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International Law in U.S. Courts

Argentina Defaults (Again) and Issues a Frivolous Threat to Sue the U.S. For Causing the Default

by Julian Ku

According to Standard & Poor’s, Argentina has defaulted on at least some of its sovereign bonds, after last minute negotiations failed to reach a deal with its holdout bondholders, who had won a series of victories in U.S. court.  Although there are reports that some U.S. banks representing the rest of the bondholders are exploring ways to buy out the holdout bondholders on Argentina’s behalf (no doubt by having Argentina borrow even more money to do so), Argentina seems ready to go to the mattresses, so to speak. Or, at least in this case, to take the U.S. to the ICJ:

[Argentina Cabinet Chief] Capitanich said Argentina would denounce the “vulture funds” before the International Court of Justice at The Hague and the United Nations General Assembly.

Argentina has been going all out to try to convince other countries and the international community to support its cause including full page ads in major US newspapers, a diplomatic offensive at the recent Organization of American States meeting, and finally this threat to sue the U.S. government for failing to reign in its courts in the holdout creditor litigation against Argentina.

As far as the ICJ goes, this is a pretty idle threat. The ICJ would not have compulsory jurisdiction over the U.S. in this matter, so at best the ICJ would be asked to issue an advisory opinion.  But even in that case, what exactly is Argentina’s claim? That the U.S. has violated international law by blocking some of Argentina’s debt payments?  What international law obligation is being violated? Until someone explains what the legal theory is, I will classify this part of Argentina’s campaign to justify its latest default as just more hot air.

2013 U.S. Digest Now Available

by Duncan Hollis

Just a quick note for those of you who, like me, have a fondness for the Digest of U.S. Practice in International Law; the 2013 volume is now available on the State Department’s website (see here).   I find the Digest to be one of the great resources on U.S. views of international law; it regularly includes letters, reports, and other documents that are hard (if not impossible) to locate elsewhere. In doing so, it also offers a contemporary glimpse of where the Executive Branch stands on manifold questions of international law and practice. Here’s how the accompanying press release describes this year’s Digest and the series as a whole:

The Department of State is pleased to announce the release of the 2013 Digest of United States Practice in International Law, covering developments during calendar year 2013. The Digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2013 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past Digests covering 1989 through 2012 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2012. A cumulative index covering 1989-2006 was published in 2007, and an updated edition of that index, covering 1989-2008, was published in 2010.

The CIA and the Public Authority Justification: A Response to Orr

by Kevin Jon Heller

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fir, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.) Lex ferenda, not lex lata.

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US and be entitled to participate in hostilities — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fair, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.)

It is important to recognize, though, that Orr’s argument concerning Art. 43 of AP I and Art. 4 of the GC III is ultimately beside the point. Orr may think that, as a matter of international law, the CIA is part of the US’s armed forces and thus has the right to participate in hostilities. But the US government doesn’t. Footnote 44 in the drone memo makes that exquisitely clear…

Let’s Call Killing al-Awlaki What It Still Is — Murder

by Kevin Jon Heller

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32)…

Analysing the US Invocation of Self-Defence Re: Abu Khattallah

by Kevin Jon Heller

Most of the discussion about Abu Khattallah’s capture in Libya has focused on the operation’s basis — or lack thereof — in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah’s capture can potentially be justified on two different grounds: (1) Libya consented to the capture operation; or (2) the capture operation represented a legitimate act of self-defence under the UN Charter. The first justification does not appear open to the US; the available evidence indicates that the operation was conducted without Libya’s consent. So it’s not surprising that the US has claimed — in a letter submitted to the UN by Samantha Power on June 17 — that Article 51 permitted the operation:

The investigation also determined that [Abu Khattallah] continued to plan further armed attacks against U.S. persons. The measures we have taken to capture Abu Khattallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States’ inherent right of self-defense. We are therefore reporting these measures to the Security Council in accordance with Article 51 of the United Nations Charter.

Power’s letter obscures far more than it reveals. In fact, the US’s invocation of self-defence raises four very difficult questions:

  • Can a non-state actor launch an “armed attack” that triggers the right of self-defence?
  • If so, must that armed attack be attributable in some fashion to the state whose territory is the object of “self-defensive” force?
  • Do all uses of armed force qualify as an “armed attack” for purposes of Article 51?
  • Does the right of self-defence permit force to be used anticipatorily?

In this post, I want to put aside the first two questions. I have no doubt that a non-state actor can launch an armed attack within the meaning of Article 51, and my views on the “unwilling or unable” test are well-known. It’s worth spending some time, though, on the third and fourth questions.

The third question is interesting because it’s not clear that all uses of force qualify as “armed attacks” for purposes of Article 51. The UN Charter itself distinguishes between the “use of force” (Art. 2(4)) and “armed attack” (Art. 51), and the ICJ has suggested in both Nicaragua and Oil Platforms that at least some uses of force may be so de minimis that they do not entitle the victim state to use force in self-defence. (As opposed to taking other countermeasures.) On the other hand, customary international law seems to indicate that the threshold of force for an armed attack is extremely low. Here is Tom Ruys’ conclusion in his magisterial book “Armed Attack” and Article 51 of the UN Charter (p. 155):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

In sum, the following general conclusions can be made: (1) the travaux of the Definition of Aggression suggest that a minimal gravity is indeed required and seem to rule out the aforementioned Option 3; (2) ‘concrete’ customary evidence nonetheless makes clear that the gravity threshold should not be set too high and that even small-scale attacks involving the use of (possibly) lethal force may trigger Article 51.

If Ruys is right — and he has examined state practice and opinio juris far more carefully than any other scholar writing on the use of force — the attack on the US embassy in Benghazi almost certainly was, in fact, an “armed attack” for purposes of Art. 51.

What, then, about the fourth question? Here is where the US claim of self-defence regarding the Abu Khattallah operation becomes problematic. The US clearly cannot use the original Benghazi armed attack to justify the operation — although a state’s response to an armed attack may not have to be immediate, the prohibition on armed force in Art. 2(4) of the UN Charter would be meaningless if a state could “pocket” an armed attack and respond to it with armed force much later — nearly two years later, in the case of Benghazi. Indeed, Power seems to acknowledge as much when she emphasises that Abu Khattallah was planning further armed attacks. Does that planning mean the capture operation was a legitimate act of self-defence by the US?

Answering that question, of course, requires us to address the temporal limits of self-defence under Art. 51. Three basic positions on that issue are possible:

  • Self-defence permits the use of force only in response to an armed attack; force cannot be used pre-emptively or preventively (“responsive self-defence”)
  • Self-defence permits the use of force to pre-empt an imminent armed attack but not to prevent a temporally more remote armed attack (“pre-emptive self-defence”)
  • Self-defence permits the use of force to prevent even a temporally remote armed attack (“preventive self-defence”)

Unfortunately, because of the US’s typical lack of transparency concerning its use of force, Power’s letter says nothing about the time-frame of the armed attacks Abu Khattallah was supposedly planning. (Nor does it provide any evidence of that planning, but that’s another question.) The time-frame doesn’t matter, however, if responsive self-defence is the correct position – as noted, the capture operation cannot be justified as a response to the original Benghazi attack.

Most readers — at least those in the West — will no doubt be inclined to reject responsive self-defence as too narrow, even though it is the only position consistent with the text of Article 51, which permits self-defence “if an armed attack occurs.” Surely customary international law does not require a state to wait until an armed attack has already taken place to defend itself, no matter what the UN Charter says.

This issue is much more difficult issue than it may appear. Those interested should read the relevant section of Ruys’ book; I’ll just quote his bottom line (pp. 341-42):

In light of the available evidence, it can be concluded that there has indeed been a shift in States’ opinio iuris insofar as support for pre-emptive self-defence, fairly rare and muted prior to 2001, has become more widespread and explicit in recent years. At the same time, it seems a bridge too far to claim that there exists today widespread acceptance of the legality of self-defence against so-called “imminent” threats. Such assertion tends to forego the opposition of a considerable group of mainly Latin-American, north-African and Asian States. In the present author’s view, it would therefore be more appropriate to argue that the crack in opinio iuris among States has widened, without, however, identifying one approach or the other as the majority view. The implication is that, taking account of the Charter “baseline” and the absence of a concrete precedent in State practice which convincingly demonstrates the international community’s support for some form of anticipatory self-defence, it is impossible to identify de lege lata a general right of pre- emptive – and a fortiori preventive – self-defence.

Ruys’ reference to the UN Charter’s “baseline” is important, because Art. 51′s adoption of responsive self-defence indicates that states who support a more relaxed concept of self-defence, such as the US, have the obligation to find sufficient state practice and opinio juris to establish a broader rule. And such state practice and opinio juris is simply lacking — unless, as is too often the case with custom, we simply ignore the views of the Global South.

Even if responsive self-defence is too narrow, however, that does not mean the Abu Khattallah operation was a legitimate act of self-defence. If the US had evidence that Abu Khattallah was about to launch another armed attack, it is reasonable to assume Powers would have said so in her letter. That she failed to do so thus seems to indicate — though is clearly not dispositive — that the US did not believe another armed attack was imminent when it launched the capture operation. Power’s letter may well indicate, therefore, that the US is promoting the broadest understanding of self-defence possible — preventive self-defence instead of pre-emptive self-defence. If so, as Ruys notes (pp. 336-38), the US is on shaky ground indeed:

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

Again, in the absence of additional information, we cannot categorically reject the US’s insistence that the Abu Khattallah operation was a legitimate act of self-defence. But there is considerable reason to be skeptical. Indeed, the US’s lack of transparency concerning its understanding of Art. 51 of the UN Charter may well indicate it has adopted a position that even its closest allies formally disavow.

Andreas Lowenfeld: A Life Illuminating the Path

by Chris Borgen

lowenfeld

photo: NYU Law School

I am sad to mark the passing of one of the giants of international law, and one of my teachers, Professor Andreas Lowenfeld of NYU Law School. His career was exemplary; Andy operated at the highest levels of practice and academia. In an era when so many scholars and practitioners become hyper-focused on one or two specific areas, Andy not only had incredible depth and precision, but also brought the panoramic view and sweeping vision of an earlier generation of international lawyers. Though perhaps best known for his work in international litigation and arbitration, that description does not capture his career. Consider this excerpt from his New York Times obituary:

Professor Lowenfeld was a towering figure in the fields of public international law, trade and economic law, private international law, and international arbitration. He served on the NYU Law faculty for 47 years, influencing generations of lawyers, and continued to teach International Litigation and Arbitration and International Monetary System among other courses until as recently as Spring 2013. Professor Lowenfeld wrote more than 18 books and authoritative legal treatises and over 115 law review articles and argued before the United States Supreme Court, the Iran-U.S. Claims Tribunal, and the International Court of Justice in the Hague. He made landmark contributions to legal scholarship and practice on issues as varied as extraterritorial jurisdiction, international arbitration, international monetary transactions, trans-border child abduction, international monetary law, investor-state dispute settlement, economic sanctions, enforcement of foreign judgments, aviation law, sovereign immunity, international trade, and civil procedure. His most recent work was a comprehensive treatise on International Economic Law. An avid supporter of the interaction between academics and practitioners, he was frequently an arbitrator in international disputes, public and private. He served as a Reporter on two major projects of the American Law Institute and was a lecturer twice at the Hague Academy, first in 1979 and later in 1994. In the 1994 lectures, he proposed criteria for a global community free of strict legal rules and based instead upon what he termed “reasonableness, not certainty.” One of the hallmarks of his work was his commitment to eliminating what he viewed as an unnecessary divide between public and private international law. In 2007, he was awarded the Manley O. Hudson Medal of the American Society of International Law for his lifelong achievements in the field of international law.

(Read the rest of the obituary here. See also this tribute from 2009.)

And that doesn’t even cover his years in the State Department’s Office of the Legal Adviser during the Kennedy and Johnson Administrations where:

[h]e provided strategic counsel to those presidents during the Cuban Missile Crisis; the Nuclear Test Ban Treaty; the so-called “Chicken War,” in which the U.S. and the European Common Market sparred over poultry tariffs; and the U.S. invasion of the Dominican Republic.

Andy Lowenfeld’s scholarship and his career argued against the “unnecessary divide of public and private international law,” setting the stage (along with Philip Jessup) for the current focus on  complex regulation, transnational law, and dispute resolution. He taught us how public and private international law interact in an interconnected system and, by his example, he showed us how diverse aspects of the international legal profession could be integrated into a coherent career.

I have the great fortune of having been one of Andy’s students. My second year at NYU, I took the general course in international law, which was then team-taught by Andy Lowenfeld and Theodor Meron. Learning international law from “Ted and Andy” as we affectionately referred to them (behind their backs, that is) was everything you would expect from such lawyers: a lively dialogue interweaving law, history, politics, and economics.  I was also Andy’ s student in what was perhaps his signature course, his International Litigation and Arbitration seminar. Here he paired each JD student with a foreign LL.M. to brief and argue an issue in a case, before a bench made up of 3 of our classmates. It was a wonderful bit of experiential learning that has stayed with me and taught me as much about how to be a good teacher as to how to be a good litigator.

In the years since I graduated from law school, Andy Lowenfeld remained generous with his time and wise counsel. I may have become a professor, but he never stopped being my teacher.

But perhaps my favorite memory of Andy was from when I was the Director of Research and Outreach at the ASIL. Andy was a panelist on an international arbitration panel we organized for a Fifth Circuit judicial conference in San Antonio. After the panel, he told me we should go visit the Alamo. So, one hot summer afternoon we toured the Alamo together; I will always remember his enthusiasm in examining the exhibits, especially anything having to do with the deeds, land grants, and international agreements concerning the disposition of territory. He interspersed our conversation about the history of the U.S.-Mexico border with reminiscences from the State Department, career advice, some thoughts on scholarly projects I was considering, and anecdotes from his incredible career. At one point there was a boy, who was maybe seven years old, standing near us and holding a large faux-parchment facsimile of a document, probably recently acquired from the gift shop.  Andy started questioning the boy about the topic of the text on his souvenir, whether or not the reproduction was accurate, and so on. (The boy stared, then shrugged; Andy walked on.) It made me smile watching Andy attempting a Socratic dialogue with a first grader. Even while walking around the Alamo, Andy Lowenfeld was first and foremost an educator and a mentor.

I want to close with a few of Andy’s own words, taken from his magisterial International Economic Law (Oxford, 2d. ed 2008). In the preface, he argues against the skeptics and describes (with perhaps a wink to Louis Henkin) a realistic appreciation of international economic law:

This book is not founded on a claim that all states and all economic enterprises behave at all times according to all the rules, nor that the rules are clear and universally agreed at all levels. But one would not say that there is no criminal law because crimes continue to be committed and are not always punished, or that there is no family law because marriages break up, husbands beat their wives, and children are abused. In fact international conventions, collaborative arrangements, roughly uniform national laws, and customary laws apply to much of the international economy; while there is no global sheriff, and the system of remedies does not reach as far as the system of rules, there are a surprising number of consequences of deviant behavior, and a growing number of fora for resolving disputes among states and between states and private participants in the international economy.

Almost 1,000 pages later, the closing passage puts more than his treatise into perspective: :

It is evident that this book has made more use of narrative and illustration, and less of flat normative statements than might have been expected from a treatise. This approach reflects my belief that the answers cannot be understood without the question, and that abstract statements cannot be comprehended without awareness of the underlying facts and continuing controversies.

This is not to deny the normative character of international economic law. But international economic law—like all law but perhaps more so—is a process. Any attempt to define the law as of a given moment cannot help but distort. The process continues, and the hope is that this book has illuminated the path.

[Emphasis added.]

It has. And so has Andreas Lowenfeld’s life.

 

 

The Supreme Court Misses an Opportunity to Place Constitutional Limits on the Treaty Power in Bond v. United States

by Julian Ku

My co-author John Yoo and I have a piece up on Forbes today arguing that the U.S. Supreme Court missed a grand opportunity in Bond v. U.S. to place constitutional limits on the treaty power.  We take aim at Missouri v. Holland head-on.  We criticize the interpretation of the Chemical Weapons Convention Implementation Act adopted by the opinion for the Court of Chief Justice Roberts and argue this decision has echoes of his opinion in Sebelius on the Affordable Care Act. Here is an excerpt:

Holmes was wrong in 1920, however, and the Obama administration is wrong today. The Founders’ original understanding supports a federalism limitation on the treaty power, and this is especially compelling in light of today’s far-reaching and ambitious modern treaties. Unfortunately, the Court’s opinion refused to directly reject Missouri’s mistaken approach.

 

 

Guest Post: Argentina and the Foreign Sovereign Immunities Act, Round 2

by Michael Ramsey

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project supporting the bondholders, for which he was compensated.]

In a new claim in the long-running battle between Argentina and holders of its defaulted bonds (see here), the question is whether a U.S. court can order Argentina not to pay some bondholders unless it also pays others.  Again, Argentina says the Foreign Sovereign Immunities Act (FSIA) protects it, and again it tries to make the Act’s text say something it does not.

To recap, a decade ago Argentina stopped making payments on some of its bonds, and the private bondholders (including NML Capital) sued Argentina in federal court in New York (as the FSIA and the contracts governing the bonds allowed them to do).  Argentina refused to pay the resulting judgments against it, so the bondholders are seeking enforcement.  One approach is to seek discovery of Argentina’s worldwide assets; whether a U.S. court can make such an order is the subject of the first Republic of Argentina v. NML Capital case, argued to the U.S. Supreme Court in April.

The bondholders’ second strategy involves a clause in the bond contracts known as the equal treatment or pari passu clause.  To oversimplify, after Argentina initially failed to make payments on the bonds, it persuaded many of the bondholders to accept new bonds, with substantially reduced payments (but some hope of salvaging part of their investment).  NML Capital (and a few others) refused to take the deal, and sued for full payment of the original bonds instead.  Argentina now wants to pay the new bondholders (that is, those who agreed to the refinancing) while refusing to pay the holders of the old bonds.

But that sort of discrimination among bondholders, the U.S. court held, violates the “equal treatment” clause in the original bond contracts: the clause says that the old bonds have to be treated equally to any new bonds, and clearly they aren’t.    Argentina had already said it wouldn’t obey a court order to pay on the old bonds.  So the holders of the old bonds asked the court for an injunction barring payment on the new bonds unless the old bonds receive equal treatment.  The district court granted the order and the Second Circuit affirmed.

Now Argentina is bringing this claim to the U.S. Supreme Court on petition for certiorari (scheduled to be considered at the June 12 conference).  As with the case involving the discovery order, its supposed shield is the FSIA.  But again, Argentina is trying to make the FSIA do something it does not.  Argentina concedes that the FSIA allows the bondholders’ suit: Argentina waived its sovereign immunity in the bond contracts, and the FSIA allows suit where immunity is waived (Section 1605(a)(1)).  The FSIA further says (Section 1606) that non-immune sovereigns are (subject to specific exceptions) liable to the same extent as private litigants.

The only plausible exception (and the only one Argentina argues) (more…)

Guest Post: Silences in the Bond Case

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at Rutgers School of Law - Camden]

Thank you to Opinio Juris for letting me guest blog on Bond.

The most notable thing about the Bond decision is a resounding silence.  As a matter of law, it should have been easy to find for the government.  The statutory text reads plainly in the government’s favor, and constitutional text, practice, and precedent easily support the conclusion that the federal government can override federalism interests in implementing constitutionally valid treaties.  Yet not a single justice sided with the United States.  This silence is particularly perplexing given that three justices at oral argument seemed sympathetic to the government.

That is the major silence, but there are silences of reasoning in the opinions as well.  In what follows, I focus on two silences.  The first is the lack of consideration in the majority opinion of how treaty-implementing statutes might differ as a matter of statutory construction from ordinary statutes.  The second is the startling absence of constitutional history from the Framing onward in Justice Scalia’s concurrence.

The Majority Opinion

As Peter Spiro has noted, the majority ducks the constitutional question of whether the Treaty Power plus the Necessary and Proper Clause authorizes Congress to criminalize domestic poisonings like that of Ms. Bond.  Following a hint dropped by Justice Kennedy at oral argument, the Court does this by holding that there needs to be a “clear statement that Congress meant the statute to reach local criminal conduct.”  It isn’t enough for Congress to use broad language that seems to cover the act at issue; instead, Congress apparently has to do something more to signal specific intent to reach “local” conduct.  Congress didn’t do so here, so Ms. Bond wins.

I won’t deconstruct the merits of this approach, although I think Justice Scalia does a good job in his concurrence of showing why it is problematic.  But I do want to mention that it leads to an interesting divergence between the interpretation of a treaty and the interpretation of implementing legislation.  The Court spent very little time on the interpretation of the Chemical Weapons Convention itself, merely noting its “doubts” that the Convention was meant to reach ordinary domestic poisonings.  If it had wanted to, the Court could doubtless have done more to interpret the Convention this way (e.g., by explicit discussion of “object and purpose” or perhaps by drawing on rule-of-lenity-related principles in international and comparative law).  But instead the Court accepted a wedge between the interpretation of a treaty and of its implementing legislation.  Federalism principles do not matter to treaty interpretation (given that these principles are country-specific) but do matter to the interpretation of implementing legislation.  If this canon of construction is about Congressional intent, then it strikes me as odd, because there is a countervailing consideration not mentioned by the Court. This is that when Congress uses language that closely tracks a treaty’s language in implementing the treaty, Congress presumably does so because it wants convergence rather than divergence with the treaty.

Justice Scalia’s Concurrence

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Guest Post: Foreign Official Immunity and the Chinese Cyberespionage Indictments

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]

As Duncan has pointed out, if a U.S. court sought to exercise jurisdiction over the five Chinese officials indicted by a Pennsylvania grand jury for computer fraud, identity theft, economic espionage, and trade secret theft, the officials would likely claim entitlement to foreign official immunity because they acted on behalf of China. While state action is not a required element of any of the alleged crimes, it permeates the facts of this case, which Attorney General Eric Holder emphasized “represents the first ever charges against a state actor for this type of hacking.”

The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over foreign states and their agencies or instrumentalities, see 28 U.S.C. § 1604, although it remains unsettled whether the FSIA applies to criminal proceedings against entities. The FSIA does not apply to individual foreign officials, see Samantar v. Yousuf, except for the section creating a limited private right of action for state sponsored terrorism, 28 U.S.C. § 1605A(c). Rather, the immunity of current and former foreign officials is governed by applicable treaties (such as the Vienna Convention on Diplomatic Relations, implemented by the Diplomatic Relations Act) and, in the absence of a statute, the common law.

As Duncan indicates and Jack Goldsmith also notes, the question of foreign official immunity will only arise as a practical matter if the Chinese defendants come within the personal jurisdiction of a U.S. court. The officials could not claim status-based immunity unless they were heads of state, diplomats, or members of special diplomatic missions at the time of the legal proceedings. Instead, they would claim conduct-based immunity on the grounds that their acts were all performed on behalf of the Chinese state.

The decision to bring charges suggests that the USDOJ does not view the defendants as lawfully entitled to assert immunity for their alleged conduct. This could be for one of several reasons: (more…)

Guest Post: Al Nashiri and the Existence of an Armed Conflict

by David Frakt

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense.]

I wanted to weigh in on the debate between my esteemed colleagues Steve Vladeck, Peter Margulies and Kevin Jon Heller at Just Security, Lawfare and Opinio Juris, on the issue of the existence of an armed conflict at the time of Mr. Al Nashiri’s alleged offenses and the critical questions of who should decide this issue, and when.  Peter argues that this is a question of fact best decided by the panel of military officers who will serve as jurors in the military commissions.  Al Nashiri’s defense team asserts that this is a question of law and they are asking the D.C. District Court to rule that the attack on the USS Cole in Yemen in 2000 was not part of an armed conflict.  As there was no armed conflict ongoing, so goes their argument, the law of armed conflict does not apply and his actions could not be considered a violation of the law of war; further, because military commissions are courts of limited jurisdiction with power only to try and punish violations of the law of war, the federal court should enjoin any further proceedings at Guantanamo.  It should be noted that Al Nashiri has already raised this matter in a pretrial motion in the military commission, seeking to have the charges dismissed by the military judge on the grounds that the commission lacks jurisdiction over his alleged offenses because they did not take place in the context of an armed conflict.  Judge Pohl declined to dismiss the charges, characterizing the issue as primarily a question of fact for the jury (Ruling AE104F).  Judge Pohl also acknowledged that the question was a “jurisdictional question subject to purely legal determination” but claimed that he must make this determination using a “wide deference” standard.”  Applying this standard, he found that the Congressional authorization to try offenses that occurred prior to 9/11, coupled with the fact that charges had been filed by the prosecutor, referred to trial by the Convening Authority, and not withdrawn by the Secretary of Defense or the President was sufficient to establish the existence of an armed conflict at the time of the offenses for jurisdictional purposes.  This determination is essentially tantamount to a finding that he considered there to be sufficient evidence to submit the question to a jury.  However, he left open the possibility of reconsideration at a later time, presumably in the form of a motion for a directed verdict at the close of the prosecution’s case.

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Pari Passu Clauses: An Alternative Interpretation

by Hayk Kupelyants

[Hayk Kupelyants is a PhD candidate at the University of Cambridge]

Pari passu clauses remain perhaps the most nebulous clauses found in sovereign bonds. Among varying wordings, the clause in its simplest form provides that the bonds will rank pari passu (i.e., on equal footing). The clause puzzled many academics and has given rise to legal battles before national courts, for it is undeniable that the state is not subject to a bankruptcy regime where the pari passu treatment is naturally well-fitted.

Two interpretations have been offered to demystify the function of the pari passu in sovereign debt bonds. The first and the most controversial of these constructions argues that the clause requires equal payment to all, even holdout, bondholders. Recently, the Second Circuit Court of Appeal in NML v Argentina has endorsed this interpretation of the pari passu clause. Under this construction of the clause, a sovereign debtor is obliged to pay to all bondholders, even those who held out from the sovereign debt restructuring. The pari passu clause can thus become a powerful tool in the hands of holdout creditors which seek to reclaim the full value of the bonds they hold by claiming that the state is in breach of the pari passu clause by the mere fact of refusing to pay up.

Many academics have argued that this interpretation of the pari passu clause is too far-fetched (at least for the pari passu clauses that do not expressly refer to ‘payment’ in their wording). On its face, pari passu clauses simply require equal (legal) ranking, whereas the payment under bonds is a question of factual performance of the contract and not a question of priorities or ranking.

The second and the conventional interpretation of the pari passu clause argues that the clause merely ensures equal legal ranking and no factual equality in terms of payment. By this, the sovereign debtor would be under no obligation to pay to all bondholders.

Two counter-arguments spring to mind. (more…)