Author Archive for
Julian Ku

Does the “Justice Against Sponsors of Terrorism Act” Violate International Law?

by Julian Ku

President Obama has threatened to veto a bill pending in the U.S. Congress that would allow private plaintiffs to sue foreign sovereigns for committing (or abetting) terrorist attacks inside the territory of the United States.  The Justice Against Sponsors of Terrorism Act has broad bipartisan support in Congress and from all of the presidential candidates (including Hillary Clinton). It would add an exception to the general rule of  immunity for foreign sovereigns in U.S. courts in cases

in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act...

(emphasis added).

The bill drew more attention this week when the NY Times reported that Saudi Arabia is threatening to dump $750 billion in U.S. assets in retaliation for allowing the bill to become law.  Lawsuits from September 11 victims against the Saudi government would benefit tremendously from this law.

Anything with this much bipartisan support must be wrong in some important way. I suppose one reason to be skeptical is that it would mix delicate political and diplomatic relations into judicial proceedings where private lawyers can demand discovery into a foreign government’s internal deliberations and activities.

 Another reason is that there seems little basis in international law for creating an exception to sovereign immunity for terrorist attacks, or supporting terrorist attacks.  The traditional view of sovereign immunity is that it is absolute, and that remedies against a sovereign must be sought in diplomatic or international fora.  Allowing a domestic judicial proceeding to judge the actions of a foreign sovereign would seem to undermine this basic idea.

But there are exceptions to sovereign immunity, such as for commercial activities, that much of the world accepts. It is just not clear whether a new exception can and should be created here. I am doubtful, but I am willing to be convinced.

The $50 BILLION Treaty Interpretation Question: Dutch Court Sets Aside Yukos Award Against Russia

by Julian Ku

Russia scored a huge victory today when the Hague District Court in the Netherlands court set aside a $50 billion arbitral award in favor of former shareholders of Yukos.  The $50 billion Yukos award (that’s BILLION, with a “B”),  is the largest arbitration award ever issued, was issued under the authority of the Energy Charter Treaty.  The arbitral tribunal (hosted at the Permanent Court of Arbitration) had found that the Russian government was liable for expropriating the former shareholders of Yukos through use of tax laws, harassment, criminal punishments, and other government measure without providing adequate compensation.

The Hague District Court set aside the award on jurisdictional grounds.  According to this English-language summary, the Dutch court held that Russia was not bound to arbitration under the Energy Charter Treaty because it never ratified the ECT.  The arbitral tribunal held in its interim award that Russia was bound under Article 45, which calls for provisional application of the treaty pending ratification.  But the Hague District Court disagreed.

Here is Article 45(1) and (2)(a):

(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.

(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository.

Russia did not make such an Article 45(2) declaration, but the Dutch Court held that Article 45(1) still acted as a jurisdictional bar on the arbitral tribunal’s jurisdiction because it requires the arbitral tribunal to go back and assess whether the dispute resolution provision (Article 26) of the Energy Charter treaty is “inconsistent” with Russia’s “constitution, laws or regulations.”  the Dutch court concluded that Russia’s constitution does not permit it to be bound to an arbitration assessing the legality of its tax laws without the consent of its legislature.

I don’t have a strong view on who is right here. I will note that Russia is represented by the well-known New York law firm Cleary Gottlieb (where I once toiled as a young summer associate) and that Russia mustered an impressively long list of international law experts on its behalf such as Martti Koskenniemi, Alain Pellet, and Gerhard Hafner (to list just a few).  The claimants had their own impressive list including James Crawford and my former Yale professor Michael Reisman.  This is a truly difficult treaty interpretation question, which just happens to have $50 billion riding on it.  So we can be sure there will be an appeal of the Hague District Court’s ruling.

It is worth noting that also that Russia has a lot riding on this case, but it also decided to litigate this matter fully even though it believes the tribunal has no jurisdiction.  This turns out to be a smart move, since they seem to have won (for now) and because not litigating would have still subjected them to lots of enforcement actions against them around the world. So litigation seems to have worked out for Russia this time. I wonder if that will encourage Russia  to try its hand at litigation in future cases as well?


Happy Birthday to the International Court of Justice!

by Julian Ku

We would be remiss here at Opinio Juris if we did not mark today’s 70th anniversary of the opening of the International Court of Justice on 18 April 1946 at the Peace Palace in The Hague.  I have been fairly critical of the ICJ over the years. Way back in 2005, I complained about the ICJm22133338_241x164-international-court-of-justice‘s molasses-like deliberations.  (I also inadvertently declared an ICJ member dead when he was (and still is) very much alive.)  But I do think the ICJ is an important and interesting participant in the development of international law, even if it is not as important as it would like to be.

Having said all that, the ICJ is an ongoing experiment in the use of permanent international judicial institutions to resolve state-to-state disputes, and it has had its fair share of successes over the years.  So let’s take today and celebrate its 70th birthday by viewing films from its opening day and interviews with its current registrar.  We can save our grousing for tomorrow and other days.

Stay in Your Lane! When Political Scientists Become Bad International Lawyers

by Julian Ku

Next month’s issue of Foreign Affairs, a leading journal of highbrow foreign policy in the U.S., features an important article on the United States as “The Once and Future Superpower” (subscription).  Based on their forthcoming book, professors Steven Brooks and William Wohlforth of Dartmouth College argue that China is not going to displace the United States as the world’s leading superpower in the near or even mid-range future.

As an article analyzing global power politics, it seems fairly (although not completely) persuasive.  But I was struck by how the otherwise carefully argued piece descends into complete gibberish when it tries to explain how “international law” can be a tool for the United States to constrain and manage China’s activities in the South China Sea.

And if Beijing tried to extract economic gains from contested regions [in the South China Sea], Washington could facilitate a process along the lines of the proportional punishment strategy it helped make part of the World Trade Organization: let the Permanent Court of Arbitration, in The Hague, determine the gains of China’s illegal actions, place a temporary tariff on Chinese exports to collect exactly that much revenue while the sovereignty claims are being adjudicated, and then distribute them once the matter is settled before the International Court of Justice.


In this one sentence, the authors propose that an arbitral tribunal convened under UNCLOS issue an award granting money damages to the Philippines. This is somewhat unlikely, but it is theoretically possible.  But who exactly is going to place a “temporary tariff on Chinese exports”?  The United States? A country that is not party to the dispute between China and the Philippines? And why exactly wouldn’t this cause a trade war with China and why wouldn’t it violate the WTO Agreement? And when exactly did the International Court of Justice get involved given that China has not consented to that court’s compulsory jurisdiction?  

Not only is this not a plausible mechanism for sanctions against China (the world’s second largest economy), but it is not a plausible mechanism for sanctions against almost any country in the world.  It has never been done before outside of the trade context, where every country specifically agreed to the trade sanction system in advance! 

The authors’ casual, offhand explanation of how “international law” is an asset that can be used for pursuing policy goals irrespective of existing legal institutional frameworks and legal principles is something I’ve noticed before in political science literature.  The “law” argument is not a bad one in principle, but it requires a deeper understanding of law as an independent analytical field than political scientists are willing to give it credit for.

As it stands now, this otherwise interesting article loses credibility with policymakers because the authors didn’t bother to try to understand how law and legal institutions are organized.  Maybe they should just skip over the legal stuff, and stay in their own lanes.  Or maybe they could find a reader up there in New Hampshire with a J.D. (I’m always available!).

The U.S. Embargo on Cuba Should Be Lifted, But It is Not a Blockade, and Perfectly Legal

by Julian Ku

Last week, I accompanied a group of Hofstra Law students on a one-week study abroad “field study” in Havana, Cuba. We visited just a week after President Obama’s historic visit and a day after an almost equally historic Rolling Stones concert.  The trip gave my students and I an opportunity see how some of the effects of President Obama’s effort to normalize relations with Cuba, and also how the U.S. embargo on Cuba is viewed bimage1y Cubans.

It also gave me a chance to think again about my earlier analysis of Cuba’s argument that the U.S. embargo violates international law.  I still think Cuba’s description of the U.S. embargo as a “blockade” is ludicrous. But I am more sympathetic to legal criticisms of the
extraterritorial effects of the U.S. embargo.

First, as the photo suggests, Cuba calls the U.S. embargo a “blockade”.  Indeed, the billboard (which faces visitors as soon as they drive in from the airport), refers to the “bloqueo” as the “longest genocide in history.”  This might be put down simply to rhetorical excess, but the Cuban government has repeatedly used the term “blockade” in public statements at the United Nations. It has demanded upwards of $80 billion in compensation for damages caused by the “blockade.”

Whatever the U.S. embargo on Cuba is, it is NOT a blockade as that term is defined under international law.  According to a U.S. definition, a blockade is a “belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation.” Oppenheim had an even narrower definition, limited to naval blockades “of the approach to the enemy coast or a part of it….to intercept all intercourse and especially commercial intercourse by sea….”

It goes without saying that the U.S. is not imposing a blockade under this definition.  The U.S. embargo is not a belligerent operation using its military forces to prevent commercial intercourse with Cuba.  No military force prevents Cuba from trading with nations other than the U.S.  Calling a refusal by one country to trade with another a “blockade” is an insult to any reasonable definition of the term (or actual blockades).

The Cuban government knows that U.S. is not imposing a blockade, but it is useful for it to keep using the term at the U.N. and even win support from other nations for its characterization of the embargo.  The U.S. doesn’t even bother protesting Cuba’s use of the term anymore, which is a mistake because it grossly mischaracterizes what the U.S. embargo actually is.  Moreover, if the U.S. doesn’t fight back against the “blockade” smear, it subtles undermines the legitimacy of U.S. embargos on other (much more dangerous) countries like North Korea and Iran.

Accepting the term “blockade” uncritically also allows the Cuban government to blame the U.S. for Cuba’s various economic problems.  But while the U.S. embargo definitely is having an impact on Cuba, it is not the nearly as important as the Cuban government’s own economic policies.  It is worth noting that the international Cuban campaign against the embargo really started in the early 1990s after Cuba lost support from the Soviet Union.  Cuba did not “need” the embargo to be lifted until it lost Soviet support.  Relatedly, Cuba’s main high-value exports today are services (e.g. medical doctors and other specialists) that the U.S. probably won’t actually purchase.  There is only so much in cigars and rum that the U.S. market can absorb.  Cuba’s burgeoning tourist industry is growing, but it is hard to imagine Cuba could handle many more tourists than it is already receiving (or until at least they build a new airport).

To be sure, there is one aspect of the U.S. embargo that probably does violate international law. Under the 1996 “Helms Burton” law, the U.S. created a private cause of action against anyone trading in assets expropriated by the Cuban government, even if that person was located in a foreign country.  This, along with a measure requiring denial of visas to anyone who has traded in such expropriated assets, caused consternation in the EU and Canada.   Their pressure (and a threatened WTO case) has led to the U.S. suspending Helms Burton so that it has never actually gone into effect.

U.S. law also extends the embargo to foreign subsidiaries that are “owned or controlled” by U.S. persons.  This is also controversial because it applies U.S. law extraterritorially in violation of other countries’ sovereignty.  I think this is problematic, but this is not as settled as it might seem since the U.S. is arguably simply asserting an aggressive form of nationality jurisdiction.  But this aspect of the embargo is definitely legally questionable.

In the end of the day, I think the U.S. embargo is perfectly legitimate as a matter of international law.  But just because something is legal doesn’t mean it is a good or necessary policy.  Based in part on my trip to Cuba, I am inclined to agree with President Obama that the U.S. embargo is no longer useful, and counterproductive in many ways. Congress should probably (and will eventually) lift the embargo.  But the U.S. should not back down from defending the legality of its use of economic sanctions as a tool of statecraft.

Can/Will President Sanders Withdraw the U.S. from the WTO?

by Julian Ku

It’s been a rough U.S. presidential campaign season for free traders.  Very few of the candidates are willing to voice broad support for free trade and free trade agreements.  Populist candidates like Senator Bernie Sanders and Donald Trump have made some pretty ugly noises about either violating or withdrawing from existing trade agreements.

Although Donald Trump’s proposal for 45% tariffs on China would violate WTO obligations (as Roger detailed here), it is Senator Bernie Sanders who might be more radical on free trade.  Although he doesn’t mention it much on the campaign trail, Senators Sanders (as a congressman) has introduced bills in Congress that would have withdrawn the U.S. from the World Trade Organization.

Today, Congressman Bernie Sanders will urge his colleagues in the U.S. House to support a plan to have the United States withdraw from the World Trade Organization.

Sanders acknowledges that the proposal probably won’t pass, but he hopes it will stimulate debate over the nation’s growing trade deficit.

Here a youtube video of his speech defending his proposed bill to withdraw the U.S. from the WTO.

What is interesting is that if elected President, Sanders could probably unilaterally withdraw the U.S. from the WTO with six months notice pursuant to Article XV of the Agreement Establishing the WTO (An earlier version of this post erroneously referred to Article XXXI of the WTO Agreement, which is really the 1947 GATT Agreement. Thanks to the commenter below for the correction).  I think that a President has broad delegated authority to terminate such agreements, although as I noted back in 2008, it is a bit uncertain whether Congress must also approve.    Still, given that the president arguably has such powers, shouldn’t someone ask Senator Sanders whether he still wants to withdraw the U.S. from the WTO, and if so, would he promise to do so if elected?  I have a feeling he has backed off this position (hopefully!), but it is certainly worth asking!

Who Says America Can’t Agree on Anything Anymore: Every US Presidential Candidate is in Favor of U.S. Drone Strikes

by Julian Ku

In a tumultuous U.S. presidential campaign season, it is easy to conclude that the U.S. is hopelessly polarized between a proto-fascism and a proto-communism. But while there may be some truth to that observation with respect to immigration and economic policy, it is worth noting that the presidential candidates of both parties agree on many issues of foreign policy, even those that are controversial among international lawyers.

For instance, it is worth noting that all of the presidential candidates support the current U.S. program of drone strikes against Al-Qaeda and ISIS terrorists.

From a legal perspective, the U.S. program of lethal drone missile strikes against ISIS and Al Qaeda terrorist targets is controversial. Not only is the domestic legal authority to strike at ISIS targets under the September 11, 2001 authorization for the use of military force questionable, but the international legality of such strikes in countries such as Pakistan, Syria, Yemen, and Libya is uncertain because none of those four countries have explicitly given consent to such strikes. More significantly, legal critics of the drone program have questioned whether its use complies with the proportionality and other requirements of international humanitarian law due to the number of civilian casualties injured or killed in such strikes.

All of these legal criticisms are plausible, but none of the remaining U.S. presidential candidates are seriously troubled by these criticisms. None have pledged, for instance, to seek an additional authorization for the use of force from Congress to clarify the legal authority for such strikes against ISIS. None have suggested they would cut back or eliminate the program in any meaningful way.

Both of the remaining Democratic presidential candidates, for instance, have publicly expressed support for the program as it is currently being implemented. Hillary Clinton, as might be expected from a former Obama administration cabinet member, has endorsed such strikes on both a policy and legal basis. But so has her chief Democratic rival Bernie Sanders:

In an interview with NBC’s Meet the Press scheduled for broadcast on Sunday, host Chuck Todd asked the independent senator from Vermont if drones or special forces would play a role in his counter-terror plans.

“All of that and more,” Sanders said.

Asked to clarify, he added: “Look, a drone is a weapon. When it works badly, it is terrible and it is counterproductive. When you blow up a facility or a building which kills women and children, you know what? … It’s terrible.”

Todd asked Sanders: “But you’re comfortable with the idea of using drones if you think you’ve isolated an important terrorist?”

Sanders answered: “Yes.”


Indeed, there has arguably been more criticism of the drone program from the Republican presidential candidates, although that criticism is largely that the program doesn’t go far enough.

Republican frontrunner Donald Trump has not specifically addressed the drone program (surprise, surprise!). But Trump has famously called for counter-terrorism activities worse than torture, including the deliberate killing of terrorists’ families (presumably through drone strikes). Although Trump has partially reversed himself in a recent statement pledging to comply with all U.S. “laws and treaties” relevant to counterterrorism operations, none of this suggests he is going to cut back. (But this is Donald Trump, so who the hell knows!)

U.S. Senator Ted Cruz, currently Trump’s main rival, has been primarily concerned with limiting or prohibiting the use of drone strikes against U.S. citizens. Cruz, and has sponsored legislation to prohibit drone strikes on U.S. citizens on U.S. soil (with one exception).

Senator Marco Rubio, currently in third place, has also sponsored legislation to require independent review of drone strikes against U.S. citizens. Governor John Kasich, the last remaining GOP candidate, has proposed shifting drone strikes away from the CIA to the military. This last proposal may be the most significant drone reform proposal on the table from any of the remaining candidates. (Kasich is in fourth place on the Republican side).

So who says Americans can’t agree on anything anymore. The U.S. public, and its leading presidential candidates, want drone strikes to continue. All seem to feel like the current drone program is legal under U.S. and international law.  (I should hasten to add that I agree with them on the legal point, although I do think there are many reasonable questions about the program.)  In any event, for U.S. presidential candidates, the only question is whether to do more, not less.

Ukraine Prepares Even More International Lawsuits That Russia Will Ignore

by Julian Ku

Things are not going well for Ukraine.  It has lost Crimea, effective control over eastern parts of its territory, its divided government is hampered by corruption which is sparking more internal violence, and its economy is doing poorly.  Russia is the cause of many (though not all) of its problems, so it is not surprising that Ukraine is looking to try to retaliate somehow and in some way.

This past week, Ukraine’s government announced that it is preparing to bring claims against Russia in the International Court of Justice.

Along with three interstate claims filed to the European Court of Human Rights (ECHR), we’re preparing for filing a claim to the International Court of Justice on the Convention for the Suppression of the Financing of Terrorism and racial discrimination, as we have real facts of discrimination, in particular, Crimean Tatars on the territory of Crimea,” [Deputy Justice Minister for European integration Serhiy] Petukhov said in the parliament on Wednesday.

To my surprise, Russia has actually agreed to compulsory dispute settlement under the ICJ for both treaties.  Under Article 24 of the Terrorism Financing Convention,

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Similarly, under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

On this latter provision, it is worth noting that the United States has reserved its liability by agreeing to jurisdicition only upon its specific agreement.  Russia did not make such an argument in Georgia’s ICJ case against Russia, so it is unlikely to do so again.

So in addition to a case under the UN Convention for the Law of the Sea, Ukraine could file at least two more international court actions against Russia over Crimea and other actions.  But will it? Russia has been largely unaffected by the Arctic Sunrise case, and it doesn’t seem in a mood to reconcile.  But, like the Philippines against China, Ukraine may simply think it doesn’t have any better options.

RIP Justice Antonin Scalia: The Misunderstood Internationalist

by Julian Ku

Like many lawyers who study constitutional law, I was saddened when I heard last night of the unexpected death of U.S. Supreme Court Justice Antonin Scalia. The internet being what it is, commentators have already offered their quick takes on Scalia’s substantial and multifaceted jurisprudential legacy (indeed, I think we’ve already moved on to debating his replacement). Most of these analyses have been fair, but I have been a little irritated with the glib and mostly inaccurate descriptions of Justice Scalia’s attitude toward international law.

For instance, Rosa Brooks writes at Foreign Policy that while many in the U.S. will mourn Justice Scalia’s passing,

The global legal and judicial communities, however, will mostly be indulging in joyful private choruses of “Ding, Dong, the Witch is Dead.” Or maybe not so private.

There was no love lost between Justice Scalia and foreign jurists. Scalia was famously dismissive of foreign and international law, which he considered good enough for, well, foreigners — but not for the great United States. “I doubt whether anybody [in the United States] would say, ‘Yes, we want to be governed by the views of foreigners,’” he scoffed in 2005.

Brooks’ piece highlights one of Scalia’s more famous intellectual crusades: to reject the use of foreign and international law in the interpretation of the U.S. Constitution. Scalia was the leading critic of using foreign and international law to interpret the Constitution and, in due course, he has often been derided as a judicial sovereigntist or even as a know-nothing contemptuous of all foreign or international law.

I have always felt this criticism of Justice Scalia was unfair for at least two reasons.

First, Justice Scalia was an “originalist” with respect to constitutional interpretation. To him, this meant that interpreters should privilege the original meaning of the Constitution’s text over any other sources of interpretation. Scalia was famously skeptical of legislative history in statutory interpretation, and he was fairly skeptical of even of using the Constitution’s drafting history in constitutional interpretation. He wanted judges to look at the text, standing alone, as much as possible.

Given these jurisprudential commitments, it is odd to criticize Scalia for rejecting the use of foreign and international law in constitutional interpretation. Unless one could show that foreign and international law was relevant to determining the original meaning of the constitution’s text, Scalia believed it was irrelevant. And so he criticized judges who relied upon such sources, just as he criticized them for relying upon their own personal preferences or on what he thought were simply the latest intellectual or social fads.

Secondly, Scalia was actually one of the most cosmopolitan members of the Supreme Court. Few justices enjoyed foreign travel more, and he was always willing to go abroad to lecture at foreign law schools or in front of foreign bar associations. Indeed, he was in Hong Kong just last week giving lectures and he had planned to teach in France this summer.

More importantly, Scalia was not afraid or contemptuous of international law when that was the governing law in a case before him. Indeed, when he started law teaching at the University of Virginia, comparative law and private international law were his primary research and teaching interests. And as Duncan pointed out in a post back in 2007, Justice Scalia was not unwilling to interpret statutes to conform to international law or treaties, nor was he unwilling to rely upon foreign judicial opinions interpreting international treaties. He did not think foreign judicial decisions or international law was irrelevant or meaningless. He simply objected, on grounds of intellectual consistency, to using those sources when interpreting the U.S. Constitution.

I did not agree with Scalia on every constitutional question. And no doubt he should take his lumps for mistakes he may have made. But he was not a judicial sovereigntist or a constitutional know-nothing. And contra Rosa, I rather think many foreign jurists and academics (especially those he met personally) will miss this remarkably effective and important representative of American jurisprudence in the world.  I certainly will.

The First Annual Michael Lewis Memorial Teleforum on “Defining the Law of War”

by Julian Ku

As many of our readers may recall, the late Professor Michael Lewis was a great friend of this blog and an important voice in U.S. international law and national security scholarship.  To honor his memory, the Federalist Society has recently launched the first annual Michael Lewis Memorial Teleforum in his honor.  The podcast features Maj. Gen. Charles Dunlap (Professor of the Practice of Law Executive Director, Center on Law, Ethics and National Security, Duke University School of Law) and Prof. Michael A. Newton (Professor of the Practice of Law, Vanderbilt University Law School).

The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are.” So begins the new U.S. Department of Defense Law of War Manual, published last June, which had not been updated for nearly 60 years. At 1180 single-spaced pages and with 6,916 footnotes, the manual would seem to be thorough and exhaustive. Our experts will critique the Department of Defense Manual. Does it provide the guidance necessary to troops on the ground, commanders, and all actors in between? How does it address modern warfare, terrorism, and asymmetrical war? How does it define lawful and unlawful belligerents? What does it say about interrogation and detention? These and other questions were addressed by our experts.

It’s a wonderful way to remember a great guy, but continuing to discuss and debate those issues about which he cared the most.

Dear Fox News South Carolina: Shariah Law is Not “Also Known As International Law”

by Julian Ku

So local TV news in the U.S. is hardly the most sophisticated part of the U.S. media.  Still, I was taken aback by this passage from a news report from WACH Fox Channel 57  in South Carolina.

COLUMBIA, SC (WACH) – A measure that would ban the use of Sharia Law in South Carolina court rooms is working its way through the State House.

Sharia Law, also known as International Law, is closely tied to Islam. It covers an entire way of life, but one rule under Sharia Law is if someone is caught stealing, they would have their hand cut off as punishment.

(Emphasis added).  You can also watch the video version of the report.

It is worth noting that most state laws banning “international law” have been invalidated under the U.S. Constitution free exercise of religion clause because federal courts have held that the ban on “international law” is really aimed at “sharia” law.  This report confirms that this is indeed the case in South Carolina, and that some state legislators may not even know the difference between sharia law and international law.

One other note for our non-U.S. readers:  South Carolina is the third U.S. state to hold primary elections in our presidential race.  Its voters have a pretty big role in deciding who will be the nominees.  Just noting this fact, without comment.


As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.