Author Archive for
Julian Ku

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.

Whaaaahhht?

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.

Doe v. Nestle: Corporate ATS Cases Just Keep Lingering

by Julian Ku

The Supreme Court this week let stand a U.S.Court of Appeals for the Ninth Circuit decision reinstating an Alien Tort Statute lawsuit alleging corporate complicity in the use of child slave labor in various African countries from which they purchased cocoa products.

The high court left in place a December 2014 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that refused to dismiss a lawsuit against Nestle, Archer-Daniels-Midland Co and Cargill Inc filed by former victims of child slavery.

The plaintiffs, who were originally from Mali, contend the companies aided and abetted human rights violations through their active involvement in purchasing cocoa from Ivory Coast. While aware of the child slavery problem, the companies offered financial and technical assistance to local farmers in a bid to guarantee the cheapest source of cocoa, the plaintiffs said.

The arguments in favor of, and against, Supreme Court review are amply discussed by John Bellinger here.  In essence, the corporate defendants argued that the Ninth Circuit had misapplied the Supreme Court’s 2013 landmark ATS decision in Kiobel v. Royal Dutch Shell.  That decision had imposed a “touch and concern” extraterritoriality case before permitting such an ATS lawsuit in U.S. courts.  The defendants also argued that the Supreme Court should clarify the intent standards required for determining corporate aiding and abetting liability, and that there is a split between circuits over whether corporations can be held liable for violations under the ATS.

I am not sure about whether this case was “cert-worthy”.  The Kiobel issue seems mostly about whether the plaintiffs should be allowed to amend their complaint. There is a question of how Morrison interacts with the Kiobel standard, but the split with other circuits isn’t quite as developed as it could be.  I think the corporate liability issue is a circuit split, but where the Second Circuit stands on that issue is still a little up in the air.  I do think the Ninth Circuit is mistaken on the intent standard, but again, I am not sure how broad that standard is yet.

But it is certainly true that by letting this Ninth Circuit decision stand, the Supreme Court is passing up an opportunity to shut down corporate ATS litigation in a more definitive way than it did in Kiobel.  So corporate ATS cases are mostly dead, but not quite.

Gaza Flotilla Activists’ Lawsuit Against Israel Will Probably Fail for Lack of U.S. Jurisdiction (Updated)

by Julian Ku

[Please see the update below] Three U.S. citizens, and one Belgian national, have filed a civil lawsuit in U.S. District Court in Washington D.C. against the State of Israel alleging various injuries and damages suffered during an Israeli commando raid on their U.S.-registered ship.  The plaintiffs were activists who were sailing their vessel in support of the Palestinians on the Gaza Strip suffering under what the plaintiffs allege is an Israeli blockade. I don’t have a copy of the complaint, but according to this Washington Post report, there are a couple of pretty big legal obstacles for the plaintiffs to overcome.

“The attack on the high seas was unjustified and illegal under international law,” lawyer Steven M. Schneebaum of Washington wrote in a 21-page complaint, which alleged that the military operations injured more than 150 protesters and included torture, cruel or degrading treatment, arbitrary arrest and assault.

The first problem for the plaintiffs will be overcoming the Foreign Sovereign Immunities Act, which bars U.S. courts from hearing cases against foreign sovereigns like Israel unless certain exceptions apply.  I can’t tell exactly from the report which exception the plaintiffs are trying to invoke, but the allegations of “torture, cruel and degrading treatment” etc. suggests the complaint is trying to allege such an egregious violation of international law that any defense of immunity will be deemed to have been “waived” by Israel.   I am highly doubtful that this argument will succeed, and indeed, I am fairly sure it is foreclosed by precedents in the D.C. Circuit (and elsewhere).

It is possible that the plaintiffs will seek to get jurisdiction under the “state-sponsored terrorism” exception in 28 U.S.C. § 1605A(a)(1).  This might seem to apply, if we accept the plaintiffs’ claims as true, except that Israel would also have be designated by the U.S. government as a “state sponsor” of terrorism in order for the exception to apply.   Israel, needless to say, has not been so designated by the U.S. government, so this exception doesn’t work for the plaintiffs either.

It also appears the plaintiffs may have a statute of limitations problem as well, but I am not sure.  Also, was that ship U.S.-registered? If so, which tort law would apply? Or is it a claim under international law?

So I am pretty doubtful that this lawsuit will survive a motion by Israel to dismiss the case for lack of jurisdiction.   Indeed, I wonder at its even being filed, given the jurisdictional problems it faces.  But perhaps I am missing something, and if so, feel free to let me know in the comments.

[Update: Jordan Paust and Ted Folkman point out in the comments that the plaintiffs are probably invoking either the “international agreements” exception in the FSIA or the “noncommercial tort” exception in 28 USC § 1605(a)(5), which allows an exception to immunity for claims “in which money damages are sought against a foreign state for personal 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…”

These are a much more plausible claims, and they depends (as Ted points out) on the idea that the raid on the US-flagged vessel means that the alleged tort occurred “in the United States.”   The leading decision is Argentine Republic v. Amerada Hess, which involved an Argentine missile strike on a Liberian-flagged ship owned by U.S. interests. That case held though that the “high seas” is not “in the United States” for purposes of the FSIA.  The only variation on this point I can see is that that the attack occurred on a U.S.-flagged vessel, as opposed to the “high seas.” I doubt this will fly, but I suppose it is worth a shot if I were the plaintiffs.]  

Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?

by Julian Ku

When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.

China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise.  And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.

Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless.  Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)?  Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above.  So is it better to simply walk away?  If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether.  Will other states try this approach?