Author Archive for
Julian Ku

Breaking News: U.S. State Department Grants Santa Claus a Visa Waiver

by Julian Ku

A nice light-hearted exchange at today’s U.S. State Department media briefing, which shows some folks in government like Jen Psaki still have a sense of humor.

Reporter: “So has the U.S. already issued a visa to Santa?”

Psaki: Santa does not need a visa. He has a visa waiver in the United States. (Laughter.) So he can get to every house, and I assume that’s the case around the world as well.

Reporter: Except if he flies over China.

Discussing Argentina’s Debt Litigation and Sovereign Immunity at the Cato Institute

by Julian Ku


I had the pleasure of participating in a very interesting discussion yesterday of Argentina’s debt litigation at the Cato Institute in Washington D.C. Richard Samp offered a useful overview of this litigation, and my own talk focused on the strange (and in my view inappropriate) way that the U.S. legal system allows sovereigns to waive immunity from courts, but continues to protect them against most judgments.  Other panelists, including an economist from Moody’s, offered a very interesting set of slides explaining why Argentina’s treatment of its creditors is substantially harsher than almost all other sovereign defaulters in recent decades.I also would recommend watching the video from about the 57th minute to see Arturo Porzecanski of American University criticize the overall policies of the Kirchner government.

I think Argentina is in a bad spot right now and it is possible they will end up losing their final appeals in the U.S. Supreme Court. Indeed, it is possible the Court will not even hear their petition (although hiring former U.S. Solicitor General Paul Clement will no doubt help Argentina).  Still, I doubt the Court will rush to hear this case and if they do, any final resolution might have to wait quite a bit longer. This case has quite a ways to go.

How Would the U.S. and Canada (Legally) Merge?

by Julian Ku

I love Canada, and I have long been intrigued by plans to unite the U.S. and Canada in deeper political and economic integration (See this post from 2005(!)). So I have been excited to see the idea getting some mainstream media love with discussions of Diane Francis’s new book  Merger of the Century: Why the U.S. and Canada Should Become One Country.

I haven’t read the book, but judging from the zillions of media excerpts, her argument appears pretty straightforward.  The U.S. and Canada should merge, largely on economic grounds, so that the two countries can compete with rising economic powers controlled by state-owned enterprises (e.g. China) and with growing military power (China and Russia).  I am not sure merger is really needed here, and I am also unsure what the Canadians get out of merger since they already get U.S. military protection and seem to move in and out of the U.S. in large numbers at will.  But whatever, I love this idea.

Still, how exactly would such a “merger” work legally? Francis suggests either the Germany 1990 model (would Canada be East Germany?) or some sort of European Union-type treaty.  Let’s put aside the “merger” idea because unless Canada just entered the U.S. as a gigantic state, or even several states, any merger would require a U.S. constitutional amendment. And bringing in Canada as states would make the Democratic Party the governing party in the U.S. for the rest of my lifetime and my daughters’.  Republicans know this, and would never agree.

An E.U.-style customs union would be much more realistic.  The U.S. and Canada could create by treaty a common external trade policy, and work to eliminate restrictions on the freedom of movement, goods, investment, and services within North America.  NAFTA is sort of halfway there, actually, without the common external trade policy.

The U.S. and Canada could also unify their external foreign and military policies (much harder, I admit), again on the EU model. With respect to North American domestic defense, the US and Canada are already kind of there with a joint Air Defense Identification Zone.  Naval cooperation would be pretty easy too.  Now about foreign policy, though.  That would be really hard.  We don’t like killing baby seals, and Canadians are not psyched about invading Middle Eastern or Central Asian countries.

In reality, I think Francis might be satisfied with a U.S.-Canada customs union (Mexico might have to be left out for now). She is mostly making her case on economic grounds, and I think a customs union would accomplish most of her goals. It is not legally that hard, and it is politically plausible. The only downside is that we wouldn’t get to design new flags or new country names.  The United States of North America (USNA)?  The North American Union?  Camerica? Americanada?…

Does the U.S. Congress Have to Approve the New WTO Agreement? Apparently Not.

by Julian Ku

Simon Lester of the IELP Blog raises an interesting and possibly important point about the new WTO Agreement just reached in Bali.  In order for the U.S. to enter into the agreement, will the U.S. Congress have to approve it?

On first glance, the answer would seem to be: “yes” since the U.S. Congress invariably is required to approve all U.S. trade agreements (as opposed to just the Senate, if it were a treaty).  In any event, I would have thought the U.S. Congress would have to approve the new Bali agreement as new legislation.  But then Simon points out this comment by U.S. trade officials from Inside U.S. Trade:

At the press conference, Punke said the Obama administration does not believe the deal requires congressional approval. “Our analysis of the trade facilitation agreement is it can be effectuated through administrative means and would not require legislation to put it into force,” he said. The obligations of the trade facilitation agreement are enforceable under the WTO Dispute Settlement Understanding.

This makes sense if one thinks of congressional approval of executive agreements as simply implementation of international obligations into domestic U.S. law.  But the congressional role in trade agreements has also been understood to fill in for the role of the U.S. Senate in approving treaties even if those treaties have no domestic law impact.  For U.S. law purposes, the President can’t enter into a treaty unless the Senate gives its advice and consent.  In the trade agreement context, I think many scholars have thought that Congress’ approval of those agreements by a majority of both houses serves the same role of giving the input of the legislature on the President’s decisions to enter into international agreements.

Or perhaps not.  Maybe the President really is free to bind the U.S. under international law via executive agreement on trade matters without any approval of Congress as long as no domestic law change is needed. This means that trade agreements really are just sole executive agreements that Congress is not really approving, but just implementing into U.S. domestic law.  And if no implementation is required, no Congress. This makes sense, but I just don’t think this the common understanding of how or why these congressional-executive agreements work.

One way out of this problem is (as Simon also points out) to understand the Bali Agreement as an amendment to the WTO Agreement. That agreement  (in Art. X) specifically outlines a mechanism for amendment which requires “consensus” (e.g. unanimity) or (depending on which provision is being affected) a two-thirds vote of the Ministerial Conference. In this way, Congress may be understood to have already approved future amendments to the WTO Agreement when it “approved” the original WTO Agreement back in 1994.  This “delegation” theory is probably a better explanation of why no congressional approval qua approval is needed for the Bali Agreement. Not totally satisfying, but probably enough here.

Why the U.S. is Not Invoking International Law to Oppose China’s ADIZ

by Julian Ku

China’s East China Sea Air Defense Identification Zone (ADIZ) has spawned tons of media commentary, so much so that I have had little to add and can barely keep up with all the coverage. Still, there is one small legal point that bears some further discussion.  While I think the U.S. is correct as a matter of policy to push back against China’s ADIZ, the legal framework underlying the U.S. position is awkward and borderline incoherent.  In fact, the confusing U.S. legal position may explain why the U.S. is not sympatico with Japan on China’s ADIZ.  Let me explain.

It is worth noting that U.S. has not condemned China’s ADIZ as a violation of international law. Instead, the U.S. has called it “unacceptable” and a change in the “status quo”.  Meanwhile, the Chinese have wielded international law as a rhetorical weapon on their side, by citing the U.N. Charter from the outset.  This may seem odd, but in fact, the Chinese are sort of right about this.

As Peter Dutton notes in his AJIL article, establishing an ADIZ is not in itself a violation of international law,  Indeed, it is usually justified by a need to create an early warning system to protect national airspace.  China’s ADIZ seems pretty large (map can be found here), and the U.S has rightly complained that aircraft just transiting the ADIZ should not be subject to China’s requirements if those airlines are not planning to enter (or even come near to) Chinese national airspace.

But China’s ADIZ is carefully drawn to include two sets of islands/rocks that it claims as sovereign territory: the Senkakus/Diaoyu (also claimed by Japan) and the Ieodo/Suyan Rock (also claimed by South Korea).  To the extent those territories are “national airspace”, China can argue that it should be allowed to draw an ADIZ around them to ensure any airplanes coming near them will not enter that airspace, etc.  As Zachary Keck suggests, China is using the ADIZ to subtly build its legal claim to sovereignty over the Senkakus/Diaoyu Islands. Hence, China is probably invoking the UN Charter’s self-defense provision to justify its ADIZ and its need for all foreign aircraft to report flight info/etc. when entering the ADIZ.  (Some commenters to my first post have suggested China can’t invoke self-defense over a disputed territory, or uninhabited islands that don’t otherwise threaten its national airspace.  I am not sure the customary practice is clear on this, since Japan’s ADIZ, which also covers the Senkakus/Diaoyu, couldn’t be justified either under this view. Also, for the purposes of this post, I am assuming China has a plausible claim to the islands).

Seen from this perspective (at least vis-a-vis the U.S.), China’s ADIZ is not inconsistent with any existing international agreement or customary legal rule.  This is largely because of the strange and confusing U.S. position on the sovereignty over the Senkakus/Diaoyu Islands.  The U.S. does not take any official position on which country (China, Taiwan, or Japan) has sovereignty over these islands.  But it recognizes that Japan has administration over them (indeed, it was the U.S. that turned them over to Japan back in 1972) and the U.S. has repeatedly declared that such islands fall within the scope of the U.S.-Japan Defense Treaty.But since the U.S. does not recognize Japanese sovereignty over the Senkaku/Diaoyu Islands, why should it complain when China draws an ADIZ intended to protect airspace over those islands?

This wrinkle in the U.S. position also explains Japan’s harsher reaction to the Chinese ADIZ. To Japan, China is literally demanding Japanese airlines report to its military before crossing airspace into or near Japan’s own national airspace.  It would be like China demanding information from US airlines flying between San Francisco and Hawaii (Congress would explode with indignation).  But from the U.S. perspective, China is just demanding information about airlines flying near disputed airspace that may or may not be part of China anyway.  This is a threat to freedom of international air navigation, but it is not anything like the same kind of affront to sovereignty that it is to the Japanese.

The U.S. position would be more legally coherent if it would simply recognize Japan’s sovereignty over the Senkakus/Diaoyu.  After all, if the U.S. Navy is willing to fight and die for these islands, the U.S. should at least decide whose owns these islands. (If China creates an ADIZ in the South China Sea, the U.S. will also have the same dilemma. See Michael Kelly’s recent essay on the strategic implications of such an ADIZ).  China is subtly probing the U.S. position here, and it has opened up a slight wedge between the U.S. and Japan.  But this wedge is a result of contradictions in the U.S. legal position, not China’s clever diplomacy.

Russia Ignores ITLOS, Formally Violates its UNCLOS Obligations, and No One Cares

by Julian Ku

I’ve been so distracted with my own projects and with China’s ADIZ that I forgot to note that Russia has been in violation of its obligations under UNCLOS since at least December 2.  But that’s OK, it seems that everyone else has forgotten this fact as well.

December 2 was the date set by the International Tribunal for the Law of the Sea for compliance with its order that Russia “immediately release the vessel Arctic Sunrise  and all persons who have been detained, upon the posting of a bond or other financial security by the Netherlands….”  The Netherlands has posted that bond, and as far as I can tell, the Arctic Sunrise has not been released, and none of the detainees have been allowed to leave the “territory and maritime areas under the jurisdiction of the Russian Federation.”  (All have been granted bail, though.)

Russia has no obligation to participate in the ITLOS proceeding, but it has a clear obligation under Article 290(5) to “comply promptly with any provisional measures prescribed…” by the ITLOS.  So Russia is now in plain violation with a lawful judgment of the ITLOS.

What is amazing about this violation in plain sight is that the media appears to have forgotten about this lingering ITLOS order. Russia ignores the ITLOS, and….nothing.  Even the reliable Greenpeace Blog is fairly quiet since their folks are out on bail.  So it turns out no one really cares all that much that the ITLOS has been essentially rendered a nullity in this case as a result of the unilateral action of one of UNCLOS’s member states. I suppose that the Dutch are working out some sort of diplomatic settlement. But this doesn’t change the formal legal violation.

Why do I bring this up? Because if Russia takes no reputational hit from its defiance of ITLOS here, then it seems less likely that other states will worry about the reputational hit from defying ITLOS or other international courts.  Hence, Paul Reichler (the Philippines U.S. attorney in its arbitration) is almost certainly wrong when he said recently:

….[T]here is a heavy price to pay for a state that defies an international court order, or a judgment of an arbitral tribunal that is seen, that is recognized, in the international community as legitimate, as fair, as correct, as appropriate,” Reichler said in a forum hosted by the US-based Center for Strategic and International Studies (CSIS) on Tuesday evening, Philippine time.

“There’s a price to be paid for branding yourself as an international outlaw, as a state that doesn’t respect, that doesn’t comply with international law,” said the topnotch lawyer, who has defended sovereign states for over 25 years.

Hmm…Iran in 1980 (Hostages), the U.S. in 1984 (Nicaragua) and 2008 (Mexico), Colombia in 2013 (Nicaragua)…uh, sorry Paul, I’m not seeing any heavy prices being paid.   So far, Russia is offering a real-life empirical counter-example to Reichler’s claim. Indeed, I don’t see that Russia is paying much of a price at all, so far.  Maybe this is because Russia’s international reputation is not exactly at an all time high, right now. Stlll, China is watching.  If Russia can ignore ITLOS in a case where they actually have detained 30 foreign nationals (mostly from the U.S., Australia, and Europe), then do we really think China will suffer much damage from ignoring an arcane ruling about a bunch of rock/islands where no actual human beings are actually affected?

Does the WTO need a New Agreement to Save its Dispute Settlement System?

by Julian Ku

The WTO’s new Director-General Roberto Azevedo is celebrating a rare event:  The WTO’s entire 159-country membership has finally reached  a new multilateral agreement.  This is the first time that the WTO’s membership as a whole (as opposed to smaller groups of its member states) has reached an agreement since it was formed in 1994 and the first set of agreements under the so-called “Doha” round of negotiations that has been going on since 2001.  Most commentary in the United States and elsewhere describe this as a pretty small-bore agreement on trade facilitation and agriculture (especially given the scope of the original agenda under Doha).

I am intrigued by some commentary coming out of Bali to the effect that a new agreement is needed to keep the WTO relevant and legitimate in the eyes of its members.  The WSJ has this unattributed comment:

Some negotiators said the limited pact gives the WTO credibility to continue its other main role: as an arbiter of trade disputes.

The WTO works by consensus and the breakdown of the talks could also have hurt the organization’s dispute-settling mechanism, they said.

I guess I am skeptical that the lack of progress on  new agreements will have any serious impact on the ability of the WTO’s famous dispute settlement body to stay relevant.  With or without the new agreement, the WTO is already an immensely deep and complex web of legal obligations for a larger and larger set of members. Interpreting these obligations, and managing disputes, is probably significant enough to most members that they don’t feel like they need a new agreement to stay engaged.

Anyway, the Bali agreement is only a “draft ministerial declaration” which needs to be formalized next year.  Then, the U.S. Congress will have a chance to vote on it (and probably the Asian and European regional trade deals).  This ought to be loads of fun in a congressional election year.  At least they don’t have to get two-thirds of the U.S. Senate on board.

Will Russia Comply with the ITLOS Ruling? Probably Not.

by Julian Ku

It looks like Russia is not going to comply with last week’s ITLOS ruling, ordering it to release the Arctic Sunrise and its passengers upon payment of a bond.

Russia is not going to comply with the International Tribunal for the Law of the Sea’s Friday ruling regarding the Arctic Sunrise vessel operated by Greenpeace, Russian presidential chief of staff Sergei Ivanov said.

“It will not, because we said at the very start that we are not going to take part in these proceedings,” Ivanov said on Saturday when asked by journalists how Russia will react to the Tribunal’s ruling.

Russia ratified the convention based on which this Tribunal acts with a number of reservations, which prevented it from entering these particular proceedings, Ivanov said.

“The issue will be handled not politically but legally, based on Russian law rather than someone’s political wishes,” he added.

Russia will probably stick to its legal position, which is contained in its note verbale to the Netherlands, arguing that this matter lies beyond the jurisdiction of UNCLOS dispute settlement since it is an exercise of Russia’s criminal jurisdiction in its law enforcement capacity.

Of course, as Prof. Craig Allen noted here, the ITLOS rejected Russia’s view of jurisdiction holding that an Annex VII Arbitral Tribunal would have at least prima facie jurisdiction.  This seems to be enough to justify ITLOS’s provisional measures jurisdiction.  Since such a tribunal has the power to determine its own jurisdiction (pursuant to UNCLOS Art. 288(4)), Russia’s jurisdictional position is hard to support.  It’s also annoying because just a few months ago, the world was treated to a lecture from President Putin on how “the law is still the law, and we must follow it whether we like it or not” in the midst of the Syria crisis.

Russia will not technically violate its UNCLOS obligations until Monday, December 2, the deadline for compliance with the ITLOS order.  And it is already releasing most of the Greenpeace folks on bail (leaving the country is another matter).  So it will probably work out some sort of diplomatic settlement with the Netherlands here, but it looks like complying with the ITLOS order is not in the cards.  As this Russian law professor explains,

“If Russia refuses to fulfill the requirements of the International Tribunal for the Law of the Sea regarding the Greenpeace case, it will not entail any sanctions. International law does not provide punishment for insubordination,” Labin said.

I don’t want to overstate the significance of this incident, but if Russia fails to comply (unlike Ghana earlier this year) and does not participate in the Annex VII arbitration (per the China example) either, this is another serious problem for the future effectiveness of UNCLOS dispute settlement.

Meanwhile, China Draws a Provocative, Dangerous, But Perfectly Legal Air Defense Identification Zone in the East China Sea

by Julian Ku

£¨Í¼±í£©[¶«º£·À¿Õʶ±ðÇø]¶«º£·À¿Õʶ±ðÇø»®ÉèʾÒâͼI don’t have any insights to offer on the big news this weekend, that legally-non binding-UNSC-resolution-violating agreement in Geneva.  But I did want to note one other big sort-of-law news item from the other side of the world: China’s announcement that it is drawing an Air Defense Identification Zone (ADIZ) in the East China Sea, including over the disputed Diaoyu/Senkaku Islands.

China’s announcement has riled up both Japan (which has declared it “totally unacceptable”) and the United States (which has expressed “deep concerns.”)

Why all the fuss? China’s new ADIZ appears to overlap with Japan’s own ADIZ in some crucial places (like the Senkakus/Diaoyu) as well as South Korea’s and Taiwan’s.  China has declared that aircraft entering its ADIZ must report flight information to Chinese authorities (actually, its military) and (here’s the scary part), “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.”  The U.S. is already hinting that it will test this resolve by flying aircraft through the ADIZ.  (Wonder which lucky US pilot draws that mission!)

Although provocative and dangerous, it seem clear to me that China’s ADIZ does not violate international law.  Indeed, China’s Foreign Ministry was perfectly correct today in its claim that its ADIZ is consistent with “the U.N. Charter and related state practice.”  Countries (led by the U.S.) have long drawn ADIZs beyond their national sovereign airspace as a measure to protect their national airspace.  This practice, although not exactly blessed by any treaty, does not appear to violate either the Chicago Convention or UNCLOS.  (See Peter Dutton’s very solid review of ADIZs here in the American Journal of International Law for a good discussion on this point).

If China has sovereignty over the Diaoyu Islands, then it is perfectly legal for it to declare an ADIZ beyond those islands to protect the airspace above those islands.  It is a little less clear why China needs the rest of the ADIZ, but it is presumably aimed at protecting its national airspace.  The U.S. State Department has already offered China an interpretive out of creating unnecessary conflict:

The United States does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace. We urge China not to implement its threat to take action against aircraft that do not identify themselves or obey orders from Beijing.

Now the accuracy of this description of US practice could be questioned, but it is probably right. In recent years, the U.S. has allowed Russian bombers to fly through its ADIZ over Alaska.  If China follows this practice, this could help a great deal to diffuse tensions. One can only hope. Early signs are not promising,as China has essentially told the U.S. to shut up and butt out of this issue.

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration [Updated]

by Julian Ku

xue

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.

 

Notes from the Asian Society of International Law Biennial Meeting 2013, New Delhi

by Julian Ku

I’ve made the trek this week to New Delhi to attend the 4th Biennial Meeting of the Asian Society of International Law.  I’ll be presenting a paper on my favorite subject these days: The China-Philippines (Non) Arbitration. I’ve tweeted a few not very profounds thoughts on Day One here. AsianSil is quite a different type of meeting than the American Society of International Law meetings I am used to.  It’s a bit more formal, perhaps a little more of the feel of “foreign delegates” gathering for an international conference than an academic/public policy conference.  The hosts are very generous with their time and well-organized.

More substantively, I’ve found the different interests and approaches of Asian scholars to be illuminating.  Many Asian nations, including China and India, see themselves as still part the developing world trying to navigate a world dominated by western industrialized nations.  This theme seems to inform many of the opening speeches, including that by India’s Vice President Hamid Asari.  I will try to write something useful or interesting on Day 2 when I get a chance (or a better wifi connection).

Berkeley Journal of International Law Symposium Issue on Taming Globalization

by Julian Ku

I want to point readers to the recent issue of the Berkeley Journal of International Law which contains essays from a symposium last year on my book (with John Yoo) Taming Globalization.  It contains essays from Friend of Blogs Thomas Lee, Tai-Heng Cheng, as well as our own Peter Spiro.  All worth checking out.