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Law of the Sea

YLS Sale Symposium: Immigration Detention and Status Determinations in Guantánamo Bay, Cuba

by Azadeh Dastyari

[Azadeh Dastyari is a Lecturer in the Faculty of Law at Monash University and an Associate of the Castan Centre for Human Rights Law.]

US President Barack Obama has stated that Guantánamo Bay is “a symbol around the world for an America that flouts the rule of law”. He was referring to the imprisonment of non-citizens in the ‘war on terror’ in the US Naval base that has garnered unprecedented international attention and has been the subject of much scholarship. The same quotation is also applicable to the much less known detention of refugees in the US Naval base in Guantánamo Bay, Cuba.

Under its Migrant Interdiction Program, the US intercepts sea vessels outside US waters and returns home individuals who are not authorized to enter the US. A very small percentage (less than 0.6% between 1996 and 2013) of the individuals intercepted at sea are identified by the US Coast Guard as having a credible fear of persecution or torture, and are transferred to Guantánamo Bay for further processing. In Guantánamo Bay, they are interviewed by a US Asylum Officer to determine if they have a well-founded fear of persecution (are refugees) or are more likely than not to be tortured if repatriated.

There are significant shortcomings with status determinations in Guantánamo Bay that place the US at risk of violating its non-refoulement obligations under Article 33(1) of the Convention Relating to the Status of Refugees (Refugee Convention) and Article 3 of the Convention gainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The US does not provide individuals being interviewed access to legal counsel, the UNHCR or any other group or NGO. This may leave protection seekers unable to articulate their protection needs and thus fail to have their protected status recognized. The US also fails to provide any independent review of status determinations. Such a review would provide an additional safeguard against mistakes and assist in ensuring that no refugee or individual owed protection under Article 3 of the CAT is wrongly repatriated.

All individuals transferred to Guantánamo Bay under the US interdiction program are detained at the Migrant Operation Center. Detainees are separated into three categories: (i) individuals who are found not to have protection needs are labelled ‘non-protect migrants’ and are repatriated; (ii) asylum seekers whose status has not yet been determined are labelled ‘undetermined migrants’; and (iii) asylum seekers who have had their refugee status recognized by an Asylum Officer are labelled ‘protected migrants’ (as are individuals who are assessed as being more likely than not to be tortured if repatriated).

Individuals in the ‘protected migrants’ category remain in Guantánamo Bay until a third country can be found for their resettlement, which may take months or even years.  It is also worth noting the US government’s insistence on using the term ‘migrants’ when referring to people it has recognised as refugees in Guantánamo Bay. This stems in part from the US’ denial that its obligations under the Refugee Convention extend to its exercise of jurisdiction in Guantánamo Bay. The US views any protection it offers against refoulement to individuals at the Migrant Operation Center a gratuitous humanitarian act rather than what it truly is: the fulfilment of the US’ international legal obligations.

Immigration detention in Guantánamo Bay violates the US’ obligation to refrain from arbitrary detention under Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). In A v Australia, the Human Rights Committee considered the legality of Australia’s policy of mandatory immigration detention and stated that the factors necessitating detention must be ‘particular to the individual’ in order for it not to be characterized as arbitrary. In A v Australia Australia’s policy of mandatory immigration detention was found to be arbitrary because the reasons given for the detention (unlawful entry and fears of the detainee absconding if free) were not particular to the detainee in question. As with Australia’s policy of mandatory immigration detention, individuals transferred to Guantánamo Bay under the US interdiction program are subject to arbitrary detention because no assessment is made of the individual circumstances of each detainee and no alternatives to detention are considered.

Closely related to Article 9(1) of the ICCPR is Article 9(4) of the ICCPR. The Human Rights Committee has interpreted Article 9(4) to mean that detainees must have a right to appeal their detention in a court to determine the legality of the detention. Furthermore, a court reviewing detention must be empowered to order the release of the detainee if there is a violation of Article 9(1) of the ICCPR. The Committee has found that review of detention which is ‘limited to mere compliance of the detention with domestic law’ does not satisfy the requirements of Article 9(4) of the ICCPR.

The US Supreme Court has recently confirmed that non-citizens held in Guantánamo Bay must have access to the writ of habeas corpus. As such, immigration detainees should now have a right to appeal their detention in a US court to determine the legality of their detention. However, any review of detention in US courts is “limited to mere compliance of the detention with domestic law”  in violation of Article 9(4) of the ICCPR.

Despite diplomatic efforts, the US has little control over how long it may take to find a third country willing to resettle immigration detainees from Guantánamo Bay. As such, the most viable means of releasing detainees who cannot be repatriated (because they are owed protection from refoulement, are stateless or for some other reason) from arbitrary detention in Guantánamo Bay would be to transfer the detainees to the US mainland. However, despite access to habeas corpus, detainees are unlikely to be brought into the US mainland under any court challenge. The US Supreme Court has determined that it “is not within the province of any court, unless expressly authorized by [municipal] law, to review the determination of the political branch of the Government to exclude a given alien”. US courts have also construed restraints on the freedom of movement of non-citizens resulting from their denial of entry into the US not as unlawful detention, but as a permissible exercise of the executive’s plenary power to deny non-citizens entry. That is, the executive retains the right to decide if and when detainees in immigration detention in Guantánamo Bay can be released from their detention by being brought into the US. As such, the use of Guantánamo Bay as an element of the US’ interdiction program is likely to continue despite violations of the US’ international obligations. 

YLS Sale Symposium: The Politics of Interdiction and Haitian Advocacy

by Jocelyn McCalla

[Jocelyn McCalla was the Executive Director of the National Coalition for Haitian Rights from 1998 to 2006.]

For the purposes of this discussion I will restrict my remarks to the impact of Sale on Haitian immigration and advocacy; I will not be so bold as to extend them to the impact overall on all immigrants, refugees and asylum-seekers that the United States is dealing with. Secondly, I believe it is important to explore advocacy before Sale as well after Sale. One can’t comprehend what happened after 1993 without an examination of the 20 years of advocacy on behalf of Haitians that  preceded the Supreme Court decision, as well as the changing relationship between Haiti and the United States.

Haitian asylum-seekers began fleeing to the United States by sailboats in 1972. From  the very beginning, advocacy on behalf of Haitians in the United States has never been uniquely about rights to due process or access to the asylum system. It always had a dual edge: promoting rights on the domestic front were associated with the promotion of democratic rights in Haiti. Advocates had urged the United States to disassociate itself from the brutal Duvalier dictatorship. They held that it was that regime which caused Haitians to flee: end your support of the regime, side with democracy and refugee flow would dry up… They looked  to the Courts for relief and to the Court of public opinion for support.

The United States tried all sorts of forceful measures to stem Haitian refugee flow but couldn’t. Finally President Ronald Reagan issued the interdiction order authorizing interception at sea and forcible return. Additionally should the asylum-seekers find themselves close to US shores they needed to be within 3 nautical miles of the shore to access legal help. Interdiction worked: of the 23,000 Haitian refugees intercepted at sea, only six were deemed to have prima facie valid asylum claims. All others were returned.

Things came to a head in 1991 following the violent ouster of democratically-elected President Jean-Bertrand Aristide when a federal court judge in Miami triggered a scramble at the highest level of  the US government when it enjoined the US from returning refugees intercepted at sea. The high seas drama – interdiction, Guantanamo, injunction against interdiction — that followed Aristide’s ouster generated sizeable support for Haitian refugees and the Aristide administration.

Campaigning in 1992, Bill Clinton promised to overturn the interdiction policy. Clinton changed his mind shortly before being sworn in. He offered a quid pro quo: more energetic support for Aristide’s return and democracy in Haiti in exchange for keeping the status quo on interdiction, asylum screening and quarantining HIV positive Haitian asylum seekers at GTMO. (more…)

YLS Sale Symposium: Haitian Democracy, the Sale Decision and Haitian Refugees

by Ira Kurzban

[Ira Kurzban was counsel for the government of Haiti between 1991 until 2004 and was counsel of record in HRC v. Baker and over 10 other class action lawsuits involving Haitian refugees in the United States. Mr. Kurzban continues to serve  as personal counsel for Jean Bertrand Aristide, Haiti’s first democratically elected president.]

On September 30, 1991, the Haitian military, with the help of the Haitian elite, overthrew the democratically elected government of Jean Bertrand Aristide. President Aristide had won Haiti’s first free, fair and open election by 67% of the vote in a field of 17 candidates.

The violence of September 30, 1991 and its aftermath are well known. Estimates range from 1,000 to 3,000 military and paramilitary executions within the first 48 hours of the coup, many in front of the National Palace where supporters of Haitian democracy went to protest the overthrow of their President. Beyond the immediate executions were tens of thousands more over the next several years by DIA/CIA sponsored paramilitary organizations such as the Front for the Advancement and Progress of Haiti (FRAPH). Many of this is documented in trials such as the Raboteau trial where human rights violators were tried in a court of law and brought to justice for the first time in Haitian history.

A second coup, again with the funds and organization of the elite, but also the  support of the United States, French, and Canadian governments, occurred on February 29, 2004 during the second democratically-elected term of Jean Bertrand Aristide.  By the second coup, the Haitian army had been demobilized. One might call this coup, documented in detail in such works as Hallward’s Damming the Flood: Haiti, Aristide and the Politics of Containment  and Sprague, Paramilitarism and the Assault of Democracy in Haiti, as a slow-motion performance where a military wing went from town to town executing police and supporters of democracy while the elites simultaneously financially supported such executions while proclaimed their rights were being violated. The U.S., French and Canadian government contributed at a minimum to the finance and support of  gross disinformation campaigns, anti-democratic organizations, paramilitary groups and covert operations in the second coup.

The decision in Sale v. Haitian Centers Council, a travesty of international and domestic law, and basic human decency, had a significant effect on how Haitian refugees fleeing these two coups were treated. Pre-Sale the U.S. government’s actions were hesitant, unsure, chaotic and erratic. Post-Sale they were ruthless.

In October, 1991, almost  immediately after the coup, Haitians who supported democracy and supported President Aristide began fleeing Haiti in fear of their lives. By mid-October, Haitians were aboard vessels trying to get out of Haiti. By December there were more than 5,000 Haitians who had fled Haiti. At one point in the crisis there were more than 10,000 Haitians in the Guantanamo camps.

The initial response of the U.S post-September 30, 1991 was to decline to return Haitians to the imminent danger they faced. They were taken aboard Coast Guard cutters. The U.S. held them in the cutters and sought to obtain clearance for their trip to the U.S. or their return home.  The U.S. had signed a 1981 interdiction treaty with Haiti that required our country to at least provide  facial compliance with international law by granting “ asylum interviews” aboard Coast Guard cutters prior to forcibly returning refugees to Haiti. The numbers of Haitians on the cutters began to build up. Given the public executions in front of Haiti’s national palace the foreign policy establishment in the U.S. was too embarrassed pre –Sale to immediately return Haitians fleeing the country. By November hundreds of Haitians were simply sitting on the decks of cutters in the Caribbean.  The numbers became too large and by November 18, 1991 the Bush Administration directed the Coast Guard to take the refugees back to Haiti and ignore our 1981 Accords.

The next day the Haitian Refugee Center filed an action for declaratory and injunctive relief in the United States District Court in the Southern District of Florida. They also filed an application for a  temporary restraining order that would prevent the Coast Guard and the U.S. government from removing Haitians on the high seas from being returned. (more…)

Online Symposium: The Globalization of High Seas Interdiction–Sale’s Legacy and Beyond

by Tendayi Achiume, Jeffrey Kahn and Itamar Mann

[Tendayi Achiume is the Binder Teaching Fellow at University of California, Los Angeles (UCLA) School of Law. She received her JD from Yale Law School. Jeffrey Kahn is an Academy Postdoctoral Scholar at the Harvard Academy for International and Area Studies. He received his JD from Yale Law School and his PhD in anthropology from the University of Chicago. Itamar Mann is the National Security Law Fellow at Georgetown Law Center. He received his LLM from and is a JSD candidate at Yale Law School.]

This past week, a group of scholars, practitioners, and policymakers gathered at Yale Law School to discuss the rise of maritime migrant interdiction as a border-policing paradigm of global significance. Thanks to the generosity of the editors at Opinio Juris, this online symposium will make those discussions available to a wider audience. As the organizers of the conference, it is our great honor to introduce this exciting topic and the insightful posts that follow.

Maritime migrant interdiction is now a key border enforcement tool for the United States, the European Union, and Australia. The U.S. developed the model in the early 1980s as a means of preventing Haitian asylum seekers from reaching U.S. Shores. In 1992, the administration of George H. W. Bush abandoned the past practice of screening Haitians for refugee characteristics and instituted a direct return policy that authorized the repatriation of all interdicted Haitians regardless of whether they would be persecuted in Haiti. In 1993, the United States Supreme Court gave its imprimatur to this new framework with its Sale v. Haitian Centers Council, Inc. decision, holding that the United States was not bound by the U.N. Refugee Convention when processing Haitians interdicted at sea. As scholars have noted, Sale later became a key point of reference for other countries seeking to legitimize their own adoption of U.S.-style maritime migrant interdiction programs.

The history of interdiction since Sale provides a fascinating and troubling example of policy diffusion on a vast scale. The statistics on migration by sea make clear why the highly flexible interdiction framework adopted by the United States would become so appealing to the European Union and Australia in later decades. Unauthorized border crossing into the European Union has reached its highest levels since record-keeping began in 2008, and the majority of these migrants arrive by sea. Approximately 17,000 unauthorized boat migrants arrived in Australia in 2012, a staggering increase from previous years.

Migrant interdiction and migration by sea also triggers its own escalating dynamic. The highly visible tragedies that often result from these dangerous voyages and the bad publicity they spawn spur more intensive policing operations, which, paradoxically, lead to greater risk-taking by those migrants attempting to penetrate intensified maritime border defenses. We were recently reminded of this sad fact when more than three hundred African migrants drowned off of the Italian island of Lampedusa in October and more than thirty Haitian migrants died off of the Bahamas in November of this past year. These terrible events point to the complicated and deadly reality that lies at the intersection of both maritime border policing and maritime border crossing.

Each of us has approached issues of international refugee law, the rise of migrant interdiction, and the implications of the transnational dialectics it creates in our own academic work. Drawing inspiration from our research and advocacy, we set out to structure the conference so that it would provide an opportunity to delve into questions of eroding national sovereignty, debates over the balance between national security concerns and commitments to human rights norms, and struggles over the shifting geographies of judicial constraint and executive power. We hoped to highlight the deeper histories in which migrant interdiction is rooted, the broader international law landscape in which it first emerged and in which it is currently embedded, the ongoing transnational litigation and advocacy approaches various actors have developed to address it, and the vexing questions it raises with regard to issues of human rights and national security. As should become clear from the posts that will follow this introduction, we selected panel themes and chose panelists to facilitate the exploration of these topics.

We are privileged to have posts from many of our distinguished panelists and from our two esteemed keynote speakers, Alexander Aleinikoff, U.N. Deputy High Commissioner for Refugees, and Harold Koh, the Sterling Professor of International Law at Yale Law School. As you will note from each panelist’s bio, some have been grappling with issues of migrant interdiction since the 1980s while others are newer to the scene, wrestling with the more recent forms of maritime border-policing that have developed in Europe and Australia over the past decade. Each brings a unique perspective to the table, and we hope that you find their contributions as illuminating and provocative as we have.

Should Taiwan and China Join Forces in Defending Territorial Claims?

by Julian Ku

As China continues to offend or at least alarm its neighbors in East and Southeast Asia with its expansive territorial and maritime claims, it is worth noting there is one important Asian player who wholeheartedly supports each and everyone one of China’s sovereignty claims:  Taiwan. (Taiwan’s government even supports China’s sovereignty claim over Taiwan, just disputing which government is “China”.)

In fact, the government on Taiwan, as the Republic of China, is actually the government that originated the now highly-controversial Nine Dash Line when it was still in power on the mainland (actually, Taiwan’s line has Eleven Dashes, so it is even more expansive).  And Taiwan has the exact same sovereignty claim over the Diaoyu Islands/Senkakus that China has.  Taiwan actually houses a lot of the academic firepower and expertise on the international legality of these various maritime claims.

So this editorial from a pro-China Taiwan newspaper, calling for a joint China-Taiwan policy in favor of the South China and East China Sea claims, kind of makes sense.  If you overlook the fact that the two sides are still technically at war and all that.

In my view, Taiwan should jettison at least the most expansive of China’s claims, especially the Nine-Dash-Line.  It is odd, even ridiculous, for the government in Taiwan to support this claim of sketchy legality when (unlike China), there is no prospect of Taiwan ever asserting actual control over the South China Sea. And because the U.S. is now officially opposed to the Nine-Dash-Line, Taiwan needs to re-evaluate its position. If Taiwan sticks to its positions, and even starts cooperating with China on exerting their claims, then it is another sign that Taiwan is slowly drifting into China’s orbit and away from the U.S.  It may be a sign that, as leading realist scholar John Mearsheimer wrote this week, Taiwan’s eventual domination by China is only a matter of time.

Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration

by Julian Ku

One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis.  In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.

But neither the government nor Chinese scholars have offered much flesh to this argument.  The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter  released by Professor Stefan Talmon of the University of Bonn.  From his abstract:

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction.  I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

Will Ratifying UNCLOS Help the U.S. Manage China? I Doubt It

by Julian Ku

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

Lieblich Guest Post: Yet Another Front in Israeli/Palestinian Lawfare–International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC), Herzliya; his book, International Law and Civil Wars: Intervention and Consent, has been recently published by Routledge]

While opinions are split whether U.S. Secretary of State John Kerry will be able to bring, in his recent efforts, any progress to the stalemated Israeli-Palestinian conflict, it seems that Israel has recently decided to take the conflict back to the 19th century – at least legally. This time, we are talking about the revival of none other than age-old maritime prize law – a traditional body of the international law of war dealing with the belligerent capture of vessels and cargos.

The importance of maritime prize law peaked in the American Civil War, and steadily declined through the two World Wars into virtual disuse in the last decades. However, on the last week of December, the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel, held a first hearing in prize proceedings initiated by the State of Israel against the Estelle, a Finnish vessel, intercepted by the Israeli navy while attempting to symbolically breach the Gaza blockade in late 2012 (see the story, in Hebrew, here). The state requests the court to condemn the Estelle, which carried cement and toys, based on jurisdiction derived from the British Naval Prize Act of 1864 (!), and conferred to prize courts in Mandatory Palestine by the British Prize Act of 1939. At the time, Britain was interested in conferring such jurisdiction to courts in its colonies, protectorates and mandates in order to facilitate the condemnation of Axis maritime prizes captured in nearby waters. This power was never before exercised by Israel, which inherited the mandatory legislation upon its creation in 1948.

While the British prize laws are in essence jurisdiction-conferring rules, and deal mostly with procedure, the substantive norms of international prize law are derived from customary international law. Here lie the interesting aspects of the case. It is common knowledge, among those dealing with the nitty-gritty of IHL, that the process known as the “humanization of international humanitarian law” – as famously put by Theodor Meron – has generally not trickled to the law on maritime warfare. Prize law is perhaps a key example for this phenomenon.

For instance, while in ground warfare (and occupation) private property cannot be seized or destroyed absent pressing military necessity (for instance, Articles 23(g) & 52 of Hague Convention IV), private ships can be captured and condemned through proceedings in front of the seizing state’s prize courts, just for flying the enemy state’s flag. Essentially, thus, prize law doesn’t differentiate between the “enemy” state and its individual citizens, as modern IHL otherwise purports to do. In addition, “neutral” vessels can be condemned for carrying “contraband” – defined unilaterally by the capturing state – or, as in the case of the Estelle, for attempting to breach a blockade (for an attempt to state the customary international law on these issues see Articles 93 –104, 146, of the 1994 San Remo Manual). It should be added that the concept of blockade in itself seems like an outlier in contemporary law, since it can be looked upon, through a human rights prism, as a form of collective sanction against civilians.

(more…)

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

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

by Julian Ku

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

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

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

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

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

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

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

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

by Julian Ku

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

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

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

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

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

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

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

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