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Julian Ku

China Manages to File (and Not File) a Legal Brief in the Philippines Arbitration

by Julian Ku

The UNCLOS arbitral tribunal formed to hear a dispute brought by the Philippines against China has set December 15 as a deadline for China to submit a legal brief or memorial. As most of our readers know, China has steadfastly refused to even participate in the arbitral process. It has not selected any arbitrators and it did not attend the first hearing last spring. I (like most observers) expected China to ignore the December 15 deadline as well.

Although it looks like China will not file a formal legal memorial, it released yesterday a long, tightly argued “position paper” that looks a lot like a formal legal memorial (at least on the question of the tribunal’s jurisdiction).   So China is going to essentially file a jurisdictional objection (since the tribunal will surely read this paper) without having to file a formal legal brief.

It’s the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

As a legal document, the position paper is very well done and is the best legal analysis of the jurisdictional issues in the Philippines arbitration I have seen coming out of China, and certainly from the Chinese government. Granted, the Philippines have not released their own memorial so I haven’t had the chance to read their side. Essentially, China has three arguments against jurisdiction:

  • The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;

  • China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;

  • Even assuming,arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes,inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;

What is good about the position paper is that offers careful and credible legal analysis and avoids (for the most part) the annoying official propaganda tone that is the bane of every China-analyst.  I haven’t had the time to go through the paper with any great detail, so I will offer more detailed analysis at a future time. I will just say for now that I am most skeptical of China’s second argument: that the “Philippines has breached its obligation under international law” by failing to settle this dispute via negotiations. While China has usefully offered facts to explain how the Philippines has not really fulfilled its obligations to negotiate, I just don’t think the Declaration of Conduct China is relying upon can be interpreted to bar any and all UNCLOS arbitrations indefinitely, as China would seem to have it.

But there is a lot here to chew on.   I will try to share more of my thoughts when I’ve had time think about this paper more carefully. And I’m sure the Philippines will be tempted to release at least the jurisdictional portion of their brief as well. I hope they do, since the public reaction to their legal arguments will be just as important as any ruling the tribunal makes.

Did the Supreme Court Implicitly Reverse Kiobel’s Corporate Liability Holding?

by Julian Ku

Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits.  That decision, which was the original basis for the Supreme Court’s consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court in the U.S. has followed it.  The Supreme Court was initially going to review that original Kiobel decision, but then decided Kiobel on other grounds, namely, that the presumption against extraterritoriality applies to claims brought under the Alien Tort Statute.  In recent cases, ATS plaintiffs have raised questions about the viability of the original Kiobel corporate liability holding. Did the Supreme Court leave that question open or had it reversed the lower court’s corporate liability decision sub silentio?

The argument that the Kiobel corporate liability holding no longer stands has two parts.  First, a plain reading of the Supreme Court’s Kiobel decision turns up language suggesting that corporations could be liable under the Alien Tort Statute.  In the majority opinion, Chief Justice Roberts stated that ““[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices [to displace the presumption against extraterritorial application].”  The argument here is that although “mere corporate presence” is not enough, corporations with other, deeper connections might displace the presumption against extraterritoriality. (Since the Court in other places explicitly stated it was not reaching the corporate liability question, I am skeptical of this argument).

Second, and more persuasively, you might argue that because the Supreme Court dismissed the Kiobel case on the grounds that the presumption against extraterritoriality applied to the Alien Tort Statute and that the presumption only applies if the court has reached the merits (e.g. whether the statute applies to the facts at hand).  Because the corporate liability defense was a jurisdictional ruling, this line of reasoning goes, then the Supreme Court must have implicitly found that it had jurisdiction over corporations in order to dismiss the case on the merits.

This second argument has some force to it (it was previewed in our insta-symposium last spring), and it was accepted by Judge Shira Scheindlin in a separate New York district court ATS case even though she ended up dismissing that case on other grounds.   It looks like the plaintiffs in another ATS case, Jesner v. Arab Bank, will get the appeals court to consider the issue as well, according to this NY Law Journal write up of oral argument in that case.

I think it is unlikely that the panel will conclude that the Kiobel corporate liability holding has been implicitly reversed, but I do think there is enough of an argument here to attract review of the full en banc Second Circuit. The tricky part here is that the ATS is itself a “jurisdictional” statute, and as the Supreme Court in Kiobel acknowledged, the presumption against extraterritoriality doesn’t typically apply to jurisdictional statutes.  So the Kiobel presumption is a little different and its application to causes of action that can be brought under the ATS is not exactly the same as when the standard presumption against extraterritoriality is applied to a regular non-jurisdictional statute. But it is unclear whether it is different enough to matter.

I am still coming to my own point of view on this issue. I don’t think the defendants in Jesner really addressed this issue effectively in their brief, but it is a complex issue.  At the very least, I think it will be resolved in the near future by the Second Circuit, either by this panel or by the full court. Corporate liability under the Alien Tort Statute is not quite a dead issue, but ti will take some time to figure out how alive it is.

Eric Posner’s Not Completely Wrong Critique of International Human Rights Law Clinics

by Julian Ku

[I posted this last week, or I thought I did, but somehow it ended up staying hidden in the bowels of OJ’s archives. So although it is a little late, I am posting this again today.  -Julian]

As is his wont, U. Chicago law professor Eric Posner has hit a nerve with his recent Chronicle of Higher Education essay criticizing the value of international human rights law clinics at many law schools.  As part of his larger critique of international human rights law in general, Posner argues that most international human rights law school clinics “engage in a bewildering array of programs and strategies that have little in common but a left-wing orientation.”   Many (maybe most) of these clinics, Posner argues, engage in wide-ranging left-wing political advocacy with no particular focus on training students with legal skills. Crucial to his argument is that, unlike regular domestic law clinics, international human rights law is such a fuzzy unsettled and undeveloped area of law that there are few concrete legal skills that are teachable in such clinics.

His essay has drawn a sharp reaction (of course) from those who are involved in these clinics.  Most prominently, Sital Kalantry, the founder of a new international human rights clinics at U. Chicago Law itself, argues that Posner doesn’t understand what such clinics do and, in any event, his attack on clinics rests entirely on his (misguided) attack on international human rights law itself.

As always, I am sympathetic to Posner’s views here and admire his willingness to take on yet another sacred cow.   But even I think his attack on international human rights clinics sweeps a bit too broadly.  Under his view of the role of clinics and legal education, narrowly focused clinics would satisfy his standard.  My law school (Hofstra) has a just such a clinic focused on asylum hearings in deportation proceedings within the US immigration law system. Students learn a great deal about how to handle real clients, draft legal papers, and make arguments, before mostly administrative law judges.  But since asylum claims almost always require invocation of international as well as domestic law standards in order to determine whether asylum should be granted, it is also sort of an international human rights law clinic.

I do agree with Posner that it is possible that some international human rights law clinics, like that at my alma mater Yale, have extremely broad mandates to pretty much do anything from filing briefs in domestic litigation and suing their former alums, to lobbying city councils to adopt human rights standards to issuing reports on international law. And these clinics are very close to pure political advocacy groups. But these more ambitious clinics are probably inspired by freestanding non-governmental organizations like Human Rights First or Human Rights Watch, whose lawyers also engage in  broad range of non-lawyering political advocacy.  And they also are within the orbit of the larger universe of UN-affiliated NGOs and UN human rights institutions.  Should law students really be training to do the same type of stuff? I think this depends on the particular situation of the law school and the goals of its students.  I think a narrower clinic is probably better in most cases, but I am not ready to say that it would never be appropriate to have a broad-based international human rights law clinic, and that there would never be any useful legal education occurring in that clinic.

But I think Posner’s critique reminds us that international human rights law clinics are outside the traditional box of law school clinics, and that they do risk becoming a platform for pure political advocacy (and training students in pure political advocacy).  That is something that I agree is undesirable, and I am glad that his critics don’t dispute that point.  Even international human rights law clinics deserve scrutiny and to be held to the same standards as other law school clinics.

Law schools need to make hard assessments about whether such clinics are worth it for their students, and perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training (like a political asylum clinic, etc.).  Posner asks the right questions, even if I think his final answer is not quite right.

Let’s Be Real: An International Anti-Corruption Court Would Never Work

by Julian Ku

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.

So It Turns Out US Ratification of the Convention on the Rights of the Child Would Be Pointless

by Julian Ku

Internationalists critical of U.S. “sovereigntism” almost always point out that the U.S. is one of only three states in the world that has not ratified the U.N. Convention on the Rights of the Child (CRC).  Karen Attiah is the latest to take up this old talking point in the Washington Post.

The United States is part of an elite trio of non-ratifiers, along with Somalia, a country that is virtually in anarchy and consistently appears in the lowest ranks of countries in terms of human development, and South Sudan, the world’s newest country, which dealt with a fair share of civil conflict. Back in 2008, Obama said that it was “embarrassing to find ourselves in the company of Somalia, a lawless land.”

Attiah argues that the rest of world seems to be making lots of progress in improving child welfare, presumably because of the CRC, and the U.S. is falling behind. But this argument buries the lede.  Why?

Because even if the U.S. accedes to the CRC, it is almost certainly going to do so without passing new legislation or enacting new programs to live up to the treaty’s obligations. As it has done with other human rights treaties it has ratified, the U.S. will also declare the CRC non-self-executing, which means it cannot be enforced by US courts absent subsequent legislation by Congress or the States.  It is highly unlikely that US law or policy will be affected dramatically by joining the CRC if these limitations are imposed.

Rather, the argument for joining the CRC is usually not about changing US policy, but simply about the need for the US to be a member in order to credibly promote and support CRC rights and the interest of children around the world.  As an analyst from Human Rights Watch notes in the Economist, “It is awkward when the US tries to promote child rights in other countries—they all remind us that they’ve joined the treaty and we have not.”

If the data Attiah cites is accurate, though, US non-ratification isn’t having much of an impact on whatever benefits the CRC is providing.  Of course, it may be the case that US non-ratification is limiting whatever additional benefits US promotion of the CRC as a member would provide, but this seems unlikely.

Of course, if the CRC is unlikely to change US law or policy, why should anyone oppose it? This is indeed a mystery. The best case I can come up with is that CRC opponents do not trust the Congress, the President, or the courts to honor the non-self-executing pledge that the US has imposed on all other human rights treaties.  This is not totally unreasonable since some leading scholars have questioned the non-self-execution doctrine in this case.   But US courts have not yet shown any interest in forcing human rights treaties into US law against the wishes of the president and Senate, so this fear is somewhat overstated at this stage.

In the end of the day, Attiah’s reporting answers her own headline-question.  The US hasn’t ratified the CRC because doing so would not change the status quo much, if at all.  US policies domestically will be basically the same with or without the treaty, and (as Attiah points out) the rest of the world will do just fine whether or not the US joins.  So US ratification will accomplish pretty much nothing, which is as good a reason as any for why it is not going to happen.

What Does China Mean When It Celebrates the “International Rule of Law”?

by Julian Ku

In observance of United Nations Day on October 24, China’s foreign minister Wang Yi issued a long statement expressing China’s view of itself as a “staunch defender and builder of international law” (Chinese version here). As China-watchers know, China’s Communist Party has just completed its “Fourth Plenum” (sort of a Party leadership strategy meeting) on the theme of the promotion of the rule of law, so it is not surprising that China’s leadership would have something to say about the international rule of law as well.

The statement is pretty predictable (and largely unobjectionable) in its broad pledge for Chinese support to “international law” or the “international rule of law.”  It is hardly pathbreaking.  Still, as I have suggested in earlier posts, China’s government tends to have a slightly different view on what constitutes “international law” as compared to the United States or Europe.  So while much of the statement is pretty anodyne (it is communist-party-speak, after all), there are a few points relating to China’s emphasis on sovereignty and its allergy to human rights that are worth noting:

1) International Law and China’s History of National Humiliation

The statement places China’s commitment to international law in the context of its historical struggles facing foreign oppression in invasion beginning with the Opium War of the 1840s.  This reference to China’s historical weakness in the nineteenth and twentieth centuries is standard nationalist fare in China, but it is interesting that it is linked here to modern international law. As the statement notes, “[s]eeing the contrast between China’s past and present, the Chinese people fully recognize how valuable sovereignty, independence and peace are.”  I think this historical experience is a useful explanation for why there are deep roots to the version of international law presented here.  For China, international law is closely linked to its achievement of independence from foreign powers, and there is no principle more dear to China in international law than “sovereignty” and independence from foreign domination.  Those of us educated in the States have been taught that sovereignty is usually an obstacle to the promotion of international law (Louis Henkin even called it the “S” word), but that concept is still hard to sell in China.

2) Sovereignty 5:  Human Rights 0

Indeed, the statement mentions “sovereignty” five times as a fundamental principle of international law, as referenced in the United Nations Charter. Thus, the statement cites certain universally recognized norms of international law and relations such as

…[A]s respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others, as enshrined in the UN Charter, are the foundation stones upon which modern international law and conduct of international relations are built.

This is right out of Article II of the UN Charter.  But it is hard to imagine a statement by the United States about international law that did not also mention the UN Charter’s commitment to the protection of human rights.  To be sure, human rights protection is not in Article II of the UN Charter’s list of “Principles” but it is odd (at least to an American) to see it ignored so completely here.

3) Just Say No to Responsibility to Protect 

The statement takes direct aim at those countries who are interventionist.

Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs. Some countries follow a pragmatist or a double-standard approach to international law, using whatever that suits their interests and abandoning whatever that does not.

Hmm.. I wonder which country or countries it is referring to here?  This position also reflects longstanding Chinese policy against any kind of military intervention (and most other kinds as well) no matter what the justification.  So don’t count on a Chinese vote for that Syria intervention.

4) Go Democracy (between, but not within, nations)!

The statement also endorses democracy…that is to say, democracy in international lawmaking.  It accuses some countries (the One-Who-Must-Not-Be-Named) of trying to make “rules of certain countries as “international rules”, and their standards “international standards”. I am guessing this is clearly a shot at the U.S. in areas as varied as trade laws, IP, and human rights.

5) Philippines and UNCLOS arbitral tribunal: Don’t You Dare Ruin International Law

Not surprisingly, the statement takes aim at international and national courts.   It declares:

“National and international judicial institutions should avoid overstepping their authority in interpreting and applying international law. Still less should they encroach on the rights and interests of other countries under the pretext of”the rule of law” in total disregard of objectivity and fairness.”

I think this is clearly a warning signal to the UNCLOS arbitral tribunal formed to resolve the Philippines claim against China.  This is another sign there will be no backing down on this arbitration. China is going to continue to loudly proclaim its commitment to rule of law, and continue to reject and maybe even denigrate the legitimacy of this arbitration.

6) International Rule OF Law, not Rule BY Law

Finally, I’ll note that the statement’s use of the phrase “international rule of law” might help clarify a debate among China-watchers as to what China means by the phrase “rule of law.”  As Josh Chin has usefully explained in the Wall Street Journal here, the Chinese phrase “法治“ (fazhi) is often translated as “rule of law” but could also be translated as “rule by law”.  Indeed, there is a traditional Chinese “Legalist” tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government.  Most China-watchers would probably say that “rule by law” is a more accurate translation of what the Chinese Communist Party means when they call for the promotion of the “法治” (fazhi) in domestic reforms, since most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.

No matter what the Party means domestically by 法治 (fazhi), it is clear that its use internationally fits within the Western conception of law as an autonomous force constraining state power and preserving state equality.

In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction.

Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with.  It will be interesting to see if this conception bleeds over into the Party’s push for domestic rule of/by law reform.

 

Does Greece Really Have a Legal Case for the Return of the Elgin Marbles? I Doubt It

by Julian Ku

Amal Alamuddin-Clooney, Kevin’s Doughty Street Chambers colleague, made news this week by visiting Greece as part of a legal team working for the return of the Elgin Marbles to Greece from Britain.  This is not ordinarily global tabloid fodder, but Alamuddin-Clooney’s recent marriage means she will draw media attention wherever she goes.

I don’t doubt her legal credentials (as well as that of her colleagues), but I do doubt the strength of their legal case for the return of the Marbles.  At the time the Marbles were removed from Greece, the Ottoman Empire had sovereignty over Greece and there is pretty decent historical evidence that Lord Elgin had their authorization to remove the Marbles, or if he did not have authorization, his removal was ratified by official acts of the Ottoman government.  (John Merryman seems to have made the most complete case here).

To be sure, there are strong moral arguments for the return of the Marbles to Greece. But Alamuddin-Clooney and her colleagues are hired for their legal expertise. On this front, I think they have a very tough case (which may be why they appear to have ruled out litigation already).  But I am open to counter-arguments (based on law, not on cultural nationalism) for the Greek case. .

Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.

 

The Allure of Sovereigntism: U.S. Progressives and Libertarians Unite to Oppose Investor-State Arbitration

by Julian Ku

For decades, investor-state arbitration has enjoyed broad support in the U.S. (among those elites who know and care about such things).  While there has been some backlash against investor-state in developed countries such as Australia arising out of controversial cases brought against it, the U.S. has remained pretty solidly in favor of it.  But there are signs that the opposition to investor-state arbitration has sprouted among U.S. elites more influential than more traditional critics like Ralph Nader and Pat Buchanan.  And, interestingly, voices from both sides of the ideological spectrum are invoking “sovereigntist” arguments to bolster their positions.

First, Harold Meyerson of the Washington Post started the ball rolling with this post calling on center-left and progressives to oppose the inclusion of investor-state dispute settlement (or ISDS) in the proposed Transatlantic Free Trade Agreement.  Predictably, he derides ISDS as pro-corporate giveaways.  But he also rings the sovereigntist bell in favor of  protecting the jurisdiction of domestic courts against extra-jurisdictional tribunals (e.g. international arbitral tribunals).

What is more surprising is that Daniel Ikenson of the influential libertarian (“liberal” for you Europeans out there) thinktank the Cato Institute has joined the fray with a manifesto for why libertarians should also oppose ISDS (at least in trade agreements).  Some of his arguments are tactical (they undermine political support for trade agreements and aren’t all that helpful anyway), but some are also sovereigntist as well.

Though I firmly believe the U.S. economy is racked with superfluous and otherwise unnecessary regulations, I do believe that a successful foreign challenge of U.S. laws, regulations, or actions in a third-party arbitration tribunal (none has occurred, yet) would subvert accountability, democracy, and the rule of law.” 

It is certainly unusual to hear a libertarian analyst decry a legal mechanism that would give businesses a new avenue to challenge unfair laws and regulations.  But the sovereigntist bell is alluring.  Because Ikenson’s position seems to go somewhat against his policy preferences, I find Ikenson’s opposition to ISDS a little more compelling than Meyerson’s.

It is worth noting that some of the same arguments against investor-state can also be raised against other proposed forms of international adjudication (e.g. the International Climate Change Court, the International Anti-Corruption Court, international human rights courts, etc).  Similar arguments, in fact, are being used by the Conservative Party in the UK to withdraw or limit the role of the European Court of Human Rights over UK law.   I wonder whether progressives like Meyerson will be so excited about protecting domestic laws and courts from international oversight in those situations.  I somehow doubt it.

Can a U.S. Judge Hold the Government of Argentina in “Contempt”?

by Julian Ku

In the latest round in the never-ending battle between Argentina and its holdout bondholders, a U.S. court has found Argentina to be in “contempt” for trying to circumvent that US court’s orders. Argentina has been outraged by such an order, arguing that a  state cannot be held in “contempt” because it is an affront to its sovereign dignity (with Argentina’s president denouncing the U.S. judge as “senile“).   Indeed, the Argentine government on Monday sent a very interesting letter to U.S. Secretary of State John Kerry setting out why it believes it cannot be subject to a “contempt” order in a domestic U.S. court.

The Argentine Republic notes that it is completely absurd for plaintiffs to argue that a local judge can hold a foreign State “in contempt”. This position can only arise from ignorance or a distorted view of the fundamental rules of international law currently in force and the peaceful coexistence of global order.

The principles on which international coexistence rests are reflected in the Charter of the United Nations. One of these principles refers to sovereign equality of all States and is expressly embodied in Article 2(1) of that Charter. This is a fundamental principle when it comes to determining what a State can or cannot do in relation to other States.

When any branch of government of a State denies “equal” status to another State, it not only manifestly violates international law but it also risks setting a precedent for the commission of similar violations of international law to its own detriment.

I think that Argentina’s argument that contempt orders and other judicial sanctions against it are violations of international law (even thought it has consented to that domestic jurisdiction) can draw some support from the statements of the U.S. government itself (which is quoted extensively in the letter).  The problem for Argentina is that the U.S. judicial system has not agreed with the U.S. government’s views on many of these questions.  So US law is no help to Argentina here (for the most part). And the U.S. government has almost no legal mechanisms to change the district court’s actions here, so the letter is largely for public consumption.

The harder question is whether (as Argentina argues) there is a generally accepted rule of international law that a court cannot hold a sovereign in contempt where that sovereign has consented to the jurisdiction of that court.  This is a tricky question and one worth thinking about further. I hope to post on that when I have had more time to digest it.

Does the Collective Self-Defense Justification Extend to Khorasan? If Not, Then Is There One?

by Julian Ku

I agree with Jens’ excellent post on the importance of the “unwilling or unable” standard to the US justification for legal strikes on non-state actors in Syria.  I agree this action may reveal state practice supporting (or rejecting) this legal justification.  I am curious whether the UK, France, or other states that may be participating in Syria strikes will embrace this theory. (I already know the Russians have roundly rejected this US justification). I also wonder whether this legal justification will weaken, as a policy matter, the ability of the US to effectively attack ISIS.

I do have one additional observation. Tacked on, almost as an afterthought, Ambassador Power’s letter notes that:

In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.”

The vague wording of the letter about Khorasan (threats to “the United States and our partners and allies”) as compared to the pretty specific language about ISIS’s attacks on Iraq  (“ to end the continuing attacks on Iraq, to protect Iraqi citizens, “) suggests that Khorasan is not currently engaged in armed attacks on Iraq.  This means that the U.S. is making a much broader international law claim than for its attacks on ISIS.  The U.S. is attacking Khorasan because, like Al Qaeda, it is a terrorist threat to the U.S. itself.  But no actual armed attacks have yet occurred (as far as I know).

It is therefore worth noting whether more  states object to the attacks on Khorasan than on ISIS, because the Khorasan attacks have a weaker international legal justification. My guess is that objecting states like Russia will not bother distinguishing between the two. But it will be interesting to see whether US allies will refuse to join strikes on Khorasan, even if they are willing to strike ISIS in Syria.

Dear News Agencies of the World: China Did NOT Breach Taiwan’s Airspace, Just Its ADIZ

by Julian Ku

Several news agencies (here and here) have suggested that recent reports of Chinese military aircraft entering into Taiwan’s Air Defense Identification Zone  is akin to a territorial incursion.  For instance, J. Michael Cole warns at the Diplomat, “If they were indeed intentional, the latest intrusions could signal a further denigration of Taiwan’s sovereignty….”  In my view, calling ADIZ intrusions a breach of “airspace” and a denigration of “sovereignty” overstates the significance of an ADIZ under international law.

Taiwan’s own government has used the phrase “airspace”, so reporters can’t be faulted for repeating this phrase. But legally speaking, entering an Air Defense Identification Zone is NOT the same as entering a nation’s territorial airspace.  For an island like Taiwan, such territorial airspace would presumably start  end 12 nautical miles from its relevant island coast.  An ADIZ is usually a much larger zone declared by countries in order to allow them to track and identify aircraft that come near their territorial airspace.  If you look at Taiwan’s ADIZ  (in red), you’ll notice it goes well beyond 12 20131209DEN0006Mnautical miles from Taiwan’s coast (in fact, it technically stretches into China itself!).  An ADIZ is adjacent to a nation’s territorial airspace.  Declaring an ADIZ is not by itself illegal because it is not a claim of sovereign control over the airspace.  Of course, nations with an ADIZ usually demand foreign aircraft identify themselves before entering their ADIZ, but nations do not usually claim the right to exclude other nations’ aircraft from their ADIZ, as if it was sovereign territory. (For a recent discussion of the legal issues in ADIZ declarations, see here).

Now, since China has usually been careful to avoid crossing into Taiwan’s ADIZ (or at least parts of Taiwan’s ADIZ), its decision to do so now is interesting and significant.  But it is not a territorial incursion and it is not (technically) breaching “Taiwan’s airspace”.  So news agencies should be careful not to report it as such.