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China’s Vice-Minister for Foreign Affairs Casually Slanders the South China Sea Arbitral Tribunal

by Julian Ku

I have been trying to move on from writing about the blockbuster UN Convention on the Law of the Sea arbitral award on the South China Sea.  As our readers know, I have written way too much on this topic lately.  But the Chinese government’s outrageous statements criticizing the award deserve one last post from me before I head out for a South China Sea-free vacation this summer.

In particular, I wanted to turn our readers’ focus to statements such as those made by China’s Vice-Minister for Foreign Affairs, Liu Zhenmin, shortly after the award was released.  In his remarks denigrating the arbitral tribunal, Liu implied that the arbitrators may have been bribed to adopt the views of the Philippines in the award.  Below is an excerpt of a transcript of his remarks:

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services.

These comments are outrageous on so many levels.   Liu knows, or should know, that the arbitrators were paid by the government of the Philippines.  The tribunal announced publicly in its Rules of Procedure Article 31-33 that it was exercising its treaty powers under Article 7 of Annex VII to UNCLOS to require payment from both parties. But Liu also knows that the only reason the arbitrators received all of their compensation from the Phillippines government is because China refused to participate and refused to pay its share. If China had actually showed up, it would have been obligated under Article 7 of UNCLOS Annex VII to pay half of the fees.  There is no evidence, and Liu cites none, that any government other than the Philippines paid the arbitrators.  Liu also conveniently fails to mention his own government’s failure to pay its fair share.

Such payments are almost always made in advance of the award being issued, or even before the proceedings begin.  In other words, the payments could not influence the award’s contents because the Philippines did not know the content of the award before they made their payments.

This manner of compensating arbitrators is so standard and unremarkable that China’s own leading commercial arbitration organization, CIETAC, allows in Rule III.C.1 for one party to pay fees for the entire arbitration even if the other party does not show up and refuses to pay its own share.   This is essentially the situation that the Philippines found itself in.  It could continue to demand that the Tribunal seek money from China for its share of the expenses, or it could pay up. It chose to pay China’s share as well, and (as a reward) is now being lambasted by China for doing so.

Vice-Minister Liu is not a party hack who doesn’t know anything about arbitration.  He is, in fact, on the roster of arbitrators available for appointment by the Permanent Court of Arbitration and he is a arbitrator of the aforementioned CIETAC.  In other words, Liu knows exactly how arbitration works, and he is feigning ignorance in order to defame the character of the UNCLOS arbitrators.

In the same press conference, Liu also claimed that UNCLOS arbitration is some sort of aberration that has never happened before, unlike the more established ICJ or ITLOS systems.  On this point, Liu is flatly incorrect. In fact, there have already been seven UNCLOS arbitrations convened under the exact same rules that were applied to the Philippines/China arbitration.  In fact, as Liu well knows, the Chinese government freely chose arbitration instead of the ICJ or ITLOS for any dispute settlement under UNCLOS.

When acceding to UNCLOS, China could have chosen under Article 287 to specify the ICJ or ITLOS as its preferred forum for dispute settlement.  It did not do so, thereby forcing any dispute involving China to be sent to UNCLOS arbitration pursuant to Article 287(5).  In other words, the Chinese government made a conscious choice to avoid the ICJ and ITLOS for disputes arising under UNCLOS.  It is astounding for one of China’s leading diplomats to denigrate the integrity of a system of dispute settlement that China freely chose and in fact demanded.

Liu’s borderline defamatory remarks matter even if China and the Philippines eventually work out a settlement of their dispute.  Liu has knowingly denigrated the integrity of five arbitrators – three of whom continue to sit on the International Tribunal for the Law of the Sea – using facts he almost certainly knows are false. As the esteemed Professor Jerome Cohen of NYU has noted, in many jurisdictions, this could be enough to constitute defamation or slander.  Since Liu would have immunity for his remarks, perhaps the softer sanctions could be imposed, such as demanding his resignation from the PCA’s roster of arbitrators or perhaps his removal from the position as an Associate Member of UNIDROIT.  At the very least, this sort of casual character assassination should not be forgotten nor forgiven.

Russia and the DNC Hack: What Future for a Duty of Non-Intervention?

by Duncan Hollis

There are lots of important issues implicated by this morning’s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee’s servers and leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago).  The domestic fall-out is already on evidence with the resignation of Debbie Wasserman Schultz and I’m sure we’ll see other impacts here in Philadelphia at this week’s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should).

But what does international law have to say about a foreign government obtaining and leaking e-mails about another country’s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the “threat or use of force against the territorial integrity or political independence of any state” and there’s no force at work in the current distribution of data otherwise intended to remain confidential.  But alongside the Charter’s prohibition on the use of force, customary international law has long recognized a ‘duty of non-intervention’ that applies to State behavior in cases falling short of the use of force.  The question then becomes whether the duty applies to this case and if so to what end?  For my part, I see at least three distinct sets of issues:  (i) attribution; (ii) the duty’s scope; (iii) the relevance of international law more generally to cyber security incidents like this one.

1. Attribution — Did Russia do this?  Attribution has both a factual and a legal element, both of which are at issue in the DNC case.  Factually, there’s the question of who actually perpetrated these hacks — the hacker(s) named Guccifer 2.0 claims responsibility but cybersecurity investigators suggest two separate penetrations tied to two different Russian hacker groups, “Cozy Bear” and “Fancy Bear” (international lawyers take note of how much more fun cybersecurity officials have in naming stuff than we do).  Making the factual case of who did what in hacks such as this is always difficult even as recent technological advancements have improved the ability to trace-back in certain cases. Just as importantly, however, there’s always the possibility of a ‘false flag’ where the true perpetrator goes to great lengths to make investigators think some other actor was responsible (i.e, planting evidence/code in a particular language or using coding patterns associated with a particular group of actors).  Ironically, the potential for a false flag means that a State caught red-handed can always invoke plausible deniability and suggest that they are themselves a victim as some other, unknown super-sophisticated actor is trying to frame them.  One can safely assume, for example, that Russia will make this argument in the DNC case.  Indeed, even in cases that appear clear cut like Sony Pictures, there are still those who resist FBI’s assertions of North Korean responsibility.

A second aspect of the attribution inquiry is a more legal one — namely, assuming the individual actors who perpetrated the hack can be identified, when can their actions be attributed to a State? This is not really at issue if the perpetrators are in a State’s direct employ (e.g. military officers or intelligence officials).  But what happens if the perpetrators are nonstate actors?  How much control would a State like Russia need to exercise over the DNC hack and later leak for it to bear responsibility?  That question is one that different international fora have answered differently in different contexts (the ICJ’s Nicaragua case and ICTY’s Tadic case‘s competing tests of effective versus overall control being the most famous examples).  As such, it’s difficult to say at present what relationship a State must have with nonstate hackers or hacktivists to bear responsibility for what they do.  That may not be a bad thing overall, as one can imagine how a clear line might incentive States to proliferate behavior just short of crossing the line in lieu of being chilled from acting generally if the whole area is cast as a truly grey zone.  That said, the ability to debate what international law requires in terms of the State-nonstate actor relationship complicates any application of the duty of non-intervention in individual cases.

2. Scope: What behavior violates the duty of non-intervention?  Assuming that Russia was responsible (which I should be clear at this point is just an assumption), the next question is whether its hacking and leaking of DNC data violated the duty of non-intervention?  Here again, international lawyers will encounter some uncertainty as the precise scope of the duty has never been fully resolved.  To be clear, there’s widespread consensus that a duty of non-intervention is customary international law.  The problems are more the duty’s contents.  The most famous formulation is undoubtedly that put forth by the ICJ in the Nicaragua case (para. 205), prohibiting interventions

bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.

The ICJ’s take suggests that intervention requires methods of coercion, forcing the victim State to make different choices than it might were it free of coercive interference.  This pairs with key parts of the earlier 1970 UN General Assembly Declaration on Friendly Relations Among States:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

Thus, much of the debate over the duty of non-intervention has focused on identifying which coercive measures below the use of force threshold are covered by the prohibition. But, looking at the DNC hack, there’s little evidence that Russia is trying to coerce any particular result. Indeed, it’s not even clear that the goal of the hack was to support Trump’s candidacy.  The operation could have other purposes; for example, I’ve seen suggestions that it might have been a response to Russian presumptions that the United States bears responsibility for the Panama Papers, a data breach that caused some discomfort to Putin’s administration.  Given this, might we not simply write this hack-off as a particularly visible form of espionage?  Is this case equivalent, for example, to the OPM hack?  That hack, while clearly contrary to U.S. national security interests, was not terribly susceptible to claims of an international law violation given international law’s longstanding, complicated relationship with surveillance (for more see Ashley Deek’s recent article).

I’m not so sure, however, that the duty of non-intervention can be dismissed so quickly.  For starters, the hackers did not just take the data and use it to inform their own policies or behavior. They also leaked it, and did so in a way where the timing clearly sought to maximize attention (and corresponding impacts) on the U.S. domestic political campaign process.  Perhaps we need to separate out this incident into two parts — the espionage (i.e., the hack itself) and the interference in the U.S. campaign using the fruits of that espionage.  Doing so suggests the leaking might be the problematic act under a less quoted paragraph of the 1970 U.N. General Assembly Declaration’s description of the duty of non-intervention:

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Interference in ‘any form’ is clearly a broader formulation than coercive acts, suggesting that actions designed to impact public support for not just a particular candidate, but an entire “political” party, could implicate the duty of non-intervention here.  That said, there are others who’ve been thinking much more carefully on the question of non-intervention and cyberspace than I have.  Later this year, for example, we should be able to read the fruits of Tallinn 2.0, the much-anticipated follow-up to the Tallinn Manual and its take on international law applicable to cyberwar.  Tallinn 2.0 will offer the views of an independent group of experts on how international law regulates cyberspace outside of the use of force and jus in bello contexts, including the duty of non-intervention.  I imagine I’m not alone in wanting to know whether and how its contents will speak to the current DNC crisis.

3. Remedies:  Does International Law Really Matter Here? Talking about this case in the last 24 hours, I’ve had a couple of non-lawyer friends express skepticism over international law’s relevance to the DNC hack.  Given our age, my friends hearken back to the Cold War, suggesting that Russia can and will ignore international law with impunity here (one of the more sanguine among them, also pointed out that the United States has its own history of interfering in foreign elections, a point Jack Goldsmith made earlier today at Lawfare). And, to be sure, there’s some merit to this critique.  After all, Russia’s Security Council veto ensures the inability of that body to respond to these events in any way. And U.S. resistance to the jurisdiction of international courts and tribunals precludes any real chance that a third-party would review the case.

Still, I think it’s important to raise the international legal issues for at least three reasons.  First, and perhaps most obviously, international law does provide self-help remedies in cases of state responsibility, including retorsion (otherwise legal acts done in response to unlawful behavior) and counter-measures (behavior that would otherwise be unlawful but for the fact that it is itself in response to unlawful behavior).  Thus, if Russia was responsible for the DNC hack and that hack did violate the duty of non-intervention, it would free the United States to engage in counter-measures vis-a-vis Russia that would otherwise be unlawful.  Time and space preclude me from surveying all the various counter-measure options that the United States might have, although I’d note there’s an interesting ancillary question of whether international law might limit the U.S. from pursuing certain counter-measures — such as interfering in Russia’s own domestic political process — if doing so is analogous to humanitarian obligations, which are non-derogable (i.e., you cannot violate the human rights of another State’s nationals just because they violated your nationals’ human rights).  I’d welcome reader thoughts on such limits as well as a more open discussion of the types of counter-measures that might be legally available in this case or any collective measures that could be in play.

Second, there’s the question of what happens if international law is not invoked or applied to this case? To the extent state practice can involve acts and omissions, might silence suggest that this sort of behavior (hacking and releasing political parties’ internal communications) is perceived as lawful (or at least not internationally wrongful)?  In other words, how States react to this case will have follow-on effects on future expectations of responsible State behavior, leading to new norms of behavior in cybersecurity.  This is a topic on which I’ve been spending A LOT of time lately with a forthcoming article in the American Journal of International Law that I’ve co-authored with Martha Finnemore (we’ve not posted it yet, but interested readers should e-mail me if they’d like to see a draft).

Finally, there’s an academic reason to undertake this analysis.  In recent years, scholars have debated and emphasized ways to shrink the duty of non-intervention, under the banner of things like human rights (unseating the old assumption that international law did not care what a State did vis-a-vis its own citizens in its own territory) or humanitarian intervention (the idea that responding to a State’s failure to protect those within its borders is more important than the duty of other States to stay out of domestic jurisdiction matters).  I wonder if these arguments are relevant to the current controversy?  Have they inadvertently created space for additional exceptions or otherwise shifted the scope and reach of any duty of non-intervention?  I might be wrong to worry about any such link, but I do think the issue warrants further study.

Thus, I think this is an important case that bears close attention.  I’d like to see how the United States responds publicly, if at all, to the allegations, not to mention how other States or actors view the behavior in question.  For international lawyers, moreover, I’d hope to see further discussions of how to attribute responsibility in cyber security incidents as well as more detailed analyses of how the duty of non-intervention applies in cyberspace than we have had to date.  To that end, I’d welcome reader thoughts and comments.  What have I got wrong?  What am I missing?

 

Alaskans and Canada’s Transboundary Mining Pollution: Kick-starting the US-Canada Bilateral Pollution Regime

by Kenta Tsuda

[Kenta Tsuda is an attorney at the non-profit law organization Earthjustice in Juneau, Alaska. Earthjustice was involved in the Pelly Amendment process described below in the post.]

For millennia the peoples of southeast Alaska have prized the salmon harvests of the Taku, Stikine, and Unuk rivers, three transboundary waterways flowing from headwaters in British Columbia’s Coastal Range through Southeast Alaska to the sea.  Customary harvests continue today, along with tens of millions of dollars’ worth of commercial fishing.  In recent years, however, Alaskan  communities have faced a threat of potentially devastating transboundary pollution from mines in British Columbia.  Hard-rock mines exploiting gold-copper deposits in the headwaters of the three rivers would produce billions of tons of waste rock and tailings.  Each would require indefinite treatment of uncertain efficacy to prevent the poisoning of surrounding watersheds by a toxic cocktail of acidity and dissolved heavy metals.  This contamination could have population-level harms on salmon, both in Canadian reaches of these waters and on the U.S. side of the border.  Downstream communities in Southeast Alaska fear for their economic futures and ways of life, while Canadian authorities are allowing the projects to advance.  Alaskan groups now seek resolution of the dispute at the international level.  To that end, under a domestic statute they have invoked the U.S. Government’s duties to confront these environmental threats, aiming to prompt the Government’s assertion of rights held under international law.

The transboundary nature of the threat limits private legal action on the American side of the border.  The situation requires what Professor Thomas Merrill has described as a transboundary collective action regime.  As Merrill has explained, such regimes are difficult to create, however, “if some mechanism can be devised for inducing mutual cooperation, the situation is potentially a positive-sum game for all.”  In the case of the United States and Canada, a mechanism for addressing transboundary pollution already exists: under Article IV of the 1909 Boundary Waters Treaty the United States has a right against transboundary pollution from Canada.  This same instrument creates an institution to address potential violations of treaty rights, the International Joint Commission (IJC).  Under Article IX, the parties agree that “any . . . questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier” could be referred to the IJC “for examination and report.”  A referral would entail the governments of both the United States and Canada formally requesting that the commission exercise its investigative powers with respect to specific questions of rights or interests along the frontier.  Such Article IX referrals have been made many times.  Although IJC findings in response to a referral are not automatically binding, historically the parties have abided by them.  For these reasons, groups in Alaska and Canada—indigenous communities, commercial fishing interests, conservationists—as well as Alaska’s congressional delegation, and Washington’s Senators Murray and Cantwell, have requested that the State Department consider referring to the IJC questions regarding the potentiality of and means to prevent transboundary pollution from hard-rock mines in the three watersheds.  So far, both American and Canadian federal governments have demurred, suggesting that an information-sharing agreement between the state of Alaska and Province of British Columbia—which cannot be binding, and therefore includes no liability rule—might eventually yield a solution.

To encourage further consideration and engagement among federal agencies, and ultimately the Federal Government’s referral of the issue to the IJC, Alaska Native and conservation groups recently invoked a domestic legal lever to prompt an invesigation by the Department of the Interior.  The groups, including the environmental law organization Earthjustice, submitted a petition invoking Secretary of the Interior Sally Jewell’s duties under the 1971 Pelly Amendment to the Fishermen’s Protective Act.  Under this statute, the Secretary must investigate and certify to the president if foreign nationals act to diminish the effectiveness of a U.S. conservation treaty.  The petitioners describe six mine projects in the transboundary watersheds, detailing how they threaten Pacific salmon and steelhead trout—protected under the 1991 Anadromous Stocks Conservation Convention—as well as the grizzly bear and woodland caribou—protected by the Western Hemisphere Convention.  The petition requests the Department of the Interior to bring its expertise to bear upon the issue via an investigation of the mines and their environmental effects, and for Secretary Jewell to engage her colleagues in the federal executive to seek a referral of the issue to the IJC.

This developing situation demonstrates that parties to an established transboundary collective action regime must actively exercise their relevant rights and privileges to protect the interests of their citizens against transboundary threats.  It also illustrates the potential role that domestic statutory remedies can play in private actors’ efforts to address transboundary threats, even where the domestic law does not afford ample opportunity directly to address sources of transboundary pollution.

Multi-Blog Series: First Thoughts from Academia on the Updated GCI Commentary

by Kevin Jon Heller

[This is the third episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, jointly hosted by the Humanitarian Law & Policy Blog, Intercross and Opinio Juris. The first, by Jean-Marie Henckaerts, can be found here, and the second, by Sean Murphy, here.]

It is a great pleasure to contribute to this multi-blog series on the ICRC’s newly-released Commentary on the First Geneva Convention (GC I). Sean Murphy is right that GC I might seem “of lesser significance” than the Third and Fourth Geneva Conventions (GC III and GC IV) – and there is no question that IHL scholars everywhere will eagerly await the ICRC’s Commentaries on those Conventions. But that does not detract from the importance of this first Commentary, which represents a remarkable achievement in its own right. As the Introduction notes, the authors of this new Commentary had to analyze nearly seven decades of state practice, a massive and unenviable task. Moreover, they had to address some of the most contentious issues in IHL, such as the scope of application of Common Article 3 (CA 3). Indeed, I have little doubt that the Commentary’s overall Common Article 3 discussion – which runs to 907 paragraphs, approximately 800 more than its 1952 predecessor! – will attract considerable scholarly attention (and cause considerable academic controversy) in the coming years.

 

Flyer cover page - GC I launch

For my part, I generally agree with Murphy’s and Jean-Marie Henckaerts’ comments about the ICRC’s methodological approach in the Commentary. But I think Henckaerts actually underplays one of the most encouraging aspects of the ICRC’s methodology: its willingness to make liberal recourse to travaux preparatoires when interpreting provisions of GC I. Here is paragraph 49 in the Introduction:

Indeed, it seems logical for a thorough examination of all the issues to look at the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’ which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 33 and 34 of the First Convention dealing with the fate of buildings and material of medical units of the armed forces and aid societies after they fall into enemy hands.

This is a refreshing deviation from VCLT orthodoxy about travaux preparatoires being unnecessary when the “ordinary meaning” of treaty terms is ostensibly clear. As Julian Mortenson has shown, that orthodox view of the VCLT is impossible to reconcile with the treaty’s own history, becausethe drafters repeatedly reiterated that any serious effort to understand a treaty should rely on a careful and textually grounded resort to travaux, without embarrassment or apology.” Indeed, scholars all too often use a treaty’s supposed “ordinary meanings” as a vehicle to substitute their own political preferences for the will of the states that drafted and concluded it.

I also agree with Henckaerts and Murphy concerning the central role that the ICRC plays in interpreting the Geneva Conventions – the “guardian and promoter of IHL,” in Henckaerts’ words. But that role poses a danger that needs to be openly acknowledged: namely, that those who use the Commentary – soldiers and scholars alike – will be tempted to uncritically accept the ICRC’s interpretation of GC I. There is no question that the authors of the Commentary are among the world’s most expert IHL practitioners and scholars, but they are neither infallible nor objective. On the contrary, both the experts and the ICRC as an institution have political and legal commitments that cannot help but influence how they interpret GC I. That does not mean that their interpretations should be discarded. It does not even mean their interpretations should always be viewed with a skeptical eye. But it does mean that IHL scholars should be willing to challenge the Commentary when they believe that the ICRC is wrong.

To be clear, I am in no way suggesting bias or bad faith on the part of the Commentary’s authors. I am simply pointing out that interpretation is an inherently indeterminate, subjective, and political activity, which means that it matters a great deal who is doing the interpreting. And there is no escaping the fact that the members of the Editorial Committee, the ICRC Project Team, and the Reading Committee come exclusively from states in the Global North – most from states in Western Europe. Again, that does not mean that the Commentary is wrong on any particular point. Moreover, to the ICRC’s credit, the Commentary’s peer-review group, who “reviewed the drafts and provided comments in their personal capacity,” included individuals from dozens of states in the Global South. But it is nevertheless regrettable that the primary authors and reviewers of the Commentary are so geographically homogenous – especially given that the states they represent rarely if ever experience the kind of conflict that is subject to Common Article 3.

Finally, I want to flag a very odd statement in the Commentary, paragraph 10 in the Introduction:

In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.

I have no doubt this is true – but I find it somewhat troubling to know that the ICRC’s interpretation of GC I is based on evidence that cannot be subjected to scholarly criticism. I hope the ICRC will say more about its reliance on non-public information in future Commentaries, which will deal with even more controversial aspects of IHL.

Assessing the Fallout from the South China Sea Award

by Julian Ku

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!

The Chilcot Report and the Doctrine of Humanitarian Intervention

by Frederick Cowell

[Dr. Frederick Cowell is a Lecturer in Law at Birkbeck College, University of London School of Law.]

On the 6th of July the UK’s Iraq Enquiry report was finally published having taken almost seven years to complete. The process,  chaired by a leading former British civil servant, Sir John Chilcot, aimed to look at the causes and consequences of the 2003 Iraq War from the perspective of the British government. Since it was a public and not a judicial enquiry, it did not pronounce on the legality of the war but, as Sir John said in his press conference on the report, on “the circumstances under which the UK decided there was a legal basis for war were far from satisfactory.” The report raised a number of different legal issues but perhaps the most intriguing feature of the report is the implication for the doctrine of humanitarian intervention.

The 2003 Iraq war was not politically ‘sold’ on the basis of humanitarian intervention. UN Security Council Resolution 1441 (.pdf) spelt out the terms for further weapons inspections in Iraq following the weapons inspections that had been on and off since the 1991 Gulf War. The legal advice to invade Iraq that was presented to the British Cabinet on the 11th of March 2003 was based on the argument that earlier legal authority had been ‘revived’ (Vol. 6 paragraph 690 onwards [.pdf]).  This argument was somewhat overstretched and was criticised in an earlier section of the report which doubted the idea that states had a “residual right” to unilaterally enforce UN Security Council resolutions. As Dinos Kritsiotis (.pdf) argued, applying Nicaragua v US (.pdf) to the case for operation Iraqi freedom, it is important to distinguish the legality of the overt political justification for war and the legal basis for the use of force. In the 2003 Iraq War the overt legal basis for use of force under the UN Charter was highly flimsy and dependent on a stretched reading of the right to use military force under Article 42 of the UN Charter.

Though the Chilcot report did not expressly rule on the legality of the use of force the legality of regime change is a somewhat different question. As Gerry Simpson noted the notion of regime change is difficult to justify under the principles of self-defence, not least because the UK and US opinions on the validity of this argument radically diverged. The question of regime change on ideological grounds is prohibited, as the ICJ made clear in the Nicaragua judgment, but humanitarian intervention to remedy human rights abuses had, prior to Iraq, received some degree of acceptance not least when the Kosovo Commission concluded NATO’s 1999 air war was “illegal but legitimate.”  The concept of a Responsibility to Protect (R2P) was still two years away in 2003 and even when the doctrine was developed in the late 2000s it was careful not give outright support for intervention absent Security Council authorisation. The 2010 Secretary General’s report on the Responsibility to Protect was critical of humanitarian intervention saying that it “posed a false choice between two extremes: either standing by in the face of mounting civilian deaths or deploying coercive military force to protect the vulnerable” (UN SG Report 2010 Para 7). Two principles from the R2P doctrine which have often guided arguments about humanitarian intervention – is there a human rights abuse and would the intervention remedy that abuse – provide a prism through which to view the report’s findings and their relation to the doctrine of humanitarian intervention.

The human rights abuses committed by Saddam Hussein’s regime were, as the report details, a central part of the case being made by the British Government during late 2002 (see Volume 2, Section 3.4 paragraph 331). Crucially, however, this was largely secondary to the overall aim of regime change. Where the British were concerned about Saddam Hussein’s human rights abuses it was in connection to gathering evidence to prove the instability of the regime more generally (see Volume 2, Section 3.2 Paragraph 575). Kenneth Roth was fairly clear in his assessment in 2006 that human rights abuses, such as the 1988 massacre of Kurds, would not add up to a sufficiently immediate threat to justify the invasion of Iraq in 2003 in order to prevent such abuses occurring.  Indeed whilst it was clear in pre-war Cabinet meetings that Saddam was, in words of the former UK Foreign Secretary Robin Cook, “a tyrant” and a “shit,” this was not the motivation for invasion, nowhere in the Chilcot report is there a mention of a specific human rights abuse that the invasion is designed to stop. Michael Walzer in 2012 drew a distinction between intervention for purposes of relief (to stop a genocide) and purposes of repair (to change a regime) indicating that the former may still be defensible post-Iraq.

With regard to the second principle the Chilcot report was highly critical of all levels of post invasion planning noting systemic failures in several areas including the preparation of basic resources to provide security post invasion and any real plan for civil contingency in the aftermath of the invasion.  This was causally linked to the violence that broke out after the invasion leading to many thousands of civilian deaths. Kier Starmer, a former public prosecutor and now Labour Party Member Parliament, in a thoughtful piece reflecting on the Chilcot report’s findings suggested that a post-conflict plan ought to be a legal requirement for any future intervention. This helps resolve one tension at the heart of humanitarian intervention what JL Holzgrefe  described as ‘act utilitarianism’; the otherwise illegal act can be justified for its maximisation of welfare. But there is a need to actually deliver on this promise of welfare, otherwise the argument fails. This clearly was not the case in the 2003 Iraq War, as the report outlined.

Whilst not expressly commenting on the concept of humanitarian intervention the Chilcot reports findings leave little doubt that the 2003 Iraq War cannot be justified under this doctrine. The attempts by supporters of the war to frame the conflict in retrospect as a form of quasi-humanitarian intervention, examining Saddam’s appalling human rights record or the prospect of further abuses, are missing the point; the type of war launched in 2003 could not be justified under any reasonable understanding of the doctrine of humanitarian intervention, and the findings of fact in the Chilcot report support this interpretation.  The report’s finding will shape the understanding of the most contested conflict of the last half-century and the one that colours all subsequent debates on the doctrine of humanitarian intervention.

The Lawfare over South China Sea: Exceptional Rules vs. General Rules

by Liu Haiyang

[Liu Haiyang is a research fellow at the Collaborative Innovation Center of South China Sea Studies, Nanjing University, China. This post was submitted to Opinio Juris under the auspices of the Chinese Initiative on International Law, an NGO with a mandate of promoting a better understanding of international law, particularly international criminal law and justice.]

The ad hoc Arbitral Tribunal established under the request of Philippines issued its final award on 12 July 2016. The lawfare over the legal effect of the verdicts of the Tribunal between China, on one side, and the United States with its allies and partners behind the case, on the other, will change focus from the legality of jurisdiction concerning the preliminary award to the legal consequences of the final award.

Although the U.S. is not a party to the present case, it seemed well prepared for the decision. Besides a significant increase of military presence and operations, with more warships and aircraft in the South China Sea, the U.S. and its allies have also loudly raised their voices to urge China to respect the final decisions of the said arbitral tribunal. The general tone of the criticisms suggests that China’s non-compliance with the final ruling would amount to non-compliance with international law and as well as a show of contempt for the international rule of law. For its part, China has also stepped up its media campaign to defend its position of non-recognition of any ruling by the tribunal through more diplomatic efforts and academic symposiums.

While both sides may hype up or downplay the legal consequences of the ruling, the heart of the question is the legal effect of the arbitral ruling in international law. To be more specific, is the award legally binding? How could the decision of an arbitral tribunal be implemented in international law? Is the non-recognition and non-implementation of the decision of an arbitral tribunal equivalent to non-compliance with international law? These are questions that need to be addressed.

In general, once an arbitral award has been made, it is final and binding upon the parties. That is the reason why the mainstream international understanding, misdirected by the U.S., is that the South China Sea arbitral award is binding upon China. However, there is an exception to the rule. In certain circumstances the award itself may be regarded as a nullity. It is fairly generally accepted under international law that the excess of power may be treated as a nullity. That’s exactly the position taken by China: that the arbitral tribunal exercised jurisdiction ultra vires and any of its decisions have no legal effects. In particular, the disputes between China and Philippines are either sovereignty disputes over islands, which are not governed by the UNCLOS, or disputes concerning maritime delimitation, which are excluded by China through a 2006 declaration based on Article 298 of the Convention. However, those exceptional rules are fully understood only by a small group of legal experts, and the general public only knows general rules. This put the U.S. in a good position to hype up the binding force of the award as a general rule, while China has an uphill battle to explain to the international community why the award has no legal effects as an exceptional rule. The U.S. and its allies will surely make full use of this advantage to put consistent international pressure on China to abide by the award.

Even supposing an arbitral award is binding on both parties, how to enforce it is another issue. In general, the success of arbitration depends on the goodwill between the parties in actually enforcing the award. Unlike in a domestic legal system, which has a central government to enforce the law, there is no such world government above states to enforce international law. The only exceptional case lies with the International Court of Justice (ICJ). Under article 94 of the UN Charter, one party may have recourse to the Security Council, which may enforce the decisions. However, the present case was decided by a 1982 UNCLOS Annex VII arbitral tribunal and the decision could in no way be enforced by third parties. Under article 12 of the UNCLOS Annex VII, “Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award.” Also, “[a]ny such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.”

Finally, does the arbitration award per se amount to international law, so that the non-recognition and non-implementation of the award is equivalent to non-compliance with international law? It is common sense among international lawyers that, under article 38 of the Statute of the ICJ, the sources of international law are composed of international treaties, international customs, and general principles of law and judicial decisions can only be utilized as a subsidiary means for the determination of rules of law rather than as an actual source of law. However, the U.S. may again make use of the gap between the understanding shared by small group of legal experts and the general public’s misunderstanding of international law so as to label China’s non-recognition of the award as non-compliance with international law.

In fact, neither the U.S. nor the Philippines has much credibility in this regard. The U.S. is the least qualified state to criticize China on this point, as the U.S. is the only country that used veto power in the UN Security Council to prevent the enforcement of the ICJ decision in Nicaragua case. Notwithstanding this clear defiance of international judicial decisions, many U.S. politicians and scholars are echoing the same voice that China would dishonor international rule of law in the sense that China does not recognize the award. Even the Philippines has been inconsistent in its respect for international arbitration, holding in the present case that a arbitral tribunal’s decision in Southern Bluefin Tuna case was wrongly decided. It is questionable whether the Philippines’ dishonoring of an arbitral decision amounts to non-compliance of international law. While it is not meant to make a tu quoque argument here, the position of the U.S. shows a clear sign of a double standard.

For its part, the best approach for China to win this lawfare is to tell its side of the story regarding the general rule versus exceptional rule. There is still a long way to go for China to pierce the legal veil covering American political trickery.

The South China Sea Arbitration is Here! And China Will Not Be Happy

by Julian Ku

The much-anticipated long awaited South China Sea Arbitration award on the merits is here!  It is a slam-dunk, complete, utter, massive, total legal victory for the Philippines on all counts (lots of metaphors here, none are quite sufficient). Essentially, the tribunal ruled in favor of almost all of the Philippines’ claims in the arbitration.  Perhaps the most headline friendly result: The Nine Dash Line has been ruled inconsistent with China’s obligations under the UN Convention on the Law of the Sea.

I have been mostly reacting on twitter this morning, and I am working on some related posts here and elsewhere. This case brings to an end the long process initiated by the Philippines back in 2013 (links to my discussion of them are below).  We will be discussing and debating the impact of this award for a while.

Multi-Blog Series: The Role of the ICRC Commentaries in Understanding International Humanitarian Law

by Jessica Dorsey

In the second installment of episode 1 in this multi-blog series on the updated Commentaries, Professor Sean Murphy responds to Jean-Marie Henckaerts first post on locating the commentaries in the international legal landscape.

Sean D. Murphy, Professor of International Law at George Washington University and Member of the U.N. International Law Commission, considers the role of the ICRC commentaries as a matter of treaty law, customary international law, and practical lawyering.

Taiz, Yemen - Two men drive through the area, where snipers have been present since the intense hostilities started there. ©Wael Al Absi/ICRC

Taiz, Yemen–Two men drive through the area where snipers have been present since the intense hostilities started there. ©Wael al Absi/ICRC

Read the full post on the Intercross Blog and stay tuned for the third installment, coming soon.

This series is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.

Is the Requirement That Crimes Against Humanity Be Committed Against a “Civilian Population” Really Necessary?

by Joanna Nicholson

[Dr. Joanna Nicholson is a Researcher at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo.]

For a crime to amount to a crime against humanity, it must be shown to have been part of a bigger picture, namely part of a widespread or systematic attack against a civilian population. The requirement that an attack be against a “civilian population” has created some uncertainty as to whether persons who are hors de combat can be victims of the crime.

Case law is peppered with discussion as to whether those who are hors de combat are “civilians” or constitute members of the “civilian population” for the purposes of crimes against humanity. Careful examination of this jurisprudence reveals that international criminal courts and tribunals, particularly the ad hoc tribunals, have taken different approaches to this issue.

The International Criminal Tribunal for the former Yugoslavia’s (ICTY) case law has taken a meandering path. Some cases have endeavoured to include those who are hors de combat within the notion of “civilian” (see for example, Kordić and Čerkez (.pdf), para. 421), whereas others have sought to include them within the notion of “civilian population” (see, for example, Naletilić and Martinović(.pdf), para. 235). The issue was ultimately resolved by the ICTY Appeals Chamber in two cases: Martić (.pdf) and Mrškić (.pdf). The Trial Chambers in both cases (rightly) held that persons hors de combat are not civilian for the purposes of Article 5 of the ICTY Statute (the provision of the Statute concerning crimes against humanity). This was confirmed on appeal. However, both Appeals Chambers held that the chapeau requirement of Article 5 does not require that the individual criminal acts be committed against civilians, but rather that it serves to emphasise the collective nature of the crime. Thus, providing the chapeau requirement is fulfilled, and that there has been a widespread and systematic attack against a civilian population, individual victims who are hors de combat can be victims of the crime (Martić Appeal Judgment paras 303-314; Mrškić Appeal Judgment, para. 33).

The International Criminal Tribunal for Rwanda (ICTR) has taken a different approach. In Akayesu (.pdf), the Trial Chamber found that persons hors de combat are members of the civilian population for the purposes of crimes against humanity.  This finding was followed, with zero to minimal discussion, in subsequent cases before the tribunal.

The different approaches of the ad hoc tribunals on this matter can lead to very different outcomes. Adopting the ICTY’s approach means that an attack directed purely against persons hors de combat does not amount to a crime against humanity. Indeed, this was found to have been the case in Mrškić, where the attack had been solely against the persons who were hors de combat and did not form part of a wider attack against a civilian population. The Appeals Chamber held that the attack did not therefore amount to a crime against humanity.

Following the ICTR’s approach, on the other hand, would mean that persons hors de combat are included within the notion of “civilian population” and constitute victims of the crime even if the attack is only against them.  Thus, the persons hors de combat in the Mrškić case would have been eligible victims of the crime.

If one weighs up the two different approaches, the ICTY’s presents itself as being the most logical and thoroughly considered. Nevertheless, it leaves a certain amount of dissatisfaction, and it makes one wonder whether there is a need for a “civilian population” element within the definition of crimes against humanity at all.

As it stands at the moment, following the ICTY approach at least, the civilian population requirement means that attacks that are purely against persons hors de combat cannot amount to crimes against humanity. Certainly, such acts could be prosecuted as war crimes, as indeed happened in the Mrškić case, but this fails to adequately reflect the gravity of the offence, and ignores the symbolic nature that a charge of crimes against humanity has.

The reference to “civilian population” does help to emphasise the collective nature of the crime, but this is arguably adequately reflected in the “widespread or systematic attack” element.  Future definitions of the crime could omit reference to a “civilian” population in the chapeau requirement, replacing it with “population.” Naturally, any court interpreting the chapeau requirement would have to bear IHL in mind and ensure that legitimate attacks against military personnel were not erroneously found to be crimes against humanity.

The “civilian population” requirement should no longer be considered a necessary element to find an act is a crime against humanity. Discarding the civilian population” requirement would mean that attacks that are purely against persons hors de combat can be prosecuted as crimes against humanity and can receive the recognition they deserve.

The NY Times on Bitcoins and China

by Chris Borgen

William Gibson, repurposing a Gertrude Stein quip, said about cyberspace “there’s no there, there” capturing the ethos of the internet as a place beyond the physical world of borders and jurisdiction.  Bitcoin melded cryptography and networked processing to attempt to make a currency that was not based in or controlled by any state.

But the internet is based on servers and fiber-optic cable and telecom switching stations that are firmly rooted in the physical world.  The cloud is made out of metal and plastic and glass. And as for Bitcoin, there increasingly is a there, there. And “there” is China. (For a quick background on Bitcoin, see this video, which explains how Bitcoin builds a payment system that replaces trust and personal allegiance with “mathematical confidence” or  this article.)

The New York Times reports how Chinese companies have come to dominate the production of Bitcoins:

In its early conception, Bitcoin was to exist beyond the control of any single government or country. It would be based everywhere and nowhere.

Yet despite the talk of a borderless currency, a handful of Chinese companies have effectively assumed majority control of the Bitcoin network. They have done so through canny investments and vast farms of computer servers dispersed around the country. The American delegation flew to Beijing because that was where much of the Bitcoin power was concentrated…

…But China’s clout is raising worries about Bitcoin’s independence and decentralization, which was supposed to give the technology freedom from the sort of government crackdowns and interventions that are commonplace in the Chinese financial world.

“The concentration in a single jurisdiction does not bode well,” said Emin Gun Sirer, a professor at Cornell and a Bitcoin researcher. “We need to pay attention to these things if we want decentralization to be a meaningful thing.”

What follows is a story considering the possible factors that contributed to Bitcoin’s popularity in China (including attempts to avoid government financial regulators and the popularity of online gambling) which, in turn, incentivized large investments in Bitcoin businesses, leading to the situation where “over 70 percent of the transactions on the Bitcoin network were going through just four Chinese companies…”

And, through it all, there is the question as to whether these and other Chinese companies even want to exercise leadership over Bitcoin at all. There is an interesting question of the psychology of power. The frame of the NY Times story is a meeting that took place in China between US and Chinese corporate leaders. The Americans flew to China because, as the Times put it, “that was where much of the Bitcoin power was concentrated.” They tried to persuade Chinese leadership to make certain changes to Bitcoin but were unable to do so. They also expressed frustration at the reluctance of the Chinese companies to exercise leadership in the industry. But then consider this description by one of the Chinese CEO of the same meeting:

“It was almost like imperialistic Westerners coming to China and telling us what to do… There has been a history on this. The Chinese people have long memories.”

Same room; completely different views of the dynamics of the meeting.

So, before we deploy too much post-modern, post-Westphalian, post-everything analysis to cryptocurrencies like Bitcoin or to the internet more generally, perhaps we need to  give jurisdiction, territory, memory, and psychology a second look. There is a there, there.

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the University of California, Davis, School of Law and Co-Reporter for the Restatement (Fourth) of Foreign Relations Law: Jurisdiction. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

In RJR Nabisco, Inc. v. European Community, the Supreme Court applied the presumption against extraterritoriality to determine the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO makes it illegal to use a pattern of racketeering activity in particular ways relating to enterprises. Racketeering activity consists of certain state and federal offenses generally known as predicates—money laundering, for example. RICO also creates a civil cause of action for treble damages for “[a]ny person injured in his business or property” by a RICO violation. In RJR, the Court unanimously held that two of RICO’s substantive prohibitions apply extraterritorially to the same extent as their predicates. For example, since the federal money laundering statute, applies to offenses “outside the United States” if the defendant is a U.S. person, RICO also prohibits acquiring an interest in an enterprise or conducting its business through a pattern of money laundering outside the United States if the defendant is a U.S. person. But RJR also held, by a vote of 4-3, that RICO’s civil cause of action requires injury to business or property in the United States. The Court thus preserved RICO as a law enforcement tool for the U.S. Government in a wide range of cases, including terrorism cases, while limiting private damages actions that might have caused friction with foreign nations.

In the process of describing its framework for applying the presumption against extraterritoriality, however, the Court said something that it almost certainly did not mean and that is likely to cause confusion among the lower courts unless nipped in the bud. Writing for a unanimous court, Justice Alito said that a court must ask whether the statute gives a clear indication that it applies extraterritorially “regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction.” I have previously argued that the presumption against extraterritoriality does not apply to jurisdictional statutes, and in this post I explain why that is still true after RJR.

Although Article III of the U.S. Constitution sets the outer limits of subject matter jurisdiction for federal courts, Congress must confer jurisdiction upon the lower federal courts by statute. The U.S. Code contains a number of general subject matter jurisdiction statutes that apply in large numbers of cases. For criminal cases, 18 U.S.C. § 3231 gives district courts jurisdiction “of all offenses against the laws of the United States.” On the civil side, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States,” while the diversity statute, 28 U.S.C. § 1332, gives district courts jurisdiction “of all civil actions where the matter in controversy exceeds the sum or value of $75,000” between citizens of different states or between citizens and aliens (subject to a few exceptions). Some federal statutes have more specific grants of subject matter jurisdiction, like § 27 of the Securities Exchange Act, which gives the district courts jurisdiction over both civil and criminal actions “to enforce any liability or duty” created by the Act or its rules and regulations. None of these statutes contains the “clear, affirmative indication” of extraterritoriality that RJR says is necessary to rebut the presumption against extraterritoriality. Thus, if the presumption really applies to statutes that confer jurisdiction, those statutes might be interpreted not to apply extraterritorially. This might mean that federal courts would lack subject matter jurisdiction over criminal offenses committed abroad even if the substantive offense (like money laundering or RICO violations based on money laundering) clearly applies extraterritorially. It might similarly mean that civil suits arising abroad might have to be dismissed for lack of subject matter jurisdiction even if they are based on federal statutes that clearly apply extraterritoriality or are brought between diverse parties. Any sensible court would hesitate to reach such results. But how do we know that RJR does not command them.

First, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR applied the presumption to RICO’s substantive provisions and not to the subject matter statute on which the suit was based. RICO lacks a general subject matter provision of its own, so jurisdiction in the civil suit brought by the European Community had to have been based on § 1331, the general federal question statute. The European Community lost its claim because the Supreme Court held that RICO’s civil cause of action required injury to business or property in the United States, but it lost on the merits. The Supreme Court assumed (correctly) that the district court had subject matter jurisdiction under § 1331 to hear the claim in the first place.

Second, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR held that two of RICO’s criminal provisions do apply extraterritorially to the same extent as the predicates on which they are based. This preserves the ability of the U.S. government, in the example that the Court itself gave, to use RICO to prosecute “a pattern of killings of Americans abroad in violation of § 2332(a)—a predicate that all agree applies extraterritorially.” Yet the Court’s holding would be for naught if 18 U.S.C. § 3231, the general subject matter provision for violations of federal criminal law, were limited to the United States.

Third, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR specifically discussed the possibility that the European Community might bring suit for violations of their own laws and “invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts.” This would be impossible if 28 U.S.C. § 1332, the federal diversity statute, were limited to cases arising in the United States.

Fourth, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because Morrison v. National Australia Bank, the decision that RJR elaborates and applies, similarly applied the presumption against extraterritoriality to a substantive provision of the Securities Exchange Act (§ 10(b)) and not to its jurisdictional provision (§ 27). Indeed, the Morrison Court went out of its way to say that “[t]he District Court had jurisdiction under [§ 27] to adjudicate the § 10(b) question.”

So if RJR could not have meant that the presumption against extraterritorially applies to statutes granting subject matter jurisdiction, what did the Court mean when it said the presumption applies “regardless of whether the statute in question . . . merely confers jurisdiction”? The RJR Court was attempting to describe what it had done with the presumption in Kiobel v. Royal Dutch Petroleum Co., a case involving the Alien Tort Statute (ATS). In Kiobel, the Court held “that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Kiobel, however, did not apply the presumption against extraterritoriality to the ATS itself—a statute the Court characterized as “strictly jurisdictional”—but rather to the implied federal-common-law cause of action under the ATS. On page 9 of the slip opinion, RJR accurately describes Kiobel as a case where “we concluded that principles supporting the presumption should ‘similarly constrain courts considering causes of action that may be brought under the ATS.’” And again on page 19, RJR correctly characterizes Kiobel as holding “that the presumption ‘constrain[s] courts considering causes of action’ under the ATS.” Understanding Kiobel to have applied the presumption against extraterritoriality to the implied cause of action and not to the ATS itself also makes sense of Kiobel’s statement that the presumption “is typically applied to discern whether an Act of Congress regulating conduct applies abroad,” for causes of action regulate conduct in a way that purely jurisdictional statutes do not.

In short, RJR’s statement that the presumption against extraterritoriality applies to statutes that “merely confer[] jurisdiction” must be read in context as describing the presumption’s application to implied causes of action under statutes like the ATS and not to subject matter jurisdiction statutes themselves. Any other reading would be contrary to what the Supreme Court held with respect to subject matter jurisdiction in Morrison and, indeed, to what the Supreme Court did with respect to subject matter jurisdiction in RJR. It would also be contrary to common sense, for it would constrain the jurisdiction of the federal courts over civil cases and criminal prosecutions based on substantive statutes that clearly apply abroad. One can only hope that lower courts do not waste too much time and effort trying to figure this out.