“The uncontroverted portion of the record reveals that the use of force was prompted by Plaintiff’s refusal to follow direct orders to enter his cell because he was upset that he did not receive a sufficient number of sandwiches.”

The lesson here is simple: never deny a man his grilled cheese sandwich.

-Michael

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

But even though that sounds extraordinarily technical, the facts of the case actually might provide fodder for some explosive campaign rhetoric.

At bottom, Kiobel could be thought to confront two fundamental issues: (1) the rights of aliens to enjoy certain protections in U.S. courts; and (2) the accountability of corporations for acts that caused injury. Those issues touch upon some raw feelings, driven by xenophobia, anti-corporatism, and general distrust of the Supreme Court. Either way the case goes, it’s likely to stir intense political feelings:

• If the court rules that corporations may not be held liable under the Alien Tort Statute, we’re likely to see a mini-replay of the Citizens United furor. The decision would fit neatly into the narrative that the Roberts court cares more about the interests of corporations than individuals. I can already imagine President Obama giving a speech about the Court’s unwillingness to place limits on the acts of corporations, whether those limits come in the form of campaign spending law, basic human rights laws, or otherwise.
• If the court rules that corporations may be held liable under the Alien Tort Statute, then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc. Then again, Arizona v. United States might provide a better platform for anti-immigrant rants than Kiobel.
• If the court simply punts and says that the Alien Tort Statute does not apply extraterritorially, I don’t think anybody will care. Some people will scream about judicial activism, others will applaud the court’s judicial restraint. For its part, the Alien Tort Statute will be dead, squashed like a roach under the jackboot of judicial fuddyduddyness.

Personally, I think it’d be kind of nice to see candidates sparring on things of substance (like Kiobel) rather than spitting the same ‘ole sound bites. But that’s probably too much to ask for.

-Michael

Blogging is supposed to be fun. In a perfect world, here’s what would happen: you post something interesting and insightful up for the world to see, everyone compliments you on your incredible intelligence, and you can be happy that you added something useful to the world. In the real world, here’s what often happens instead: you post something empty (or perhaps something insightful that turns out to be wrong), anonymous internet trolls leave angry comments eviscerating your work, and you leave wishing you had spent all that time you invested with a stiff drink rather than wasting it on your crappy blog post.

These problems can only get worse when people write about things falling outside their traditional areas of expertise. Susan and I, for instance, write about anything that catches our attention for a moment, which may be something we each know very little about. Even the title of our blog acknowledges the broad sweep of what we talk about here. As a result, we sometimes stumble off track and screw things up.

Recognizing I’m not an expert on many subject matters I write about here, I always try to do two things: (a) acknowledge when I’m wrong, if someone tells me; and (b) never write a post in a heavy-handed, “why doesn’t this person already know this” kind of way.  (I’ll admit there have been exceptions to this rule.)

The importance of a bit of humility in blogging is nicely illustrated by a recent blog post from law professor qua pop culture legal icon Jonathan Turley. The post excoriates Justices Thomas and Scalia for their recent dissenting opinion in a habeas case, Maples v. Thomas.  As it turns out, Professor Turley’s bluster seems to be based on a fundamental misunderstanding of the decision.

[A digression to explain the case. The Maples case presents a procedural issue only a criminal nut could love: what constitutes "cause" sufficient to excuse procedural default? SCOTUSBlog's Plain English column explains it well:

When he first challenged the constitutionality of his death sentence at the state level, Maples thought (as he later told courts) that he had “won the lottery” because he was represented by two lawyers from a prestigious New York law firm.  Unfortunately for Maples, after his New York lawyers filed his brief in the state trial court but before the court issued a decision ruling against him, both of those lawyers left the firm for other jobs, without notifying the court.  So when the court mailed the decision to the lawyers, the mailroom at the New York firm simply returned the unopened envelopes to the court (marked “Returned to Sender”).  As a result, Maples missed his chance to appeal the court’s ruling, which in turn led federal courts to reject his constitutional claims on the ground that they were procedurally defaulted – that is, that he had not given state courts a chance to consider them.

Ok, now back to the law professor's post.]

The Court determined that Maples’ lawyers had abandoned him, providing cause for his procedural default. Scalia and Thomas dissented. This, Turley says, is deplorable:

Scalia dismisses the confusion and lack of involvement of the attorneys who tried to retrieve Maples’ procedural rights. However, once again, procedural requirements must be tempered by some notion of basic justice and fairness. The jurisprudence of these justices appear to be impenetrable by such values. It is the triumph of procedure over justice.

Trouble is, Scalia never once concluded that abandonment is insufficient to establish cause to overcome procedural default. In fact, Scalia expressly agreed “that a habeas petitioner’s procedural default may be excused when it is attributable to abandonment by his attorney.” Scalia dissented because of a factual disagreement with the majority’s conclusion that Maples had been left without counsel. In Scalia’s view, Maples was still represented by the firm of Sullivan and Cromwell as a whole and by a few other individual attorneys who had also represented him. Thus, there was no “abandonment,” but only attorney error. Basic attorney error is something long-recognized as insufficient to establish cause. Scalia’s opinion closes by noting that Maples’ case could therefore provide sufficient cause only if the Court undid its own case law and made all attorney error sufficient to establish cause.  (It is this final explanation that Professor Turley seems to take out of context.)

Scalia’s fine factual distinction may be weak to many, but the point is that he does not reject abandonment as a grounds for relief. He does not insist that procedure triumphs over justice in every case. Professor Turley seems to have overlooked this subtle but important distinction.

I flag all this as a cautionary tale. Blogging is often sold as a no-lose situation, especially for practitioners looking to draw in clients by flashing their intelligence. But blogging is a difficult and dangerous undertaking. Even the best sometimes misread cases or misunderstand doctrine. And when that happens in a blog post, there’s nowhere to hide. The wolves come out out of the shadows to pounce. There is blood. Things get messy. Keep that in mind when you sit down at your keyboard with plans to show the world how smart you are.

…Now go ahead and tell me all the ways I’m wrong.

-Michael

Unfortunately, I came away from the article a bit disappointed; although Sykes accurately summarizes some economic concerns that are theoretically raised by the ATS, there is close to no examination of actual corporate behavior. I was frustrated with its near total disconnect from any specific applications of the ATS, as only a single example from actual ATS litigation is used to illustrate the potential economic downsides of corporate liability: that of Talisman’s withdrawal from Sudan and replacement by Chinese corporations. Actual dollar figures associated with defending ATS suits, or total amounts of judgments or settlements that have been paid under ATS cases, are never brought up.

My major complaint would be that, because the article simply focuses on the theoretical costs caused by corporate liability under the ATS, with little or no evidence as to the actual costs that have been experienced in ATS suits, Sykes’ analysis is almost equally applicable to the question of multinational corporate liability in any situation, not just Alien Tort Statute case. In his article, Sykes identifies five general economic costs:

1. Litigation is expensive
2. This is a confusing area of the law, which means judges are likely to end up making decisions that are biased against big, faceless corporations
3. Allowing multinational corporations to be sued for allegedly bad things they have done can piss off foreign governments, either where the MNC is headquartered or where the bad acts took place
4. Allowing corporations with connections to the U.S. to be sued is harmful because it gives a competitive benefit to corporations that do not do business in the U.S., and so cannot be sued
5. Allowing corporations with U.S. connections to be sued will cause them to engage in expensive restructuring to create subsidiaries that have the competitive benefit of not being able to be sued in the U.S.

These costs are not really unique to the ATS context. It is not that any of these costs aren’t real, but Sykes never discusses how each of these general economic concerns is particularly applicable in the context of the Alien Tort Statute. For instance, although the first point is an important consideration for any type of litigation, the article does not provide any evidence that the costs of ATS litigation are more concerning than the costs associated with, say, products liability, or Title VII cases. Plus, as Sykes himself admits, a large proportion of corporate ATS cases feature up to a dozen different claims in addition to any ATS -based claim for relief. If the ATS didn’t exist, it doesn’t mean these all the ATS cases would cease to exist as well — just that they woudn’t have brought ATS claims. And, other than in a handful of high profile exceptions, the ATS portions of those cases don’t cause any significant increase in the overall litigation costs. As Sykes also admits, U.S. Courts are already concerned with the potential costs of baseless litigation, and have implemented doctrines intended to curtail the expenses associated with such cases. I am all in favor of Twombly’s heightened pleading standard applying to ATS suits, but the record of ATS litigation thus far — with an overwhelming majority of ATS cases being dismissed — suggests that this is already occurring, and that litigation costs in ATS suits are no higher than for any other given type of litigation.

As for the second point, regarding the risk of judicial bias against corporations, there is zero evidence that this is a cost particularly likely to occur in the context of ATS litigation. Given the existence of a single plaintiff victory at trial in corporate ATS cases — and perhaps a dozen settlements, many of which heavily favored the corporations — the record would suggest that ATS suits do not feature any problematic bias against corporate defendants.

Although the third potential cost identified by Sykes, that of foreign sovereign backlash, is a real threat posed by ATS litigation, the problem is one that arises from a separation of powers perspective, and analysis under a law and economics framework is less useful. The problem with the risk of Foreign Sovereign Backlash (“FSB,” because I’m too lazy to keep typing it out) under the ATS is that it can place the judiciary in the role of FSB-gatekeeper, when that role is Constitutionally assigned to other branches. Yes, FSB can be expensive — but the problem is not the expense itself, but which branch of government is entitled to decide to cause it. Foreign relations are not a straight forward cost-minimization exercise, and the Executive is free to make a foreign relations decision that is more economically expensive if it believes other U.S goals are better served in doing so. The concern about the risk of FSB arising from ATS litigation is not an economic concern, but rather a Constitutional one.

Sykes’ argument also fails to spend more than a quick footnote considering the possibility that there may be a FSB benefit to ATS suits. ATS cases can potentially benefit the Executive by minimizing the U.S. government’s role in punishing corporations that engage in human rights abuses. It allows such corporations to be penalized, but without requiring the elected branches to themselves specifically decide who to prosecute or accuse of violating international law. Although allowing individual foreign plaintiffs to make the decision to bring an ATS suit can and does cause FSB, requiring that the U.S. government itself specifically choose to bring claims of, say, genocide against a foreign state (and corporation) is likely to cause even more offense still. If the Executive wants to punish extraterritorial corporate human rights abuses (and with Koh at the legal helm, I think we can assume it does), there is a definite benefit in allowing plaintiffs to bring ATS suits against bad corporate actors, rather than requiring that the State Department be the one to do all the dirty work.

The fourth economic cost Sykes identifies is that “corporations subject to suit in the United States thus face potentially discriminatory liability standards, imposing the costs of litigation and any resulting judgments on them for alleged conduct that actual and potential competitors can undertake without fear of liability.”

The problem with this argument is that it literally argues that, from an economics perspective, it is better if U.S. corporations should not be liable for any torts under U.S. law, because non-U.S. corporations are not liable for theirs. As a result of the ATS, Sykes writes,

business opportunities are diverted to competitors that are not subject to suit in the United States. Not only does the U.S. corporation lose business, but business opportunities are captured by competitors who are not subject to liability for violations of customary international law. The competitor thus faces no more incentive to guard against violations of customary international law than would the U.S. corporation if it did not bear discriminatory liability – the likely impact on compliance with international law is nil. The only thing that has changed is the displacement of the U.S. corporation by a higher cost and thus less efficient competitor. Global economic welfare declines.

Sykes does qualify this statement by acknowledging that global economic welfare can be assisted through the existence of corporate liability, by deterring inefficient distortions in where corporations choose to invest funds. Still, this caveat does not quite sufficiently cover the objections to his argument. I think that Judge Posner, in his recent opinion in Flomo, probably put it best:

One of the amicus curiae briefs argues, seemingly not tongue in cheek, that corporations shouldn’t be liable under the Alien Tort Statute because that would be bad for business. That may seem both irrelevant and obvious; it is irrelevant, but not obvious. Businesses in countries that have and enforce laws against child labor are hurt by competition from businesses that employ child labor in countries in which employing children is condoned.

Again, a law and economics approach alone is not particularly beneficial in this context. It is not that a law and economics analysis is useless here, or that these questions should never be asked. But asking simply “what is the economic cost of prohibiting child labor?”, or “what is the cost of prohibiting slavery?” only goes so far. Although there is not quite a unanimous opinion on the matter, in as much as the world has ever reached a global consensus on anything, there is now a fairly universal agreement that activities like slavery and genocide ought to be prohibited, no matter the economic cost caused by that prohibition. As such, the more useful question is what is the most efficient way of deterring these prohibited behaviors, not whether or not such activities should be deterred at all.

A related cost disadvantage Sykes identifies here is the reputation costs suffered by U.S. firms that are sued for foreign human rights abuses. True, this is a real cost suffered by corporations like Chiquita and Pfizer, but is it one that argues against a regime corporate liability under the ATS? If anything, it shows how ATS suits have the potential of benefiting shareholders, by giving them relevant information about a corporation’s foreign management practices. Sykes is essentially arguing here that, absent the ATS, U.S. consumers and shareholders would have less awareness of the fact that certain corporations may be assisting foreign regimes in carrying out genocide or other violations of international law, and therefore the ATS imposes a “cost” on these corporations by raising that awareness. It is true that companies suffer damage to their corporate reputations as a result of, say, enrolling marginalized children into drug trials without regard for their consent, but any “economic cost” from such reputation damage may very well be outweighed by the economic benefit of making it harder for corporations to deceive consumers and shareholders about information that is relevant to their consumption and investment choices.

[I've realized after finishing this post that I forgot to discuss the fifth cost identified by Sykes -- the costs incurred by companies that have to spin off subsidiaries to try and immunize themselves from human rights abuses by their overseas operations. I may get back to edit this later, but to a large extent, while I agree with Sykes' assessment of the costs imposed by the ATS here, I do have a problem with the framing. If corporations are engaging in inefficient restructuring in order to avoid liability for human rights abuses, that is an argument in favor of reforming corporate law to remove corporations' incentives to restructure as a means of avoiding liability for their bad acts. It is not an argument in favor of simply permitting the bad acts.]

While the five potential costs of ATS identified by Sykes are real, there is very little consideration of whether or not these costs are outweighed by the accompanying benefits. In places, Sykes does in fact acknowledge that the real question is not whether prohibiting genocide or other violations of international law is bad for business, but whether the ATS is an efficient method for deterring such activities. However — with the exception of his discussion on aiding and abetting liability — Sykes never fully engages with this question; he does, for instances, explain why imposing aiding and abetting liability is not likely to be effective at encouraging foreign sovereigns not to randomly kill their own citizens, but there is never any comparison between the relatively costs of achieving this goal via aiding & abetting liability vs. alternative methods of deterrence. Yes, there may be costs to ATS litigation, but the fact that there are costs is not by itself a sufficient argument against corporate liability, as it would seem that the United States does in fact consider deterring corporate human rights abuses to be of at least some marginal utility. In which case, if it turns out to be the case the ATS’s deterrence value is not sufficiently high to offset the costs of its enforcement, what other schemes exist that are capable of advancing these goals in a more cost effective manner?

Just saying that the ATS imposes “economic costs” is meaningless; of course it imposes costs, and those costs are likely similar to the costs imposed by other corporate liability regimes. The relevant questions here are instead (1) what are the actual dollar figures of those costs? Not in the abstract; if the ATS is so damned expenses, surely someone can pull up some supportable figures demonstrating it; (2) what is gained in exchange? Looking at the costs of the ATS is only part of the equation, there needs to also be an examination of its benefits to compare against the costs; and, (3) are there methods of deterring corporate human rights abuses more efficient than the ATS?

If the answer to this is simply that “the cost of deterring corporate human rights abuses is outweighed by the benefit of allowing corporations to engage in human rights abuses,” then come out and say so. But all Sykes has given is some abstract reasons as to why the ATS may have certain economic costs — without attempting to quantify what those costs are in reality, and without any reference to alternative schemes that might be more efficient in achieving the goals that are promoted by ATS supporters.

As noted above, Sykes does a fair job of discussing these issues with respect to aiding & abetting liability under the ATS — and he is completely right. Aiding and abetting liability under the ATS is of a dubious pedigree both from a legal perspective and an economics one. I just wish he’d gone on to make a comparison of the relative efficiencies between a regime of aiding and abetting liability and other potential methods, however.

For instance, if the goal is to encourage companies to invest in regimes that abide by certain minimum human rights standards, this would probably be more effectively carried out through direct federal statute, something analogous to ITAR or the anti-terrorism statutes that Chiquita got nailed with. That would allow the U.S. government to more directly tailor the specific prohibitions to match its foreign relations goals, and (well, theoretically) reduce the litigation costs associated with enforcement via the ATS. Trying to regulate the allocation of foreign investment through a scheme enforced via private litigation is obviously clumsy; direct instructions from the fed as to what foreign investment is deemed problematic from a human rights perspective is a much cleaner and easier scheme to execute.

On the other hand, as discussed above, accomplishing the ATS’ objectives through direct federal regulation would eliminate one major advantage provided by the ATS scheme: the fact that the U.S. government is not required to take sides. If a scheme to prohibit corporations from engaging in human rights abuses abroad was established through federal laws, the U.S. government would be required to specifically choose to prosecute any violation that occurred, or specifically name foreign human rights abusers that companies were discouraged from investing in. Despite all the complaints about the ATS’s “foreign relations costs,” it cannot be assumed offhand that the U.S.’s foreign relations would be better served by a scheme that requires the U.S. executive and legislative branches to deliberately and intentionally accuse foreign sovereigns of humans rights abuses.

This post has pretty much definitely gone on for too long, but there are two final points I wanted to briefly discuss. Throughout his paper, I think that, to a large degree, Sykes underestimates both (1) the extent to which it is the nerve centers of corporations, and not the local actors, which initiate corporate human rights abuses abroad; and (2) the comparative power of the corporations against the local developing governments. To be fair, I too am only aware of anecdotal evidence with regard to these arguments, one way or another. And Talisman’s involvement in Sudan, for instance, might have been without its directors’ knowledge, and carried out by the government of Sudan rather than through any corporate initiative. But on the other hand, Chiquita’s payments to the AUC and Shell Nigeria’s collaboration with the government in regards to the Ogoni were not decisions made by isolated foreign outposts that had no contact with or direction from company execs. There is clearly high-level executive complicity at play in many of the worst examples of corporate human rights abuses. Moreover, Sykes’ blithe assumption that MNCs have no ability to promote or deter human rights abuses by local government officials — because “[i]nvestors who interfere in any substantial way with the government’s preferred course of action can be booted out and [r]eplaced with others” — seems entirely at odds with actual experience. In many cases, MNCs operating in developing nations possess a near-monopoly status, and directors carefully develop close, err, “financial” ties to local government authorities, giving them considerable influence and decision making authority. See, e.g., faxes showing that the Nigerian government repeatedly expressed to Shell “concern at the limited availability of foreign capital”, and gave ongoing assurances that it would do whatever was in its power to please Shell officials, during the course of the Ogoni massacre. The idea that corporations in developing nations are operating in some state of near perfect competition with no ability to make demands on host governments is not an assumption that can be made without any supporting evidence.

In order to give an accurate analysis from a law and economics perspective of the costs and benefits of ATS litigation, what is needed — and what so far has been lacking in ATS literature — is an empirical understanding of the actual incentives corporations have to engage in or to assist foreign human rights abuses. Once we can get a better grasp on that, it would be much easier to answer the question of whether the Alien Tort Statute is the right the method of altering those incentives.

-Susan

The so-called “Sea Shepherd” activists — Geoffrey Tuxworth, Simon Peterffy and Glen Pendlebury — boarded the Japanese whaling vessel Shonan Maru II early Sunday morning off the southwest coast of western Australia.

….

The three men are members of an Australian environmental organization called Forest Rescue Australia and their mission was designed to prevent the Japanese whaler from tailing an anti-whaling flagship belonging to the Sea Shepherd Conservation Society.

Because this all took place about 16 miles off of the Australian coast, the men boarded the ship and were apprehended by the Japanese vessel within Australia’s contiguous zone. There now seems to be a dispute between the Sea Shepherd organization and the Australian government over the significance of this fact — with the Sea Shepherds believing, while the Australian government is stuck in the position of awkwardly noting that the three men who boarded the vessel are subject only to Japanese laws.

Although the Australian government did eventually work through diplomatic channels to arrange for the release of the three activists, its position was that Australia had no particular claims to jurisdiction over the incident, beyond the fact it involved Australian citizens:

[Federal Attorney-General Nicola Roxon] said consular officials were attempting to contact the men, and the Government’s priority was to ensure their safety and well-being, and return to Australia.
“It is a difficult situation. This incident happened outside our territorial waters, in our exclusive economic zone,” she said.
“But that doesn’t give us rights for Australian law to automatically apply.
“In fact, our advice is that Japanese law will apply because a Japanese boat is the one that’s been boarded.”

The Sea Shepherds do not agree with the Gillard Government’s view:

Capt [Paul] Watson said he had not expected the men to be taken to Japan and charged.

“Considering it was within the 24 miles contiguous zone, which is where the Australian immigration and Customs has absolute authority, we didn’t think the Australian government would allow the Japanese to take Australian citizens out of that area.”

He accused Attorney-General Nicola Roxon of “not doing her homework”, adding the vessel was only 16 miles off the beach.

“This is not some ordinary boat that was boarded, this is a criminal boat supporting a criminal operation.”

Unfortunately for the Sea Shepherds, however, their interpretation of international law is a bit misguided. The contiguous zone’s actual significance is pretty negligible in most contexts, and completely negligible here. The contiguous zone is the band of ocean territory just beyond a nation’s territorial waters, and overlapping with its EEZ. States are permitted to extend this zone up to 24 miles from their coast; this means, in the typical circumstance, a nation’s contiguous zone is a 12 mile band that begins 12 miles out at sea, where the state’s territorial sea ends.

Under Article 33 of UNCLOS,

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

And that is pretty much the extent of the contiguous zone’s importance, when it comes to a coastal state’s jurisdiction over foreign ships. Moreover, as the Shonan Maru II is not itself a whaling ship or a research ship — it’s basically a bodyguard for the whaling ships, engaged in counter-harassment measures against the Sea Shepherds — it was not even taking any actions which could have subjected it to Australian regulations at the time the Forest Rescue men boarded it. As for Australian criminal laws (even presuming that the Japanese could possibly have committed any violations), such laws are only enforceable in the contiguous zone to the extent that the enforcement was related to violations that occurred or were about to occur within Australia’s territorial sea. Here, all of the events concerned took place outside of territorial waters, and so Australia’s extended enforcement jurisdiction is inapplicable.

As such, if any criminal acts occurred with regard to the boarding of the Shonan Maru, the crimes were probably committed by the Forest Rescue activists rather than the Japanese whalers. In fact, an argument can even be made that, by forcibly boarding a Japanese vessel outside of Australian territorial waters with the intent of detaining it, or at least of diverting its course, the activists were engaging in an act of piracy, pursuant to UNCLOS Article 101. Although the Japanese whalers are hardly innocent when it comes to breaches of international law, in this case, it is the Sea Shepherds that are in the wrong.

-Susan

Which is why Iran’s recently renewed threats to close down trade through the Strait of Hormuz are risky for all concerned. Risky for the rest of the world, because any disruption would contain a severe economic toll. And risky for Iran, because if it ever actually did attempt to shut down the Strait, it would intensely piss off literally the entire world. So, while Iran periodically makes noises about taking such a move, the odds of it actually carrying out on its threats are minimal. Nevertheless, given the costs involved, the risk, however small, is taken extremely seriously by the rest of the world.

But ignoring the reality of the situation for a moment, and pretending as if international law actually possessed the power to effect state’s actions in the Gulf, would Iran actually have the legal right to carry out any of its threats?

For once, international law has a straightforward answer: no. Any attempt by Iran to close the Strait of Hormuz would be unambiguously illegal; the shipping lanes through the Strait of Hormuz, as laid out by the International Maritime Organization, lay within the territorial sea of Oman. Although the 12-mile territorial seas of Iran and Oman overlap at the narrowest points of the Strait, the deepest waters — and thus the shipping channels — lay to the south, within Oman’s territorial waters. As such, any military action by Iran to shut down shipping through Hormuz would inevitably impinge on Oman’s sovereign rights.

But Iran’s legal rights over the Strait of Hormuz vis-à-vis the rest of the world, and ignoring Oman’s sovereignty concerns, are a slightly more complicated question, although even there Iran’s claims are tenuous. The precise extent of Iran’s legal authority, however, differs based upon whether one applies the doctrine of innocent passage or transit passage to the Strait.

Both doctrines concern the passage of ships (as well as planes) through a nation’s territorial sea, which extends up to 12 miles from a state’s coast. The doctrine of innocent passage, which bears a greater claim to customary international law status, applies throughout all the territorial seas of the world. The concept of transit passage, in contrast, applies solely to those sections of territorial seas provide an exclusive link between two larger bodies of waters — i.e., straits.

The right of innocent passage, laid out in Articles 17 – 26 of the United Nations Convention on the Law of the Sea (“UNCLOS”), protects the right of ships in transit to pass through another nation’s territorial sea, subject to certain regulations that may be imposed by the sovereign. Passage is considered innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State.” Innocent passage, however, can be subject to certain conditions imposed by the sovereign state, and may in fact be suspended temporarily in times of emergency.

In contrast, transit passage, which is regulated by Articles 37 – 44 of UNCLOS, is nonsuspendable, and not limited to innocent passage. The conditions that may be imposed by sovereign states are limited, and not subject to any real teeth. So long as a ship is not engaged in any nontransit activities and complying with certain traffic and safety measures, coastal States must permit ships to pass through their territorial seas.

So if the Strait of Hormuz is governed by transit passage, Iran’s legal ability to take any action to impede transport through the strait, even against an unfriendly foreign nation’s warships, is more or less nil. If, on the other hand, the regime of innocent passage applies, Iran has a fair bit more wiggle room to work with. Particularly in a situation where hostilities are shading towards war and the use of force, where a coastal state’s territorial waters governed by a regime of innocent passage, that state has a non-negligible claim to a right to enforce extensive regulatory control over the area, up to and including an ongoing suspension of all transit rights.

The question then is whether the Strait of Hormuz is subject to transit passage or not. Textually, it would seem clear that the Strait of Hormuz falls with Article 37′s scope, as it is a “strait[] which [is] used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.” Thus, under UNCLOS’s text, a strait like the Strait of Hormuz — which connects the Persian Gulf’s EEZ to the Strait of Oman’s EEZ, as well as the high seas beyond — is subject to transit passage. So why doesn’t that settle the question for good as to what transit regime applies here?

Well, for one, neither the U.S. nor Iran have ever actually gotten around to ratifying UNCLOS. Since neither state has ever entered the treaty, its terms can only apply if the terms are also obligatory under customary international law. And there, opinions differ, with no few authorities holding that the general right of transit passage has yet to be established outside of treaty-conferred obligations.

On the other side of that argument is the United States, which, despite its somewhat contentious and complicated relationship with UNCLOS, has long held that the bulk of UNCLOS’s provisions are merely a codification of customary international law. This includes UNCLOS’s provisions regarding transit passage, as U.S. authorities have repeatedly asserted these norms to be a component of CIL:

…the United States…particularly rejects the assertions that the…right of transit passage through straits used for international navigation, as articulated in the [LOS] Convention, are contractual rights and not codification of existing customs or established usage. The regimes of…transit passage, as reflected in the Convention, are clearly based on customary practice of long standing and reflects the balance of rights and interests among all States, regardless of whether they have signed or ratified the Convention… (Diplomatic Note of August 17, 1987, to the Democratic and Popular Republic of Algeria (intermediary for Iran)).

And,

…the regime [of transit passage] applies not only in or over the waters overlapped by territorial seas but also throughout the strait and in its approaches, including areas of the territorial sea that are overlapped. The Strait of Hormuz provides a case in point: although the area of overlap of the territorial seas of Iran and Oman is relatively small, the regime of transit passage applies throughout the strait as well as in its approaches including areas of the Omani and Iranian territorial seas not overlapped by the other. (Navy JAG, telegram 061630Z June 1998).

In contrast, Iran has consistently maintained the opposite view, holding that transit passage only exists among states that have agreed to submit to that regime via ratification of an international agreement. Although Iran has not ratified UNCLOS, it has signed the convention, and with its signature it submitted the following declaration:

Notwithstanding the intended character of the Convention being one of general application and of law making nature, certain of its provisions are merely product of quid pro quo which do not necessarily purport to codify the existing customs or established usage (practice) regarded as having an obligatory character. Therefore, it seems natural and in harmony with article 34 of the 1969 Vienna Convention on the Law of Treaties, that only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein.

In other words, Iran viewed Article 38 of UNCLOS, concerning the right of transit passage through straits used for international navigation, to be an exclusively treaty-based obligation, and not one of customary international law. As Iran never got around to ratifying UNCLOS, the implication would be that Iran does not in fact believe itself to have acceded to any such treaty obligation. This position has been confirmed by numerous assertions by Iranian officials in the decades prior to and since UNCLOS’s entry into force.

Iran is not alone in this belief about transit passage’s status under international law, either. Oman, motivated by a similar interest in the Strait of Hormuz, also filed a declaration along with both its signature to and ratification of UNCLOS, which questioned the CIL status of transit passage, and also suggested that Oman did not intend to adopt the obligations of transit passage conferred by treaty, either. Its ratification statement indicated that it only recognized and agreed to compliance with provisions concerning the regime of innocent passage — and not that of transit passage. As such, Oman’s ratification was subject to the condition that “innocent passage is guaranteed to warships through Omani territorial waters, subject to prior permission.”

Although these declarations have never actually been enforced or acted upon by either Oman or Iran, making the bulk of state practice with regards to the Strait of Hormuz to be in conformity with the existence of transit passage through the Strait, it does not appear that either coastal state believes itself to be legally bound by a customary international law of transit passage, either. Moreover, state practice and opinio juris elsewhere in the world likewise fails to unambiguously confirm the existence of a customary international law of transit passage. As such, it cannot be automatically assumed that Iran does not possess a right to limit transit through the Strait of Hormuz, at least to the extent permitted by the regime of innocent passage.

While the practical effect of transit passage’s precise status under international law will likely (definitely) be minimal in shaping events in the Persian Gulf in the days and weeks to come, parties on both sides of the dispute will be likely to invoke the application of international law in their rhetoric, as they seek to imbue their military actions with the color of law. Still, as the Strait of Hormuz does not belong to Iran alone, and Iran’s sovereign claims over the Strait are limited by Oman’s own claims to its territorial seas, any action taken by Iran to close the entirety of the Strait will necessarily be an act of force prohibited by the UN Charter, and unquestionably a violation of international law.

-Susan

Of course, some people have already noted that Santorum once felt differently. On Meet the Press this morning, he was asked about his willingness–as recently as 2005–to allow for abortion in instances of rape and incest. Others have attacked him for supporting Senator Arlen Specter, who was pro-life during his time in the Senate. Still, that amount of waffling didn’t keep Santorum from attacking other candidates when they showed signs of “weakness” on the issue.

But while Santorum is looking for a big win in Iowa on the basis of his “pure” conservative, pro-life position, a deeper look into his past suggests he wasn’t always so extreme on the issue. In 1990, for instance, Santorum had a much more equivocal tone in The Pittsburgh Press:

Santorum said he had always opposed government funding of abortions, but “beyond that I tried as much as I could to dance around the issue, not really take a position on it.”

The article goes on to say that Santorum actually supported abortions in the same circumstances as those permitted by Roe (i.e., after viability). As a “progressive conservative,” he even wrote a white paper (later withdrawn) that outlined that position. He withdrew it only after “education” and “soul-searching.”

Santorum’s shifting position on abortion is another example of the often mercurial policy positions of modern policy positions. Mitt Romney, of course, has taken flack for doing just that. So has Newt Gingrich. Yet as the example above reflects, even candidates perceived to be ideologically pure may be prone to flip flops as well. This leads me to think there’s an interesting question underlying Tuesday night’s Iowa caucus (and the rest of the primary season): will voters will continue to demand ideological “purity” and “consistency” (which is often illusory), or will they will instead make their choices based on pragmatic considerations that might be less-than-perfectly consistent with conservative orthodoxy? History suggests it’s going to be the latter; that’ll be bad news for Santorum, Bachmann, or any of the other candidates selling crystal-clear conservatism. Instead, that should favor the most electable candidates, including Romney.

In the meantime, I look forward to seeing whether the media will dig up some of Santorum’s past (and perhaps inconsistent) positions. Or, maybe they’ll let him continue the narrative that he’s the one true hope for social conservatives.

-Michael

“What we find is that unlike typical in-group vs. out-group phenomena — like racism or nationalism — nonbelievers do not end up trusting their own kind more,” [Professor Azim] Shariff said. “While the degree to which someone’s belief in God — particularly the belief that being watched by this God makes people act better — did affect the strength of people’s distrust of atheists, those people who did not identify with a religion still tended to find believers to be more trustworthy. This makes sense both in terms of the mechanism we are suggesting underlies the effect — people trusting those who fear supernatural punishment — and in terms of atheists not being a strong and coherent in-group, in and of themselves.”

But perhaps punishment isn’t the whole story behind the distrust of atheists by believers and atheists. Perhaps religion provides something else important, especially in the political context: “rules” and predictability, even if artificial.

Most religions–at the least the biggies in America–offer a certain creed, a few particular mandates, or some simple (or not so simple) rules to live by. Of course, these “rules” are sometimes what attract people to religion in the first place. But from the outside looking in, those same rules offer a degree of predictability because we expect religious adherents to follow them. As a result, we might (at least think) we know what we’re getting.

Of course, the savvy religious follower can probably find a way to justify whatever he or she is doing within their own religious framework. And it’s a step of faith to believe that the rules will produce good results.

But nevertheless, the stabilizing force of religious-based rules or principles might explain why, for instance, politicians make reference to religion when offering a new initiative or advancing an argument. They want to assure us they’re playing by the rules, as Obama did in a 2006 AIDS Day speech:

We should never forget that God granted us the power to reason so that we would do His work here on Earth – so that we would use science to cure disease, and heal the sick, and save lives.

Atheists, on the other hand, play by the rules of “reason” and “independent thinking.” Those rules are not available at Barnes & Noble. Those rules are hard to define at any general level, requiring individual assessment (which calls for time and effort). In the minds of believers, those rules might not function as rules at all.

So perhaps it’s not as simple as wanting those we trust to be answerable to the Big Guy/Girl/People. Perhaps its really about wanting stability through constraints, even those constraints are imposed by a First Century radical Jewish sect.

-Michael

This tip comes courtesy of a law student who, earlier this week, sent me an email applying for an internship position. I can only assume that he, like a lot of people when faced with a software registration prompt, typed in a ridiculous name on a whim, and then never gave it a second thought.

But unfortunately for this law student, when a Word document is viewed inside of Microsoft Office, the Author tag is fairly prominently displayed:

Poor dude. I’m guessing he doesn’t realize he’s been going around submitting a resume that claims to be written by Pretty Princess. (And I can only wonder how many times over the years I have made this exact same mistake myself…)

In case you’re wondering, you can find out how to change the author name for Word documents over here.

-Susan

This was immediately seized upon as evidence of the homosexual agenda in action, with opponents of McDowell touting it as proof that “gay rights” are trampling religious freedoms across the land. McDowell’s defenders, on the other hand, described his decision to remove the student as appropriate, believing that the student’s behavior was disruptive and hostile to other students. The school board initially chose to suspend McDowell for one day without pay as a result of the incident, but later reversed its decision.

The matter had died away after that. Until last Friday, when the student’s mother, represented by the Thomas More Legal Center, a “public interest law firm dedicated to the defense and promotion of the religious freedom of Christians”, filed suit against McDowell and the school district over the incident, alleging that her sons’ Constitutional rights were violated. A copy of the complaint can be found here.

The purpose of the suit isn’t the plaintiff’s material gain, but rather a chance to get a court order prohibiting public schools from restricting students’ rights to make anti-gay statements while at school. Richard Thompson, president of the Thomas More Law Center, had stated that the purpose of the litigation is to defend “religious opposition to homosexuality”:

“This case points out the outrageous way in which homosexual activists have turned our public schools into indoctrination centers,” said Thompson. He said by utilizing the tyranny of political correctness, homosexual activists “are seeking to eradicate all religious and moral opposition to their agenda.”

Despite the media coverage surrounding the case, however, the plaintiff in Glowacki v. Howell Public School District is not actually asserting any claims based directly upon freedom of religion. Rather than invoking the Free Exercise Clause, the plaintiff is instead alleging (1) that the defendants deprived students of their First Amendment rights to free speech by punishing Glowacki for expressing his refusal to accept homosexuality, and (2) that the Defendants violated the Equal Protection Clause of the Fourteenth Amendment “[b]y favoring speech that approves of and promotes homosexuality over Plaintiffs’ religious speech.” (The EPC claim is based on an infringement of Glowacki’s fundamental Free Speech rights rather than his group membership, as “people who have a religious viewpoint critical of homosexuality” is not a class that can invoke the court’s heightened scrutiny.)

The reason Glowacki’s case is a free speech case and not a free exercise case is obvious: his claims are far more compelling when brought under the rubric of free speech than they are when presented as religious freedom claims. In places, the Complaint does in fact invoke the specter of religious freedom as support of his claim for relief, but they are the weakest portions of Glowacki’s pleading. In short, Glowacki’s case, to the extent that it is based on religious freedoms, is that, as a Catholic, he has “a duty and obligation to defend [his] faith in public, including a duty to speak the truth about homosexuality” (Complaint, at para. 46) — that ‘truth’ being that “homosexual acts [are] acts of grave depravity, [and] that homosexual acts are intrinsically disordered” (Complaint, at para. 45).

But this is not a “duty and obligation” that the Constitution recognizes. There is no special Constitutional protection for a religious belief that “compels” you to affirm your disapproval of your fellow classmates every time the subject of their identity is mentioned. For instance, someone who claimed his religious beliefs compelled him to believe that Jews deserved to be exterminated would not thereby acquire a right to announce such a belief every time the subject of the Holocaust came up in class.

And so Glowacki focuses on free speech, not free exercise. But although Glowacki’s free speech claims are legitimate under the facts he has alleged, his Complaint is still pretty appalling in many respects. For instance, it describes the school district’s anti-bullying campaign as “a day in which activists exploit the tragic suicidal deaths of homosexual teenagers to promote acceptance of homosexuality in the public schools.” (Complaint, at 26). It also refers to the “pro-gay agenda” seven times, and comes off sounding rather paranoid in the process. Worse still, it repeatedly describes the suicides of kids who were bullied due to their perceived sexual orientation as “teenagers who committed suicide because they were homosexual. ” (Id., at 39). The Complaint continues to win itself no favors when it alleges that “the purpose of the ‘anti-bullying day’” is “to shift the blame for the destructive lifestyle of homosexuals to those who believe it is wrong and immoral”. In other words: gay students deserve to be harassed, and any harassment they receive due to their sexual orientation is their own fault for being gay.

But as unpalatable as the Complaint is, assuming everything it says as true, Glowacki likely does have a case. That is a pretty big assumption to start from, however; although both Glowacki and McDowell do seem to agree on some of the central facts in the dispute, the parties are diametrically opposed as to what the general tone of the exchange was, or what the intentions of the parties were. And here, the tone of the exchange is everything.

Rather than breaking new legal territory, I expect this will ultimately be a heavily fact-based case. Comparing the claims of the two sides, however, gives an indication as to where this suit is headed:

Plaintiff Glowacki’s Story:

47. On October 20, 2010, during his sixth hour economic class in which Plaintiff D.K.G. was a student, Defendant McDowell explained to the students that it was the national “anti-bullying” day and that the students were going to watch a movie about teenagers who committed suicide because they were homosexual.
48. At the beginning of the instruction and in front of the entire class, Defendant McDowell confronted a female student who was wearing a Confederate flag belt buckle. Defendant McDowell directed the student to remove the article of clothing because he considered it offensive. The female student had worn this belt and buckle to class on several prior occasions without receiving a reprimand.
49. In light of Defendant McDowell’s opening remarks to the student about “antibullying” day and tolerance, Plaintiff D.K.G. raised his hand and asked Defendant McDowell why it was permissible to display a rainbow flag, which is offensive to some people, but not a Confederate flag, which Defendant McDowell found offensive.
50. Offended by the question, Defendant McDowell curtly responded by stating that the rainbow flag represents the gay community, but the Confederate flag “represents killing people and hanging and skinning people alive,” or words to that effect.
51. Defendant McDowell then asked Plaintiff D.K.G. whether he “supported” or “accepted gays,” or words to that effect. Plaintiff D.K.G. responded by stating that his religion does not accept homosexuality and that he could not condone that behavior. Angered by the response, Defendant McDowell told Plaintiff D.K.G. that his religion was “wrong,” or words to that effect, and ordered Plaintiff D.K.G. to leave his classroom under threat of suspension.
52. After ordering Plaintiff D.K.G. to leave the classroom, Defendant McDowell asked the remainder of the class whether anyone else did not accept homosexuality. A student raised his hand, and Defendant McDowell ordered him out of the classroom as well.

Defendant McDowell’s Story:

At the beginning of my 6th hour students asked what the “Tyler’s Army” t-shirts were about. This led to the beginning of a discussion about anti-bullying. It was a discussion about not bullying anyone due to race, ethnicity, gender, sexual orientation, or social status. One female student entered the class wearing a Confederate Flag belt buckle. This student knows that I have not allowed Confederate Flags in my class. She sits in the front row. I asked her to remove the belt buckle and she did so without incident. At this point, a male student raised his hand and asked why she had to remove the belt buckle. I explained that the Confederate Flag is often seen as a symbol of discrimination. The student then said “well Gays get to fly their rainbow flag.” This was a disruption to the classroom environment. I explained the rainbow flag is not a part of the discussion and that it hasn’t been associated with lynchings, mob violence, or discrimination in the way that the Confederate Flag has been. The student then said, “I don’t accept Gays.” Obviously this was an inappropriate thing to blurt out in class and had no place in the discussion. I told him he could not say that in class that it was inappropriate. He asked, “Why? I don’t accept Gays. It is against my religion. I am Catholic.” I said that was fine it was against his religion but that that statement was inappropriate to say in class. I became concerned at this time as there were students in the class that his comment would affect in an adverse way. There were at least ten students in the class wearing purple on that day. I related the situation to discrimination against African-Americans. I explained to the class that just as you can’t say, “I don’t accept blacks” in class you can’t say “I don’t accept Gays” in class. You can have whatever religious beliefs you want but there are statements that are inappropriate to say in class. I suspended him from class that day and wrote up a referral for unacceptable behavior. Another male student walked in at that moment and said loudly, “well I don’t accept Gays either can I leave.” I said, “yes get out.” Both students were insubordinate in class and caused a disruption of the class.

The accounts do overlap, but the differences between them are determinative. Under Glowacki’s version of the facts, he wins. Under McDowell’s version, he was in the right. So whose story is true?

It is not clear one way or another, at this stage of the proceedings. However — and while I am aware that my biases are now shining through bright and clear here — I have severe doubts about Glowacki’s ability to prove his version of events. Glowacki’s story just doesn’t pass the smell test: a kid that that speaks up to defend a classmate’s prerogative to display the Confederate flag in class is not a kid that then will follow up by opposing gay rights by demurely stating that “he could not condone that behavior.” In fact, the Complaint completely dodges away from identifying the actual language used by Glowacki in the exchange, leaving the student’s own words vague and unspecified. But note that the Complaint portray McDowell’s words as if they were direct quotes — only to then hide behind the disclaimer that McDowell’s statement might actually have just been “words to that effect,” rather than the actual words used. Meanwhile, the Complaint only paraphrases Glowacki’s own statements, thereby framing him in as inoffensive a manner as possible.

Although I do think it seems likely that McDowell overreacted in dismissing Glowacki from the classroom, my bet is that Glowacki was in fact being disruptive at the time, and was not merely expressing his religious views in a respectful fashion. It was Glowacki, remember, that initiated the exchange when he, unprompted, decided to equate a gay rights symbol with the Confederate flag. As a native Georgian, I am well aware that individual perceptions of the stars and bars can and do vary, but even the most charitable part of me is very skeptical that there is an innocent justification for a kid from Michigan to be defending the right to display the Confederate flag. Moreover, Confederate flags were not a neutral symbol to this student body — a year prior, a group of students at Howell had used school computers to create a racist facebook group that used a confederate flag as its icon:

The group’s Web page displayed an image of the Confederate flag along with this message:

“If you hate a certain type of anybody black, white, pink, yellow or polka dot (you) should join. This shows you are a rebel and proud of it.”

Given this background, I’d say Glowacki’s got an uphill battle in proving that his statements were as innocent and non-disruptive as he claims.

And the precise words Glowacki used — and the tone in which he said them — matters here, a lot. For instance, several unsubstantiated reports about the incident have stated that other students in the class reported Glowacki saying “those faggots” during the course of the exchange. The reports state that these statements were made only to classmates, however. But if, for example, McDowell had actually heard a student make statements to that effect, then the case would be open and shut. McDowell would have been on firm ground in removing Glowacki from the classroom, as schools are permitted to suppress vulgar and obscene speech, which “those faggots” would very arguably fall under. See Bethel School District v. Fraser (1986).

But assuming vulgar language was not used, the most obviously applicable precedent to this case is the Supreme Court’s decision in Morse v. Frederick (2007), a.k.a. the “bong hits 4 jesus” case. In Morse, the school was found to have a compelling interest in suppressing student speech that promoted illegal drug use. In Glowacki, the school could argue instead that its compelling interest was in suppressing speech that promotes bullying — a particular pertinent interest, given the recent attention bullying and teen suicide have received in the media in the past few years.

And discouraging bullying based on sexual orientation has already been found to be not just a compelling interest for school officials, but rather an affirmative obligation. In Flores v. Morgan Hill (2003), the 9th Circuit found that school officials were liable for failing to make any attempt to prevent persistent bullying of students that were perceived by their peers to be gay — and moreover, those school officials were not entitled to qualified immunity. Glowacki’s legal arguments, if correct, would therefore put public schools between a rock and a hard place; they would be required to protect students not only from the anti-gay animus of their classmates, but would also be required to protect students’ rights to express anti-gay animus in class.

Due to the similarities in the school official’s interests in both cases, Morse would seem to be highly determinative when it comes to Glowacki’s case. Re-wording Alito’s concurrence in Morse to change the compelling interest from discouraging drug use to discouraging bullying, you get a straight-forward defense of McDowell’s actions:

[D]ue to the special features of the school environment, school officials must have greater authority to intervene before speech [that declares gays to be "unacceptable"] leads to violence [and bullying]. And, in most cases, Tinker‘s “substantial disruption” standard permits school officials to step in before actual violence erupts.

Speech advocating [the ostracizing and disapproval of gay students] poses a threat to student safety that is just as serious, if not always as immediately obvious…. I therefore conclude that the public schools may ban speech advocating [anti-gay animus, in a disruptive fashion]. But I regard such regulation as standing at the far reaches of what the First Amendment permits

This is not to say that any speech that is pro-drug or anti-gay can be suppressed under the Morse framework; a paper advocating legalization of marijuana or arguing that Catholicism does not condone non-procreative sex could not be prohibited due to safety concerns.

This is why Glowacki v. McDowell will ultimately be decided on the facts, not the law. If Glowacki was being belligerent and hostile when he declared that gay rights were offensive to him, McDowell was justified in eventually removing him from the classroom under Morse when he continued to state that “I do not accept gays.” If instead Glowacki’s expression of religious belief was made in a non-disruptive manner, and particularly if his statement was made in response to a direct question from the teacher soliciting his views, then Glowacki should prevail.

So facts are everything, here. But luckily, as this all took place in a classroom, there should at least be quite a few eye-witnesses available to testify. I hope the Thomas More Law Center is looking forward to deposing a couple dozen teenagers — I bet that will be just loads of fun.

-Susan