Author Archive for
Julian Ku

Does Promoting Democracy in Hong Kong Violate the Principle of Non-Interference in Domestic Affairs?

by Julian Ku

A bipartisan group of US lawmakers proposed the Hong Kong Human Rights and Democracy Act last week.  The proposed law would “would enhance U.S. monitoring of Hong Kong’s autonomy and human rights and ensure that these issues remain a cornerstone of U.S. policy,” according to the bill’s chief sponsor, Rep. Chris Smith.

Reactions in Hong Kong and China are already pretty negative.

“We don’t want foreign governments or foreigners to intervene in affairs that can be handled by ourselves,” [Hong Kong Justice Secretary Rimsky Yuen Kwok-keung] said, adding that the Beijing and Hong Kong governments, Hongkongers themselves and the city’s lawmakers were the only stakeholders in the city’s political reform.”

If the bill gets closer to passage, one can imagine China will invoke the principle of “non-interference” in domestic affairs and sovereignty as an international law argument against the bill.  So this could set up an interesting contrast in views on how this principle is understood and interpreted.

In fact, the proposed bill is quite limited in scope.  All it requires is for the U.S. Secretary of State to annually certify “whether Hong Kong is sufficiently autonomous to justify separate treatment different from that accorded the People’s Republic of China in any new laws, agreements, treaties, or arrangements entered into between the United States and Hong Kong after the date of the enactment of such Act.”

It does not even threaten to change existing laws and treaties (such as the visa waiver provision for HK residents or the extradition agreement with HK).  It just threatens to limit “any new laws, agreements..treaties” (emphasis added). Nor does the proposed law actually require “genuine” democratic suffrage or compliance with the UK-China Joint Agreement or any other hard metric that the recent protests in Hong Kong had argued for.  Certification can be made as long as HK remains “sufficiently autonomous” in the opinion of the US Secretary of State and as long as he “considers” the Joint Agreement’s requirements in his certifcation.

Moreover, even this pretty easy requirement can be waived by the Secretary of State is in US national interests.  For this reason, I would be surprised if this bill becomes controversial within Congress or opposed by the State Department.

Nonetheless, it is worth asking: Is it a violation of the principle of non-interference to condition new agreements and arrangements with Hong Kong on the progress of domestic arrangements in China?  I don’t think most US international lawyers would find this gentle prodding to be a credible violation of the non-interference principle (see this useful summary of the principle from Princeton here), but I am fairly sure many Chinese international lawyers would see things differently.  If the bill progresses, we may find out.

Will Japan Embrace the “Illegal But Legitimate” View of the UN Charter’s Limits on Use of Force?

by Julian Ku

Japan has been slowly moving to modify its domestic law, both constitutional and legislative, restricting the use of its military forces outside of Japan.  In its latest political discussions, it is worth noting that Komeito, a partner to the ruling Liberal Democratic Party, has been insisting on the three “Kitagawa” principles as a basis for any new law governing the use of force overseas.  The three principles are: “legitimacy under international law, public understanding and democratic rule, and ensuring the safety of SDF personnel.”

Interestingly, the ruling party has been hesitant to fully embrace the “legitimacy under international law” requirement, which might be read to require UN Security Council authorization for most overseas uses of military force. Noting that China has a veto in that body, ruling party lawmakers would like to make sure “legitimate under international law” is given a broader meaning.

“In terms of international law, legitimacy isn’t necessarily limited to [those situations involving] a U.N. resolution,” said a senior LDP official. “We’d like to discuss what cases would be legitimate.”

The US and Western powers have used this “illegal but legitimate” analysis to justify actions in Kosovo and elsewhere.  It will be interesting to see if Japan eventually adopts some version of this approach.  It would be wise to do so from a practical perspective, since many scenarios where Japanese forces would act “overseas” including the Senkakus, Taiwan, Korea, or Syria may not qualify as “self-defense” under the U.N. Charter.  But such a move would chip away again at the UN Charter’s limits on the use of military force.

U.S. Federal Aviation Agency Issues Letter Authorizing(?) Creation of Private Moon Base

by Julian Ku

Glenn Reynolds of Instapundit (and of the University of Tennessee Law School) has a short op-ed in USA Today celebrating the first official US government statement of support for the private exploitation of resources on the moon.  As Reynolds describes it:

Bigelow [a private US company] has decided that it wants to go to the moon, and — here’s the real news — has gotten the Federal Aviation Administration’s space office (Office of the Associate Administrator for Commercial Space Transportation) to give it the go-ahead, and to state that the U.S. government will recognize and protect Bigelow’s right to create a base and to operate exclusively in that base’s vicinity.

The linked report from Reuters elaborates that the FAA is simply using its existing authority to regulate payloads on space launches to authorize activities private companies might use those payloads for on the moon.  In this case, Bigelow is preparing to build an inflatable space habitat, a “moon base”, and would like some statement of US government backing for its project.

According to Reynolds (and many space lawyers), the Outer Space Treaty does not in fact prohibit private exploitation of natural resources on the moon. I am a bit surprised because Article II of that treaty states that:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

But while national appropriation is prohibited, it appears to Reynolds and others that private appropriation is not prohibited.  This argument takes some interpretive legwork, but it certainly has some historical pedigree, dating back to at least this 1969 essay.

This aggressive reading of Article II is enough to encourage other private space development companies to plan their business models on extracting and then bringing back minerals from the moon. As Moon Express, another company stated:

“The company does not see anything, including the Outer Space Treaty, as being a barrier to our initial operations on the moon,” said Moon Express co-founder and president Bob Richards. That includes “the right to bring stuff off the moon and call it ours.”

I am still not sure about their reading of the treaty’s language.  Did the drafters of the Outer Space Treaty really want to prohibit states from exploiting celestial bodies, but allow any non-state to do so (and without any obvious set of rules to govern those non-states)?  I definitely need to study this question more, but it certainly seems like there will be a dispute on this question someday soon. Any experts out there who wish to comment, please share!

RIP, Luke T. Lee, Expert on Consular Law

by Julian Ku

I never met the late Luke T. Lee, but his work, Consular Law and Practice, was one of the first treatises on “practical” international law I ever encountered. As a young student intern in the U.S. State Department, I remember going to his book again and again as I tried to figure out exactly what would happen to a U.S. consular official who got into a car accident in Jerusalem but whose consular status was never properly recognized by the government of Israel (There is a memo I wrote on this subject somewhere in the bowels of the State Department that may or may not ever have been read).  Lee’s work was not breathtakingly complex or sophisticated, but it was clear, careful, and comprehensive on the questions it set for itself. Works like Consular Law and Practice are not the only purpose of writing legal scholarship, but it is a purpose that is still worth celebrating.  RIP.

Does President Obama Need Congress’s Approval to Sign a Nuclear Deal with Iran? Can Congress Force Him to Get Their Approval?

by Julian Ku

The fight between President Obama and Congress over Cuba policy is nothing compared the brewing struggle over a U.S.-Iran agreement over Iran’s nuclear program. I noticed this little foreign affairs law nugget today from the WSJ’s report of this ongoing struggle (emphasis added):

In the Senate, Mr. Menendez, of New Jersey, is co-author of a bill that seeks to impose new, escalating sanctions on Tehran if negotiators fail to conclude an agreement limiting Iran’s nuclear program before the end of June, the diplomatic deadline.

A second piece of legislation, promoted by the committee’s new chairman, Sen. Bob Corker (R., Tenn.), seeks to give Congress the power to either approve or reject any nuclear agreement reached with Tehran.

Senior administration officials who testified before the committee said the White House would oppose both bills.

Deputy Secretary of State Antony Blinken said the White House doesn’t view an agreement with Iran as a treaty that requires Senate approval, but a matter of “executive prerogative.”

In general, I think the President has broad discretion under U.S. statutes to impose or lift sanctions on Iran, and although I haven’t looked at the Iran sanctions in detail, I bet the President has broad powers to waive sanctions without going back to Congress. The White House is certainly acting like that’s the case, although the devil is in the details.

Does President Obama Need Congress to Lift the Embargo on Cuba? Yes.

by Julian Ku

It looks like a big showdown is brewing between the President and Congress over Cuba policy (Here comes 2016 presidential candidate Rubio!).  Some legal commentators have argued, however, that President Obama already has the legal authority to lift all or most of the Cuba embargo without any further action by Congress.  Robert Muse, a lawyer whose practice is all about Cuba sanctions law, has stated that the President has very broad discretion to lift most of the restrictions on trade with Cuba without further congressional action. Is he right?

I am not Cuba sanctions law expert, so it is possible I am missing something.  Since the bulk of the Cuba sanctions are found in regulations issued by the Treasury Department’s Office of Foreign Assets Control pursuant to the Trading with the Enemy Act, it would seem like President Obama could indeed lift those sanctions by simply withdrawing those regulations.  The TWEA has never been read to require sanctions, and President Carter lifted similar sanctions on China without Congress in 1979.

On the other hand, Congress has also enacted two Cuba-specific statutes: the Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091 (“Helms Burton). The latter appears to codify” the OFAC regulations on Cuba that were initially issued under the TWEA. See Section 102(h) (“Codification of Economic Embargo.– The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of this Act.”).  Section 204 in turn “authorizes” the President to lift sanctions only after submitting a determination to Congress that a transitional government in Cuba exists and that the lifting of sanctions will contribute “to the stable foundation for democratic government.” There is also the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211, which imposes further limitations on financial transactions with Cuba and allows no Presidential waiver.

It is worth noting that President Clinton expressed some reservations about the impact of Section 102(h) when he signed the Helms-Burton Act, stating that it”could be read to impose overly rigid constraints on the implementation of our foreign policy.” But Clinton didn’t suggest imposing conditions on when the President could lift sanctions actually violated the Constitution.  Since I assume Congress is the source of the authority to impose sanctions in the first place, it seems reasonable that Congress could impose conditions on when those sanctions can be lifted.  Any argument that those conditions themselves are unconstitutional would be a remarkably aggressive legal argument.

So I don’t think the calls from some quarters for a unilateral lifting of the embargo on Cuba is supportable as a legal matter.  In fact, there are good reasons to doubt the legality of the loosening of sanctions already announced by OFAC.  In any event, there will be lots of legal skirmishing over the next few months on this front. It will be interesting to see if President Obama ever pulls out the “presidentialist” card and tries to argue some of these sanctions laws violate his constitutional authority.  I would doubt it, but then again I never thought he would engage in a separate war in Iraq and Syria with ISIS and change US immigration law without Congress either.

 

How the Legal Blogosphere Has Changed After Ten Years of Opinio Juris

by Julian Ku

I want to mark our Opinio Juris anniversary with some musings on how the legal blogosphere has changed in the decade since Chris, Peggy, and I launched this site. When we began, there was already a pretty robust universe of legal blogs.  But law blogs were still pretty much hobbies rather than serious professional publications.  Chris, Peggy and I were writing for each other and our friends,and the blog may have seemed more like a convenient forum for long-distance communication.

In the early days, it was enough to simply link to stories and articles in corners of the internet that most mainstream papers wouldn’t have noticed.  I remember linking to reports of Iraq’s accession to the ICC, way before most news media reported on it.  I developed an early ongoing obsession with the legal battle over Japan’s whaling practices, way before reality TV and the ICJ case made it mainstream news.   Sometimes, we would take random shots at celebrities for their lack of understanding of international legal issues but mostly just to try to get attention.  I challenged Angelina Jolie, for instance, to rethink her support for international criminal justice (and I have some reliable sources tell me she actually read the post at some point). I think Opinio Juris still can serve an important news function for specialized stories most people don’t care about, although much of that has been taken over by our fabulous Twitter account.

Blogs today, especially law blogs, have become much more professional and serious.  The great advantage of law blogs is that they provide a way for detailed legal analysis to reach the public and policy-making worlds directly and immediately.  A judge at the International Court of Justice,an attorney-adviser in the U.S. State or Justice Department, and a journalist can find useful detailed legal analysis with very little effort (and all have at various points).  Journalists in particular can and have used law blogs as a quick and dirty way to canvass expert opinion on whatever legal issue their stories are intersecting. For instance, a recent Vox explainer was able to draw on our blog and others to discuss the legality of military action in Syria.   Law blogs are surprisingly important and influential, and I could not have predicted that in 2005.

For academics like us, Opinio Juris is a way for us to apply our professional analysis to current events in a way that was simply not possible before law blogs.  To be sure, some of our analysis was incorrect or mistaken (I managed to declare various ICJ judges dead when they were very much alive), but much of it became part of the larger public conversation.  For me, the blog has always challenged me to link my academic ideas to real-world events, and I am always grateful for that outlet.

I am also grateful that non-American readers continue to find our musings useful and interesting.  We remain a resolutely Americanist/ America-centered blog, but I think that actually is part of our utility to non-American readers.  We offer a certain perspective of what American academics think about international legal issues, and a particular insight into U.S.-law-heavy topics that impact the world (like the war on terrorism and the Alien Tort Statute).

But at the heart of the blog, and what continues to motivate me to write, is the chance to “talk” with my co-bloggers, guest-bloggers, and readers about things that my neighbors (or even my colleagues) find tedious or boring or over-technical.  I am curious about the world, and I cherish the existence of an online community to share this exploration with. Thanks for reading, and I hope continuing to read, for the next decade (at least!).

Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.

 

Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal

by Julian Ku

The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea.  It is a little unclear exactly what Vietnam has filed.  According to its Ministry of Foreign Affairs website:

In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.

According to the South China Morning Post, the Vietnamese submission has three points.

1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.

I think this filing has much more political than legal significance.  As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal.  It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.

On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China.  I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course.   The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

by Julian Ku

I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program.  In this post, I want to focus on an interesting data point coming out of this debate.  As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public.  This doesn’t mean that the CIA program was legal.   But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.

I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification.  (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”).  There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view.  This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.

For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law.  The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement.  In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture”  or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture.  Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.

However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view.  FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure.  It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.

Again, I am not claiming that public opinion should determine whether the CIA program was legal.  But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture.   This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program.  And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.

Why the Philippines’ Arbitration Against China is Doomed to Fail

by Julian Ku

Over at The National Interest, I have an essay considering the strategic implications of the Philippines arbitration claim against China.  I argue that the Philippines made a mistake by trying to force China into an arbitration under the UN Convention on the Law of the Sea, and that their “lawfare” strategy is probably going to backfire.

Due in part to domestic pressures for a robust nationalism in defense of all territorial claims, China has not yet reached the point where arbitration seems like a reasonable way to settle its maritime disputes.  And since it has now spent months denouncing the Philippines arbitration as illegal and illegitimate in its domestic press and internationally, it will be even harder to accept any form of international dispute resolution in the future.

This is why the Philippines’ effort to force China to accept arbitration now is doomed to fail and will probably backfire. The Philippines will be in no stronger position vis-à-vis China than it was before the arbitration, even if it wins an award.  Meanwhile, the overall credibility and effectiveness of the UNCLOS dispute resolution system will be called into question.  And the U.S. goal of a China that “abides by and reinforces” international law and norms will be even farther off.

 

Star Wars, Indeed: US Navy Will Deploy Its First (Hopefully Legal) Laser Cannons to Persian Gulf

by Julian Ku

It looks like the US Navy is going to go ahead and start deploying its new laser cannons to the Persian Gulf next year, according to this Washington Post report.  The Navy has been developing this weapon for years as a cheaper alternative to missiles for attacking smaller targets, especially drones (My 2005 self is still kind of amazed at my 2014 self for writing this last sentence in all seriousness and not as part of a science fiction fantasy).  But you have to watch this video…

Is there any legal limitation on this new weapon?  Well, the Navy is planning to limit it to self-defense for now, according to this WSJ($) report.

“We have the authorities right now to use it in self-defense,” Adm. Klunder said. “If someone was coming to harm the USS Ponce, we could use this laser system on that threat and we would intend to do so.”

The U.S. is also party to the Protocol on Blinding Laser Weapons, ratified by the U.S. back in 2008.  The Protocol limits the U.S. Navy’s lasers in this way:

Article 1

It is prohibited to employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices. The High Contracting Parties shall not transfer such weapons to any State or non-State entity.

The scope of this provision is limited by Article 3, which appears to allow blinding via lasers if it is an incidental or collateral effect.

Article 3

Blinding as an incidental or collateral effect of the legitimate military employment of laser systems, including laser systems used against optical equipment, is not covered by the prohibition of this Protocol.

This would seem to give the US Navy enough room to use its laser cannons, which are not intended just to blind, but to actually destroy targets (take a look at that video one more time).  Still, it is possible that blinding would be one of its effects, since it is intended to be used against small targets, including small boat attacks favored by Iran.  Soldiers in these open boats could be “blinded” by a laser attack, and Article 2 requires the U.S. to take all feasible precautions to avoid the incidence of permanent blindness to unenhanced vision.” Still, I think Article 3 is enough cover for the U.S. Navy to justify its use in combat.  And just in case, the U.S. added a declaration upon accession:

“It is the understanding of the United States of America with respect to Article 2 that any decision by any military commander, military personnel, or any other person responsible for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”

Star Wars is here, and no treaty is going to stop it….