Author Archive for
Julian Ku

Can You Be Pro-Free Trade and Anti-Investor State Dispute Settlement?

by Julian Ku

Simon Lester of and the Cato Institute offered a very interesting pro-free trade argument against the inclusion of investor-state dispute settlement (ISDS) in trade agreements like the TransPacific Partnership or the Transatlantic Trade and Investment Partnership.  I disagree and we discussed and debated the issue today in a lively conversation hosted by Columbia University’s Center for Sustainable Investment.

Why China Will Ignore the UNCLOS Tribunal Judgment, and (Probably) Get Away With It

by Julian Ku

U.S. commentary has largely celebrated the UNCLOS Arbitral Tribunal’s award finding it has jurisdiction to consider the merits on many of the Philippines’ South China Sea related claims against China.   Perhaps the most positive note is found in Jill Goldenziel’s essay at the Diplomat entitled, “International Law Is the Real Threat to China in the South China Sea.”

But just by getting this far, the case already has important implications for the use of international courts to manage and resolve international conflicts. International law has become a weapon of the weak. Countries that cannot afford or have no chance of winning military conflicts have increasingly turned to courts to resolve territorial, economic, and human rights claims. Other countries are closely watching the Philippines as they consider similar options for asserting their own rights in the South China Sea and beyond. Vietnam, in particular, is considering filing a similar lawsuit. At the very least, the case may force China to engage in talks with its neighbors to resolve competing claims to the South China Sea. By doing so, China can save face and claim to resolve the disputes on its own terms. If law can bring China to its knees, cases involving the South China Sea will have ripple effects far beyond its shores.

For my own part, I am much more skeptical about the benefits of an arbitral award for the Philippines. As I argued last year, there is little reason to think China will suffer serious reputational consequences for defying the UNCLOS Arbitral Tribunal’s award on jurisdiction or on the merits. Why?

Because other cases involving “weak” nations using international courts against “strong” nations shows that “strong” nations suffer few consequences and rarely change behavior significantly. The most similar case to Philippines v. China is probably the 1986 ICJ judgment in Nicaragua v. United States. That case (also brought by the Philippines’ current lawyer Paul Reichler) resulted in the U.S. withdrawing from the compulsory jurisdiction of the ICJ, not showing up for the merits argument, and ignoring the ICJ’s final judgment on the merits in that case. While the U.S. suffered some negative votes in the General Assembly and had to veto several Security Council resolutions, it is hard to argue that the U.S. “complied” with the ICJ judgment as a result of the reputational costs it suffered by walking away. The U.S. never paid the compensation the ICJ held that it owed, and it stopped mining Nicaraguan harbors only years later.

Russia has also recently demonstrated the ability of a “Strong” state to ignore an international court ruling. After detaining a Dutch-flagged Greenpeace vessel and its crew in 2013, Russia faced a provisional measures proceeding in the International Tribunal for the Law of the Sea. That tribunal ordered Russia to “promptly release” the vessel upon the posting of a bond and to release the crew as well.   Russia did not show up for the argument in court, and simply ignored the ITLOS order as well as a subsequent UNCLOS arbitral award.

Perhaps the Philippines will win some sort of leverage over China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either.

So How Is China Taking Its Loss at the UNCLOS Arbitral Tribunal? Not Well.

by Julian Ku

I have been curious to see how China would respond to yesterday’s UNCLOS Annex VII Arbitral Tribunal’s ruling finding it has jurisdiction to hear the Philippines South China Sea related claims.  Well, the Chinese Ministry of Foreign Affairs was ready with this blistering response:

Q: The Arbitral Tribunal established at the request of the Republic of the Philippines rendered the award on jurisdiction and admissibility of the South China Sea arbitration. What is China’s comment on that?

A: The Chinese government will not accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. The Chinese Foreign Ministry has immediately released a statement to elaborate on China’s solemn position. The award is null and void, and has no binding effect on China. I would like to highlight three points.

First, China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. As a sovereign state and a State Party to the UNCLOS, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiations and consultations. China and the Philippines have repeatedly reaffirmed in bilateral documents since the 1990s and the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002 that they shall resolve relevant disputes through negotiations and consultations.

Second, disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures, misrepresented the law and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.

Third, as a State Party to the UNCLOS, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the UNCLOS, and calls upon all parties concerned to work together to safeguard the integrity and authority of the UNCLOS. China urges the Philippines to honor its own commitments, respect China’s rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations. That is the correct path with bright prospects.

The full MFA statement is here, and includes a swipe at the Philippines for using the “cloak of law as a political provocation.”  It is worth noting that China is still aiming most of its rhetorical fire at the Philippines, but it has also now directly criticized the Arbitral Tribunal for “abus[ing] relevant procedures [and] misrepresent[ing] the law….”  I also detect a slightly larger emphasis in China’s complaint about the “unilateral” nature of this arbitration.

I am also impressed by China’s willingness to just ignore the clear provisions of Article 288(4) of UNCLOS, and simply declare that the Tribunal’s ruling is “null and void” and has “no binding legal effect.”  At some point, someone in China is going to have to gin up a legal argument to get past UNCLOS’ clear language giving the Tribunal the power to determine questions of jurisdiction.  But for now, it looks like China is going to stick to its guns.

So It’s Settled: The President Can Violate Customary International Law

by Julian Ku

There is a lot of interesting material revealed in the Charlie Savage NYTimes article on the legal justification for the Bin Laden raid (including how the Attorney General and Office of Legal Counsel were kept in the dark and out of the loop).  But I want to focus on one paragraph in the article, which explained the lawyers’ backup justification for their conclusion:

There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.

Deborah has done some very good analysis here on the CIA’s views on this question, as applied to non-self-executing treaties. I think that is a tricky question. But there is also an easier question that was also probably settled in the lawyers’ legal memos.  Like the Bush administration lawyers, the Obama Administration lawyers concluded that the President can choose to violate that customary international law without violating the Constitution or other domestic law.

Although this may seem obvious, it used to be a highly contested question.  I dug up this discussion from a 1986 panel between leading international law scholars Louis Henkin, Anthony D’Amato, Michael Glennon, Abe Chayes and others.  Almost none (even President Reagan’s legal adviser Abe Chayes) would have openly admitted that the President could violate customary international law. The Restatement of U.S. Foreign Relations Law suggests, but does not completely endorse the view that the President can openly violate customary international law.  Indeed, there used to be a fair number of law review articles explaining why the President’s obligation to “Take Care” that the laws are faithfully executed include customary international law. But, if Savage’s reporting is accurate, the U.S. government (under both George Bush and Barack Obama) is no longer troubled by this question, and has moved on. So should the rest of us, apparently.

Breaking: UNCLOS Tribunal Rules Against China, Unanimously Finds It Has Jurisdiction Over Philippines South China Sea Claims

by Julian Ku

It’s been a rough week for China’s South China Seas policy. In addition to facing a US Freedom of Navigation operation near one of its artificial islands, the arbitration tribunal formed under the United Nations Convention on the Law of the Sea has decided that it has jurisdiction to proceed to the merits on the Philippines’ legal challenge to certain Chinese activities in the South China Sea.

I will blog more about this later, but for now it is worth noting that the tribunal unanimously ruled that it can proceed to the merits on seven out of 15 of the Philippines’ claims, and that it reserves the question of jurisdiction on seven other claims as being so interwoven with the merits that it cannot be resolved without first considering the merits.

I will note that the tribunal reserved the question of jurisdiction over the Philippines’ biggest and most flashy claim: the argument that China’s Nine Dash Line “historic rights” claim is inconsistent with UNCLOS. It held that:

The Philippines’ Submission No. 1 does, however, require the Tribunal to consider the effect of any historic rights claimed by China to maritime entitlements in the South China Sea and the interaction of such rights with the provisions of the Convention. This is a dispute concerning the interpretation and application of the Convention. The Tribunal’s jurisdiction to consider this question, however, would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over “historic bays or titles” in Article 298. The nature and validity of any historic rights claimed by China is a merits determination. The possible jurisdictional objections with respect to the dispute underlying Submission No. 1 therefore do not possess an exclusively preliminary character. Accordingly, the Tribunal reserves a decision on its jurisdiction with respect to the Philippines’ Submission No. 1 for consideration in conjunction with the merits of the Philippines’ claims.

On the other hand, the Tribunal did find that the question of whether the Scarborough Shoal is a “rock” or an “island” is clearly within the jurisdiction of the Tribunal, irrespective of the merits. It did so because it held that there are no overlapping sovereignty or sea boundary claims that might impact the determination.

Overall, it should never be surprising when an arbitral tribunal finds that it has jurisdiction to hear a case. The Tribunal did throw China a bone by noting that it is still possible that seven of the Philippines’ claims (including the Nine Dash Line challenge) could be dismissed for lack of jurisdiction at the merits stage.

But by reserving the question of jurisdiction, and guaranteeing it will rule on the merits for several other claims, the Tribunal shoves the ball back onto China’s court.  Will China continue to claim it is not bound by the Tribunal for lack of jurisdiction, when the Tribunal has now found it has jurisdiction?  China would more clearly be in violation of UNCLOS now than it was before, because UNCLOS Article 288(4) makes it clear that “[i]n the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”  My guess is China will pretend that Article 288 doesn’t exist and continue to refuse to participate.  The interesting question is whether China will pay any serious price (in reputational terms) if it does so.

China’s Weak Legal Basis for Criticizing the US Navy’s Freedom of Navigation Operations in the South China Sea

by Julian Ku

The US Navy executed a much anticipated “freedom of navigation operation” (FONOP) today within 12 nautical miles of Subi reef, the site of one of China’s artificial islands in the South China Sea.   Predictably, China has reacted sharply to this operation by sending two Chinese destroyers to shadow the U.S. ship and planes, summoning the U.S. ambassador, and issuing angry public statements (see below).  Although it is not the main focus of their complaints, the Chinese have repeatedly described the U.S. operation as “illegal” thus highlighting the legal conflict underlying this naval showdown.

The most detailed official reaction was presented by China’s Ministry of Foreign Affairs spokesperson Lu Kang.

The USS Lassen illegally entered waters near relevant islands and reefs of China’s Nansha Islands without the permission of the Chinese government on October 27. Relevant authorities of the Chinese side monitored, followed and warned the US vessel. Relevant actions by the US naval vessel threatened China’s sovereignty and security interests, put the personnel and facilities on the islands and reefs at risk and endangered regional peace and stability. The Chinese side hereby expresses strong dissatisfaction and opposition.

It is unclear exactly how the U.S. ship put personnel on the islands and reefs at risk, but in any event, the spokesperson went on to assure the world that China has, and always will, respect the freedom of navigation consistent with international law.

China’s Deputy Foreign Minister Zhang Yesui echoed these remarks, although this statement focused more on China’s “indisputable sovereignty” than on the legality of the U.S. actions.  China’s Foreign Minister Wang Yi simply warned the U.S. against “stirring up trouble.” Perhaps more seriously, China’s Defense Ministry spokesperson called the U.S. action an “abuse” of the principle of “freedom of navigation under international law” that would cause “harm” to bilateral trust and relations.

As I suggested in a previous post, the US and China might have chosen to downplay this incident by treating the U.S. naval visit as an “innocent passage” through China’s territorial seas.  But China believes even innocent passage requires its permission, and the U.S. Navy made sure that its destroyer was accompanied by naval surveillance aircraft. The inclusion of the aircraft makes it clear that the U.S. is not trying to claim an “innocent passage.” Rather, the U.S. is stating (through its actions) that it does not believe Subi reef (where the Chinese have added an artificial island) is a rock or island generating a territorial sea.  Therefore, US naval vessels should be free to conduct any activity they wish in this area.

It is interesting that at least one Chinese media outlet is claiming that there is no real conflict over international law between the two sides.  In this portrayal, China’s actions in building artificial islands is “completely legal” and the U.S. is just trying to flaunt its power by “harassing” China.  China’s legal position appears to be that it is building artificial islands on reefs that are entitled to a 12 nautical mile territorial sea.  Or, as another commentator sympathetic to China’s position has argued, because China claims every land feature in the South China Sea, even if the relevant reef is not entitled to a territorial sea, other nearby land features (also claimed by China) probably generate such rights.

In my view, the U.S. has a much stronger legal position.  Indeed, China is barely offering any serious legal defense other than repeating the words “indisputable sovereignty” repeatedly.  China is not doing itself any favors by calling US actions illegal, but failing to offer any specific criticism or explanation of its own legal position.

On the other hand, perhaps it is China’s interest to downplay the legal aspects of this dispute, and to feed the narrative that the U.S. is “provoking” a confrontation.  To some degree,this is working, as the global and Chinese media are feeding the narrative about a US-China naval showdown and ignoring the niceties of the U.S. legal position.  Indeed, if China raises the stakes by threatening some military response (as it is getting close to doing), it will be hard to convince the world (or the U.S. public) that such a conflict is worthwhile in order to vindicate an abstract legal principle like “freedom of navigation.”

Why “Following International Law” Won’t Necessary Solve the South China Sea Conflict Over Freedom of Navigation

by Julian Ku

As Chris notes below, it seems like there will be a showdown soon between the U.S. and China in the South China Sea over the right of freedom of navigation set out in the UN Convention on the Law of the Sea and customary international law. It is tempting to see this as a problem of one side ignoring international law, and the other trying to uphold it.  But the U.S. and China have a fundamentally different understanding of what international law requires and allows under the principle of “freedom of navigation”. So getting all sides  to “follow” international law is not necessarily going to solve the dispute here.

The U.S. definition of freedom of navigation means all ships (including warships) are allowed to traverse both the 200 nm exclusive economic zones (EEZ) and the 12 nm territorial seas without obtaining the permission of the coastal state.  In the 200 nm EEZ, the U.S. believes that military ships may conduct any activity, including surveillance of the coastal state (e.g. “spying”).  Within 12 nm, the U.S. believes military ships must abide by the rules of “innocent passage” which precludes any overt military-related activity.

The Chinese definition of freedom of navigation is quite different.  Essentially, the Chinese argue that military ships should have to follow rules of innocent passage even in the 200 nm EEZ, and that military ships must get permission to enter the 12 nm territorial sea, even if those ships are planning to make an innocent passage.

Why does this difference in the definition of freedom of navigation matter?  Because it allows both sides to say that they are abiding by the rules for freedom of navigation set forth in UNCLOS, while disagreeing dramatically on what each side is allowed to do.  From the U.S. perspective, its navy should be allowed to enter the 12 nm territorial seas around China’s “islands” as long as they abide by the rules of innocent passage.  But the Chinese will say that freedom of navigation doesn’t permit this activity.

Most states agree with the U.S. definition of freedom of navigation.  But some states (including neighboring South China Sea coastal states) do agree with the Chinese view on the EEZ (like Malaysia) and others follow the Chinese view on the 12 nm territorial sea (like Vietnam). So although I think the U.S. reading of UNCLOS is the correct one, the Chinese are not alone in their interpretation.  And as this editorial from China’s leading state-run English language paper indicates, the Chinese are going to emphasize this difference in legal interpretations in their response.

Of all foreign military activities in the special economic zones (especially those of China and the U.S.), the innocent passage of warships through territorial seas, have fueled the majority of clashes and disagreements, as the United Nations Convention on the Law of the Sea fails to provide explicit regulations on such activities.

To be sure, the Chinese may be shifting their own views since the Chinese Navy recently entered U.S. territorial seas on an “innocent passage”. But the official Chinese position still would require the U.S. to get permission before entering its 12 nm territorial seas.

One more note:  because several of China’s “artificial islands” are not islands but underwater features like shoals or reefs, the U.S. position ought to be that there is no “innocent passage” requirement for its naval ships even after entering within 12 nm miles.  Because China’s artificial island do not generate a 12 nm territorial sea, the U.S. should make clear it is NOT following the rules of innocent passage.

In any event, although international law is important, it cannot by itself resolve this festering US-China dispute until both sides agree on what international law actually requires.

Under the New “Investor-State Arbitration” in the Trans Pacific Partnership, Claimants May Have to Pay Attorneys’ Fees

by Julian Ku

The U.S. and eleven other Pacific Rim countries announced they have reached agreement on the Trans Pacific Partnership trade agreement, which will more tightly integrate 40% of the world’s economy into a single regional bloc. There will be a huge fight in Congress over the TPP by progressive Democrats in the U.S. Even presidential candidate Hillary Clinton has already announced her opposition (sort of).

One area of ire for critics will certainly be the TPP’s provisions for investor-state dispute resolution (See Sen. Elizabeth Warren’s attack on this area here).  The TPP negotiators seem to have recognized that those provisions needed modifications and they seem to have focused on providing more transparency in arbitral proceedings.  But I was particularly struck by the U.S. Trade Representative’s official summary of the agreement’s provisions on investor state arbitration below.

The chapter also provides for neutral and transparent international arbitration of investment disputes, with strong safeguards to prevent abusive and frivolous claims and ensure the right of governments to regulate in the public interest, including on health, safety, and environmental protection.  The procedural safeguards include:  transparent arbitral proceedings, amicus curiae submissions, non-disputing Party submissions; expedited review of frivolous claims and possible award of attorneys’ fees; review procedure for an interim award; binding joint interpretations by TPP Parties; time limits on bringing a claim; and rules to prevent a claimant pursuing the same claim in parallel proceedings.

I find this provision on attorneys’ fees fascinating. I presume this will allow state-respondents to actually recover attorneys’ fees from investor-claimants if those claims were somehow deemed frivolous.  I didn’t realize frivolous claims were actually a huge problem in investor-state dispute resolution.  I am not aware of data showing lots of weak claims being filed with state-respondents just settling to avoid the costs of arbitration.

I am also not aware of any other kind of international dispute resolution, public or private, which has this kind of arrangement. It is worth the wait to see the details, but it is sign the TPP negotiators are getting ready to take fire on this area from folks like Sen. Warren, and have added a little armor ahead of time.

The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter

by Julian Ku

The UN General Assembly is set to vote once again (for the 24th consecutive year) on a Cuba-sponsored resolution condemning the United States’ economic, commercial, and financial embargo against Cuba.  This resolution will probably get near majority support, and perhaps even unanimous support.  Indeed, there are rumors that the U.S. government itself may abstain from voting against the resolution, which is certainly odd and perhaps unprecedented.  Cuban President Raul Castro’s speech at the UN reiterated his demand that the U.S. end its embargo and sanctions on Cuba.

I don’t want to get into the merits of whether the U.S. should have an embargo on Cuba here, but I am baffled by the implication that the embargo violates international law.  The GA resolution doesn’t quite condemn the US embargo as illegal, but it comes close.  From last year‘s resolution:

2. Reiterates its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation;

Now Cuba has long called the U.S. embargo a “blockade”, which would be illegal under international law.  But despite some economic penalties on third-party countries trading with Cuba (largely never applied and always suspended), the U.S. does not actually prevent, militarily or otherwise, other countries from trading with Cuba.

I am heartened to see that the GA thinks the UN Charter reaffirms the freedom of trade and navigation, but I am not aware of any authority for the proposition that a country’s choice not to trade with another country is a violation of the Charter’s non-existent textual references to the freedom of trade and navigation.

Here’s the problem with U.S. (and other nations’) acquiescence with the Cuba resolution’s language.  It strongly suggests that a country cannot impose a unilateral embargo on another country without somehow violating its UN Charter obligations.  This can’t possibly be something the EU or Canada can or should sign onto as a matter of principle.  And it is even odder for the U.S. administration to agree to this idea, when its main policy for dealing with foreign aggression (e.g. Russia in Ukraine) is the unilateral imposition of sanctions.

So I think it would be perfectly appropriate (and indeed necessary) for the U.S. and other countries that impose unilateral sanctions to oppose this resolution on principle.  They won’t of course, but they should.

ICJ Rules (14-2) It Has Jurisdiction to Hear Bolivia’s Claim Against Chile

by Julian Ku

So the ICJ ruled today (14-2) that the Court does have jurisdiction to hear Bolivia’s claim that Chile has violated its legal obligation to negotiate “sovereign access to the sea” despite a 1904 Treaty that had settled the borders between the two countries.  I have been super-critical of Bolivia’s claim, going so far as to suggest there was a slam-dunk case against admissibility and jurisdiction since the basis of jurisdiction, the Bogotá Treaty, excludes cases where dispute has been settled by “arrangement” between the parties.  I suggested on Tuesday that perhaps the Court would take the case after all, despite the weaknesses of Bolivia’s case, and I received some tough criticism from commenters suggesting Bolivia has a very strong case for jurisdiction.

I still think Bolivia (and the commenters) are wrong, but obviously 14 judges of the ICJ disagree with me.  I’ve said my piece, so I won’t beat a dead horse (for too much longer).  I will only excerpt below Professor Harold Koh’s pithy explanation (from his oral presentation) as to why granting jurisdiction here is going to lead to lots of bad consequences.

10. Under Bolivia’s novel theory, by clever pleading, applicants could manufacture jurisdiction in this Court regarding previously settled matters. And this Court can expect to hear many more preliminary objection sessions like the one yesterday, replete with snippets of speeches, ministerial statements, and diplomatic exchanges as reasons to avoid the jurisdictional bar of Article VI. Notwithstanding Mr. Akhavan’s effort to underplay, Bolivia’s theory would doubtless encourage unilateral attempts to re-litigate the continent’s history and borders. The careful limits established by the Pact of Bogotá would become increasingly meaningless.

11. Mr. President, Members of the Court, the stakes here are larger than the interests of just these two Parties. The two treaties relevant to jurisdiction are part of a larger treaty network that binds Bolivia and Chile. The Pact of Bogotá succeeded in barring existing territorial settlements and other settlement matters from being reopened at the sole initiative of one State. But as Sir Daniel recounted, during the nineteenth and twentieth centuries, at least 12 separate treaties Bolivia settled disputed boundaries not just with Chile, but also with all four of its other neighbours106. May Bolivia now come before this Court to seek an order directing renegotiation of all of those other borders as well? And even if Bolivia did not, could those other regional partners also come to the Court seeking an order directing renegotiation of their borders?

Here Comes the ICJ’s Chile-Bolivia Ruling

by Julian Ku

Latin  America is a trendy place for ICJ litigation these days with Colombia, Nicaragua, Costa Rica, Chile and Bolivia all currently embroiled in ICJ cases.  Indeed, it seems like Nicaragua alone is generating almost half of the ICJ’s current docket.  On Thursday (September 24), the ICJ will (finally) issue its ruling on Chile’s preliminary objections to its jurisdiction over Bolivia’s demand that Chile open negotiations to grant Bolivia sovereign access to the sea.

I have been harshly critical of Bolivia’s case calling it a slam dunk case for Chile on admissibility. To summarize briefly, Chile and Bolivia agreed in a 1904 treaty on a territorial settlement. Bolivia alleges that Chile has subsequently undertaken a legal obligation to “negotiate sovereign access to the sea” for Bolivia.  I found Bolivia’s evidence that Chile has undertaken such an obligation to negotiate extremely thin.

Having scanned the memorials, I am not very much more impressed by Bolivia’s arguments. On the other hand, I see that Chile has retained a pretty high-powered set of international lawyers including U.S-based law professors Claudio Grossman, Dean at American University, Harold Koh, former Dean at Yale Law and U.S. Legal Adviser, and Nienke Grossman, Professor, University of Baltimore.  And this list does not even mention well-known Europeans such as Sir Daniel Bethlehem, Q.C., Barrister, Bar of England and Wales, 20 Essex Street Chambers and Pierre-Marie Dupuy, Professor at the Graduate Institute of International Studies and Development, Geneva. And I haven’t even mentioned the dozen other high-powered folks on Chile’s legal team.   I totally agree with their arguments (even Harold Koh and I agree!).

Though I think Chile has very good arguments, the fact that Chile has retained (and presumably paid) so many top international lawyers suggests Chile is worried the Court will allow Bolivia’s claim to proceed.  So even though I think Bolivia’s claim is very weak, it is probably true that courts, international or domestic, hate giving up cases on jurisdiction if there is the thinnest basis for taking the case.  Given the ICJ is not all that busy these days, this could be tempting for the court, and that could be trouble for Chile.

Does President Obama Have to Send the “Cyber Arms Control” Agreement with China to the Senate?

by Julian Ku

U.S. and Chinese negotiators are apparently very close to working out an agreement to limit the use of cyberweapons against each other.  There is talk that this agreement will be concluded before Chinese President Xi Jinping’s state visit to the U.S. next week.  The agreement will be pretty narrow in scope and apparently would not address the acts of cyber-theft and espionage that China allegedly carried out earlier this year. According to the NYT:

The United States and China are negotiating what could become the first arms control accord for cyberspace, embracing a commitment by each country that it will not be the first to use cyberweapons to cripple the other’s critical infrastructure during peacetime, according to officials involved in the talks.

I am skeptical that this kind of agreement could be effective for the reasons that Jack Goldsmith and Paul Rosenzweig have laid out (see also Goldsmith at greater length here).  But putting aside its effectiveness, it is worth asking whether a “cyber arms control agreement” would be the type of an agreement that required approval by two-thirds of the Senate as a treaty.

Much depends on exactly what the agreement purports to do.  If the agreement actually contains a commitment by the U.S. to “not be the first to use cyberweapons to cripple the other’s critical infrastructure”, than it is much closer to the traditional kinds of arms control agreements that have usually been approved under the U.S. system as treaties.  Unlike the Iran Nuclear Deal (which is mostly about lifting economic sanctions), the U.S. would be committing to refraining from using certain weapons or from exercising its military forces.

On the other hand, U.S administration sources caution that this agreement would not lay out specific obligations, but it “would be a more ‘generic embrace’ of a code of conduct adopted recently by a working group at the United Nations.” But even an agreement incorporating that code of conduct might be considered an “arms control” agreement since it requires that a state “should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public;” The rest of the code of conduct also imposes fairly robust obligations on a state.

I will have to think about this some more, but on first cut, it is possible that this cyber control agreement will have to be sent to the Senate as a treaty.  I think Senate approval of such a treaty would be a non-starter given the current political climate, so perhaps the Obama Administration will announce that this will be a sole executive agreement after all.  Whether that is permitted under the Constitution remains unclear though.