The Issues of Contention in Interpreting and Implementing Section 1504 of Dodd-Frank Act

The Issues of Contention in Interpreting and Implementing Section 1504 of Dodd-Frank Act That Would Have an Impact on Transparency Law in the Pipeline in Foreign Countries


https://docs.google.com/document/d/1Z2QD2UVcek0c_QWwHSQxjSZ50nUg-zSb0ZaJvs9SVcw/edit?usp=sharing

the reason Korea should reject the proposal from Tokyo to take the Dokdo issue to the ICJ

Dokdo/Takeshima/Liancourt Rocks (Dokdo), the subject of a territorial dispute between Korea and Japan, is composed of two islets and a few rocks, and is located midway between the Korean Peninsula and the main islands of Japan.

The South Korean government flatly – and quite expectedly – dismissed the official proposal from Tokyo to take the Dokdo issue to the International Court of Justice (ICJ), contending that “No territorial dispute exists about Dokdo because it is clearly a Korean territory historically, geographically and under international law.” 

Professor Julian Ku in his blog at Opinio Juris saw the reason for the dismissal unpersuasive from a legal perspective, and supposed that Korea rejected the proposal simply because it currently controls Dokdo.  He went on to argue that Korea should accept Japan’s proposal in order to settle the source of tension amicably, setting a good precedent of international adjudication for countries in Asia with territorial disputes – notably China.     

Probably, professor Ku is not alone in his view on how to resolve the dispute over Dokdo.  Obviously, Japan steadfastly holds on to the ICJ as a way of resolving this dispute with Korea, claiming that it intends to settle all disputes peacefully -- a clear break from the past imperialism if genuine.  I’ve never come across a single non-Korean who casts any negative light on the Japan’s proposal.  In fact, no country appears to be even remotely sympathetic to Korea’s stance against the ICJ as a venue to resolve the dispute.

The apparent lack of support outside of the Korean Peninsula is mainly because the Korean government has neglected – whether intentionally or not – to publicly advocate for its stance, though there is a strong legal case.  This blog (main source of which is here and here) is to present my understanding on why Korea did and should reject the Japan’s repeated proposals to take to the ICJ the dispute over Dokdo that became the very first victim of the overall process of imperialist Japan’s aggression against Korea.  The merit of the dispute, i.e., which country has sovereignty over Dokdo, will be touched on only to the extent necessary for the purpose of this blog.

It is both the composition of the ICJ and laws it is likely to apply that would not only be expected to work disproportionately in favor of Japan, but also put Korea at unjustifiably inflated risk of losing what Koreans have considered to be the symbol of the Korean independence from Japan’s colonial rule. 

Japan has had a permanent judge of Japanese nationality sitting in the ICJ for the most part of more than 60 years of its history, whereas Korea has had none.  It would be naïve to assume that an ad hoc judge Korea may appoint if it were to consent to the jurisdiction of the ICJ, will be able to exercise as much influence among permanent judges as the permanent judge of Japanese nationality.  In 1950s, even when the ICJ had no permanent judge of Japanese nationality, Japan could make the first proposal of the same kind as the latest one on the reasonable assumption that the United Nations (UN) would elect a permanent judge of Japanese nationality in the foreseeable future, given that Asia had no permanent judge other than those from China and USSR, permanent members of the U.N. Security Council, and that no country in Asia was prepared to compete with Japan for the seat of permanent judge. 

My conclusion – the Japan’s proposal was not out of a genuine intention to settle all disputes peacefully, but out of the calculation that it had a leg up over Korea on the composition of the ICJ – would have been easily refuted if Japan had consistently made the same proposal in territorial disputes with states that have a permanent judge.  Strikingly, but not surprisingly, a distinctive feature to the Japan’s proposal is its curiously selective nature.  In territorial disputes with China and Russia over Senkaku/Diaoyu Islands and the Kurils, respectively, Japan either chose not to make such proposal or rejected, whether implicitly or explicitly, a call for the ICJ from the other party.  In sum, Japan only pursues a game on such setting as put it at disproportionate advantage even before the game starts.       

Professor Ku surmised that Japan did not welcome a call from China for the ICJ over Senkaku/Diaoyu Islands simply because Japan possesses the territory.  I disagree and suppose that Japan refuses to agree to ICJ arbitration because Japan has no vested advantage at the ICJ over China that has a permanent judge.  If Professor Ku were right in his surmise, Japan would have made a call for the ICJ over the Kurils that it did not possess like it insisted on ICJ arbitration over Dokdo it did not possess.

As with colonized countries in Asia and Africa, Korea advocates lege ferenda (what the law should be) to be applied in territorial disputes, whereas colonial countries prefer lege lata (current law).  The current international law the ICJ is likely to apply is unclear on legal effects of acquisition of territory at best and condones colonial occupations at worst.  It is not a surprise because many judges are from former colonial powers, and most judges have been trained in western jurisprudence.  Korea is justly reluctant to agree to ICJ arbitration in a territorial dispute over the two islets that became the first victim of Japan’s imperialist aggression, unless there is a guarantee under current international law that the measures based on colonialism be treated as null and void – lege ferenda.  

To help you better understand how a legal effect of Japanese colonial measures will play out in the ICJ proceeding, I briefly explain two main arguments Japan lays out to prove its ownership of Dokdo.  Its primary argument is that Dokdo is an inherent part of Japanese territory historically and originally.  In response to this argument, Korea is confident that it will prevail over Japan despite the composition of the ICJ that gives Japan a leg up, because historical evidences are overwhelmingly in favor of Korea.   

The alternative argument is that Japan “incorporated” Dokdo in 1905 as prior occupation of a terra

nullius – land belonging to no one – under international law.  If legal effects are granted to the “incorporation,” the consequence in the ICJ procedure would be that Korea has to bear an unfairly heavy burden of proving its ownership of Dokdo by that time; by contrast, in the primary argument where both parties claim historical or original title to Dokdo, the ownership will be decided by the relative merits of each party up to 1905.  The burden of proof, I argue, is unfairly heavy, because legal effects shift it from the colonial state to the victim of its past colonialism in a dispute over islets that were “incorporated” by colonial measures. 

To be clear, there is an abundance of evidence demonstrating Korea has effectively possessed Dokdo for hundreds of years.  It is one thing to have a legally strong case.  It is another to avoid a forum like the ICJ where its composition and laws it is likely to apply will create an unjustifiably inflated risk.  More importantly, the fact that Japan still puts forward an argument based upon its colonial measures raises the specter of its colonialism and betrays remnants of its imperialism.  Korea would appear to endorse the remnants if it agreed to a forum that can possibly grant legal effects to colonial measures by Japan like the “incorporation” of Dokdo.

Then, how can the dispute over Dokdo be settled peacefully?  There will be much more room for a settlement through conciliation or arbitration, if Japan either agrees that the “incorporation” of Dokdo in 1905 based on colonialism is null and void, or proves that the “incorporation” had nothing to do with its colonial policies on Korea.  In plain English, Korea will sincerely respond if there is a genuine territorial dispute. 

Indeed, a leading Korean scholar suggested a settlement through arbitration – where the parties can choose decision-makers and the law that will govern their dispute – in the late 1960s, and received no response from Japan in any form.  This indicates Japan in this dispute expects to take advantage of lege lata that will likely give legal effects to colonial measures, not to mention the composition of the ICJ.  By all accounts, at the heart of the dispute over Dokdo is the still lingering imperialism of Japan.

As such, Korea’s stance against the ICJ in a dispute over Dokdo is not out of infantile nationalism nor parochial interests of its constituents.  Hopefully, you can see Korea has a legally strong case for its stance.  For the remainder of this blog, I would like to elaborate on the statement that “Dokdo is a Korean territory historically, geographically and under international law,” inasmuch as Professor Ku saw this reason unpersuasive.  

Historically, one of the most authoritative records of Korean state affairs published by the Korean government in 1454 made a direct reference to Dokdo by describing it along with Ulleungdo, another island lying within a visible distance from Dokdo.  Since then, official records that mention Dokdo has been repeatedly found.  In stark contrast, an act of fishing by an individual fisherman, which cannot be considered a government act, is the kind of evidence Japan can produce regarding its activities up to the year of 1905 when the “incorporation” took place.

Geographically, Dokdo was considered subsidiary to, or part of Ulleungdo rather than an independent entity, because Dokdo was no more than tiny and uninhabited islets located in the vicinity of the much bigger neighboring island.  Such perception of Dokdo is also evidenced by all of the old Japanese maps that depicted both islands together as a territory of either Korea or Japan.  That said, it is Korea that unarguably has sovereignty over Ulleungdo.

Under international law, Dokdo was by no means terra nullius, contrary to the argument Japan made to justify the “incorporation” by prior occupation.  Historical records in Korea aside, the official announcement of the Japanese government on the “incorporation” included a description of Dokdo that conflicted with terra nullius: “The ownership of Dokdo was undetermined.”  Japan could not acquire the ownership by prior occupation in the first place, because of the clear difference between terra nullius and a territory whose ownership is undetermined.

Japan also argued that Korea acquiesced to the “incorporation” of Dokdo in 1905 based upon the fact that Korea did not protest to the measures.  It should be noted that the process of colonization of Korea had started many years before it was finally annexed in 1910.  In 1905, when the “incorporation” marked the first victim of imperialist Japan’s aggression, Korea had been reduced to a de facto protectorate of Japan, leaving Korea unable to take any measure against the “incorporation.”                

Last but not least, citing the San Francisco Peace Treaty of 1951 that mentioned only three big islands – Chejudo, Kojedo and Ulleungdo – as islands to which Japan had to renounce its right, Japan argued that Dokdo should be considered Japanese territory because it was located outside Ulleungdo.  Korea countered that the Treaty left out many islands within the territory of Korea and that these three islands did not represent the outermost sides of Korea.  For example, Marado, though left out in the Treaty and located outside Chejudo, is unarguably within the territory of Korea.

   

As a Korean who recently graduated law school, I summarized what I understood to be reasons Korea opposed the Japan’s proposal to take the dispute over Dokdo to the ICJ, and also elaborated a little bit on the statement that Dokdo is a Korea territory historically, geographically and under international law.  I am looking forward to hearing voices from both sides.  

DOng's blog post on 북한인권법 South Korea's North Korea human rights bill

South Korea’s North Korea human rights bill … why it is stuck on the tracks

On Thursday, August 16, 2012, the President of the United States signed into law the “Ambassador James R. Lilley and Congressman Stephen J. Solarz North Korea Human Rights Reauthorization Act of 2012," which reauthorizes the North Korean Human Rights Authorization Act of 2004.  In South Korea, by contrast, the North Korea human rights bill (Bill) that has been proposed several times by the conservative party is nowhere near seeing the light of day.  Although liberal parties agree with the purpose of the Bill – to improve human rights in the North – they have persistently opposed the Bill, because, they argue, the Bill is ineffective in fulfilling its purpose; instead it will likely be used to fund civil society organizations that share conservative ideals regarding North Korea, which they believe ultimately increase, not alleviate, tension in the Korean Peninsula.  This blog post is to help you better understand their arguments and intends not to take a position on whether the Bill should be passed into law, which I would leave to you.

The meat of the Bill includes:  

-      establishing a North Korea human rights advisory council within the Ministry of Unification that would provide advisory opinions to the Minister of Unification in setting a North Korea human rights blueprint,   

-      creating the Office of the Special Envoy for Human Rights in North Korea within the Ministry of Foreign Affairs and Trade charged with coordinating international efforts to promote human rights in the North,

-      monitoring humanitarian aid by non-governmental organizations (NGOs) as well as government agencies to make sure the aid reaches intended beneficiaries and is not diverted to the military,

-      setting up a North Korea human rights foundation under the Minister of Unification, whose missions include making grants to North Korea human rights NGOs, and        

-      creating a North Korea human rights archive within the Ministry of Justice. 

Most of these provisions are not novel ideas or mechanisms in addressing North Korea human rights issues. Both the Ministry of Unification and the Ministry of Foreign Affairs and Trade have long engaged on the issue of North Korea human rights.  The archive is already in the National Human Rights Commission of Korea.  Nevertheless, human rights in the North did not improve because of the work of the South Korean government.  The one new concept introduced in this Bill is one that allows taxpayers’ money to fund North Korea NGOs; it is also the main source of controversy over the Bill.  Then the question to ask is, will the NGOs funding provision – a new measure – be effective in improving the human rights situation in the North? 

Liberal parties justly point out that the North Korea Human Rights Act of the U.S. (Act) proved otherwise.  To facilitate the dissemination of information in the North, the Act authorized the President of the U.S. to provide grants to broadcast organizations, including Radio Free Asia and Voice of America.  While having a positive impact on people outside the North, such as North Korean refugees and defectors, the Act did little to improve human rights inside North Korea.  

The same goes true for the Bill, liberal parties argue.  Cynically dubbing the Bill as a “leaflet bill,” they assume that it will likely fund the NGOs mainly interested in sending balloons and leaflets containing information that criticizes the Kim regime.  As with the broadcast organizations, this measure will prove ineffective, only to provoke the North Korean government and, therefore, seriously hamper any future efforts of the South Korean government toward peaceful engagement with the North.         

Admittedly, those who oppose the Bill fail to come up with an immediately effective way of fulfilling the purpose of the Bill, i.e., improving human rights in the North, which would constitute an alternative to sending balloons and leaflets.  Instead, they emphatically remind us that we do not have the luxury of confronting a simple question when it comes to issues dealing with North Korea.

Although the Act of the U.S. reportedly inspired the Bill of South Korea, as evidenced by their similarities, there are inherent differences between the two countries in terms of strategic interest vis-à-vis North Korea.  For example, for South Korea, a peaceful unification has the potential to lead to a major breakthrough on the South Korean economy that is currently stagnant and raise it to the next level by expanding the domestic market and taking advantage of natural resources and cheap labor in North Korea, making the unification arguably an event of existential consequence for South Korea.  Parenthetically, the unification may be the surest way to improve human rights in the North.  The U.S., however, probably sees the unification through the lens of regional balance of power with China in mind. 

On the other hand, if the South Korean government only employs the stick against North Korea and calls on the international community to coalesce around it, the consequent isolation will probably accelerate subordination of the North’s economy to China, as is happening as I speak.  To make matter worse, if the South and North confrontation worsens and an armed conflict somehow arises, it would be Koreans both South and North, not Americans, who would sustain catastrophic damages.  Thus, South Koreans have every reason to develop their own policy toward North Korea distinct from that of the U.S. and, in so doing, should resist the temptation to expect simple answers to this difficult question.                   

Some of those who oppose the Bill believe that it is time to bridge philosophical differences over how to see and deal with North Korea through public discussions rather than pressing with the Bill that polarizes South Korean society without yielding pragmatic solutions. 

Parallel b/w Occupy Wall Street and Kiobel

Parallel Between Occupy Wall Street and Kiobel

After observing people having lunch on the statue in Farragut Square, it was clear to me that spring had arrived on K Street. Among enjoying the park included individuals working at K Street firms that serve and represent the interests of multinational corporations (MNCs). However, a five minute walk up the street revealed that the same spring failed to reach McPherson Square. Here, Occupy K Street is still persisting, the participants no longer remaining complacent about cheap goods brought by MNCs.

What parallels, if any, can be drawn from Americans protesting Wall Street to Nigerians picketing outside the Supreme Court on the day of the Kiobel hearing? Surprisingly enough, there seems to be one. Both situations depict a new dimension of a longstanding issue, one at the domestic level and the other at the international level.

Modern history has never forgone the domestic issue of poverty and unemployment. Occupy Wall Street is not targeting is capitalism itself, which naturally accompanies those issues, but a system of economic relations that fail to serve the public. What was once the land of opportunity has been experiencing a rapid polarization in wealth, and in actuality has less intergenerational economic mobility than other advanced nations. The widening inequalities of everyday life are a fundamental cause that led protesters to set up tents on Wall Street.

Human history has never been spared abhorrent behavior, such as torture, rape, and extrajudicial killing. What Nigerian plaintiffs in Kiobel are pointing out is not just human rights violations, but practices of extreme corporate abuses abroad. What was once composed of only state actors has recently been witnessing non-state actors emerging as a new agent in international law. Because MNCs have a unique and influential position of power in international communities, the Nigerians are justified in demanding that corporations take responsibility for their socially and environmentally damaging actions. 

Why did Occupy Wall Street take to the streets instead of utilizing remedies available within institutions? The Supreme Court is guided by originalism that is hopelessly inadequate for the economic problems of the twenty first century. Both sides of Congress are at loggerheads over what constitutes economic justice. As evidenced by multiple threats of a government shutdown by Republican extremes, President Obama lacks the leverage needed to transcend America’s partisan differences. That said, it is hard to imagine any well-established mechanism within institutions that can readily operate effectively for the long haul.        

Why did the plaintiffs in the case of Kiobel turn to universal jurisdiction, a still developing jurisdictional base, instead of going to courts exercising much less controversial jurisdictional bases with nexus to the state of the forum? The jurisdiction with traditional nexus is usually under sovereignty of host counties where court systems and other means of policing violations are ineffective – the very situation MNCs are exploiting. Because a legal response that is specifically designed to address the misconduct of MNCs and that, consequently, corresponds to their rising power across borders, is not yet established under international law, abhorrent behavior for which MNCs are allegedly responsible would most likely go unscrutinized without a domestic legislation like the Alien Tort Statute (“ATS”) that carries universal jurisdiction and, subsequently, a bit of controversy as well.    

The controversy originated from the early twentieth century notion of sovereignty that built an impenetrable wall around nations borders. Those who adhered to this notion argued that universal jurisdiction impermissibly demanded the surrender of a portion of their sovereignty. However, it was not until the new millennium began that the international community confirmed a crack in the façade of sovereignty as the ICTY – on its jurisprudence the U.S. courts ruling on ATS case heavily rely -- in its opening case held that Common Article 3 of the Geneva Conventions of 1949 constituted customary international law. Behind the current trend is the concept of human security that proposes that the proper referent for security should be the individual rather than the state. The profoundness of the concept dwarfs the difference between Filartiga and Kiobel – a brief sojourn of the defendant in the state of forum.   

Why Wall Street? Occupy Wall Street could have started in places other than Wall Street, as it spread out across the country. However, no other place was more appropriate to begin the movement. Because of its role in creating the financial crisis, its inclination to shamelessly feed into the rent-seeking activities of the 1% and, decisively, its potential to correct the system that has lost its way and bring it back to truer American values and ideals. Wall Street was the perfect place to start the movement.       

Why the U.S.? The U.S. is the primary beneficiary of MNCs. Americans account for less than 5% of the world population, but consume 25% of the world oil production, in large part because oil is priced lower than the true cost. At the same time, the U.S. is still an indispensable power as a leading international actor in implementing international human rights norms.         

What the plaintiffs in Kiobel are seeking in US courts is challenging neither sovereignty of their own country nor legitimate profiteering activities of MNCs. They are saying only, “We can’t find any venue that can possibly recognize us and the ill-gotten gains of MNCs.”

The founding fathers were so genius as to make it possible for the Constitution to survive along with evolving standards of decency in a civilized society. As class of universal offenses expands, the ATS ought to be interpreted to reflect the spirit of the Constitution. My workplace, which is located literally in the middle of the two squares, is trying to bridge the two through the ATS in order to help realize the moral standards of Americans. 

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JOHN BOLTON and JOHN YOO weigh in on Obama commitment to EU draft code of conduct for outer space activity

http://www.nytimes.com/2012/03/09/opinion/hands-off-the-heavens.html?_r=1&pagewanted=print

March 8, 2012

Hands Off the Heavens

By JOHN R. BOLTON and JOHN C. YOO

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DO - For historical reasons rather than constitutional scheme, President entertains more freedom in making decision in the realm of foreign policy than in other domestic issues. Looking closely into the US Constitution, foreign affairs are not entrusted to president as much as we tend to assume. Probably the command-in-chief Article might be the strongest indication of legitimacy of president controlling over foreign policy decision.

But, in the name of the need for speed and secrecy, President has gone around Senate approval procedure by various tools, such as executive order and directives. The US Supreme Court seemed to acquiescence the trend. (See Youngstown (Jackshon, J., concurring)) It is more so when it comes to national security.

The authors raise two concerns – (1) national security, because the voluntary commitment would limit military activity or activity that has military implication in outer space, while China might not play by the same rules, and (2) circumventing constitutional requirement imposed on President making foreign policy decision

Speaking of (2), I doubt it is strictly Obama thing. Is there any President who is willing to subject its power to Congressional scrutiny? Take the Bush 2 on war on terror. He argued the AUMF was silver bullet in a way he did not need additional Congressional approval in taking such a unusual action as convening military commission. See Hamdan.

Speaking of (1), I wonder what the authors would suggest as an alternative to voluntary commitment. I assume the alternative they have in their mind is no action at all, putting the US in the most advantageous – or the least disadvantageous -- position in championing arm race. In other words, under the principle of reciprocity, the US should not make a commitment unless China pledges to follow the suit, they appear to maintain. Then, my question is who is going to take the lead in disarmament to stop pouring money into arms race. Is the voluntary commitment the very area where American exceptionalism should stand up?

Obama was not naïve enough to give up the US sovereignty, particularly in the realm of national security. As the authors indicated, the voluntary commitment is not legally binding. It is an example of smart power or diplomacy in a sense that the US takes the lead in disarmament, putting itself in a position to encourage other countries including China to leave outer space free from arms race – the US takes credit without creating legal obligation on its part.

The authors mention the role of the voluntary commitment in forming customary international law. With a clear understanding of the elements of customary international law, they should have known the difficulty of proving customary international law, particularly opinion juris, which is the source of controversy in many^2 cases. I simply don’t see how the voluntary commitment effectively help form CIL. If there were legal memo on the issue, the State Dept attorneys must have pointed it out.

Obligation not to defeat the object and purpose of a treaty prior to its entry into force (Vienna Convention on the Law of Treaties, Art. 18) has little to do with the CIL. Further, Obama did not “sign” the code of conduct, I guess.

                 

In sum, the move by Obama on global regulation of outer space is an example of smart power or diplomacy.

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OUTER space has become the next frontier for American national security and business. From space, we follow terrorists and intercept their communications, detect foreign military deployments, and monitor a proliferation of unconventional weapons. Our Global Positioning System gives us targeting and tactical advantages, spacecraft create image-rich maps, and satellites beam data around the world.

But instead of advancing American primacy in this realm, the Obama administration has wrongly decided not only to follow a European Union draft “code of conduct” regulating outer space, but also to circumvent the Senate’s central constitutional role in making treaties.

The Obama administration recently declared that America would follow, though not sign, a European Union code of conduct for outer space — a transparent end run around the constitutional requirement that the Senate ratify all treaties. This code, drafted by Europeans who do not bear America’s global responsibilities, restricts military activities in space as well as some peaceful dual-use technologies, like the multistage rockets used to launch commercial satellites.

Europe aspires to prevent an “arms race” in the heavens, but in reality, its code would substantially impede advances in space technology because such innovations could also be labeled as military. While security activities receive an exception, it appears confined to self-defense, a term often defined narrowly to include only cross-border attacks. We should not take the unnecessary risk that our rivals will exploit such ambiguity to prevent legitimate American actions.

(DO- the two authors worked under Bush, who used or created the term “preemptive self-defense.” My question is “a term often defined narrowly to include only cross-border attacks” à seriously? )  

Since there is little our friends across the pond don’t want to regulate, it is no surprise that they are now reaching for space. Taken literally, the European Union code would interfere with our ability to develop antiballistic missile systems in space, test anti-satellite weapons and gather intelligence.

And we shouldn’t expect China to voluntarily accept limits on its space strategy anytime soon. In 2007, China tested weapons that destroyed defunct satellites, and it is deploying its own GPS system. In a war, China could potentially destroy our satellites and still retain its own GPS capabilities.

Military and intelligence strategists understand the risks these limits could pose to our national security. A Joint Staff analysis provided to the House Armed Services Committee states that “if the United States were to make a good-faith effort at implementing the requirements of the draft Code,” it would most likely have an adverse impact on military operations. Members of Congress recognize the national security threats, too. They realize that America must not commit to military limitations in a rapidly changing field before we understand all the costs and benefits.

But the more far-reaching danger is that Mr. Obama is eroding American sovereignty on the sly. He knows that an arms-control treaty for space is unlikely. He barely managed to push the new strategic arms reduction treaty with Russia — a bad deal — through the Senate. In addition, he is trying to enter the United Nations Convention on the Law of the Sea through the back door, by committing our Navy to follow its terms even though the Senate refuses to consider it.

Other presidents have tried to comply with international agreements without Senate approval. Bill Clinton bypassed the Senate when he signed the International Criminal Court Treaty and regarded the Comprehensive Test Ban Treaty as binding even after Senate rejection. Even Ronald Reagan adhered to the 1979 strategic arms limitation treaty with the Soviet Union, but not under the delusion that international law required it. And after seeing evidence of Soviet cheating, Reagan ceased American compliance in 1986.

The Obama administration has characterized its policies as voluntary compliance with European standards, not a legal agreement. While such subterfuges allow presidents to ignore selected parts of un-ratified agreements, the Obama administration’s objective is precisely the opposite. When they were academics, several of his current advisers loudly proclaimed that simply signing treaties without the Senate’s consent helped form binding “customary international law.”

(DO- CIL can be proved only with enormous efforts

if losing 10 stories in UN building is not a big deal, proving CIL wouldn't be a problem)

The Constitution’s framers sought to preclude such schemes through the treaty process. They worried about treaties with Britain and Spain that might cede territory or sacrifice navigation rights in exchange for peace. They would have understood that any arms control deal restricting our sovereignty required a treaty. Our system allows statutes, known as Congressional-executive agreements, to make some international agreements. But successive presidents and Senates have reserved the most vital national obligations for treaties.

Constitutional principles seem to be mere inconveniences to Mr. Obama, however. In pursuing his long-term goal of blunting American power so it meets with approval in international organizations and foreign capitals, the Senate’s role is a nuisance at best. Instead, his administration is ordering our military and intelligence agencies to comply with international agreements without the “technicality” of Senate approval.

The Constitution rightly provides broad executive powers to protect America’s security, especially in responding to unforeseen crises with speed and secrecy. But abusing presidential prerogatives in order to abide by a European code of conduct that erodes American sovereignty eliminates the Senate’s important constitutional role. That does not make America safer; it weakens it.

American security must not be sacrificed for the false promises of global governance. The Senate can defend its constitutional prerogatives by aggressively financing programs to advance our lead in space and refusing to follow the administration’s foreign-policy lead until Mr. Obama respects the Senate’s vital role in making treaties and protecting national sovereignty.

John R. Bolton, a senior fellow at the American Enterprise Institute, was ambassador to the United Nations from 2005 to 2006. John C. Yoo, a law professor at the University of California, Berkeley and a former Justice Department official, is co-author of “Taming Globalization.”

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Council conclusions and draft Code of Conduct for outer space activities

http://www.eu2008.fr/webdav/site/PFUE/shared/import/1209_CAGRE_resultats/Code%20of%20Conduct%20for%20outer%20space%20activities_EN.pdf

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LETTER

A Code for Outer Space, as Seen From the State Dept.

Published: March 15, 2012

To the Editor:

Re “Hands Off the Heavens,” by John R. Bolton and John Yoo (Op-Ed, March 9): From GPS navigation to cellular communications, the benefits of space permeate our lives and are vital to our national security and economy. Maintaining American leadership is absolutely critical.

But orbital debris and irresponsible actions in space have increased the chance of collisions that could have damaging consequences for the United States and others.

As more nations and organizations use space, the United States must work with our allies and partners to minimize these problems. The United States is joining with the European Union and others to develop an International Code of Conduct for Outer Space Activities to reduce the potential threat to American space assets by endorsing nonbinding best practices and transparency and confidence-building measures.

It is important to clarify several points with respect to the code. It is still under development, we would not subscribe to any code unless it protects and enhances our national security, and the code would not be legally binding.

An International Code of Conduct for Outer Space Activities would be like the Hague Code of Conduct Against Ballistic Missile Proliferation adopted by the previous administration and would not require Senate advice and consent. As we move forward, we will continue to consult with Congress, American industry and the American public.

ROSE GOTTEMOELLER

Acting Under Secretary of State for Arms Control and International Security

Washington, March 14, 2012

spring in K St. - Farragut Sq. v. McPherson Sq. lunch time on March 8, 2012, Thursday

Farragut Sq. where K St. firm lawyers sit and grab lunch
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McPherson Sq. where Occupy K St. still persist, 0.2 mile away from Ferragut Sq. 

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This is pretty much reflection of within myself -- I do have both. And I happen to work in-between in terms of physical location. 

maybe figuratively as well, or tipped more toward McPherson Sq. 

squarely fit within McPherson Sq. financially. 

  

JCE - art 25.3. of Rome Statute

I am tempted to object to the argument that what is the closest to JCE among the mode of liability under the art. 25.3. is art. 25.3.(d).  


JCE is a kind of "commit."
art. 25.3.(d) of the Rome Statue is "a residual form of accessory liability." (Lubanga, Case No ICC-01/04-01/06, Confirmation of Charges para. 337) 


JCE better fits into "jointly with another" under art.25.3.(a) 


art.25.3.(a) - as an individual (單獨正犯), jointly with another(共同正犯), and through another person (sort of 間接正犯)
art.25.3.(b) - 敎唆
art.25.3.(c) - 幇助
art.25.3.(d) - a residual form of accessory liability. Without restriction on the scope of accessory liability, the Prosecution will make every argument to expand accessory liability to loosely-related or remotely-proximated act, and, thus, impair the the spirit of nullum crimen sine lege. Art.25.3.(d) is designed to set a threshold for an act to constitute accessory liability. 


One of the reasons that get people to think JCE in line with art.25.3.(d) is the efforts both make to resist the temptation to get on the hook all of those who got involved in a crime at issue. 


Since JCE falls under "commit," the theory for co-perpetrator best fits for analysis of JCE I, II, and III. 

seminar on IHL Oct. 22, 2011

One instructor who used to work at ECCC presented on international enforcement of IHL.

the cost of international criminal tribunal (ICTR, ICTY, SCSL, ECCC, and ICC) 

as of 2010, $4.7 B 

He threw out a question: international criminal tribunals worth the money? 

I responded: what else can we do? R2P -- military intervention -- is too intrusive. Diplomatic resolution, e.g., under Ch. 6 of the UN Charter is toothless. International criminal tribunal is the only viable option available to international community. He tried to pose a question of what we could get out of the money (or the efforts) -- cost-benefit analysis. I would point out opportunity cost. 

After presentation, I asked a question on the ECCC: why the UN does not really step in to fix the governmental intervention in the ECCC. I prefer to see UNSG condemning and accusing Cambodian government of crippling independence of the ECCC. 

He responded by saying that unless pulling out of Cambodia, the UN should be cooperative with the Cambodian government, rather than confrontational.  

Balkan Justice Hasn’t Deterred Crimes Elsewhere

http://www.businessweek.com/news/2011-07-21/balkan-justice-hasn-t-deterred-crimes-elsewhere-view.html

July 21, 2011

July 22 (Bloomberg) -- Until his July 20 arrest by the Serbian government, Goran Hadzic was the last person indicted for war crimes by the International Criminal Court for the former Yugoslavia to have escaped capture. Hadzic was charged for his alleged role in the murder of Croatian civilians. This arrest is a welcome milestone for international law and for peace and prosperity in southeastern Europe.

Along with the May 26 capture of Ratko Mladic, who was indicted for war crimes committed in Bosnia, the news indicates that Serbia has broken decisively with the virulent nationalism that was the primary cause of the Balkan wars of the 1990s. Serbian President Boris Tadic deserves much credit for this transformation.

Serbia now is a strong candidate for membership in both the European Union and NATO. The prospect of joining those organizations surely spurred Belgrade’s action. Both now have a duty to respond by expeditiously welcoming a new Serbia into these crucial European institutions.

Credit also is due to the court, which focused on individual responsibility rather than collective guilt. This helped foster reconciliation among Serbs, Croats and Muslims in the former Yugoslavia.

(failure of the ICTY to deter other would-be war criminals)

But beyond the Balkans, it would be a mistake to exaggerate the court’s relevance as a deterrent to other would-be war criminals.  The court was successful because its jurisdiction was limited and a broad consensus existed that these were the most heinous human rights violations in Europe since World War II.

The genocide in Darfur, Charles Taylor’s crimes in western Africa, the slaughter of civilians in Sri Lanka, and Muammar Qaddafi’s willingness to wage war against his own people in Libya all demonstrate a larger truth. International law, for all its good intentions, is no substitute for international action.

Read more Bloomberg View editorials.

--Editors: Stuart Seldowitz, James P. Rubin


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It would be naive to expect that the ICTY or even the ICC will directly cause atrocities to drop. 
Anyway, war or more broadly speaking armed conflict keeps happening.

If the ICTY had been designed specifically to deter would-be such crimes, the punishment would have been much more severe. Given the seriousness of the crime the convicted committed, the punishment is symbolic, rather than corresponding to retribution or deterrence. 


I am not saying deterrence was not in minds of the ad hoc tribunal founders. The establishment of the ICTY is a compromise around responsibility to protect and political inertia. In this sense the ICTY can be counted as an "international action." 


I don't really see what the author meant by "international action." If s/he meant something like an action under Article 42 of the U.N. Charter, the ICTY should be a substitute for international action under some circumstances. 

The beauty of Law of War in the killing of Osama Bin Laden: searching for the appropriate space between vindication and vengeance

The beauty of Law of War in the killing of Osama Bin Laden: searching for the appropriate space between vindication and vengeance. [1]   

Why did I enjoy the presentations on the Beauty? [2]  I could have heard different answers to the question from different people who enjoyed it together with me. It was interesting in that each presenter suggested a unique view on the Beauty that someone else could not have relished before. For example, the last presenter talked about the Beauty in terms of perception, which brought us to the gray area between physical body and metal mind. It always arouses warmth sleeping deep in our heart to see someone helping the disadvantaged for his pleasure. The young female presenter who had lived in India seemed to have broken the wall between volunteerism and personal life. I would have attempted to major chemistry in undergraduate if I had had a teacher like the bubble presenter in high school. Needless to say, it was fun. We were able to laugh even when the heath-care presenter talked about Alzheimer which comes as a deep sorrow to families of a person with the disease. The cup cake presenter did not need any longer courage to keep her narrative ordinary even when bringing up the failure of marriage. She has been “practicing” cup cake as she became increasingly aware of how to love herself. The comedian showed that laugh comes from a state of mind of a person rather than a situation in which he is.

If any, what would be common thread shared by all presentations? I would say the Beauty they presented comes from the image of God. [3] As each presenter “cultivates” [4] their own skills--teaching chemistry, studying perception of beauty, pondering a sense of humor, creating a cup cake of beauty, making senior care more accessible, helping the trafficked to be a self-propelled actor in market—she takes one more step toward the image of God.

Not every diligent person can be said to “cultivate” his area. A step toward the image of God requires something more than that, which can be hardly captured by one descriptive word, mainly because I don’t know yet what it is. While momentum will accrue with diligence and passion, it is, in fact, often directed against the image of God. A man with a six pack and a pin up girl must have disciplined themselves to be in good shape physically—momentum. To describe them, I would use the word “sexy” or “pretty” rather than “beauty.” It is not because they are not beautiful. After all, the question of momentum and direction is left with each individual.

The series of presentation motivated me to think about the Beauty of what I am interested in, which is, among others, law of war, i.e., rules regarding armed conflict. After spending a couple of stroll seeking to discover the Beauty which I believe exists in law of war, I drew a conclusion that the law of war reflects the image of God by searching for the appropriate space between vindication and vengeance.

Ideally speaking, realization of the image of God would have warranted an absolute state of peace or at least pacific dispute resolution in secular world. However, Adam and Eve ate the fruit of the tree of the knowledge of good and evil, erroneously believing that they already had or would have wisdom to discern good and evil. As the false wisdom permeates into every breath we take, it puts us in a box where my justice is inevitably doomed to conflict with yours, both of which cannot be reconciled with mutual understanding. Consequently, we are faced with a choice of lesser evils: resort to use of force while still seeking for image of God during armed conflict. Put differently, the way of using or threatening force, if we can’t avoid as a matter of fact, must be restricted only to a limited extent of pursuit of justice which is necessarily accompanied by vindication, leaving no room for intent to revenge.

Let us take an example of the killing of Osama Bin Laden (“OBL”) for the event serves well to illustrate how law of war searches for the appropriate space between vindication and vengeance. It is a timely and legitimate example in that its facts are well publicized and the Obama administration claims it to have been carried out in full compliance with law of war.    

The first question you might raise is whether it is consistent with law of war to resort to (military) force against OBL. The 9/11 attack was already completed and almost a decade has passed. Suppose a heinous crime took place in 2001 in the U.S. Law enforcement would use police power to arrest the perpetrator, as opposed to using military power to take his life.

In principle, use of force is prohibited by law of war with few exceptions, one of which is self-defense. Like an act of violence is justified by self-defense in domestic law, a country is justified in taking military measure if an armed attack occurs against the country.

Without law of war which permits use of force under very exceptional circumstances, such as self-defense, every country would make arguments, knowingly or self-deceptively, based on “false wisdom,” namely I have the knowledge of good and evil and, thus, our use of force is just war. Law of war is designed to head off such “false wisdom.”   

In the present case of the killing of OBL, he has an unquestioned leadership position and a clear continuing operational role within al Qaeda. It undertakes to continue to attack the U.S. Thus, use of force by the U.S. against al-Qaeda and its leader, OBL, is justified by self-defense doctrine.  

Instead of bombing the compound from afar, the President chose to send SEAL team, whereby the U.S. operation could target the only legitimate military objective—OBL—and avoid excessive incidental injury to civilians. Put it in legal terms, the operation followed the principles of distinction and proportionality.

Under the principles, attack must be limited to military objective, excluding civilians. Furthermore, attack must be proportionate to the harm or threat which gave rise to the attack. The choice of lesser evils, though permitting use of force, still seeks for the image of God during armed conflict by protecting civilians against military operation and prohibiting unnecessary injury.   

Someone may justly raise a question: would it be better to capture OBL? Is it illegal to order the SEAL team to kill him, not capture? According to the Obama administration’s statement, if OBL offered to surrender the team was required to accept his surrender if the team could do so safely. Indeed, the law of war requires acceptance of a genuine offer of surrender. However, OBL was said to refuse to express any intent to surrender.

The law of war with regard to surrender clearly shows that it seeks for vindication, not vengeance. The choice of lesser evils, while empowering the U.S. to use lethal force, does not go so far as to allow the killing of enemy merely because of his status of enemy. If the enemy genuinely abandons the intent to attack for whatever reason, the image of God is too compassionate to kill him for the moment.    

Vengeance is retrospective in that it looks back on past activity to be punished, possibly by killing, whether or not an enemy surrenders afterwards. Vindication, however, is prospective in that its main goal is to affirm a position to be legitimate and leave a legacy for future activities—pursuit of justice. Since the pursuit of justice does not necessarily come from the killing of enemy, law of war prohibits such killing when the enemy surrenders.

Without law of war regarding surrender, a party involved in armed conflict would, knowingly or self-deceptively, claim to have the knowledge of good and evil, and argue that his killing of an enemy who raises white flag is a God’s answer to his prayer. The false wisdom will leave us trapped in a vicious circle of violence.     

  

The Obama administration unequivocally emphasizes that the operation was conducted in accordance with laws of war. Obviously, the organized terrorist enemy has neither conventional forces nor commitment to ensuring its attacks against the U.S. comply with law of war. Though that behavior makes the application of law of war significantly difficult, this administration committed itself to ensure that lethal operations are in full compliance with all applicable laws. The efforts, I believe, are truly American exceptionalism, which makes the U.S. different from those it fight and which is the source of its strength.   

[1]  Kevin Eckstrom, How Should Religious People Respond To Bin Laden's Death?, THE HUFFINGTON POST, May 2, 2011, available at http://www.huffingtonpost.com/2011/05/02/is-it-ok-to-cheer-osama-b_n_856620.html?ref=fb&src=sp.

[2]  http://midrashstl.com/

[3]  Genesis 1:27 (“So God created man in his own image, in the image of God he created him; male and female he created them.”)

[4]  Genesis 2:15 (“Then the LORD God took the man and put him into the garden of Eden to cultivate it and keep it.”)

-       I intentionally neglected to cite the sources I get the idea or phrase from. No Plagiarism charge.

-       The short-writing is not to address the issue of whether the killing of OBL was legal. Instead, I made an attempt to see law of war in light of the Word, using the event of the killing of OBL as an example.