kingdom from Brexit

by Julian Ku

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

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

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

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

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

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

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

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

by Julian Ku

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

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

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

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

Defense Treaties/Military Alliances

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

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

Nonbinding/Sole Executive Agreements

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

Trade Agreements 

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

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

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

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

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

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


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


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

by Julian Ku

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

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

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

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