Author Archive for
Julian Ku

The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs

by Julian Ku

I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts.  That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs.  I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.

Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.

To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress.  This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today.  Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power).  Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.

I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly.  That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power.  Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.

In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power.  Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President.  I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon.  Justice Thomas was getting lonely, so I suppose he will be glad to have the company.


China Defends Itself on South China Sea: “We are against the arbitrary distortion of the international law.”

by Julian Ku

There is no shortage of commentary on the growing US-China tensions over China’s land reclamation activities in the South China Sea. I’ve already added my two cents on the legal aspects here, but it’s worth trying to understand China’s defense of its actions.  Here is China’s Foreign Ministry spokeswoman at a press conference responding to comments from US and Japanese leaders that China should abide by international law.

The international law has been constantly brought up by some countries when it comes to the South China Sea issue. If they did read closely the international law, then please tell us which article in the international law forbids China to carry out justified construction on its own islands and reefs? Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom? We are against the arbitrary distortion of the international law. If it is not a practice of double standard, then it must be driven by some hidden motives.

Let me take the two (rhetorical) questions in order:

1) “[W]hich article in the international law forbids China to carry out justified construction on its own islands and reefs?

China has a point here. There is no explicit prohibition under international law on construction on a country’s own “islands and reefs.”  That is why the US calls on China to stop land reclamation don’t have a strong legal basis, especially since it appears most of the other South China Sea claimants have also engaged in some (smaller scale) land reclamation.

On the other hand, it is far from clear China is building out on “islands”. It is likely that it has possession only of “rocks” or maybe even just “reefs.” And it is far from clear that China has title to whatever land features it is using.  But land reclamation alone isn’t a violation of any international law that I am aware of.

2) “Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom?”

Here, China is on much shakier ground. As I explained at too much length here, UNCLOS is probably best interpreted to allow surveillance and monitoring by foreign military vessels and aircraft up to 12 nautical miles of a country’s territories, and within those 12 nm if the territory is only a rock or a reef.  China doesn’t agree with this interpretation, and this is the crux of the dispute with the U.S.

Overall, I think China has a strong legal point on land reclamation, but a weak legal point on surveillance and freedom of navigation.  The obvious “compromise”  (or maybe the word is “standoff”) here is for the US to tacitly accede to China’s land reclamation, and for China to tacitly accede to US military surveillance up to and perhaps within 12 nautical miles.  Since the US can’t actually stop China from continuing its land reclamation, and China can’t stop US surveillance, this “compromise” seems like a safe bet. I will note, however, that China’s actions have unleashed the hawkish wing of the China-watching establishment in the U.S. and, over the long term, this may be the most important outcome of this standoff.  The US is taking off the gloves against China and a containment strategy with our new best friends in Vietnam and India  is becoming increasingly likely.

Inter-temporal International Law? Or How Would Modern International Law Have Treated “Unconditional Surrender”?

by Julian Ku

Seth Tillman of Maynooth University has a clever “parody” letter (scroll to the bottom) in the most recent Claremont Review of Books.  I can’t really do it justice here, but it is an amusing take on how modern international law might have critiqued the relentless Allied demands for unconditional surrender by Germany and Japan in 1945.  Also, I particulalry appreciate his efforts to reproduce mid-20th century typography.

Don’t Cry for Sovereign Debtors: Why Argentina’s Defeat in U.S. Courts Does Not Justify a Sovereign Debt Treaty

by Julian Ku

The Argentina sovereign debt mess is still not resolved, but already folks are debating its larger consequences for international economic governance. In particular, there continue to be calls for a new international sovereign debt mechanism to prevent another Argentina-style U.S. litigation. But although I agree that there are decent arguments for some sort of international treaty-based mechanism for sovereign debt restructuring, I disagree that the Argentina-debt litigation in the U.S. is one of them.  You can read a fuller (much longer) version of this argument in  the just posted issue of the University of Pennsylvania Journal of International Law.  

Dear World Media: The U.S. is NOT Challenging China’s Territorial Claims in the South China Sea (Yet)

by Julian Ku

I have been following closely the U.S. Navy’s plans to use military ships and aircraft to challenge China’s aggressive land reclamation activities in the South China Sea, and China’s not very positive reaction to these plans.  But although there is a real dispute brewing here that could escalate into a sovereignty fight, I think media reports are making this dispute more serious than it actually is.

Contrary to some media reports, the U.S. Navy plans do NOT intend to challenge China’s “sovereignty” claims in the South China Sea. Instead, the U.S. Navy is asserting its rights to freedom of navigation under international law. If we understand the U.S. Navy plans in this context, it may help us defuse (at least somewhat) the growing tensions between the U.S. and China in this region, if only the media would help us out with better reporting.

From CNN, here is an example of how media reporting is making this dispute seem worse than it is.

Above the South China Sea (CNN)The Chinese navy issued warnings eight times as a U.S. surveillance plane on Wednesday swooped over islands that Beijing is using to extend its zone of influence.

The series of man-made islands and the massive Chinese military build-up on them have alarmed the Pentagon, which is carrying out the surveillance flights in order to make clear the U.S. does not recognize China’s territorial claims.

(Emphasis added). This report feeds into the (accurate) narrative about growing tensions between the US and Chinese navies.  In this story, the US Navy is flying “over” the Chinese islands in order to challenge or reject China’s territorial claims.  But later in that same report, CNN says that U.S. Navy is considering “flying such surveillance missions even closer over the islands, as well as sailing U.S. warships within miles of them, as part of the new, more robust U.S. military posture in the area.” (emphasis added).

Here’s the problem.  If the U.S. Navy aircraft featured in the CNN video (a military surveillance plane and “sub hunter”) actually flew “over” the Chinese artificial islands, then why would they consider flying even closer “over” the islands and what would be the significance of sending naval ships?

In fact, the US Navy has tried to make it clear to reporters that they are merely conducting freedom of navigation operations and “that U.S. military aircraft do not fly directly over areas claimed by China in the Spratly Islands.” (in the washington post).  It’s my guess that the Navy hasn’t even flown within 12 nautical miles of the artificial islands.

Why? Because as far as I can tell, this is a standard US Navy “freedom of navigation” operation that it uses to assert international law rights of navigation against numerous countries around the world.  It is NOT, as the CNN and other reports suggest, a challenge to China’s territorial claims.

Freedom of Navigation” operations involve sending US Navy warships into both the 200 nautical mile Exclusive Economic Zone and the 12 nautical mile territorial seas recognized under the UN Convention on the Law of the Sea.  In the view of  the U.S., military warships and aircraft are free to conduct surveillance operations (e.g. spying) in any country’s 200 nm EEZ and surface warships (but not military aircraft or submarines) have the right to “innocent passage” through a country’s 12 nautical mile territorial waters.

The U.S. Navy has been conducting  “freedom of navigation” operations for decades to enforce these views of international law, and it even has a “Freedom of Navigation” website making public where it has been operating. The point of these operations it to publicly challenge a country which is making (in the U.S. view) unjustified legal rights under UNCLOS.  China has a longstanding disagreement with this U.S. interpretation of UNCLOS. So they always make protests, and China has sometimes sent its fighter jets out to harass or challenge US spy aircraft.

But the bottom line: pace CNN, freedom of navigation operations are not challenges to “territorial claims” or “sovereignty.” The US Navy operations assume that the other nation has “sovereignty” over the relevant coastline or island.  So the US Navy operations near China’s artificial islands can assume that China has sovereignty but still demand China allow US military aircraft and ships  transit rights etc. under UNCLOS.

It is worth noting that the U.S. could escalate the dispute with China.  The U.S. might take the view that China is building artificial islands on top  of reefs or submerged features which do not entitle China to any legal rights at all (See UNCLOS, Art.60(8): “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”).  If so, then the US would fly within 12 nm miles or even directly “over” the artificial islands. Such operations would effectively be a direct challenge  to a China’s territorial claims, because the U.S. would be taking the view that China has no territorial basis at all for claims in the South China Sea.

“Challenging legal rights under UNCLOS” doesn’t make for very sexy headlines or get many clicks as compared to “challenging China’s territorial claims”. But it is worth parsing media reports about US Navy activities in the South China Sea very carefully, and it would be nice of those well-sourced reporters would clarify just how close the US Navy is going to fly/sail to China’s reclaimed islands.

Maybe the U.S. government should directly challenge China’s territorial claims and sovereignty claims.  I am not sure in my own mind whether the U.S. should take that next step.   But for now, the U.S. hasn’t challenged China’s territorial claims yet, and I wish reporters would stop making it seem like it is doing so.

Whale Wars Seeks a New Forum: The U.S. Supreme Court

by Julian Ku

Sea Shepherd, the activist group that has been aggressively protesting Japanese whaling practices, has filed a very interesting petition for certiorari with the U.S. Supreme Court.  Readers may recall that Sea Shepherd was sued by a group representing Japanese whalers under the Alien Tort Statute (ATS).  The Court of Appeals for the Ninth Circuit held that Sea Shepherd’s actions of boarding the Japanese whalers and obstructing them could fall within the definition of “piracy” for the purposes of jurisdiction under the ATS.

The best argument for Sea Shepherd is that the definition of piracy adopted by the Ninth Circuit cannot meet the Supreme Court’s “Sosa” standard for requiring ATS claims to be “universal” and “specific” under international law.  I think there is some force to this argument, although I find their disparagement of the UN Convention of the Law of the Sea’s definition of piracy a little odd.  In any event, the question may turn on the definition of “private ends” that UNCLOS requires as an element of piracy.  I don’t have a strong view on this, but I refer our readers to Kevin’s critique of the Ninth Circuit conclusion that private ends can include political activism, and Eugene Kontorovich’s contrary view in support of the Ninth Circuit. The petition for certiorari smartly frames this as a “Sosa” issue, which would ordinarily mean that the uncertainty as to the applicability of “private ends” here should defeat ATS jurisdiction.  I am not sure the petitioners will get much traction, given the unusual and narrow facts of this case, but no doubt this case is worth watching.

U.S. Appeals Court Holds that “Domestic Takings” Can Violate International Law

by Julian Ku

As I continue to avoid grading my exams, I ran across this interesting recent case (Helmerich & Payne v. Venezuela) from the U.S. Court of Appeals for the D.C. Circuit which considered whether Venezuela’s expropriation of a Venezuelan subsidiary of a U.S. corporation is a “taking in violation of international law” under Section 1605(a)(3) of the U.S. Foreign Sovereign Immunities Act. Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Ven

Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Venezuela argued that it is immune under the U.S. Foreign Sovereign Immunities Act because, among other reasons, its expropriation fo the subsidiary is not a “taking in violation of international law” for the purposes of the FSIA.  The FSIA does contain an exception for such claims in the so-called “Hickenlooper Amendment” to the FSIA enacted in the wake of the well-known Sabbatino case from the early 1960s.

What I find fascinating is the Court’s rejection of Venezuela’s argument that as a “domestic takings”, its expropriation of a Venezuelan company cannot violate international law, even if (as in this case) the sole shareholder of that Venezuelan company was a U.S. national and that there is plenty of evidence of anti-U.S. animus motivating the expropriation.      This is indeed a difficult question, and I am struck that the D.C. Circuit held that such a taking “could” violate international law but it relied solely on other U.S. court precedents (the 1962 Second Circuit decision in Sabbatino) and Section 712 of the Restatement of U.S. Foreign Relations Law.  This is pretty thin precedent, as the dissenting judge in this case points out.  I am not ordinarily one to yell for citation of international and foreign sources, but given the clear language of the FSIA (a “taking in violation of international law”), it is odd that no international or foreign sources were consulted.

In any event, I am curious whether any of our readers could help out by pointing to other precedents on the question of “domestic takings” under international law.  I have a feeling the DC Circuit reached the right conclusion here, but I am troubled by the lack of authority for its holding.


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!