In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

As a gauge of the temperature of the American foreign policy establishment, it is hard to do better than the Council on Foreign Relations.  And that uber-establishment organization has recently released a pretty hard-hitting critique of the Administration’s drone strike policy.  It is not a knee-jerk attack, but a substantive policy critique, part of which is that existing laws aren’t quite sufficient to regulate drone attacks properly.  Hence, the U.S. should:

■ explicitly state which legal principles apply—and do not apply—to
drone strikes and the procedural safeguards to ensure compliance to
build broader international consensus;
■■ begin discussions with emerging drone powers for a code of conduct
to develop common principles for how armed drones should be used
outside a state’s territory, which would address issues such as sovereignty,
proportionality, distinction, and appropriate legal framework;

Relatively uncontroversial stuff, although easier said than done.  I do sense a slight shift in the establishment, which is moving very slightly against drone strikes.  But it will be interesting to see whether this shift turns into a broader based policy change.

Former Bush State Department Legal Adviser John Bellinger has a complicated op-ed arguing that the U.S. should be prepared to intervene militarily in Syria, even if its intervention is not strictly legal.  His argument is complicated because he rejects the idea that any intervention in Syria now, even with the agreement of the Syrian Opposition, would violate existing international law.

Bond v. United States is one of those cases that promises both more and less than it seems.

At first glance, it seems an important and fascinating case because it is the first time the U.S. Supreme Court will revisit any aspect of the famous 1920 Oliver Wendell Holmes Jr.’s decision in Missouri v. Holland.  That decision, arguably the most famous decision in the U.S. foreign affairs law canon, held that the treaty power was not constrained by the state’s rights limitations in the Tenth Amendment of the U.S. Constitution.  It also held that Congress’ power to implement treaties through normal legislation is similarly unconstrained.

By agreeing to decide Bond, the Supreme Court may reconsider the second (and less famous) of those two holdings.  That second holding, on the much understudied “treaty implementation” power, was challenged in a 2005 Harvard Law Review article by Georgetown Professor Nicholas Rosencranz. (BTW, large congratulations should go to Nick for almost single-handedly creating, or at least reviving, this argument.)

As a matter of high constitutional principle about the nature of the U.S. Constitution’s grant of enumerated powers, this could be a huge case.  But there are reasons to doubt the practical importance of any decision by the Court to revisit Missouri v. Holland in the context of Bond.  Why?  Because the central holding of Missouri v. Holland was that treaties are not constrained by the Tenth Amendment.  Even if the Court holds that Congress cannot use a treaty to exceed its Article I powers, the President and Senate could still simply use a self-executing treaty to implement the same obligations (as Prof. Rick Pildes argues here).

Having said all that, a favorable decision for the petitioners in Bond could still have a practical impact by reviving that almost extinct constitutional creature: the self-executing treaty.  The President and Senate, at least in the past few decades, have very rarely approved self-executing treaties outside of a few subject matter areas (like taxes, extradition, and investment).  Big important treaties, such as human rights treaties, have generally been approved on the condition they are non-self-executing. (Go ahead, name the most important self-executing treaty of the past thirty years. That Tax Convention with Chile?)  Or they are approved like most trade agreements via the route of the congressional-executive agreement.

So Bond might actually result in giving the President and the Senate the incentive to go the “self-execution” route.  As a matter of politics, this might be difficult in today’s Senate, but I think future treaty supporters might not think it would be safer to go the self-execution route to avoid future Bond-like challenges to their treaties.

I am delighted to announce that Thomas Graham, the U.S. Member of the World Trade Organization’s Appellate Body, will be giving the Shapiro Lecture at Hofstra entitled ”It Sure Looks Different from the Inside: Deciding International Disputes at the WTO.”   Graham has been an observer and a participant in the international trade law system since the 1970s as a USTR attorney, private lawyer, Deputy US Trade Representative, and now as a WTO Appellate Body Member.

For those of you international trade law groupies or international dispute resolution folks trapped living in the NY area this winter, please consider visiting us at Hofstra on February 6.  If you can’t, we will be webcasting it live as well.

In the NYTimes.com’s Room for Debate forum, I offer reasons for supporting U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Unlike most supporters (like a certain Comedy Central personality), I don’t think the opponents are crazy nutcases. (For a more sensible, but less amusing take, take a look at co-blogger Peter Spiro’s contribution to the same forum).  I think they have good and genuine objections.

While these concerns are not completely unfounded, treaty opponents are grossly exaggerating the impact that the convention would have on U.S. law and policy. The Obama administration, following a precedent set during the George H.W. Bush administration, has carefully shielded U.S. law from the treaty’s legal effect. It has conditioned Senate approval on a “non-self-executing” declaration that prevents any litigation under the convention in U.S courts. It has also added a federalism reservation that would prevent the convention from overriding inconsistent state law. And for good measure, it added a “private conduct” reservation that would prevent it from regulating nonstate actors, like parents or small businesses. Taken together, these limitations would indeed render the convention a legal nullity within the United States.

In any event, I argue that “sovereigntists” should save their fire (and credibility) for treaties that would actually impact US law and policy, like the UN Convention on the Law of the Sea.   There are bad treaties that would allow UN agencies and international tribunals to interpret and impose bad legal obligations on the United States, but the CRPD is not one of them.

The U.S. government has been making all sorts of official and unofficial threats to act if the Syrian government uses chemical weapons in its ongoing civil war.

(CBS News) Whether the U.S. enters the war in Syria appears to be up to the dictator Bashir al-Assad.

On Monday, CBS News reported the Assad regime had given orders to prepare chemical weapons for possible use to put down the revolt that has been raging for more than a year and a half.

President Obama said use of these weapons of mass destruction would be “totally unacceptable.”

One obvious but important legal question: would the Syrian government’s use of chemical weapons affect the legality of a strike by foreign powers (like the U.S.) against that government? My understanding of existing international law governing the use of force is that the use of such weapons in an ongoing civil conflict is no doubt horrible, but not enough to overcome strict rules against an outside military intervention (unless that intervention was approved by the UN Security Council).

If such weapons are used, the U.S. is signaling that it would immediately take military action. Assuming no Security Council approval, I think the U.S. would be in technical violation of the UN Charter. Although this may be correct as a matter of international law, it seems like a silly result. Weapons of Mass Destruction are indeed different than conventional weapons and it seems like the use of such weapons should trigger different consequences. (Wait, this sounds like the Bush Doctrine! It Lives!) Hopefully, Assad will not force the resolution of this legal question.

Today is Argentina Day here at Opinio Juris! (OK, it is Bash-Argentina Day).  In any event, it is worth highlighting that while Argentina has escaped for now a NY federal court ruling that would have forced it to pay holdout creditors next month, it is also battling Ghana at the International Tribunal for the Law of the Sea.  The request for provisional measure by Argentina and transcript of the oral arguments is here. I want to especially highlight the very impressive webcast function on the Court’s website, which provides a great chance for those of us who don’t live in Hamburg to see oral argument at ITLOS. I know I am already on the record being very skeptical of Argentina’s argument in ITLOS, but the oral presentation by Ghana’s attorney Phillippe Sands has got to make Argentina worry.  His whole argument in a nutshell: UNCLOS does not regulate a sovereign’s actions in its internal waters (e.g. port). UNCLOS does regulate some actions in a country’s territorial seas. This seems pretty solid, but I am far from a UNCLOS expert. I welcome readers’ comments.  Decision forthcoming on December 15th!

I have a Forbes.com op-ed today providing a fuller version of my critique of Argentina’s legal arguments over the ARA Libertad.  (It’s worth noting that Argentina is actually heading toward yet another financial crisis spurred by a recent New York court decision, which I didn’t have time to incorporate into this piece.)

Last month, a court in Ghana detained the ARA Libertad, an Argentine naval training vessel, until Argentina guarantees repayment for a portion of its defaulted government debt.  This minor legal action has now exploded into an international incident.  Argentina has accused Ghana of violating international treaties, sought the intervention of the U.N. Security Council, and suggested that the Ghana courts are facilitating “an act of piracy against a sovereign country by greedy “vulture funds.”  They have also recently sought action by the International Tribunal for the Law of the Sea.

Argentina’s bluster obscures the weakness of their legal position.  The Ghana court’s well-reasoned and thoughtful decision is completely consistent with international law and should be lauded for forcing Argentina to face accountability for its financial impunity.

The Associated Press has a confusing and muddled account of the consequences of Colombia’s withdrawal from the Bogota Pact (American Treaty on Pacific Settlement), which had committed Colombia to the ICJ for disputes with other signatory states.  Here is where the AP account doesn’t make much sense (or is flat out wrong):

Legal experts, however, said [Colombian President] Santos’ announcement was unlikely, in practice, to diminish the court’s authority in any international disputes involving the South American nation.

…

International legal experts said [Colombian President] Santos’ announcement would not, in practice, exempt Colombia from the jurisdiction of the World Court, as it is recognized as the arbiter of last resort under customary international law and practice.

Uh, with all due respect to the AP’s international legal experts, that’s not quite right. By withdrawing from the Bogota Pact, Colombia is no longer committed to go to the ICJ to resolve disputes with other Bogota signatories (not that there are all that many).  Colombia has also not accepted the compulsory jurisdiction of the ICJ under the ICJ Statute.  Colombia is therefore free from being forced to go to the ICJ unless it has specifically agreed to do so in a particular treaty. And it has not always done so. For instance, it has never ratified the Optional Protocol to the Vienna Convention on Diplomatic Relations, which would have committed to compulsory dispute settlement before the ICJ.

So the ICJ’s authority over Colombia has diminished (although it was never great to begin with) and, if not exempt, Colombia is at least “free” of the jurisdiction of the ICJ in disputes with most other nations.  And I have no idea what the AP reporter means when he says that the World Court is recognized as “the arbiter of last resort under customary international law and practice.” The ICJ’s interpretations of customary international law are authoritative but not binding.

The AP report gets further confused when it quotes from Prof. Matthew Brotman of Pace Law School.

In my opinion, although he may say that they no longer are going to recognize the jurisdiction of the court, it doesn’t really matter,” Brotmann said.

“Countries can’t really pick and choose what parts of a treaty that they’ve already ratified they want to be held to.”

Reporters garble quotes all the time, which is probably what happened here.  Countries can denounce treaties that otherwise grant jurisdiction for dispute settlement. El Salvador did it under the Bogota Agreement and the U.S. did so with respect to the Consular Relations Convention’s Optional Protocol.  So the denunciation means Colombia can never be brought under the Bogota Treaty to the ICJ in a future dispute. That “matters”!

So, Associated Press, I think a re-write is in order.

Still smarting from the ICJ’s judgment last week awarding rights to Nicaragua over territorial waters claimed by Colombia, President Juan Manuel Santos announced that Colombia is withdrawing from the 1948 Bogota treaty granting jurisdiction to the ICJ to resolve disputes between signatories.   Since Colombia was obviously the host to the treaty’s creation and (until now) had made no limitations on its obligations under that treaty, it seems like a pretty big deal.  Colombia has also not accepted the compulsory jurisdiction of the ICJ under the ICJ Statute.  So this is a blow (albeit a non-retroactive one) to the ICJ’s reach and authority in Latin America.

UK human rights lawyer Geoffrey Robertson has a confused, muddled, and revealing editorial in Bloomberg about how international law might help resolve the Iran nuclear crisis. While he describes the relevant law accurately, he fails to show how international law is doing much of anything to resolve the crisis.  Here is the relevant law, as he sees it: Israel has a right of self defense, but not to attack Iran even if Iran builds a nuclear weapon. The U.S. needs Security Council authorization to attack Iran (which it won’t get). Iran is allowed under the Nuclear Non-Proliferation Agreement to develop a full nuclear cycle, and then withdraw from the NPT when its weapons are ready.  This might be correct, as a legal matter, but how does it help anything? It simply shows that existing international law permits Iran to get a nuclear weapon while preventing anyone else from doing anything about it.  So what’s his solution? Everyone else disarm.

According to the World Court — correctly this time — nuclear-armed countries have a legal obligation under Article VI of the nuclear nonproliferation treaty to negotiate a gradual disarmament, to zero. This might be done on a “first in, last out” basis, with North Korea being first to lose its bombs and a final ceremony to destroy simultaneously what is left in the Russian and U.S. arsenals — perhaps attended by the aging former U.S. and Russian leaders, Barack Obama and Vladimir Putin, circa 2045.

Umm…sure…that is going to happen. And that will work.  I thought lawyers were supposed to offer practical and useful solutions, not utopian fantasies.  I guess not when you are Geoffrey Robertson Q.C.