Author: Julian Ku

by Julian Ku

This is just the first round of a potentially huge investor-state arbitration claim filed by Chevron against Ecuador. $700 million now, but up to $27 billion later. (For some background, see here and here about a federal court’s refusal to stay one of the arbitration proceedings.).

Chevron Corp (CVX.N) won a three-year-old arbitration fight against Ecuador over a commercial dispute as it battles the country separately over an environmental claim that may result in $27 billion in damages against the company.

An arbitration panel ruled on Tuesday that Ecuador’s courts violated international law by delaying rulings on commercial disputes between the U.S. oil company and Ecuador’s government, and awarded Chevron $700 million.

The arbitration panel partially resolved seven claims that Texaco, bought by Chevron in 2001, filed in Ecuador from 1991 to 1993, Chevron said. The panel found that the courts had breached a U.S.-Ecuador treaty by not ruling on the cases.

by Julian Ku

Sudan is preparing for a national election next month. It may not be the solution for Sudan, given that it is still very doubtful that there is enough cohesiveness for a genuine democratic result.  Still, I wonder if the ICC’s Prosecutor may be going a little far here.

A day after Sudan president Omar al-Bashir threatened to cut the fingers off election observers, the International Criminal Court’s chief prosecutor, Luis Moreno-Ocampo, called Sudan’s upcoming vote “a Hitler election.”

Mr. Moreno-Ocampo, who seeks to prosecute Mr. Bashir for crimes committed in Sudan’s troubled Darfur region during a war that killed at least 1.9 million people, today said election observers face “a big challenge” in Sudan.

“It’s like monitoring a Hitler election,” he said at a press conference in Brussels, according to Agence France-Presse.

What exactly is the proper international policy toward Sudan? The ICC arrest warrant locks everyone into a confrontational position, but since there will be no arrest of Bashir anytime soon, all of Sudan will have to lurch along without any political resolution for the foreseeable future.  The U.N. is going to monitor the election. Should they even bother?

by Julian Ku

Fascinating inside baseball piece on the Obama Administration’s internal debate over war on terrorism policy. It features a struggle between the State Department (Harold Koh) and the Defense Department (Jeh Johnson) with the OLC (David Barron) playing referee.

The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

I actually think the article overstates the differences somewhat.  All the key players agree there is a war against Al Qaeda and that there is a power to detain and try Al Qaeda folks. The only question  dividing them seems to be how to define a member of Al Qaeda, or supporter of Al Qaeda.  Admittedly, this is a difficult question but it doesn’t seem to be a deep philosophical divide.

by Julian Ku

The long-awaited ICJ judgment on Kosovo is due out this November, according to this report.  That would be pretty fast work, given the hearings were only held last December and probably involved the participation of more countries (35) filing memorials than any case in ICJ history. Still, the judgment was actually expected even earlier. Moreover, the report from Serbia suggests that the forthcoming arrest of long-wanted suspect Ratko Mladic may have an outcome on the ICJ’s decision? I have no idea what that is supposed to mean, but it suggests there may be some political machinations affecting the pending judgment. Any readers with more knowledge of what’s going on in Serbia on this should feel free to share.

by Julian Ku

The full text of U.S. State Department Legal Adviser Harold Koh’s speech at ASIL can be found here.  Ken has already praised it, Kevin (along with Marko Milanovic) have rejected it, and others are staying neutral or reserving judgment.

Here is what I took away from the speech:  The Obama Administration has now embraced the Bush Administration’s position that the U.S. is engaged in an armed conflict with “a nonstate actor, Al Qaeda (as well as the Taliban forces that harbored al Qaeda).”  The rest of the legal analysis flows from this basic commitment.  Hence, military detention during the conflict is permitted (it turns out, Guantanamo, and even Bagram, are perfectly legal).  Targeted killings outside of Afghanistan and Iraq are also legal.  Military commissions are an option for Al Qaeda detainees (but not required, of course).

In other words, the basic legal framework of the Bush Administration’s “war on terrorism” has been adopted and maintained by the Obama Administration. Of course, we all knew that, but it is nice to hear someone like Koh confirm this publicly.  Ed Whelan and Liz Cheney, you can stop worrying now!

I predict there will be some grumbling but Koh’s stature and credibility with the NGO and international law community will pretty much end the legal debate here in the U.S. about whether we are at “war” (of course, I wasn’t there last night so maybe other folks who attended have a different view).  And, frankly, the political inclinations of many folks (but not Kevin!) will give Koh, Clinton, and Obama much more deference than they gave Bellinger, Rice, and Bush.  Overseas, this is going to remain somewhat controversial. That’s another matter, but luckily for Koh and other administration officials, Baltasar Garzon has his own legal problems these days.

by Julian Ku

Japan triumphs in a big way at the CITES meeting in Doha, as the U.S. proposed ban on bluefin tuna trade goes down 20-68.

The rejection of the bluefin proposal was a clear victory for the Japanese government, which had vowed to go all out to stop the measure or else exempt itself from complying with it. Japan, which consumes nearly 80 percent of the bluefin catch, argued that the International Commission for the Conservation of Atlantic Tunas, or Iccat, should be responsible for regulating the fishery, not the United Nations. European Union nations, whose fleets are most responsible for the overfishing of bluefin, abstained from voting in the second round after their own watered-down proposal was rejected.

The U.S. proposal for polar bears also went down, this time with Canada leading the opposition.

by Julian Ku

I am not a huge fan of restrictive and protectionist trade policy, but I can’t offer any serious legal quarrel with the recently proposed Trade Reform, Accountability, Development and Employment Act by the growing anti-trade bloc in the U.S. Congress.  As Lori Wallach from Public Citizen notes, the Act offers a radically new approach to U.S. trade policy.  The Act explicitly conditions expedited consideration of trade agreements by Congress to agreements which have addressed labor, environmental, national security, and other considerations.  As a policy matter, this goes beyond tying the President’s hands in trade negotiations: It is taking over trade negotiations by essentially mandating the key content of almost any U.S. trade agreement, and gives the President very little flexibility.

From a U.S. constitutional law perspective, the Act is a remarkable attempt to micromanage U.S. trade agreements, by mandating certain provisions before getting expedited consideration before Congress.  But since it only applies with respect to expedited congressional consideration, I don’t see any separation of powers problem here.  Moreover, the Act even contains a requirement that any trade agreement requiring a U.S. state to comply with procurement or investment rules will not be enacted unless that state’s individual consent is obtained.  This appears to give individual states either a veto or a right to “opt out” of the trade agreement.

As a policy matter, I think this means there will be no new trade agreements for the foreseeable future. As a legal matter, we may be seeing a re-assertion of congressional control over certain aspects of U.S. trade policy,and perhaps foreign policy as well.

by Julian Ku

Sure there is some dispute about settlements in East Jerusalem, or something, but here are some international law disputes that really matter. At CoP15, or the 15th Meeting of the Parties to the Convention on the International Trade in Endangered Species – currently going on in Doha, parties are discussing: resuming (or not resuming) the trade in ivory and imposing a ban on the commercial fishing of bluefin tuna, and a ban on commercial trade in polar bears (a U.S. proposal) as well as other issues.  CITES is a fascinating regime for regulating  trade in wildlife and conservation.  Does it work? That’s always hard to say. At least with respect to the ivory ban, there is reason to think that the ban backfired.  But then again, it is hard to imagine Japan battling furiously against the bluefin tuna ban if it didn’t think CITES had real teeth. Then again, like its battles over whales, Japan is increasingly on their own here.

DOHA — Japan was accused of scare tactics at world talks on wildlife protection on Monday as it campaigned against a proposal to curb trade in bluefin tuna, the succulent sushi delicacy….

“Japan’s lobbying is formidable. Three or four people from the Japanese delegation are constantly criss-crossing the Convention, arranging meetings,” he told AFP.

On Sunday, Japanese delegates met with some African nations, said a negotiator from west Africa.

“We are used to it. They do the same thing before each meeting of the International Whaling Commission,” the body that oversees global whale populations, he said.

by Julian Ku

Ilya Somin has a characteristically thoughtful post on the shortcomings of the U.N. system for promoting human rights and of international human rights law more generally, as seen in the recent hapless efforts of the U.N. Human Rights Council to protect Iranians from repression by their own government.

The bottom line is that the main weaknesses of the international human rights system are structural. By giving so much influence to the very sorts of governments that human rights law is supposed to constrain, it actually empowers oppressors much more than victims. In the short run, liberal democratic governments should work to limit the scope of the system and and prevent its pernicious elements from overriding their own domestic law, a point McGinnis and I emphasized in our articles linked above. In places like Iran, progress in protecting human rights probably depends on action by liberal democracies and internal dissidents acting outside the confines of the UN system. Liberal democracies cannot and will not always prioritize the promotion of human rights. But they have fewer perverse incentives on these issues than dictatorships do.

I pretty much agree with Somin’s critique of the UN human rights system.  On the other hand, I am not sure what the U.S. and other liberal democracies’ posture should be with respect to the UN system. Rather than vilify the system, I think the U.S. should make a good faith effort to participate in the system (e.g. the current Obama Administration policy).  On the other hand, the U.N. system cannot be seen as the only legitimate source of the content of international human rights law.  U.S. and other liberal countries’ participation must never concede this point, and must always retain the option for a non-U.N. mechanism to enforce and protect human rights if the U.N. continues to be “captured” by unsavory regimes.  A separate “League of Democracies” might help.  I admit this sort of balancing policy is tricky, and the U.S. has never quite figured out how to do this. I am curious what his approach would be or the views of our readers.

by Julian Ku

Here is another persuasive account of why the U.S. is disadvantaged by not joining the UN Convention on the Law of the Sea.  The case is fairly simple: There is a lot of oil and natural gas up there, and the U.S. can’t negotiate with other countries to divvy it up until it signs on to UNCLOS.

The 5.5 million-square-mile area north of the Arctic Circle — part of the U.S., Russia, Canada, Denmark (which owns Greenland), Finland, Norway, Iceland and Sweden — contains up to 25 percent of the Earth’s undiscovered oil and gas reserves, according to the U.S. Geological Survey. . . .

But to remove those resources you have to own them, and nations are now scrambling to claim vast new areas of sea bottom. They can do so by proving them to be extensions of their continental shelves. In summer, U.S., Russian, Canadian, and Danish scientists aboard icebreakers conduct studies to support claims submitted to a U.N. commission. In theory, the U.S. could gain an undersea region as big as California.

That’s the good news, but the bad news is that the United States is last in the claims race. The U.N. Commission on the Limits of the Continental Shelf has begun examining claims from Russia and Norway, which could be granted before the U.S. formally joins the process. Although the U.S. is gathering information for a claim, it cannot be submitted — nor can the U.S. have a say in the claims of other nations — until the government signs an international treaty. The agreement under which the apportionment of riches will go forward — the 1982 Law of the Sea Convention – lays out a comprehensive set of rules governing ocean issues, including protection of marine environments. All Arctic nations except the U.S. have signed. “If this were a ball game,” one Coast Guard admiral told me, “the U.S. wouldn’t be on the field or even in the stadium.”

by Julian Ku

It is always unpleasant to get lectured by foreign governments about “violating international law”, but this is something U.S. government officials should be used to.  Still, it must be galling for the new U.S. administration to be lectured by Brazil’s president over U.S. non-compliance with a WTO ruling on cotton subsidies.

The United States must comply with a World Trade Organization ruling on U.S. cotton subsidies to uphold international law and order, President Luiz Inacio Lula da Silva said on Wednesday.

Brazil detailed on Monday a list of 102 U.S. goods that will be subject to import tariffs within 30 days unless both countries can reach an agreement to settle a long-standing dispute over U.S. cotton aid considered illegal by the WTO.

“Brazil is not interested in confrontation. We’re interested in respect for the decisions of the WTO. Either we respect institutions or the world will fall into disarray,” Lula said during the inauguration of a power plant in near Sao Paulo.

The U.S. is ready to make a deal, except that it has very little to deal with. After all, the U.S. Congress (with full knowledge it was violating the WTO ruling), re-authorized the subsidies at dispute here.  So the best the U.S. Trade Rep can do is promise to try to get Congress to change the law.  If I am Brazil’s President, I wouldn’t take that deal.

by Julian Ku

I’m not exactly surprised to read this:

United Nations human rights investigators called on the Obama administration on Tuesday to prosecute the accused September 11 masterminds in a civilian court, declaring that U.S. military tribunals would not be fair.

The White House is reviewing options to bring the 9/11 detainees to justice and U.S. officials said on Friday senior administration officials may recommend that Khalid Sheikh Mohammed and four other suspects in the 2001 attacks face a military trial.

“I take the view that the Military Commissions Act is fundamentally flawed. It is very far from international fair trial standards and probably cannot be fixed,” said Martin Scheinin, U.N. special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism.

But I am surprised just how little the opinion of these rapporteurs matter in the burgeoning U.S. debate over where to try the 9/11 terrorists. No one in the Obama Administration seems to care much. I wonder if they have even bothered to issue a rebuttal.  After all, the current military commission system was amended in accordance with proposals from the Obama Administration, supposedly to make them compliant with domestic and international standards.  A rebuttal seems necessary at some point.  Another task for our State Department’s Legal Adviser?

by Julian Ku

Amid the war of words between Germans and Greeks over a possible Greek bailout, the Deputy Prime Minister of Greece has accused the Germans of stealing “the Greek gold that was in the Bank of Greece, they took away the Greek money and they never gave it back…”  This was part of the reason why Greeks (presumably the ones now boycotting German goods) are not exactly feeling grateful to Germany for possibly bailing out their troubled public finances.  As I understand it, some Greeks have maintained claims against Germany for wartime abuses and thefts. Germany’s response, I believe, is to cite the 1960 FRG-Greece treaty as a final settlement of all such war-related claims. I take it the protesters in Greece don’t accept this lawyerly argument, even though it is a pretty persuasive one.  It demonstrates the limit of even ironclad international law obligations to settle deep-seated political disputes.  Will the Germans ever get out from under the WWII guilt trip?  Probably, but international treaties won’t be vehicle to do so.

by Julian Ku

The always knowledgeable Marko Milanovic, responding to an earlier post of mine, reviewed the possibility of an international tribunal resolving the Falklands dispute here, and concludes that no court decision will happen because  ”… the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution.”

Marko’s argument seems persuasive.  There is a long and confusing historical record to battle over with respect to title, and there are serious questions about the right of “self-determination” as applied to the Falklands. Yet there are many more difficult disputes that have been tossed to the ICJ (see, e.g., Kosovo).  So I’m not sure why this dispute is particularly worse. Indeed, there seems to be lots of law where, and lots of interesting facts. It would make a terrific case.

But Marko is of course right that the UK might indeed lose, and so might Argentina.  But that always seems to be the case in ICJ cases.  And this could happen.  The UK has accepted the ICJ’s compulsory jurisdiction.  All Argentina would have to do is accept compulsory jurisdiction and take the UK to the World Court.

But having thought about and read about it some more, I begin to see why this won’t happen.  What is different here, as this article suggests, is the stakes.  Oil!  Natural gas!  The stakes are simply much too high to permit some random judges in the Hague to determine the outcome here.  So it is dumped back in the realm of politics, where it belongs.

by Julian Ku

That’s a bit of an overstatement, but this review of Michael Byers’ latest book: Who Owns the Arctic: Understanding Sovereignty Disputes in the North, reminds me of the surprising legal positions taken by Russia, Canada, and the United States over the legal status of the Northwest Passage.

It is ironic that while Russia supports Canada’s claim to the Northwest Passage, the United States opposes it. With the recent disappearance of multi-year ice, the Passage (or Passages, for there are several) gives access to shipping through the Canadian archipelago of 19,000 islands that lie scattered in a huge pyramid from Iqaluit in the east to the Beaufort Sea in the west, with its apex at the northern tip of Ellesmere Island.

It is also ironic that Canada is in the position of making aggressive claims for territorial sovereignty, while the U.S. is all of a sudden the guardian of the international community’s interest in keeping the seas free.  And it is ironic that Byers, no sovereigntist, is a sharp critic of Canada’s failure to more aggressively assert its territorial sovereignty.

by Julian Ku

I doubt it has a chance of passing, but it would be interesting to see how many votes this bill will get:

A small group of U.S. lawmakers unveiled legislation on Thursday to withdraw from the North American Free Trade Agreement in the latest sign of congressional disillusionment with free-trade deals.

The bill spearheaded by Rep. Gene Taylor, a Mississippi Democrat, would require President Barack Obama to give Mexico and Canada six months notice that the United States will no longer be part of the 16-year-old trade pact.

Next up: a vote later this year on whether to stay in the WTO.

by Julian Ku

Wow! It’s not a done deal, but it sure looks like Khalid Sheikh Mohammed is going back to a trial before a U.S. military commission, the Washington Post reports.

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

I get the New York City thing, but I am not quite sure that other parts of New York wouldn’t have welcomed the trial. Sure, there are logistical problems, but I wonder if there isn’t also a reversal of principle here. Obama and Holder are going to have to swallow a lot of high-falutin language about the supposed irresponsibility of the Bush Administration on this stuff, if they do reverse themselves here.

by Julian Ku

UK Prime Minister Gordon Brown announced (h/t Jurist) proposals to circumscribe the applicability of Britain’s universal jurisdiction law.  The modification will likely cut back on the ability of private citizens to seek arrest warrants, by requiring a determination by a public prosecutor before issuing such warrants.  The details are not clear, but the policy underlying it is:

There is already growing reason to believe that some people are not prepared to travel to this country for fear that such a private arrest warrant – motivated purely by political gesture – might be sought against them.

These are sometimes people representing countries and interests with which the UK must engage if we are not only to defend our national interest but maintain and extend an influence for good across the globe.

Britain cannot afford to have its standing in the world compromised for the sake of tolerating such gestures.

This seems like a common-sense move, and I only wonder it hadn’t been done already.  The UK joins Spain and Belgium in cutting back on its universal jurisdiction laws.  Do I sense a trend?

by Julian Ku

Two different but interesting views of Australia’s threat to bring Japan to the ICJ over whaling.

Over at The Jurist, Don Rothwell of Australian National University provides some background and legal context for Australia’s lawsuit. As I understand it, Australia could claim that Japan is actually violating Australia’s 200 mile exclusive economic zone (assuming certain Australian Antarctic claims were accepted).  But it seems more likely that Australia will try to make a claim under the 1946 International Convention for the Regulation of Whaling. As I’ve suggested, this seems a very tough case to make, and Japan may get the IWC to alter its rules anyway.

Over at the Australian, Greg Sheridan points out that the Japanese government is not taking Australia very seriously on this issue, and sees it as essentially a domestic political matter for Australians.  And he goes on:

As well, observers of all stripes are dumbfounded at the Rudd government’s decision to blindside Japan’s Foreign Minister Katsuya Okada just before his visit to Australia. Canberra did this by announcing, on the eve of Okada’s arrival in Australia and without any warning to the Japanese, that it had decided to take Japan to the International Court of Justice over whaling. There is not the slightest chance of this court action succeeding. To insult Okada, the most pro-Australian member of Tokyo’s core leadership, in this manner was extremely foolish.

Emphasis added. I think Sheridan is not far wrong. Unless Australia is going to make the EEZ argument, it doesn’t seem like it has a very strong case.  And even if they somehow win, there is very little chance of Japan complying with the ICJ order.

by Julian Ku

Last fall, the U.S. joined Egypt in a carefully worded statement in favor of free expression, but it raised concerns that the U.S. was implicitly endorsing the movement in many Islamic countries to ban blasphemous (or anti-Islamic) speech.   In an otherwise anodyne address to the Chicago Council on Foreign Relations, U.S. Assistant Secretary of State for International Organization Affairs Esther Brimmer provides this nugget of policy:

First, the Administration takes seriously the concerns of some states regarding combating discrimination on the basis of race and religion. At the same time, we are deeply troubled by efforts to impose a global ban on defamation, the equivalent to an international blasphemy law. It is a priority of this Administration, at the Council, to find a consensus based approach to address racial and religious intolerance – however we will not support efforts at the Council that would protect minorities from offense by restricting free speech. We are committed to a respectful, inclusive approach that speaks to real concerns of discrimination and intolerance, but leads to an acceptable path where governments can take concrete action to make progress and promote mutual respect.

Of course, the devil is in the details. This hardly fully addresses the concerns discussed above. But it shows (hopefully) that the Administration sees the problem, and is willing to draw the line in favor of free speech. Maybe this is just wishful thinking on my part…