Author Archive for
Julian Ku

Russia Lectures EU on International Law, Threatens to Veto Proposal to Attack Human Traffickers in Libya

by Julian Ku

Apropos of our guest post earlier this week, it looks like the EU will be stymied in its effort to seek authorization from the UN Security Council to use military force against ships used to traffic desperate migrants out of North Africa (h/t Walter Russell Mead).

“Apprehending human traffickers and arresting these vessels is one thing,” said Vladimir Chizhov, Russia’s ambassador to the EU. “But destroying them would be going too far.”He added that the destruction of ships without a court order and the consent of the host country would amount “to a contravention of the existing norms of international law”.

As Helmersen and Ridi argued, there is little if no legal basis for the EU to use military force without UNSC authorization. So Amb. Chizhov is quite right on the law.  But there is something striking about being lectured on this subject by Russia, especially in a context where military force seems much more justified than, say, in eastern Ukraine.

Does Investor-State Arbitration “Weaken[] the Rule of Law”? Judith Resnik and Larry Tribe Seem to Think So

by Julian Ku

I have not been surprised by the swelling opposition in the U.S. (mostly from the progressive left) against proposed trade agreements with Pacific and European nations (TPP and TTIP).  But I am mildly surprised by the way in which TPP and TTIP opponents have zeroed in on the inclusion of investor-state arbitration mechanisms as a rallying point for their opposition.  Not only has former Harvard lawprof (and now U.S. Senator) Elizabeth Warren come out against the inclusion of investor-state dispute settlement (or ISDS), but yesterday, Yale law prof Judith Resnik and Harvard lawprof Lawrence Tribe, along with Nobel Laureate Joseph Stiglitz and a few others released a letter outlining their concerns with (really, their opposition to)  ISDS.  This letter is much more sophisticated and persuasive than an earlier lawprof letter Roger criticized here.  Indeed, its critique is far broader and echoes “sovereigntist” critiques that many on the political right have often applied to international tribunals.  Here is one snippet of their argument.

ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve.

The letter valorizes U.S. courts and Article III judges, as well as the importance of democracy, and contrasts those institutions and values with the secretive ISDS process.  The main complaint, which is quite true, is that ISDS gives foreign investors a “separate legal system” to which others, including US citizens and corporations, cannot access. ISDS is not subject to any serious review by either courts or other arbitral tribunals.

None of the statements in the letter are inaccurate or incorrect. But they do leave out the basic assumption and rationale behind ISDS provisions. Foreign investors are presumed to be more likely to face disadvantages in a foreign legal system, which is why they are presumed to need “extra” protections from ISDS.  I think the rationale for ISDS is weaker for trade agreements between the US and Europe or the US and other developed industrialized countries.  But it is still probably true that there is a greater risk of discrimination against foreigners from a local legal system than against local companies.

I am not convinced of the necessity of ISDS in these trade agreements, but I don’t think it is necessarily a bad thing to include them either. I do recognize that these systems of dispute settlement do create non-trivial tensions with the domestic legal systems of member countries. In other contexts (law of the sea, ICJ/death penalty, etc), raising concerns about these tensions has been associated with the political right. So it is interesting to see progressives borrow sovereigntist arguments in their campaign against ISDS.

 

Why We Should Listen to President Obama Rather than Candidate Obama on Unilateral Presidential War Powers

by Julian Ku

I had the pleasure of participating on a panel a couple of weeks ago on Presidential War Powers, in light of the recent proposal to authorize the use of force against ISIS.  The panel was hosted by the New York City Bar Association and chaired by Prof.Jonathan Hafetz of Seton Hall. It included Prof. Ryan Goodman of NYU and Prof. (Lt. Col.) Walter Narramore of West Point.  C-Span aired it last night and the video can be found here.

To give you a sense of my talk (which starts at 36:00), here is a brief summary.

In 2008, then-candidate Barack Obama stated that he believed the President cannot constitutionally use military force absent congressional authorization except in response to an imminent attack or threat.  But since he has taken office, the President has abandoned this view, most notably in a legal memo from his Justice Department justifying military intervention into Libya.   In my view, this shift provides strong evidence that the strict congressionalist view of presidential war powers is untenable.   I concede that there may be other limits on unilateral presidential use of force (e.g. congressional prohibitions, long-term interventions amounting to a “war”, etc.) but we should no longer take seriously the strict congressionalist position articulated by Candidate Obama in 2008.  

 

Favorite Treaty Reservation, Ever!

by Julian Ku

The NYTimes has a piece today on how Idaho’s refusal to implement the Hague Child Support Treaty is causing problems for the U.S. and for Idaho as a whole.  I hope to have more to say about this treaty later. For now, in looking at the treaty, I wanted to point readers to one of the more amusing U.S. treaty reservations I’ve ever run across.  In giving its advice and consent, the U.S. Senate made two reservations, one of which follows:

(2) In accordance with Articles 44 and 62 of the Convention, the United States of America makes a reservation that it objects to the use of the French language in communications between the Central Authority of any other Contracting State and the Central Authority of the United States of America.

The treaty actually allows a country to “object” to the use of either French or English and there is no doubt a serious purpose for allowing this kind of objection.  But there is something great about an official objection “to the use of the French language”.  Indeed, I am glad to see that the U.S. was not the only country to object to French for communications under this treaty.  It is joined by the Czech Republic, the Republic of Estonia, the Hellenic Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, Hungary, the Kingdom of the Netherlands, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland in this objection.

As a long-suffering student of the language, I’ve often wanted to “object” to the use of French. I am glad the U.S. Senate (and all those other countries in Europe) share my Francais-phobia.

Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

The States Continue to Exist in Foreign Affairs: Implementing Treaties

by Julian Ku

Among my many hobby-horses is a  fascination with the role of the individual American states in the interpretation and implementation of international law within the U.S.  In past work, for instance, I have argued that states can individually implement treaties via guidance from Uniform Laws. I had a few examples of this phenomenon in my article, and I think it will be an increasingly common way for the U.S. to carry out its treaty obligations for those matters that are handled by state governments under American law.

So I was glad to run across this article about controversy over a bill in Idaho to conform to the 2008 Amendments to the Uniform Intercountry Child Support Act. The controversy stems from the fact that the 2008 Amendments require states to recognize and enforce child support orders from countries that are members of the Hague Convention on Child Support and that lawmakers in Idaho are concerned that states applying Sharia law might have their orders enforced by Idaho courts.  Putting this controversy aside for a moment, it is worth noting that states ultimately have a choice whether or not carry out U.S. obligations under the treaty, even though the U.S. has obligations under international law.  The federal government has decided to encourage states to carry out the treaty obligations via the spending clause by tying federal funds to adopting the 2008 amendments.  But states like Idaho can choose to not take the funds, and essentially refuse to comply with the treaty.

So it is worth noting, and perhaps celebrating, this continuing trend of relying on states to carry out US treaty obligations.  I think this trend is likely to continue.

M. Cherif Bassiouni Weighs In on the Amanda Knox Extradition, and Gets It Wrong

by Julian Ku

I have been feeling a little guilty for blogging about the Amanda Knox case since it is more of a People Magazine topic than an Opinio Juris one.  But just today, I realized that even someone as respected in the international law field as M. Cherif Bassiouni has opined on her extraditability in this OUP blog post from last April.  So maybe it’s OK after all, especially since Bassiouni’s view that she is not extraditable is (in my view) flatly wrong.

Bassiouni, a giant in the field of international criminal law and the author of the leading treatise on the international law of extradition, argues that Amanda Knox is not extraditable to Italy because of the admittedly unusual Italian criminal procedure that seems to subject defendants to convictions, acquittals, and then conviction again in violation of the rule of ne bis in idem (double jeopardy).

As I have explained, no US court has held that the double jeopardy protection of the Fifth Amendment would prevent an extradition because no U.S. court has applied that Fifth Amendment protection to actions by a foreign government.  In other words, no U.S. has held that a U.S. citizen can invoke the Fifth Amendment against the prosecution of a foreign government.  It is possible a court might do so, but there has been no signs of that so far.

But what really bothers me is that Bassiouni makes the same mistake that many other (far lesser in stature) legal commentators have made when he suggests that Article VI of the US-Italy Extradition treaty imposes a double-jeopardy requirement on the Italian government.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text).

With all due respect to Professor Bassiouni, this is not quite right. I point him and others to my first post on this subject and I re-do the discussion below.   Here is Article VI:

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

(Emphasis added.)

I don’t think it is possible to read this language as imposing a non bis in idem requirement on Italy, since Italy is not the “Requested Party” in the Amanda Knox case.  The only way Amanda Knox could invoke Article VI is if she has been “convicted, acquitted or pardoned,or has served the sentence imposed” by the United States, which is the “Requested Party.”  But Knox has not been charged or punished for this crime in the United States, so she can’t invoke Article VI.

As Bassiouni points out, the complexity of Italy’s criminal procedure could possibly violate the prohibition on non bis in idem contained in the European Convention on Human Rights.  I don’t know enough about Italy’s criminal procedure or the ECHR’s jurisprudence in this area to know if he is right, but I do know that this issue is not something that would be considered in the “extraditability” analysis by a U.S. court.  Knox could (and probably has) raised this argument in Italian courts, or directly before the ECHR. But it should not affect her extraditability.

Because of Bassiouni’s stature, his blogpost will be (and already has been) repeated by media reports for the proposition that Knox has a credible double-jeopardy defense to extradition.  But although they are right to cite Bassiouni as a leading authority on international extradition, he’s wrong on this one.

The Security Council Workaround: How the Iran Deal Can Become Legally Binding Via a UN Security Council Resolution

by Julian Ku

Since the United States has made clear that its “deal” with Iran will NOT be a binding legal commitment under international law, one wonders what all the fuss over the Iran Letter from US Senators was about. As Duncan explains in his great post below, there is little doubt that the President can enter into a nonbinding “political commitment” and withdraw from it without violating international law.  Confusingly, though, Iran keeps talking as if there is going to be a binding international legal commitment.

The answer to this confusion appears to be that the US government plans to make a non-binding political commitment, and then take this commitment to the UN Security Council to get it “carved into marble” as a Security Council resolution that would be binding under international law.  Jack Goldsmith explains in detail at Lawfare how this might happen, and why this is constitutional (if also kind of sneaky).  The President gets to both avoid going to Congress AND get a binding legal obligation on Iran.

Of course, a future President could choose to withdraw or defy the UN Security Council resolution, but the legal and diplomatic costs would be much higher than withdrawing from a mere political commitment.  Congress could also, unquestionably, override any domestic legal effects of a UN Security Council Resolution by passing a statute refusing to lift sanctions on Iran, or stopping the President from doing so.  Diggs v. Shultz makes clear that a statute passed by Congress later in time than a Security Council resolution will have the force of law by operation of the last in time rule.  But the legal and diplomatic costs for doing so would also be higher than for a mere political commitment or even a bilateral executive agreement.

So the Administration has a plan to avoid Congress and get its deal sanctified by international law.  Pretty clever lawyering, although I (like Goldsmith) expect some serious political blowback from Congress.

Iran Responds to US Senators’ Letter, Shows Why Congress Should Be Involved in the First Place

by Julian Ku

I am totally swamped with various overlapping projects right now, so let me procrastinate anyway by noting that Iran took my suggestion and sent a response to the “open letter” sent them from 47 US Senators yesterday.  The letter actually shows why the President, and not the senators, is the one who is operating on the edge of constitutionality.

In the letter, Iran’s foreign minister suggested the senators were violating the US Constitution’s allocation of foreign policy conduct to the President.

[Foreign Minister] Zarif “expressed astonishment that some members of Congress find it appropriate to write leaders of another country against their own president,” a press release explained. “It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.”

As I explained yesterday, I don’t think the letter is a  violation of the Constitution, although there is a closer question under the much-cited, never used Logan Act.

What I found more interesting is the Iranian FM’s suggestion that a future president who withdrew from or amended the agreement would violate international law. This statement illustrates why I think Congress should be included in this process in the first place.

[Zarif] warned that a change of administrations would not relieve the U.S. of its obligations under an international agreement reached under the previous administration. Any attempt to change the terms of that agreement, he added, would be a “blatant violation of international law.”

“The world is not the United States, and the conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” Zarif explained. “The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”

Zarif is no doubt right as a matter of international law (assuming there will be a binding agreement as opposed to a mere political commitment).  But think about it.  Why should a president be allowed to commit the US to binding obligations under international law that neither Congress nor a future President can withdraw from without violating international law?  Shouldn’t such a president be required to first get approval from Congress before committing the United States to this path? Isn’t that why there is a Treaty Clause in the first place? At the very least, doesn’t it make constitutional sense for Congress to have a right to weigh in?

So while lefty blogs and lefty senators are having a field day accusing the Republican senators of violating the law or exaggerating Jack Goldsmith’s pretty minor quibble with the letter’s use of the term ratification, they are ignoring the real constitutional question here.  The President seems ready to commit the United States to a pretty serious and important international obligation without seeking prior or subsequent approval from Congress.  And foreign countries are ready to denounce the United States if, say Congress, decides to pull out or refuses to carry out those obligations. Even if the President’s actions are good policy, it seems like a political and constitutional train wreck that could easily be avoided if the Administration simply agreed to send the Iran deal to Congress.

Way back in 2008, leading scholars like Oona Hathaway and Bruce Ackerman repeatedly denounced President Bush for considering executing a security agreement with Iraq without Congress. Where are the academic defenders of Congress’s foreign policy prerogatives now?

47 US Senators Send Iran’s Leader an Unnecessary(?) Primer on How US Constitution Works

by Julian Ku

Most of the US Senate’s Republican membership has signed an open letter to Iran’s leaders “informing” them about the nature of the U.S. constitutional system with respect to international agreements.   It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President’s foreign affairs power. It may also concede more than the Senators may have wanted to on the constitutionality of the proposed Iran deal.

Here are the key paragraphs in the letter;

[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them.  In the case of a treaty, the Senate must ratify by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and the Senate….Anything not approved by Congress is a mere executive agreement.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

OK, there is nothing here that is incorrect, as a matter of law, and this is not surprising since the letter was apparently drafted by Sen. Tom Cotton of Arkansas, a very smart and knowledgeable constitutional lawyer. The letter does raise a couple of important constitutional issues.

First, a letter sent directly to a foreign leader on a matter which is currently under negotiations with the U.S. could be criticized as an unconstitutional interference in the President’s inherent  power to conduct foreign affairs.  Certainly, it is very unusual.  Imagine if the U.S. Senate had sent a letter to the Iraqi leaders in 2007-8 that Congress was going to have to approve any US-Iraqi alliance or defense cooperation treaty.

In any event, I actually think this letter skirts, but manages to avoid, any unconstitutional interference.  Phrased merely as a letter “bringing attention” to the U.S. constitutional system, the letter does not state U.S. policy, nor does it make any statement on the question of policy.

The most troubling line of the letter is: “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.  ” But this is indisputably correct as a matter of law.

Maybe the strongest criticism of the letter is simply that it need not have been sent.  The only possible purpose of sending the letter is to discourage the Iranians from actually concluding an agreement, since presumably the Iranians can read US foreign relations law textbooks (or even blogs) without the help of the US Senate.  But then again, maybe they don’t. If the Iranians are somehow deluded into thinking a sole executive agreement could survive a Republican president in 2016, it is probably best for all concerned that they know the truth now.

Second, and on the other hand, I do wonder if the senators here may have conceded more than they wanted to here.  There is still a plausible constitutional argument out there that President must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole.  The letter all but concedes that the President can indeed conclude a sole executive agreement with Iran on this matter.  Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal?  (also, they only got 47 votes! There are 55 Republican senators, plus some Democrats who also oppose the Iran deal. Do they not agree with this statement of law?).

In any event, I can’t recall a letter of this sort from recent (or even older) U.S. history.  Readers should feel free to add examples in the comments.  I wonder if the Iranians will send a letter back?

Iran Nuke Review Act Does Not Actually “Require” a Vote of Congress

by Julian Ku

According to the WSJ,  the “Iran Nuclear Agreement Review Act”  that I discussed earlier this week may already have 64 declared supporters in the Senate.  This means that supporters are only 3 votes shy of enough to override President Obama’s veto of this bill.

Since the bill might actually become law, it is worth reminding supporters of the bill that it does NOT guarantee that Congress will vote on the Iran nuke deal.  This might be confusing, but as I argued earlier this week, the proposed law would only suspend the lifting of sanctions for 60 days.  During that 60-day period, Congress could vote on the bill, or it could choose not to do so.  Silence would allow the sanctions to be lifted after the 60 days.  So it is not quite right to say, as the WSJ does, that the proposed law would “require a vote of Congress.”  Still, it is quite likely that Congress would vote, and at least this bill would give them the opportunity to do so.

If the bill passes, and a veto fight breaks out, it will be worth considering whether President Obama invokes any constitutional arguments to justify his position.  I believe that President Obama’s threatened veto reflects a robust and unilateralist conception of the President’s power to make sole executive agreements without Congressional approval.  It will be interesting to see if he defends his veto on constitutional grounds.

Cote D’Ivoire Seeks Provisional Measures Order from ITLOS To Stop Oil Exploration in Disputed Waters

by Julian Ku

Last September, Ghana commenced an arbitration under Annex VII of the UN Convention for the Law of Sea seeking judicial confirmation of its rights to explore for oil and other resources in maritime areas disputed by its neighbor Cote D’Ivoire.  This past January, the two countries agreed to submit a dispute over maritime boundaries to a special chamber of the International Tribunal for the Law of the Sea.  And last week, Cote D’Ivoire filed a request for Provisional Measures with the special chamber asking it to require Ghana to suspend any oil exploration activities while the matter is before the ITLOS special chamber.

Under UNCLOS Article 290, a court or tribunal with jurisdiction is empowered to issue provisional measures “which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.”  I haven’t been privy to the papers filed in this case, but it does seem like Cote D’Ivoire should have a pretty reasonable provisional measures claim.  Indeed, the UK oil company currently exploring the disputed waters pursuant to a contract with Ghana is already planning to suspend its operations pending the outcome of the provisional measures hearing.

The Ghana-Cote D’Ivoire dispute bears watching. If these two countries are able to settle their maritime boundary dispute where lots of oil is at stake, then this would be a pretty significant accomplishment for the UNCLOS dispute settlement system. Hello, China? Anyone there?   History suggests this is going to be pretty hard, but you never know.