Author: Julian Ku

by Julian Ku

The Foreign Sovereign Immunities Act of 1976 is perhaps the most important example of the U.S. Congress exercising its power to implement and interpret international law principles as part of domestic law.  It is a basic and foundational statute implicating almost all kinds of international litigation in the U.S.  And it is a statute which the Supreme Court (and lower courts) can’t get enough of.  Today, the U.S. Supreme Court heard oral arguments in Samantar v. Yousef, at least the third FSIA case the Court has taken in the past 7 years. The issue this time is whether a foreign government official is entitled to immunity under the FSIA for official acts.   I haven’t paid as much attention to this as I should have, but I plan to blog about it more later this week (here is Michael Granne’s original analysis from October). In the meantime, it is worth looking at the transcript of oral argument, SCOTUSBlog’s report on oral argument today as well as dueling podcasts from the counsel in the case.

There seem to be at least three possible results here.  Foreign government officials get immunity for official acts because they are “the state” or an “agency or instrumentality” of a state under the FSIA. The Court seemed skeptical of this (in that no justice seemed happy with it) Or such officials don’t, and the FSIA only protects government entities. No justice seemed to embrace this theory either, and Justice Breyer seemed skeptical.   Or they don’t, but they might be entitled to some common law immunity (this appears to be the U.S. Government’s view).  I don’t know how the Court would react to this approach, although it is always safe to bet against the Court deferring to the Executive, even this executive and even on matters related to foreign affairs.  The upshot: The Court seems unconvinced by all sides and may come up with its own result, thus confusing matters more.

by Julian Ku

The BBC reports:

The European Court of Justice has ruled that Israeli goods made in Jewish settlements in the occupied West Bank cannot be considered Israeli.

This means goods made by Israelis or Jews in the West Bank cannot benefit from a trade deal giving Israel preferential access to EU markets.

At first glance, this seems like the correct result, especially given the existence of a separate EC-PLO trade agreement that is intended to govern such goods.  Moreover, according to the ECJ, Israel never responded to German requests to confirm the origin of these goods.  So Israel doesn’t seem to have much of a case here.

Of course, the result seems of dubious benefit to actual residents of the West Bank, but that is another matter I suppose (see here for an argument on this line). A fuller discussion of the opinion can be found here but I can’t seem to find the full judgment on the ECJ website.  Anyone who has a link should feel free to post it in the comments.

by Julian Ku

Our own Ken Anderson is one of the most knowledgeable and thoughtful legal scholars on the question of targeted killings by the United States. And he has noted here and the Volokh Conspiracy, he has developed a complex analysis of the U.S. policy toward targeted killings, which grounds such killings in the international law of self-defense rather than the law of war.  And he has criticized the failure of the Obama Administration to provide any legal justification for these killings. (His distillation of all of this can be found in this new Weekly Standard article.)

Right on cue, Roger Cohen of the NYT argues for, basically, the same thing, although he is a bit confused in his argument.

America is not at war. The Obama administration has declined to say anything about this doctrine of targeted killing. It’s not clear how you get on a list to be eliminated; who makes that call; whether the decision is based on past acts (revenge, say, for the killing of C.I.A. agents in Khost, Afghanistan) or only on corroborated intelligence demonstrating that the target is planning a terrorist attack; what, if any, the battlefield limits are; and what, if any, is the basis in law.

. . .

. . . On balance, President Obama, who campaigned against the “dark side” of the war on terror and has insisted that America must lead by example as a nation of laws, owes Americans an accounting of his targeted killing program.

Revenge killings don’t pass the test for me. They’re unacceptable under international law. I want to know that any target is selected because there is verifiable intelligence that he’s actively planning a terrorist attack on the United States or its allies; that the danger is pressing; that arrest is impossible; and that civilian lives are not wantonly risked.

The bar of pre-emptive self-defense is then passed. A pinpoint strike is better than the Afghan or Iraqi scenarios. But that bar must be high. America departs at its peril from its principles.

Cohen’s analysis seems reasonable, although his first claim: “America is not a war” muddles his analysis.  In legal terms, there is little doubt that the U.S. is engaged in an armed conflict in Iraq and Afghanistan and that U.S. military activities there are governed by the law of war.  Moreover, the Obama Administration has adopted the Bush Administration’s claim that the U.S. is also in a state of armed conflict with Al-Qaeda, a non-state actor.

It seems to me that targeted killings in the Iraq or Afghan theaters against combatants there should fall neatly within the law of armed conflict rules.  And while some countries may grumble, I don’t think there is a serious dispute that the U.S. may engage in armed conflict, including targeted killings, in those theaters

The targeted killings of Al-Qaeda combatants in other countries like Pakistan do raise the hardest legal questions,compounded by the fact that the killings are carried out by non-military combatants on the U.S. side.  From the Obama Administration point of view (I am guessing), this too is part of the armed conflict and is indistinguishable from an Afghan or Iraq attack.  Cohen (following Ken Anderson and Stuart Taylor) isn’t satisfied by this analysis.

Harold!  We really could use a legal opinion on this. Anytime now…

by Julian Ku

This coming Monday and Tuesday, Opinio Juris will be hosting its fourth online symposium in partnership with the Yale Journal of International Law. Each day, we will be hosting a series of posts revolving around Articles published in YJIL’s most recent Vol. 34-2, which is available for download here.

On Monday, Michael J. Glennon of the Fletcher School of Law and Diplomacy will be leading a discussion around his timely Article The Blank-Prose Crime of Aggression. In his Article, Glennon addresses the draft definition of the crime of aggression that was released in early 2009 and is set to be voted upon by the Assembly of States Parties to the International Criminal Court (ICC) this coming May. This crime has remained undefined since being included in the ICC’s underlying Rome Statute, for what Glennon maintains are good reasons. He argues that the crime of aggression is subject to too much disagreement among strong and weak states to reach the level of specificity necessary for imposing individual criminal liability. As a result, the draft definition is ambiguous, overbroad, and inconsistent with the Rome Statute’s own requirement that the court act consistently with internationally recognized human rights. Given these difficulties, Glennon argues that efforts to criminalize aggression along these lines be dropped. Anthony Clark Arend of Georgetown University and Larry Johnson of Columbia Law School will both provide responses.

On Tuesday, Gabriella Blum of Harvard Law School will be presenting her Article The Laws of War and the “Lesser Evil”. Therein, Blum notes that the international humanitarian law (IHL) governing armed conflicts often demands outcomes that run counter to our moral intuitions, particularly in situations where a technical violation of IHL may seem to be out scaled by significant humanitarian returns. By systematically addressing those arguments frequently leveled against shifting standards in such situations, she argues in favor of a humanitarian necessity justification for IHL violations, and attempts to design an effective and workable legal standard for implementing this justification in both IHL and international criminal law. She ultimately presents a standard that would exempt an actor from criminal liability for their conduct where that conduct was designed to minimize harm done to parties other than the actor’s own compatriots, those actions could reasonably be expected to be effective, and there were no less harmful alternatives under the circumstances to produce a similar humanitarian outcome. Matthew Waxman of Columbia Law School will respond to Blum’s argument.

We hope you enjoy the lively discussion that will no doubt arise around both pieces. And please be sure to make your own contributions in the comments sections!

by Julian Ku

I’ve heard that the docket for the European Court of Human Rights is out of control, but a backlog of 120,000* cases is a little ridiculous.

There is no doubt about the seriousness of the situation in Strasbourg. Jean-Paul Costa, president of the European Court of Human Rights, has referred to it as extremely disturbing. The parliamentary assembly of the Council of Europe, which is responsible for the institution, has said the court threatens to suffocate.

A count late last year showed ‘Strasbourg’ has a backlog of over 119,300 cases, all complaints from European citizens who feel their human rights have been in some way violated. They did not get their way in their home countries and decided to plead their case at a higher level. Strasbourg is their last resort.

Reforms are planned. But given the size of the backlog, serious reforms are needed.

*Corrected from original post, which said “140,000″.

by Julian Ku

It is amazing how much effort has been expended in countries like Japan and Australia to argue about whaling.  It is fascinating from say, a realist perspective, since it is hard to imagine that either side has any real meaningful national interest.  And as far as I can tell, Australia’s government is acting on essentially moral grounds, which is er, unusual to say the least.

Japan is ready for them, though.  In fact, they have apparently maneuvered the International Whaling Commission to consider lifting the ban on commercial whaling. They may even have the votes. And if they don’t, it is not clear to me why Japan could not simply withdraw from the IWC and start commercial whaling.  The International Whaling Convention (see Article XI) certainly doesn’t prevent a withdrawal and I am not aware of what other legal obligations regulate whaling in international waters.  The question for Australia, then, is whether it is worth trading the continuation of the IWC regime for the acceptance of commercial whaling.  This seems problematic as a matter of domestic Australian politics, although it seems like a fair compromise.

by Julian Ku

The invaluable “Turtle Bay” Blog points me to this recent Gallup poll on the U.S. public’s view of the United Nations.

I’m a bit surprised the UN polls so badly (26 percent is pretty low).  Then again, Americans are a tough lot. Congress rates even lower, and President Obama is heading in this direction.  So the UN is actually doing quite well…

by Julian Ku

Despite all the grumbling from NGOs, there does appear to be some modest progress toward more peace and stability in Sudan.

Sudanese President Omar al-Bashir has signed a framework ceasefire deal with one of Darfur’s main rebel groups, the Justice and Equality Movement (Jem).

The power-sharing agreement in Qatar is seen as an important step towards peace, though the other main rebel group has refused to enter talks.

This is hardly peace in our time, but it is better than what we had before.  And let’s remember, as awful as Bashir, it is “war criminal” Omar al-Bashir who made this deal, and who will probably be re-elected later this year.  I suppose it would have no effect on this fragile peace deal if he was arrested now. None at all…

by Julian Ku

Emerging disputes over oil drilling and natural gas exploration in the Falklands should provide an ideal test case for international dispute resolution. Argentina appears to be ready to contest UK drilling for hydrocarbons in the Falklands’ exclusive economic zone.

Britain rejected Argentine objections to oil exploration off the disputed Falkland Islands on Tuesday, saying the drilling was within international law.

Argentine President Cristina Fernandez said Latin American leaders backed her objections to exploration off the Falklands, known in Spanish as Las Malvinas, as drilling began on the first well on Monday

I would not be surprised to see a submission to ITLOS or the ICJ here, as both countries are party to the UN Convention on the Law of the Sea and this appears to be a continental shelf issue. It sure beats a war.  I haven’t heard any threats of litigation yet, which suggests that Argentina has a pretty weak case.

by Julian Ku

So says Ashley Samuelson of the Becket Institute.  I’m not sure there has been a policy shift yet, but it is worth watching.

“Freedom of worship” first appeared in a high profile speech in Obama’s remarks at the memorial for the victims of the Fort Hood shooting last November, a few months after his Cairo speech. Speaking to the crowd gathered to commemorate the victims, President Obama said, “We’re a nation that guarantees the freedom to worship as one chooses.” Given the religious tension that marked the tragic incident, it was not an insignificant event at which to unveil a new way of referring to our First Freedom.

Shortly after his remarks at Ft. Hood, President Obama left for his trip to Asia, where he repeatedly referred to “freedom of worship,” and not once to “freedom of religion.”

Not long after his return, “freedom of worship” appeared in two prominent speeches delivered by Secretary Clinton. In her address to Georgetown University outlining the Obama Administration’s human rights agenda she used “freedom of worship” three times, “freedom of religion,” not once. About a month later, in an address to Senators on internet freedom at the Newseum, the phrase popped up in her lingo once again.

To anyone who closely follows prominent discussion of religious freedom in the diplomatic and political arena, this linguistic shift is troubling.

The reason is simple. Any person of faith knows that religious exercise is about a lot more than freedom of worship. It’s about the right to dress according to one’s religious dictates, to preach openly, to evangelize, to engage in the public square. Everyone knows that religious Jews keep kosher, religious Quakers don’t go to war, and religious Muslim women wear headscarves—yet “freedom of worship” would protect none of these acts of faith.

by Julian Ku

The usual meeting of U.S. governors this year has an added wrinkle: the participation of premiers from Canadian provinces.

Provincial leaders wrapped up three days of meetings with U.S. governors in Washington, D.C., on Sunday and Manitoba Premier Greg Selinger said the unprecedented get-together paves the way for improved relations between Canada and the U.S.

“It’s the first time the governors and premiers as a group have met together,” he said. “It was a very positive tone and a welcoming tone.”

It wasn’t just for show. Serious talks between governors on border water sharing issues were discussed. A trend that I am sure will continue, as I predicted here.

by Julian Ku

The release of the final report on the Yoo/Bybee “torture memos” reminds us of how government lawyering can intersect with the interpretation of international law.  And so just in time, the Yale Journal of International Law will be hosting a conference next Friday, February 26, on “Government Lawyering and International Law.” Harold Koh, John Bellinger, and lots of other less famous but no less important and experienced folks will be participating. I don’t think I can make it up to New Haven this Friday, but I encourage those of you who can to attend.

by Julian Ku

After five years, the U.S. Department of Justice has finally released its report of its internal investigation into the legal advice provided by its attorneys that became known as the “Torture Memos.”  The lead investigator was the Office of Professional Responsibility (OPR) which issued a report recommending referring John Yoo and Jay Bybee to their state bars for disciplinary proceedings.  But this recommendation (which was not officially made until December 2008), has been soundly and completely rejected by David Margolis, the Associate Deputy Attorney General empowered by the DOJ to decide whether to accept the OPR recommendations.   All of the relevant documents have been posted on the House Judiciary Committee website.  I’ve only scanned them, but here is the bottom line: Yoo and Bybee’s work on the torture memos is called “poor judgment” and “flawed” but there is no evidence that this advice reflected any professional misconduct.

The decision memo by Margolis (who is a career attorney, not a political appointee) is tough on John Yoo’s work, but it is even tougher (and at times contemptuous) of the work done by the OPR.  The OPR report is rejected in every single way possible.  (Indeed, I wondered at times whether the OPR attorneys are going to be investigated for professional misconduct themselves).

Does this mean the end of the war over the “torture memos”?  Uh, hardly. Congress is going to go over these memos again.  But it is the beginning of the end. The chance of a criminal prosecution of the Bush attorneys in the U.S. is now, effectively, zero. (I argued this point in this essay here and I am glad that I will be proven right)  Civil suits are going to face some serious problems, if the analysis in these documents is accepted.  Even international prosecutions are going to have to take seriously the fairminded analysis in the Margolis memo, which drew tough but persuasive distinctions between good faith legal analysis and professional misconduct.  It would be odd for something that wouldn’t even qualify as an ethics violation in the U.S. to be the basis for criminal liability under a theory of universal jurisdiction.  But then again, I’m not Judge Garzon.

by Julian Ku

I had almost forgotten about this ongoing dispute between Australia and Japan over whaling, which has been going on for years (and which I first noted on this blog way back in 2005).  The Australian Prime Minister warned Japan yesterday that if whaling doesn’t stop by November, Australia will take Japan to court, either the ICJ or the International Tribunal for the Law of the Sea.  Australia seems ready to go. It has its evidence lined up and appears to have James Crawford on board to argue its case before either the ITLOS or the ICJ.  I wouldn’t hold my breath on a quick decision on this, but it would be an interesting case nonetheless. As far as I know, Japan has never faced a case in the ICJ. I wonder what its reaction would be.

by Julian Ku

One small followup on Sarah Cleveland’s articulation of an “Obama-Clinton” approach to international law. In her UVA address, she notes that more treaties have been deposited and ratified in the past year than in any other year in U.S. history.  This is no doubt true, but it is odd that she (or the Obama-Clinton Administration) would take credit for it.  After all, these treaties were all submitted by that guy who was in the presidency before Obama (what was his name?) and his State Department.

In fact, the Obama Administration has been pretty slow to submit treaties to the Senate.  Granted, it’s only been one year and the Koh-Cleveland regime has only been in office since September.  But it is worth noting that they’ve only submitted three treaties to the Senate so far and all of them were protocols to existing and largely unimportant treaties.   Granted, every first year of an administration is slow. But there is no reason to think this administration is particularly fast.

I should also add that for all the concerns raised about the “radical transnationalist” Harold Koh, there is little evidence of this so far, or in the articulation of his approach to international law voiced by Sarah Cleveland.

by Julian Ku

Alan Dershowitz has a very short but persuasive assessment of the legal issues arising out of the alleged Israeli assassinations of a Hamas leader in Dubai.

So if the Israeli Air Force had killed Mabhouh while he was in Gaza, there would be absolutely no doubt that their action would be lawful. It does not violate international law to kill a combatant, regardless of where the combatant is found, whether he is awake or asleep and whether or not he is engaged in active combat at the moment of his demise.

But Mabhouh was not killed in Gaza. He was killed in Dubai. It is against the law of Dubai for an Israeli agent to kill a combatant against Israel while he is in Dubai. So the people who engaged in the killing presumptively violated the domestic law of Dubai, unless there is a defense to such a killing based on international principles regarding enemy combatants. It is unlikely that any defense would be available to an Israeli or someone working on behalf of Israel, since Dubai does not recognize Israel’s right to kill enemy combatants on its territory.

There is an additional wrinkle here that Dershowitz doesn’t talk about, which is whether the presumptive assassins from Mossad are privileged combatants authorized to kill in an armed conflict.  This is the same problem faced by CIA officers directly involved in drone assassinations in Pakistan. Still, the bottom line seems right: There is no legal defense for the assassins under Dubai law and if caught there, they would likely be convicted.  If it is proved that the Israeli government ordered the killing, then the State of Israel is on the hook here for violating Dubai’s sovereignty.

So I wouldn’t look to see a legal defense offered by Israel here. There is no serious legal defense.  But the moral defense seems relatively powerful, as Dershowitz goes on to explore.

by Julian Ku

My former law firm colleague Natalie Klein (now a law prof at Macquarie) calls out aggressive anti-whaling protesters, suggesting they could be liable for piracy.

WHEN Sea Shepherd Conservation Society member Pete Bethune climbed from his jet ski on to Japanese whaling ship the Shonan Maru 2 and presented a demand for money following weeks of hostile encounters between the whalers and Sea Shepherd, the environmental activists finally crossed the line from protesters to pirates.

Read the whole thing here.  Not quite pirates, but surprisingly close.

by Julian Ku

I had the good fortune of participating in a symposium last week sponsored by the University of Virginia Law School’s John Bassett Moore Society.  Entitled “The Obama Impact”, the symposium explored the impact of the new administration on international law and policy.  I have already shared my views on this subject here and I took the opportunity during my visit to rebut the United Nations’ claim to “indispensability.”  But the main action at the symposium was the keynote address by Sarah Cleveland, Counselor on International Law in the U.S. State Department’s Office of the Legal Adviser.  Cleveland, who is also a Columbia Law School professor, offered one of the most forthright and clear explanations of the new administration’s approach to international law.  A summary can be found here, along with a recording of her address.  But below is a key excerpt:

“I would say that the administration has articulated an Obama-Clinton doctrine, a vision that reflects commitments to four elements,” Cleveland said. “The first is multilateral engagement. This was a consistent theme of the president’s campaign and has been a consistent theme of his first year in office.”

Other elements of the doctrine are universality, or the idea that all men are created equal, and the legitimating force of law, which suggests that law gives strength and legitimacy to government action.

“Finally, these goals are to be achieved through a principled pragmatism and the exercise of smart power: the intelligent use of all means to our disposal, including diplomacy, promotion of democracy, development and human rights,” Cleveland said.

by Julian Ku

I don’t know about this lawsuit, presumably filed under the Alien Tort Statute, but it should be interesting.*

A Northwestern University law professor has sued the Hungarian State Railways on behalf of Jews deported to camps during World War II.

Anthony D’Amato, who teaches international law, is seeking compensation for property stolen from Hungarian Jews, the Chicago Tribune reports. In a brief filed last week in federal court in Chicago, D’Amato said the state railways were complicit in the Holocaust and that Jews leaving Hungary for Auschwitz and other concentration camps had to leave their suitcases behind when they were loaded into boxcars.

My prediction: this suit goes nowhere. But maybe I should take a look at the complaint first. Does anyone have a copy by any chance?

*UPDATE: Thanks to reader C. Jenks for a copy of the complaint here.  It is pretty well done (it even includes photos). But it faces some serious obstacles.  One interesting problem: the lawsuit is against a state-owned corporation, and the idea is that this state-corporation’s immunity has been waived by the Foreign Sovereign Immunities Act. This is a tricky argument, and I expect this to be the main focus of the dissent.

by Julian Ku

The Convention on Cluster Munitions, which bans “cluster bombs,” received its 30th ratification yesterday when Burkina Faso and Moldava deposited their ratifications.  The treaty, which was signed back in 2008, set 30 as the number of nations needed for it to go into effect.  It will now become active on August 1, 2010.  Apparently, this treaty was spearheaded by New Zealand and has been signed by 104 nations.

One problem with this treaty, like the Land Mine Treaty, is the non-participation of states, few in number, but by far the most important users of a particular weapon. The U.S. is not a party, and will likely not become a party, to this treaty. Nor will China, Russia, India, Israel, Pakistan, and Brazil.  In other words, it seems highly unlikely that New Zealand, Norway, or Spain would need cluster munitions (not to mention Burkina Faso), so their signatures are not exactly crucial or reflective of an international consensus.  But the next time a cluster bomb is used, expect the claims that it violates international law to rely on this treaty.