We have invited several academic luminaries to post here at Opinio Juris over the next few days about the crisis in Ukraine, with particular emphasis on Russian intervention in Crimea. As we have done in the past with other symposiums, we also welcome young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Ukraine of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish those selected.
Archive of posts for category
[Expanding and moving this up from the comments section of my previous post.]
In a comment to the previous post, reader “Non liquet” noted that:
The UN Security Council Meeting was interesting in this regard today. Reportedly, the Russian Ambassador to the UN stated he received a letter from the former President of Ukraine dated 1 March requesting intervention of the Russian army in Ukraine.
It seems that the Russians believe they need to frame their own arguments regarding intervention with at least a fig leaf of international law.
“Non liquet” also linked to this Yahoo News article, which reported that:
“The country has plunged into chaos and anarchy,” Russian Ambassador Vitaly Churkin read from an unofficial translation of the letter while speaking to reporters after an emergency meeting of the U.N. Security Council. “The country is in the grip of outright terror and violence driven by the West.”
“People are persecuted on political and language grounds,” he read. “In this context, I appeal to the President of Russia Vladimir V. Putin to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine.”
“Non liquet” makes a good point that this is an attempt at a legal fig leaf: arguing that any Russian intervention is not an invasion, but rather a lawful response to a request for assistance by a government.
But this is predicated on the idea that Yanukovich was empowered to ask for Russian assistance and military intervention. And thus we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.
In a U.S. State Department press conference this past Friday, the spokesperson said:
We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward.
I take that as an indication that the the U.S. government would not take any further statements or actions by Yanukovich as being actions of the government of Ukraine, in part because the Yanukovich regime has fled and no longer has effective control of the country.
Russia, clearly, disagrees… (Continue reading)
[I ended my previous post stating that I would next consider the options available to Russia, Ukraine, the EU, and the U.S. But then this conversation started… I’ll come back to the “next steps” question in a following post.]
Julian, Eric Posner, and others look to Russia’s intervention in Ukraine and its takeover of Crimea and see the limits of international law. But, even in this case, international law and legal rhetoric play a broader, and perhaps more subtle, role in foreign policy than being a brick wall blocking invading armies. (And nowadays brick walls don’t work too well, either.)
Yes, there are the ongoing difficulties of enforcement in a pluralist international community (and, as Peter notes, there are also significant enforcement and compliance problems in domestic societies). But international law and legal discourse also frame expectations and viable policy options in such a way that can have greater long-term constraints on state practice than may be appreciated by international legal skeptics. However, even for this constraint to work, there still needs to be political will to enforce legal rules. And here I think we are all in agreement.
As I mentioned in my previous post, and in various other posts, Russia (and states, in general) cloaks its actions in “law talk” to foster a reputations of being a lawful actor, even-or perhaps especially-when it is not. (Andrew Guzman has written extensively on the role of reputation as a prod towards compliance to international rules. See Andrew T. Guzman, ‘Reputation and International Law,’ 34 Ga J Intl & Comp L 379 (2006).) How states and other actors use language—what are the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act. How they use these terms inform other actors as to which arguments may or may not be made legitimately.
This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general. Invoke the law, get bound by the law.
Yet, just as the lack of a single sovereign means that enforcement is difficult, the pluralist nature of international law means that in most cases there is no final interpreter of what law is. Moreso than the ICJ, the most important interpreters of international law are the states themselves. Their interpretations are in part based on their short-term interests, but also on their long term concerns. These interpretations, in turn, affect international relations. Politics affects international law, which then affects politics, and so on.
International law has thus become a consensual vocabulary and grammar for how states talk about international relations. In short, how we talk about terms like “self-defense” can affect legal substance of what “self-defense” is. Legal rhetoric can frame policy options.
While Eric and Julian focused on the inability of international law to stop Russia from sending troops into Crimea, it is important to keep in mind that the use of force issue is embedded in a much bigger dialogue about the future of Ukraine… (Continue Reading)
While Russia was stealing all the attention over the weekend, a small group of assailants wielding knives killed at least 33 people and injured over a hundred in the main railway station of Kunming, China. China’s government has called these “terrorist attacks,” and has hinted it is linked with Uighur separatists in China’s northwestern Xinjiang province. But the failure of the U.S. State Department to use the term “terrorist” has drawn outrage in Chinese social media.
I understand the U.S. government’s reluctance to endorse the Chinese government’s description of these attacks, but I still think the term “terrorist” is perfectly appropriate for this situation. The attackers indiscriminately killed and injured civilians in a train station, and there seems plenty of evidence that it is motivated by politics and ideology. To be sure, the international definition of terrorism remains contested, but the US law definition seems applicable.
the term “international terrorism” means activities that—
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—(i) to intimidate or coerce a civilian population;(ii) to influence the policy of a government by intimidation or coercion; or(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;
I agree with Peter that the mere breach of the international law governing the use of force does not mean that all international law is useless and meaningless. But I don’t think Eric Posner’s pithy challenge to the international law academy on Ukraine can be so easily dismissed. International lawyers need, especially in this area, to provide a meaningful theory as to why international law affects state behavior, and why (as in this case) it seems to be having very little impact on Russia’s decision to use armed force in Ukraine. Contra Peter, the fact that sometimes constitutional or corporate law rules are ignored or violated doesn’t really answer the question here. When those norms are widely ignored (as with constitutional law rules in countries like China), then it is rational for actors in China to ignore those rules in most circumstances and most legal theorists would not call it “law” in any meaningful sense.
Which brings me to the Ukraine crisis. I agree with Erik Voeten that international law and institutions will be helpful in other ways. And I think Chris provides very helpful analysis of how international law can shape official state rhetoric. But the fact remains that the international law restraining the use of armed force has utterly and completely failed to constrain Russia’s actions in Ukraine. This is more than simply adhering to the legislative veto. This is a body blow to a foundational piece of the international legal system.
In academic terms, the failure of the Charter is evidence for both realists (who think international law never matters), but also for rational choice theorists like Posner, as to how international law really works. Rational choice folks think that international law works best (in fact, works at all only) when states have a rational self-interest to cooperate around certain legal norms and institutions. But where states no longer have such a rational self interest, states will depart from those legal norms. Compliance with international law for the sake of complying with international law is naive and unrealistic.
The Russia-Ukraine crisis also impacts real-world policymaking. If international law, or at least the Charter’s rule on the use of force, is very weak or non-existent as a tool for restraining state action, then policymakers should not rely on the Charter rule as meaningful protection against aggression.
A strong military or a network of alliances would probably have been a better idea. States must not overestimate the impact or force of this species of international law (as Ukraine’s new government seemed to do) when making decisions. And states like the United States should be careful incorporating this rule into its domestic legal processes, or over-privileging its role in its own domestic public debate.
I may be biased as an American, but the U.S. has about the right balance on this. It does not ignore the Charter, but it does not treat the Charter as having too much independent significance except to the extent it affects the actions of other states (especially its allies). The key thing to focus on in this crisis are the interests of the different states (and leading groups within states). State interests are driving actions here, and the Charter violation seems to be doing almost now work.
The fact that the Charter is plainly being violated will not necessarily mean that Charter proponents like France and Germany will get tough with Russia (in fact, both are going the other way by opposing sanctions or any NATO consultations). The fact that the Charter is plainly being violated will not mean China (another big Charter proponent) will do anything other than closely watch developments and urging “all sides to comply with international law” without naming any country.
International law can be, and often is, a very important tool for facilitating international and transnational cooperation. But it is not doing much to resolve to Ukraine crisis, and international lawyers need to admit that.
Eric Posner on international law and Ukraine (“exhaustively”, in his own description):
The international law commentariat has been pretty quiet about the most important geopolitical event so far this year. Hello? Anyone want to offer an opinion? Let me fill in the silence:
1. Russia’s military intervention in Ukraine violates international law.
2. No one is going to do anything about it.
International law is chimera, QED. (FWIW, the international law commentariat is starting to pipe up. In addition to Chris’ post below, see this primer from Ashley Deeks on Lawfare.) The move — a standard one among the anti-internationalists — implicitly idealizes other forms of law accepted as such. No system of law achieves perfect compliance; why should international law be any different?
not terribly persuasive. Surely we would question a domestic legal system in which a select set of powerful actors can confidently and predictably ignore legal rules while insisting that these nonetheless apply to everyone else.
While pleading the 140-character defense, I take the point, at least as applied to common criminals who get away with it. But there are better analogies. I’m not in the corporate law world, but I’m willing to bet that there are some laws that big players get away with ignoring on a predictable basis. In the context of constitutional law, there are many contexts in which law isn’t enforceable against institutional players. One example: notwithstanding the Chadha decision, which declared the legislative veto unconstitutional, Congress and the President blithely persist with the practice. This 2009 Harvard Law Review article by Jack Goldsmith and Daryl Levinson does a good job exploding the argument that international law is somehow distinctive in facing an enforcement deficit.
Of course corporate and constitutional actors will never say they’re violating the law. They interpret it to achieve the appearance (plausible or not) of conformity with a set of norms that is accepted as law. Same with Putin, whose MFA will at some point offer a fuller-dress international law justification for its Ukraine moves. (Posner himself offers up some protips to the Russians here.) So it’s not like jaywalking. Russia will face penalties as a result of its illegal action here, penalties that themselves will be framed in law terms.
Saturday began with reports that Russia had seemingly used private security contractors to take control of the airport in Simferopol, Crimea. Then reports (like this one from CNN) of President Putin requesting from Russia’s Parliament an authorization to use military force in Ukraine because of “threats to the lives of Russian citizens and Russian military personnel based in the southern Crimean region.” Grigory Karasin, Putin’s official representative in the upper house of the Russian parliament, told the Russian government-funded news outlet Russia Today that “The approval, which the president will receive, does not literally mean that this right will be used promptly.”
But, less than a day later it was becoming increasingly clear that those weren’t contractors. And Putin hadn’t been waiting. The New York Times:
Russian troops stripped of identifying insignia but using military vehicles bearing the license plates of Russia’s Black Sea force swarmed the major thoroughfares of Crimea, encircled government buildings, closed the main airport and seized communication hubs, solidifying what began on Friday as a covert effort to control the largely pro-Russian region.
So, why is Russia militarily intervening in Ukraine? The quasi-legal arguments coming from Russia on Saturday were the same basic arguments that Russia used in justifying its military intervention in Georgia in 2008. In that case, Russia argued that it was acting as a guarantor of peace in the region and had intervened to protect both South Ossetian civilians, Russian nationals, as well as the defense of its military units that were already in South Ossetia.
As for its actions in Ukraine, the reference to the defense of the Russian forces in Sevastopol was probably meant to argue that Russia was not in violation of the Budapest Memorandum which states in paragraph 2:
The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland, reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.
[Emphasis added.] I don’t think anything that has occurred in Ukraine rises to the point of Russia have a claim to Article 51 self-defense, but at this point, this isn’t about adjudicating claims, the Russian strategy is about misdirection and wrapping what it does do in a mantle of (seeming) legality. Well, not so much a mantle as a fig leaf.
Consequently, given the centrality of the norm of non-intervention, the self-defense argument sounds weak to my ears. But consider how the situation in Ukraine is being reported by the Russian-government funded news source, Russia Today:
The move is aimed to settle the turmoil in the split country.
The upper house of the Russian parliament has voted in favor of sending troops to the Autonomous Republic of Crimea, which would ensure peace and order in the region “until the socio-political situation in the country is stabilized.”
…The common notion was that since the power was seized in Kiev, the situation has only been deteriorating with radical nationalists rapidly coming to power and threatening the lives of those opposing their actions, most notably the Russian citizens living in Ukraine.
The developments follow an appeal by the Prime Minister of the Autonomous Republic of Crimea, Sergey Aksyonov, who requested that Russia to help cope with the crisis and ensure “peace and calm” in the region.
Russia as stabilizing force, reacting to a “deteriorating” situation in a “split country” where “radical nationalists” are threatening the lives of Russian citizens. And this is in response to a request from the Prime Minister of the Autonomous Republic of Crimea. Keep your eye on increasing references to Crimea’s autonomy.
As in the Georgian intervention, Putin focuses the need to protect Russian nationals and the importance of self-defense of Russian troops. But, as mentioned above, I have seen no credible reports that either the Russian naval base in Sevastopol or the majority ethnic Russian population of Crimea was ever threatened by the Ukrainian government.
So why intervene now? Perhaps more relevant to the actual reason for Russia threatening to act at this point is the February 27 announcement by the new Ukrainian government of its interest in signing the Association Agreement with the EU that President Yanukovich refused to sign at the last minute, triggering the unrest that has convulsed Ukraine. Russia had previously mentioned the issue of secessionism, before there was even any unrest, in the run-up to the EU’s Vilnius summit, when Ukraine was originally supposed to sign the Association Agreement with the EU. At that time, back in September, Russian politicians issued warnings that if Ukraine does not reject the EU association program, it would run the risk of Russia supporting the partitioning of Ukraine to support Russian nationals there. Civil unrest was not at issue then, only Ukraine agreeing to sign the Association Agreement. While Yanukovich actively courted Putin, and ultimately set aside signing the Association Agreement, Putin as of this past week was facing an interim government in Kiev with which he had no easy political levers to pull. And they said they wanted to associate with the EU. So, military intervention as an extension of politics.
What we saw on these last couple of days was one more example of Russia actively using legal rhetoric as part of its politico-military strategy. This “law talk” does have two potential effects: (a) it makes arguments to which other countries in the international community attempt to respond, and (b) it reassures the Russian public of the rightness of their cause. News cycles on Saturday were focused on the Russian domestic process of Putin seeking an authorization to use force and the international discussions and debates over the legitimacy of Russia using force unilaterally.
Meanwhile, there was some confusion about what was happening “on the ground.” Just who are those camo-wearing armed men? Locals? Contractors? Oh, no. The Russian military.
This misdirection and confusion may be Russia’s third reason for using legal rhetoric in this case. Putin is allegedly an avid chess player. This was a lesson in using legal rhetoric as a feint, while the real action was elsewhere on the board. You only grasped the new situation once the pieces were already in place. But, while this was a tactically deft set-piece using coordinated law talk and military force, international law has a way constraining actions when and where people least expect it. The efficacy of Putin’s longer-term strategy remains to be seen. Of course, this depends on Russia’s goal.
Putin would doubtlessly most desire Ukraine to turn its back on the EU and join the Russian-led Eurasian Customs Union. Given the popular protests of the recent weeks, that is an all but impossible at this point. Short of that, Russia could attempt to impede Ukrainian association with the EU and remain a necessary party in any discussion of Ukraine’s future. So what might be Russia’s next moves? And what may be the roles of international legal argument and international institutions in the strategies of Russia, Ukraine, the EU, and the U.S.?
I will consider these questions in my next post.
Lots of reports, including those from the new Ukrainian government at a meeting of the UN Security Council, suggest that Russian military forces have crossed into Ukraine. This has caused a mild panic on Wall Street and some typically overwrought press reporting from, just to give an example, Britain’s Daily Mail.
A treaty signed in 1994 by the US and Britain could pull both countries into a war to protect Ukraine if Putin’s troops intervene.
Bill Clinton, John Major, Boris Yeltsin and Leonid Kuchma – the then-rulers of the USA, UK, Russia and Ukraine – agreed to the The Budapest Memorandum as part of the denuclearization of former Soviet republics after the dissolution of the Soviet Union
Technically it means that if Russia has invaded Ukraine then it would be difficult for the US and Britain to avoid going to war.
Uh…no it doesn’t. At least not from my reading of it. It might be a good idea for the US to stand up for Ukraine’s territorial integrity, and it is true that the Budapest Memorandum commits Russia to respect Ukraine’s sovereignty and territorial integrity (I thought Russia’s president wanted to respect international law?). The UN Charter does that anyway. The Memorandum does not in anyway obligate any country to intervene in order to guarantee Ukraine’s territorial integrity.
In other words, it is not a security guarantee, like the kind that the US has with Japan. It is also not a formal treaty which, at least under US law, would have more binding impact. So relax, American doves, it’s 2014, not 1914. International agreements will not lead us blindly to war (sorry, Ukraine!).
Here is a timely piece from Adam Chilton on how treaty obligations may be experienced by the American public. He devised an experiment (using Amazon’s mTurk) to test the effect of a putative treaty violation on public support for reform of solitary confinement practices. The piece comes to us just as congressional hearings have focused policymakers on the issue as a matter (mostly) of domestic law.
The experiment framed comparative questions to control for the value of the treaty commitment itself, as opposed to that of unlegalized human rights norms. A statement that solitary confinement violates unspecified human rights didn’t move the needle at all, where an argument that it “violates human rights treaties that the United States has signed” did, in a statistically significant way. (Chilton carefully notes that “signed” was used to avoid confusion, consistent with the vernacular understanding of treaties.) Respondents were moved not by a sense that treaties should be honored or that violations are immoral but rather that U.S. practice should conform to international standards.
One unexpected finding:
Democrats in the control treatment group supported solitary confinement reform at a 4.45 rate. Information on international law increased support by 0.17 to 4.62, but this increase falls short of conventional levels of significance (p-value = 0.16). Republicans, on the other hand, were less supportive of solitary confinement reform overall—the control treatment group averaged 3.31. Information on international law, however, increased approval to 3.74. This was an increase of 0.43, which was both substantively and statistically significant (p-value = 0.05). This suggests that information on the status of international law on domestic human rights practices, at least with respect to solitary confinement, actually has a greater effect on Republicans than on Democrats.
Seems unlikely, but warrants further investigation. Maybe it plays into a “rule of law” mentality? In any case, the experiment seems well-constructed, so that there’s none of the garbage-in-garbage-out aura that one sometimes butts into as empirical legal studies begins to colonize international law, too.
As Chilton notes, “modest changes in public opinion do not automatically result in changes in public policy,” something of an understatement in the context of US treaty ratification and compliance (cue: the Disabilities Convention). But perhaps studies like this will help nudge policymakers in a more productive, international law-compliant direction.
In December 2013, the UN Secretary General launched a new Human Rights initiative called “Rights Up Front”. Primarily a coordination tool for the UN Secretariat, the plan outlines six actions that can help the UN system meet its responsibilities regarding human rights:
Action 1: Integrating human rights into the lifeblood of staff, so that they understand what the UN’s mandates and commitments to human rights mean for their Department, Agency, Fund or Program and for them personally.
Action 2: Providing Member States with candid information with respect to peoples at risk of, or subject to, serious violations of international human rights or humanitarian law.
Action 3: Ensuring coherent strategies of action on the ground and leveraging the UN System’s capacities in a concerted manner.
Action 4: Adopting at Headquarters a “One-UN approach” to facilitate early coordinated action.
Action 5: Achieving, through better analysis, greater impact in the UN’s human rights protection work.
Action 6: Supporting all these activities through an improved system of information management on serious violations of human rights and humanitarian law.
The catalyst of Rights Up Front was the Petrie Report of 2012, an independent review panel report commissioned by the Secretary General and written by Charles Petrie, which assessed the UN’s response to the final months of the 2009 war in Sri Lanka. The report was extraordinarily critical of the UN, characterizing its actions as a “systematic failure.” It recommended “a comprehensive review of action by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates.”
To his credit, the Secretary General Ban Ki Moon took this charge seriously. The Rights up Front plan represents the end product of internal assessment and reflection. While it is too early to give a definitive assessment of the plan’s potential, some features are worthy of comment now. The plan is noteworthy in identifying the protection of human rights as a core purpose of the United Nations, consistent with the UN Charter. It also creates a human rights plan for the UN Secretariat in situations where there is no peacekeeping mission. This is an important development: the plan recognizes the failure of early-warning systems that contributed to the Rwandan genocide and the Srebenica massacre. Moreover, Deputy Secretary General Jan Eliasson, in presenting the report, indicated that systematic human rights violations have often been a precursor to mass atrocities, and that the challenges facing the UN in Sri Lanka were not new.
Although the action plan refers to UN responsibilities (a term with legal connotations), the main responsibility it addresses lies with the Secretariat. Clearly the plan would have been stronger had it staked out a legal responsibility for the UN. When the Secretary General presented the plan he emphasized the UN’s political and moral obligations, but not its legal responsibilities. Compare, for example, the UN’s position on humanitarian law, and its guidelines for UN troops, which state that they must respect and observe the rules of international humanitarian law or face prosecution.
In addition, while emphasizing the Secretariat’s coordinating role, conspicuously absent from the Plan are references to the responsibility of important organs like the Security Council and the General Assembly. Because the plan is so heavily focused on the Secretariat, Rights Up Front appears to have little to no role in situations where the Security Council or the General Assembly are engaged. Take the current humanitarian crisis in Syria. Here, the Secretariat’s role is limited because the situation has been escalated to the Security Council, the organ with primary responsibility for threats to international peace and security. Due to the Council’s involvement, the Secretariat’s role limited. The potential impact of the Rights up Front plan does not, therefore, overcome cases of Council deadlock despite the evidence of massive human rights abuses.
Another interesting silence in the Rights Up Front plan is its relationship with the Responsibility to Protect (R2P). There are clear parallels between the two doctrines with regards to the duty to prevent human rights abuses. Pillar 2 of R2P, for example, states that the international community has a duty to assist states in meeting these obligations. Rights up Front could be a way to implement Pillar 2. Nonetheless, there is no explicit acknowledgement of this overlap, or explanation of how these doctrines work together.
In the final analysis this Plan represents an important step forward for human rights at the UN. If Rights Up Front is systematically integrated into the Secretariat’s work, and becomes a basis for auditing and review, it may succeed in making human rights a much more central aspect of the UN’s work. Nonetheless, its limited scope, due to its focus on the Secretariat and its avoidance of legal obligations, mean that whether it is capable of delivering real world impact remains to be seen.
The European Parliament has just overwhelmingly passed a resolution condemning the use of armed drones. I’ll leave it to others to do the hard work of analyzing the resolution, but I couldn’t let this paragraph pass without a mention (emphasis mine):
E. whereas drone strikes outside a declared war by a state on the territory of another state without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.
The last time a state formally declared war was 8 August 1945, when Russia declared war on Japan. So much for Art. 51 of the UN Charter…
A lawsuit filed yesterday in California federal court seeks the removal of a statue in a Glendale, California public park honoring women victimized by the Japanese military during World War II. The placement of the statue was approved by the local city council with the strong support of Korean and Korean-Americans who want to recognize the suffering of the “comfort women”. The lawsuit appears to claim as one of its arguments that the local city council is interfering in national foreign affairs in violation of the US Constitution.
This lawsuit is only the latest front in a spreading battle between Korean and Korean-American groups and the Japanese government in various state and local legislatures. In Virginia, the state legislature (again with strong Korean-American voters support) passed legislation requiring textbooks in public schools to note that the Sea of Japan is also called the “East Sea.” New Jersey is considering similar legislation, and already has its own “comfort women” memorial.
As a legal matter, I can say with high confidence there is no serious argument that the placement of a statue in a public park, or the rewording of textbooks, violates the federal government’s foreign affairs authority under the Constitution. No legal rights of foreign nationals are involved, nor is this a matter traditionally handled by the national government, nor does the US-Japan Treaty of Peace preempt this action. So this aspect of the anti-memorial folks’ lawsuit seems pretty hopeless and borderline frivolous.
I am less sure about the policy benefits of this type of activity. For US legislators this is just a cheap and easy way to get support from a growing voter population. China’s government has tried a similar strategy to garner Korean friendship on a much grander scale when it put up a huge memorial to a early-twentieth-century Korean anti-Japanese revolutionary. But those actions are purely out of self-interest.
On the other hand, all of this seems like a relatively gentle way to prod the Japanese on these issues. In any event, expect to see more action at the state and local level in the U.S. One hopes (although this seems a vain hope) that this activity might even spark some useful Korean-Japanese debate on matters that they can’t seem to talk about much back in Asia.