Author Archive for
Julian Ku

It’s Autumn in New York, Which Means International Law Weekend 2013

by Julian Ku

[I am passing along a message from Professor Ruth Wedgwood about the upcoming International Law Association meeting in New York. Hope to see many of you there!]

International Law Weekend 2013 – the world-famous autumn festival of the migratory flock of international lawyers, brought to you by the American Branch of the International Law Association and the International Law Students Association – begins on Thursday night, October 24, 2013, at the Great Hall of the Association of the  Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. Friday and Saturday, October 25-26, at the Lincoln Center facilities of Fordham Law School, at 140 West 62nd Street, NYC.   Advance Registration is available at http://ila-americanbranch.org/ or http://www.ilsa.org/conferences/16-conferences/16-ilw-new-york.

As always, admission is free for all students, faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York.  Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free.  The registration fee remains a modest $175 for the two days combined for all other practicing lawyers and members of the public.  And for the first time, there will be 14 hours of Continuing Legal Education credit available to all lawyers in attendance, accepted by New York, Pennsylvania, and Virginia.  The CLE credits are also provided free.

Putting the Cart Before the Horse? Top Panel of International Criminal Law Experts Proposes “Extraordinary” Criminal Tribunal for Syria

by Julian Ku

As one commenter to Ken’s post on the draft UN Security Council Resolution notes, there will be no Security Council referral to the ICC on Syria. Currently there is one paragraph in the draft resolution expressing the Security Council’s “strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;”  That’s not much, but it might be enough of a hook for some future UN Security Council or a future Syrian government to set up a hybrid ad hoc criminal tribunal to hold “accountable” those users of chemical weapons.

So it is worth noting that friend of blog Michael Scharf of Case Western Reserve University Law School alerts us to a proposed “Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes” that he, and a panel of blue-ribbon international criminal law experts, have released under the auspices of the Public International Law and Policy Group (PILPG).  The panel of experts is both distinguished and experienced on questions of international criminal law, and on the nitty-gritty details of setting up international criminal tribunals.  They will be discussing next week at a press conference in DC and it should get quite a bit of attention among US and UN policymakers.  It is a discussion draft, and it is not an attempt to demand the UN or Syrian governments establish something exactly along these lines.  Rather, it is an attempt to get the ball rolling among lawyers and policymakers.

One move in the proposed draft stands out.  The proposed tribunal is not exactly an international criminal tribunal, and indeed, it is not necessarily even a hybrid tribunal (with a mix of international and domestic judges) although its closest analogue appears to be Cambodia. Rather, it could be simply a special court set up under Syrian law to prosecute high-level offenders for violations of international law.  One advantage to this approach?  I don’t think it would require UN Security Council action to set up such a tribunal.  So that is a useful nod to political realities and Russia’s current position.

One (really big) disadvantage to this approach? We would need a new Syrian government to set up and carry out this proposed statute.   And to get that new Syrian government, would we have to promise some sort of immunity to the old Syrian government that committed all those horrible crimes we want to prosecute?

Obviously, there is a lot to sort through, and I do salute Prof. Scharf for getting the conversation rolling in a useful and politically realistic way.  But there are not just legal, but enormous political issues that need to be dealt with before key details of such a tribunal could be determined.

Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

by Julian Ku

[See update at end of this post] Russia’s government has recently been talking up international law, so it will be interesting to see if they follow through with plans to charge Greenpeace activists with piracy.

MOSCOW — Russia opened a criminal case Tuesday against Greenpeace activists, accusing them of piracy for attempting to stage a protest on an Arctic oil rig. A Greenpeace spokeswoman called the accusation “absurd.”

Russian border troops seized the Greenpeace icebreaker Arctic Sunrise, along with its multinational crew of 30 activists and sailors, in a commando operation Thursday in the Barents Sea. The day before, the group had been foiled while attempting to raise a protest banner on a Russian oil drilling platform.

The facts remain pretty fuzzy, but I don’t think the Russian charge of piracy is quite as absurd as Professor Joseph Sweeney of Fordham, an eminent authority on admiralty law, makes it out to be.  Prof. Sweeney says in the article:

“They can’t be too serious about charging them with piracy,” said Joseph C. Sweeney, professor emeritus of international and maritime law at Fordham University Law School. “That requires stealing things and the intention of stealing things.”

But current definitions of piracy don’t require an intention for financial enrichment. Rather, as we noted back in February when the U.S. Ninth Circuit Court of Appeals upheld an injunction against anti-whaling protestors for attacking Japanese whalers, UNCLOS requires only that the attackers be acting for “private ends.”  As Kevin argued in his post, there is reason to believe that “private ends” does not include “politically motivated” acts (although Eugene Kontorovich has a good rebuttal of that point here).  In any event,  I think the traditional idea that piracy requires the goal of financial enrichment cited by Professor Sweeney is no longer widely held.

This means that the Russians can make out a colorable charge of piracy.  It also means that this theory will allow them to avoid questions about whether they were in the Russian exclusive economic zone, etc, since that shouldn’t matter if they stick with the piracy charge.  I expect the Russians will cite the Kozinski Ninth Circuit opinion, and if they do, this may be an important precedent for the development of modern piracy law.

[UPDATE: I stand by the analysis above, but I should note that 1) Eugene Kontorovich argues that this can't be piracy because they did not attack a "ship"; and 2) Russia's President Putin seems to have admitted this can't be piracy, although he maintains there is some other legal violation here somewhere since he alleges they tried to "seize the rig by force".]

Bashir Calls Everyone’s Bluff, Says He is Coming to UN General Assembly Meetings in New York City*

by Julian Ku

Wow! I kind of assumed all the posturing and tough talk from U.S. and ICC officials would scare off Sudan’s President Bashir from visiting NY next week to address the UN General Assembly.  But it appears he really is coming.

Sudanese President Omar Hassan al-Bashir, wanted by the International Criminal Court on genocide charges, said on Sunday he planned to attend this week’s U.N. General Assembly and had already booked a hotel in New York.

Washington has led calls for Bashir to face international justice over bloodshed in the now decade-old conflict in Sudan’s Darfur region, and a senior State Department official said last week that Bashir would “not receive a warm welcome” if he travelled to New York.

Although I think the U.S. has a legal obligation to allow Bashir to attend the meetings (and leave) unmolested, I am surprised the U.S. didn’t simply deny him the visa and dare the U.N. General Assembly or Secretariat to complain about it.  Were they really going to file protests about this? Were states in the GA really going to go nuts over this? And hasn’t anyone asked the U.N. Secretary General to state his views, so as to give the U.S. cover to deny him the visa?

Maybe the U.S. is going to take up the ICC’s invitation to arrest Bashir. But I just can’t imagine they would want that hassle just now.  Arresting a head of state is a dicey business, especially when you have no legal obligation to do so, and you would probably be violating other legal obligations to carry out the arrest (and you may spark more conflict back in Sudan as well).  It seems it would have been easier just to deny him the visa.

More likely then, the U.S. is really going to let Bashir attend, and although he won’t get a warm welcome, the U.S. will probably not arrest him.  U.S. Ambassador to the U.N. Sam Power may have a meltdown, especially if Bashir has reserved a room at the Waldorf Astoria (where she has a posh penthouse residence). Would love to see what happens if they bump into each other in the elevators…  And Mia Farrow has vowed to chase him down, so things could get ugly over there.

Seriously, though, I do think that an unmolested Bashir visit to the UN GA meetings would be further evidence for Eric Posner’s thesis that the ICC is facing serious decline (if not Doom) (But see Kevin’s rebuttal here).  I don’t think that the decline is the ICC’s “fault” (and I don’t think Posner thinks that either).  Rather, the decline of the ICC may simply be the result of the lack of political will in the U.S. Government, the other UN member states, and in the UN’s key institutions.  If Bashir is allowed to come to NY for the UN meetings, the lack of will among all of these players will be quite self-evident. Maybe we shouldn’t bother with the ICC if no one is going to actually support it when that support is needed.

*Right after this post went up, Mark Kersten reports that he hears that the visa hasn’t come through yet, which makes this post a bit premature, but hopefully still interesting!

How China Could Conquer Asia with Six Wars Without Violating the U.N. Charter

by Julian Ku

One possible silver lining in Russia and China’s invocation of the UN Charter to block U.S. action in Syria is that both nations have bound themselves (at least in part) to the same norm.  But at least with respect to China, it is probably not bothered by the UN Charter’s limitations on the use of force because any of the wars it is likely to contemplate would be (at least arguably) consistent with Article II’s self defense obligations.

For instance, this astonishingly fierce article (in Chinese, translation here)  from a nationalistic website in China and republished in HK, lays out “Six Wars China Must Fight in the Next Fifty Years.”  Those wars would involve invasions of the following places in the next half-century:

1) Taiwan
2) The Spratly Islands and the South China Sea (kicking out Vietnam and the Philippines)
3) Southern Tibet (along the border with India)
4) Diaoyu Islands and Okinawa (kicking out Japan)
5) Mongolia
6) Siberia (Russia)

For every single one of these proposed wars, China would raise the banner of self-defense under Article 51 since it claims sovereignty over each of the territories it would be invading.  Sure, some of their territorial sovereignty claims are complete bunk (Siberia?!?).  But there are certainly plausible legal arguments behind the rest of them.

Now, this list of “six wars” is the stuff of Chinese nationalistic fantasies, although any of the first four conflicts could really happen in the next few years.  But from China’s perspective, the UN Charter places almost no restraints on it since it does not restrict China from recovering territory lost to foreign powers in its past.  So China can talk as much as it likes about the sanctity of the U.N. Charter, because it will never feel serious constrained by it.

As a bonus for those readers intrigued by the New Chinese Imperialism, I highly recommend viewing this CG animation video of a joint China-Taiwan military campaign to invade and occupy the Diaoyu Islands, kicking out the Japanese as they do so.  It is like a video game, complete with a last scene with a disturbing depiction of a Chinese nuke used against Tokyo.  No wonder Japan is beefing up its military.

The larger point is that I have never understood why everyone thinks the UN Charter will constrain military action since almost all conceivable large-scale inter-state wars will involve territorial disputes where sovereignty is contested. That is certainly the case with China and it would be the case between Nicaragua and Colombia, or Chile and Bolivia, etc.  Perhaps the UN Charter constrains some countries, but I doubt it will constrain China if it ever embarks on these insane but not inconceivable plans for Asian domination.

Should the U.S. Accept the ICC’s “Invitation” to Illegally Arrest Bashir?

by Julian Ku

An ICC chamber, at the request of the ICC Prosecutor, has issued a decision ”remind[ing]” U.S. authorities of the two Arrest Warrants issued by the ICC, and “invit[ing]” U.S. authorities to apprehend Bashir and turn him over to the ICC.  This is not exactly surprising.

Still, it is worth noting that the ICC chamber reviews the legal landscape and it concludes (rightly in my view) that the U.S. has no legal obligation to arrest Bashir if he comes to the U.S.  This is true both because the U.S. is a non-party to the Rome Statute, but also because the UN Security Council’s referral of Sudan to the ICC was carefully worded so as to not place obligations on non-parties to the ICC.  That UNSC Resolution merely urges UN member states to cooperate fully.  It doesn’t require cooperation. I will also note, in response to Prof. Jordan Paust’s comments to an earlier post on this subject, that although the UNSC Res. 1591 did obligate member states to deny transit to certain individuals related to the Sudan conflict, Bashir does not appear to be on that list of people.   

So, as I argued in a prior post, the US-UN Headquarters Agreement almost certainly requires the U.S. to allow Bashir to attend and then leave the UN General Assembly meetings  The U.S. is further obligated to accord Bashir immunity as a head of state under customary international law.  Arresting Bashir would require the U.S. to violate both of these legal obligations (although arguably the head of state immunity cannot be invoked in this context).

If the U.S. arrests Bashir, they are violating at least one, and maybe two, important international legal obligations.  And, as the ICC chamber makes clear, the U.S. has no legal obligation to detain Bashir.  So from a purely legal point of view, this is a no-brainer: the U.S. should grant Bashir a visa, and let him come and go unmolested.

In this light, we seem to be back to the “illegal but legitimate” conversation that we were having over a possible U.S. strike into Syria.  Kevin’s post on that comparison makes a similar point. But here is a difficult question for international lawyers.  Arresting Bashir would plainly be illegal, but it would almost certainly be legitimate to most people, like Mia Farrow.  (I am in the minority of folks who think such an arrest is unwise since its repercussions in Sudan might be severe.) Still, is legitimacy enough to act illegally?  And if it is, why wasn’t that standard good enough to justify a US strike into Syria?

Can the U.S. Legally Deny a Visa to Sudan’s President Bashir? Nope.

by Julian Ku

U.S. Ambassador to the U.N. Samantha Power and the U.S. State Department are using unequivocal language to condemn Sudan’s President Omar Bashir’s application for a visa to attend the U.N. General Assembly meetings in New York.  But this tough talk is probably just hot air, since it is likely the U.S. is going to grant him the visa.  Here is the State Department’s reaction:

State Department spokeswoman Marie Harf declined to comment Monday on whether the visa would be granted but said “we condemn any potential effort” by him to attend the U.N. meeting.

She said before visiting the United Nations in New York, Bashir should present himself to the International Criminal Court [ICC] in the Hague, which has indicted him for war crimes in Sudan’s Darfur region.

The U.S. ambassador to the United Nations, Samantha Power, echoed those comments, saying Bashir’s proposed trip would be “deplorable, cynical and hugely inappropriate.”

Why didn’t Harf or Power just say that the U.S. would deny Bashir the visa? Because the U.N. Headquarters Agreement with the U.S. makes it pretty clear that the U.S. should not “impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations….”

The only exception to this I am aware of is the so-called “security exception” imposed by the U.S. Congress when it approved the Headquarters Agreement in 1947.  But that exception is about the right of the U.S. to protect its security, and it is hard to see that Bashir is a security threat.  (Neither, it appears was Yassir Arafat, who was denied a visa back in 1988, but whose status as a member of a UN state or organization was a little questionable).  For some good analysis of the issues, see Fred Kirgis here.

Now the U.S. might then go ahead and arrest Bashir upon entry, although that would implicate other laws and probably still violate the Headquarters Agreement. I doubt that the U.S. (as a non-party to the ICC) has any obligation to arrest Bashir, but I think they could do so consistent with U.S. law assuming President Obama lifts Bashir’s head of state immunity.  This would cause huge chaos in Sudan, but it would be legal under US law.

It is possible that despite the Headquarters Agreement, the U.S. may simply not grant him the visa. If so, it will be interesting to see whether the U.N. Legal Counsel raises the same objections that it did back in the Arafat kerfuffle (doubtful).  Maybe some backdoor dealings with the UN Secretariat could help smooth the way for the U.S. to deny Bashir the visa. But the UN might feel it is setting a bad precedent there as well.

If Bashir persists, this could cause some serious headaches for all concerned.  Which is why the U.S. is trying to talk him out of applying for that visa.  It’s their best hope of keeping him out of New York.

The Dangers of Hobnobbing with Supreme Court Justices; They Might Have to Recuse Themselves in Your Cert Petition

by Julian Ku

I’ve been following Argentina’s travails in the U.S. courts with great interest, even penning an oped on the subject back in January on their standoff with sovereign debt creditors in Ghana.  Argentina and the so-called “holdout” creditors have been battling out their dispute in the federal courts of New York for years.  So it is interesting to note that Argentina is finally facing its last stand. As Washington Legal Foundation’s Rich Samp notes in his oped, Argentina is highly unlikely to win its last-ditch cert petition to block a lower court order in favor of the holdout creditors. I agree for all the reasons he lists (e,g. no federal law issues, no circuit split, etc) that the Court will not review the case, but I was particularly struck by his observation that Justice Sonya Sotomayor will almost certainly have to recuse herself from the petition. First of all, as a court of appeals judge, she heard several Argentina-debt-related cases.  And second of all, she appears to have a personal acquaintance with Argentina President Cristina Kirchner.

Separately, Justice Sotomayor may also decide to recuse herself because over the years she has met on a number of occasions with Argentina’s president, Cristina Fernández de Kirchner, and other high-ranking Argentine officials. Indeed, the Argentine government seems to have made a concerted effort to forge close relations with the Justice. It would be ironic if those efforts resulted in a decision by Justice Sotomayor to disqualify herself from hearing Argentina’s certiorari petitions.

Justice Sotomayor made an official visit to Argentina on August 27-29, 2012. According to U.S. State Department press releases, while in the country she met one-on-one with President Kirchner. The two also had a meeting when Kirchner was in Washington, D.C. in April 2010. Kirchner has taken an extremely active role in the Second Circuit litigation and has repeatedly and publicly denounced the “hold-outs” who are suing Argentina for payment on their bonds. This may provide Justice Sotomayor with an additional reason to disqualify herself from considering Argentina’s certiorari petitions.

As Rich notes, she doesn’t have to recuse herself and doesn’t have to give reasons when she does.  But I think this is a plausible (additional) reason for her to avoid sitting on this case.  In fact, given that the visit was so recent (just over one year ago), and that the litigation was already plainly heading for the Supreme Court even then, it is hard not to spot the problem here.

Venezuela Formally Withdraws from American Convention on Human Rights, Blames the U.S.

by Julian Ku

In other Latin American news, Venezuela’s withdrawal from the American Convention of Human Rights went into effect this week, drawing the condemnations of various human rights groups. The withdrawal was one of the Hugo Chavez’s last decisions as President, however, and seems to have been sparked by dissatisfaction with decisions by the Inter-American Court of Human Rights.

Venezuela’s withdrawal from the American Convention, along with its decision to withdraw from the World Bank’s ICSID system of resolving investor-state disputes last year, suggests that international judicial institutions of all types are losing a bit of ground in Latin America. Colombia has denounced its membership in the Bogota Pact, and Bolivia and Ecuador have also left ICSID.

Of course, Venezuela is a different case and it is only the third country ever to withdraw from the American Convention.  I don’t know enough about the region to opine on the reasons for Venezuela’s withdrawal, but I do find the reflexive Yankee-bashing a curious justification.

Venezuela’s president, Nicolas Maduro, reiterated Chavez’s charge that the Inter-American system was a U.S. pawn.

“[T]he U.S. is not part of the human rights system, does not acknowledge the court’s jurisdiction or the commission, but … the commission headquarters is in Washington,” President Maduro said at a news conference, according to media reports. “Almost all participants and bureaucracy that are part of the IACHR are captured by the interests of the State Department of the United States.”

My experience with the OAS and the Inter-American Commission is admittedly quite limited, but I’ve never gotten the impression that IACHR in particular was controlled by the U.S., or indeed, that the U.S. paid the IACHR any serious attention whatsoever. The only shred of truth here is that the IACHR is indeed headquartered in Washington D.C., but that can’t be enough to prove bias.  After all, the U.N. is in New York and it proves (pretty much every day) that the U.S. is powerless to get it to do anything it wants.

Medellin v. Texas Goes Abroad? Colombia Says It Will Not Abide By ICJ Ruling

by Julian Ku

I’m a little late to this, but it is worth noting that President Santos of Colombia has announced that Colombia will “not abide” by an ICJ ruling awarding certain territorial and maritime rights to Nicaragua.  Colombia is not exactly going to simply ignore the ICJ ruling, its Foreign Minister says, but it sure sounds like it is going to do exactly that.

“At no time are we disregarding the jurisdiction of the court at The Hague,” Foreign Minister María Ángela Holguín told Caracol Radio on Tuesday. “We’re not disregarding the ruling either. We’re saying that our constitution does not permit its applicability.” Santos said that it is going to sue the Pact of Bogota at the country’s Constitutional Court, and that in the meantime the government will try to secure a new treaty with Nicaragua that satisfies both countries.

I think the Colombian FM is saying that the Pact of Bogota which gave compulsory jurisdiction to the ICJ is unconstitutional under the Colombia Constitution. And, presumably, that the Colombian Constitution is supreme to the Pact of Bogata within Colombia. And therefore, Colombia won’t carry out the ICJ judgment.  It’s Medellin v. Texas all over again!

None of this analysis would explain why Colombia is not in plain violation of its obligations under the Pact of Bogata and the UN Charter’s general obligation to abide by ICJ judgments. President Santos further announced that Colombia will “subscribe in a letter of protest along with other neighboring nations [Jamaica, Costa Rica, and Panama] that I will personally deliver to the United Nations’ Secretary General.” Gee, that will show them!

I think what is really happening here is that Colombia is refusing to comply with the ICJ ruling, but it is not going to admit it is doing so.  In the meantime, Colombia will pretend that there is some litigation or appeal going on somewhere that is delaying its obligation to comply (there is none) until Nicaragua gives up and makes a deal.  Since I seriously doubt Nicaragua has enough leverage to push Colombia to comply, this strategy just might work!

The larger lesson is that we often forget just how hard it is to get countries to carry out international court rulings, even when they have voluntarily agreed to the jurisdiction of those international courts.  It is really, really, hard, and it is more surprising when countries do comply than when they don’t.

Of course, it is entirely possible I’m misreading this somehow. I don’t speak Spanish, and I don’t exactly trust Google Translate.  But a video of the President Santos address is here.  Spanish-speaking readers should feel free to add their views to the comments.

Who Needs the Law of the Sea Convention? U.S. Signs Maritime Boundary Agreement With Kiribati

by Julian Ku

20130906_us_kiribati_map OK, I have to admit I was not familiar with the Pacific Island nation of Kiribati before reading this article, but I was heartened to learn that the U.S. signed a maritime boundary treaty with it on Friday.  Sometimes supporters of U.S. ratification suggest that it would be almost impossible to work with Law of the Sea signatories like Kiribati if the U.S. doesn’t join, but this actually doesn’t apply to most maritime boundaries.  Put another way, joining the Law of the Sea Convention won’t make it easier to resolve ongoing maritime disputes with, say, Canada. That remains the hard work of diplomacy, and negotiations.  Glad we have the ol’ Kiribati border settled though.  (Amusingly, the article notes that US government aid actually helped fund Kiribati’s legal and negotiating team. We paid their lawyers as well as ours!  Maybe we could try that with Canada!).

White House Counsel Announces Syria Strike Would Not Violate International Law, But Doesn’t Explain How

by Julian Ku

In the UK, the government released a brief note which described the legal theory justifying a strike on Syria.  The note may have had flaws, but it certainly offered a basis to evaluate the UK government’s view of international law.  In the United States, the equivalent appears to be conversations between the White House Counsel and Charlie Savage of the NYT

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

Come on, Charlie, you have got to push her to elaborate!  Why would it be “justified and legitimate”? Is it illegal but legitimate, or is it actually legal under a theory yet to be revealed by the administration? Has the State Department been asked for an opinion?

I don’t fault the reporter here since the constitutional issue is plainly more important than the international one, as a practical matter.   But I am curious that the President, who has publicly cited international law as a factor in his decisionmaking, has not bothered to offer anything more than a quote in a NYT article to explain its international legality.  To be sure, Congress is not exactly pushing him to do so, but I am surprised the bureaucracy hasn’t generated anything yet. Leak, please!