Tag Archives: international law

Google Earth Map for the Timor Sea Maritime Boundary Dispute

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Google Earth is an amazing thing, and it’s hard to understand what’s truly going on in the Timor Sea simply by looking at pictures, so I’ve created a Google Earth collection that shows the coordinates provided in the major treaties affecting the region: the 1972 Indonesian-Australian Seabed Boundary Agreement [PDF], the 1981 Provisional Fisheries Surveillance and Enforcement Arrangement [PDF], the 1989 Timor Gap Treaty, the 1997 Water Column Boundary Agreement, the 2002 Timor Sea Treaty, and the 2006 Sunrise IUA/CMATS.

The Google Earth collection for the Maritime Boundaries in the Timor Sea can be downloaded here.

Map Explosion

if you display all of the treaties at once, it kind of looks like a rainbow threw up in the Timor Sea

If you’re interested in figuring out how all these treaties work together, it is probably more useful to just go ahead and play around with it on Google Earth, but I’ve provided a visual summary below using screencaps from the collection.

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The Historical Context of Australia’s Political and Legal Strategy in the Timor Sea

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In 1974, with the prospect of an Indonesian annexation of Timor on the horizon, Australia faced an important question: would Australia receive more favorable access to the gas and oil fields in the Timor Sea if Timor had an (a) Portuguese government, (b) Indonesian government, or (c) independent government?

At the time, Australia believed the answer was (b): an Indonesian Timor would give Australia the best outcome when it came to negotiating a seabed boundary in the Timor Sea. In a 1974 Policy Planning Paper, the Australian government reasoned that, since Indonesia had already given Australia such a favorable result in a similar seabed boundary negotiation, Indonesia would likely give Australia a similarly favorable deal for the seabed territory offshore from Timor. As a result, Australia was cautious about entering into any final seabed boundary delineations with Portugal. The political situation was likely to change, and there would be advantages in waiting for a more favorable government to gain control of the island territory:

We should press ahead with negotiations with Portugal on the Portuguese Timor seabed boundary, but bear in mind that the Indonesians would probably be prepared to accept the same compromise as they did in the negotiations already completed on the seabed boundary between our two countries. Such a compromise would be more acceptable to us than the present Portuguese position. For precisely this reason however, we should be careful not to be seen as pushing for self-government or independence for Portuguese Timor or for it to become part of Indonesia, as this would probably be interpreted as evidence of our self-interest in the seabed boundary dispute rather than a genuine concern for the future of Portuguese Timor. We should continue to keep a careful check on the activities of Australian commercial firms in Portuguese Timor.

(Policy Planning Paper, Canberra, May 3, 1974).

In other words, Australia should continue to engage in negotiations with Portugal to avoid the appearance of any impropriety, but it should take care that the negotiations did not actually culminate in an agreement.

Although Australia’s economic and foreign interests were best served by an Indonesian Timor, it was for precisely that reason that Australia wanted to avoid any appearance that it had any stake in Timor’s outcome. If seen to support Indonesia’s annexation of Timor, it would likely be viewed as doing so for self-serving commercial reasons. At the same time, neither did Australia wish to be seen as supporting a Portuguese Timor or an independent Timor, because doing so might have the effect of promoting either of those outcomes. Taking such a position (or appearing to take such a position) would also pose a risk of complicating its relationship with Indonesia.

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The Senkaku Islands, Pt. I: UNCLOS, the EEZ, and the Conflict Between Land- and Sea-Based Sovereignty Regimes

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In the East China Sea, north off the coast of Taiwan and south off the coast of Okinawa, there exists an island chain consisting of five small islets, and three smaller rocks. These islands — known as the Senkaku Islands in Japan, the Diaoyu Islands in China, and the Diaoyutai Islands by Taiwan — are the subject of a longstanding territorial dispute between those three states, and in recent months the dispute has become heated once again. military and diplomatic sparring over the islands has resumed once again.

China claims the islands are part of its sovereign territory, having been wrongfully stolen by Japanese military expansions in the late 19th century. Japan, in turn, claims that it is the rightful sovereign of the Senkakus, alleging that the islands were terra nullius until 1895, when Japan incorporated the islets by cabinet decision. Japan further asserts sovereign title to the islands owing to China’s failure to object to Japan’s claims of sovereignty for over seventy years, until China first raised a competing claim to the islands in 1970.

Not coincidentally, China’s first assertions of sovereignty over the Senkakus were made just one year after seismic surveys of the sea floor surrounding the islands had discovered the existence of significant oil and gas reserves. But while the discovery of natural resources in the East China Sea precipitated the ongoing territorial dispute between China and Japan, during this same time period there was another event occurring that would prove equally responsible: the development of modern international law of the sea. As result, the Senkaku Islands became a massively valuable commodity, and a previously dormant territorial dispute has become a flashpoint. Both Japan and China argue that, under international law, they are the rightful owners of the land.

The problem is, despite all the diplomatic strife and threats of military action, no one actually wants the Senkaku Islands.

And why would they? Seriously, look at these things:

Hardly anything there to speak of — and these are the three of the four biggest islets in the Senkaku Islands. In all, the island chain is nothing more than a barren 1,700 acres of sand, scrub, and rock. A few endangered moles live there, along with some feral goats, but the Senkakus are not suitable for human habitation. It is debatable whether any fresh water sources even exist on the islands, and previous attempts at establishing industry on Uotsuri, the largest islet, have all ended in failure.

The above-water portions of the Senkaku Islands are of negligible value. But the islands’ worthlessness is irrelevant to the intensity of the dispute over their ownership. China and Japan do not seek possession of the Senkakus because they wish to possess the islands, but because possession of the Senkakus is a mechanism for obtaining possession over the surrounding sea. In other words: possession of the Senkakus is a means, not an end.

In previous eras, when competing claims of sovereignty over a territory could not be determined by reference to either treaties or to customary international law, there did remain one additional mechanism that states could resort to for conclusively resolving the question of ownership. That particular mechanism, however, has now been expressly prohibited by Article 2 of the UN charter. With sovereignty-by-conquest no longer a sanctioned means of dispute resolution, and when the states involved in the dispute have no interest in submitting the matter to an adjudicative body, the result is an effective stalemate. In a fruitless attempt to resolve the conflict by reference to international law, Japan and China have now been reduced to squabbling over ancient maps and conflicting historical accounts.

This is the current status of the Senkaku Islands, and of numerous other disputed island territories off the coast of China and Japan. Japan and China can each point to various 19th century maps or little-noticed governmental decrees to bolster their claims of sovereignty. But based on the existing historical record concerning the occupation and use of the Senkaku Islands, neither China nor Japan can convincingly demonstrate a superior claim.

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Susan’s Theory of the Secret Fifth Amendment in Kiobel, as explained via gchat

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Michael:
I had a thought
The entire United States argument against extraterritorial application in this case is built around something like act-of-state doctrine.
Why don’t we just apply act-of-state doctrine?

Susan:
You could, and it should be part of it. But even Nigeria didn’t actually make a law saying human rights abuses is totes okay.
And also “but the country said it was okay” is not a get out of jail free card once you start with the genocide stuff.

Michael:
Well, wait.
Act of state is just the judgment of the legality of another nation’s conduct, right?

Susan:
Yes, but we’re not (necessarily) judging another nation’s conduct, for one — it’s a Kirkpatrick situation. And second, I don’t think the purposes of the act of state doctrine are supported if it’s interpreted to require a court to go “whelp, it’s not my place to say that another country shouldn’t commit genocide.”

Michael:
No

Susan:
Act of State = choice of law.

Michael:
Pause
I’m saying that the United States’ argument is built around an idea that seems roughly equivalent to act-of-state.

“HERE, ALTHOUGH PETITIONERS’
SUIT IS AGAINST PRIVATE CORPORATIONS ALLEGED TO
HAVE AIDED AND ABETTED HUMAN RIGHTS ABUSES BY THE GOVERNMENT
OF NIGERIA, ADJUDICATION OF THE SUIT WOULD NECESSARILY
ENTAIL A DETERMINATION ABOUT WHETHER THE NIGERIAN
GOVERNMENT OR ITS AGENTS HAVE TRANSGRESSED LIMITS IMPOSED
BY INTERNATIONAL LAW”

Susan:
Ohhh, no I’d disagree with you. I have a half-written post on it, but I’d argue the U.S.’s position incorporates the international component of the 5th amendment.

Susan:
Yeah, but that’s foreign affairs stuff. Act of State requires a court to select the foreign sovereign’s law for the court’s rules of decision.

Michael:
?!

Susan:
So it’s kinda where jus cogens comes into play. Nigeria can’t make a law saying “lol genocide is okay.”

Michael:
This is the definition I’m familiar with:
“This doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation.”
Wait
I understand now

Susan:
That’s the one sentence version, but it doesn’t mean that U.S. courts are categorically forbidden from questioning foreign countries’ acts.

Michael:
We’re talking about two conceptions of the act-of-state doctrine.
Mine was the broader one.
Yours is the more limited Supreme Court version.
Fair.

Susan:
“As we said in Ricaud, “the act within its own boundaries of one sovereign State …
becomes … a rule of decision for the courts of this country.” 246 U.S. at 310. Act of state
issues only arise when a court must decide–that is, when the outcome of the case turns upon–
the effect of official action by a foreign sovereign. When that question is not in the case,
neither is the act of state doctrine.”
I agree with you, I think, as far as aiding and abetting cases go.
Maybe for different reasons, though.

Michael:
I’m not saying that I think Kiobel actually implicates act of state.
I’m just saying that the U.S. position sounds much like act of state, such that there is no need to make new law if the U.S. is correct.

Susan:
Yeah, agreed.
I think the U.S. is 100% right.

Michael:
But…
Ugh
The U.S. thinks that there IS a need to make new law DESPITE the fact that we have act of state doctrine to solve the very problem that the U.S. uses to support the supposed need for new law.

Susan:
Okay wait I’m misunderstanding, then. What new law does the US think is needed?

Michael:
1) The U.S. believes that the Court should hold that the ATS does not apply extraterritorially in cases involving corporations.
2) It substantiates that position at least in part by invoking a notion that sounds just like act of state doctrine.

Michael:
See the United States’ distinction between “individual foreign perpetrators” and corporations

Susan:
When found residing in the United States.
An individual foreigner abroad (that somehow still had sufficient US contacts) would be in the same place.

Michael:
Maybe it would be more accurate to say that the U.S. is against ATS liability for the extraterritorial acts of corporations that do not have their principal place of business or headquarters here

Susan:
Yeah, part of the equation is subsidy-to-parent jurisdictional veil piercing.

Michael:
Maybe I was over-emphasizing the U.S.’s use of the word “individual.”

Susan:
This is why it’s all a 5th Amendment Due Process issue. The reasonableness of the US’s adjudicative jurisdiction here is both unconstitutional and in violation of international law.

My take was that individual humans can usually only really “be” in one spot at one time. Corporations are in many places at once. So a corporation’s existence in the US is not dispositive, like a human’s is.

Michael:
I see.
An interesting argument, but the U.S. is making that argument as a matter of international law and foreign policy, not from a Fifth Amendment perspective, no?

Susan:
Okay so maybe they don’t specifically say it, but it’s in there if you squint hard enough.

Michael:
Hahaha.
The “secret” Fifth Amendment argument?

Susan:
The Fifth Amendment in Exile.
Basically, the ATS is open ended, and hands out causes of action for int’l law violations like candy (pretend all of this is true)
But the court, before exercising jurisdiction, still has to consider: Personal jurisdiction, exhaustion of remedies, forum non conveniens,
Act of State, international comity, choice of law, political question doctrine, foreign affairs/case-specific judicial deference, and in corporate cases, corporate/subsidy-parent veil piercing issues.
All of these doctrines have some Due Process consideration behind them. (Separation of powers for a lot of them, too, but due process is a biggie.)
Even if the text of the ATS creates an opening for these suits, it’s just a grant of subject matter jurisdiction. All of the Due Process jurisdictional questions must be considered separately.
Like they would in any foreign-defendant case, but because of the subject matter, the judicial due process doctrines are firing on all cylinders.
So when you have a pirate residing in the U.S. being sued for torture and genocide he did abroad, and his home country says “fuck that bastard, you can sue him,” and the U.S. political branches are going, “fuck that bastard, you can sue him,” then the due process concerns evaporate.

Michael:
Interesting.
I still don’t think the United States is making that argument
But ok.

Susan:
I think in section C they are getting at it,
even if they don’t invoke the magic words of Due Process. But everything the US is counseling the court to consider is a doctrine that was invented either to serve due process, separation of powers, or both.

Michael:
You should write a post
A quick post.

Susan:
Maybe at lunch I’ll play around with getting my other post to work in WP.
Or maybe I’ll be uber-lazy and just copy and paste the chat.

Michael:
There you go.

Entity Liability Under the TVPA and the ATS: Why the Supreme Court’s Decision in Mohamad Is Probably Irrelevant to Kiobel

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Last week, the Supreme Court issued its opinion in Mohamad v. Palestinian Authority, et al., the TVPA case that was argued on the same day as Kiobel. The majority opinion, written by Justice Sotomayor, is a rather prosaic summary of Statutory Interpretation 101, and the opinion as a whole deftly avoids grappling with any of deeper questions of law that the TVPA could potentially implicate.

This is not entirely surprising, as the question before the court in Mohamad was relatively straightforward: does the TVPA’s authorization of suit against “[a]n individual” extended liability only to natural persons? The Court unanimously answered yes, citing the dictionary as its predominant authority for its conclusion. The Court also relies heavily on the perceived “ordinary usage” of the word ‘individual,’ noting that “no one, we hazard to guess, refers in normal parlance to an organization as an ‘individual.'”

Although Mohamad may be a heavily formalistic opinion, it is a hard to disagree with its conclusions. Given then TVPA’s structure, there just isn’t much need, or room, for nuance. Justice Breyer, in the decision’s only concurring opinion, did make a mild qualification of his decision, noting that the TVPA’s use of the specific word “individual” is insufficiently determinative by itself to justify a limitation on liability to natural persons. Breyer quickly moves to conclude, however, that the legislative history of the TVPA erases any doubt, and fully supports the Court’s ultimate decision.

In all likelihood, then, the decision in Mohamad will not give us much insight into how the Court will handle the question of corporate liability under the Alien Tort Statute. Although Mohamad v. Palestinian Authority, et al. and Kiobel v. Royal Dutch Petroleum have strong superficial similarities — a similarity plainly acknowledged by the Court through its decision to hear arguments for both on the same day — it seems likely that the Court’s ultimate decisions in those cases will have little relevance to one another. Sotomayor’s opinion in fact openly acknowledges the two cases’ dissimilar postures, noting that the ATS “offers no comparative value here regardless of whether corporate entities can be held liable[.]”

This is because entity liability under the TVPA, as addressed in Mohamad, involves a straightforward question of statutory interpretation. Entity liability under the ATS, in contrast, involves an extremely convoluted question of statutory interpretation coupled with an equally convoluted interpretation of  the law of nations. It doesn’t matter which side of the argument you take in Kiobel — for that, you’re never going to find the answer to prove your case in the pages of a dictionary.

And the statutory interpretation element is the less important prong, in examining the question of entity liability under the ATS. As the class of defendants is not defined by the ATS, the issue of corporate liability is not determined by reference to the legislator’s choice of language, but rather by reference to either Federal common law or to international law, or, more likely still, to some admixture of both.

Ultimately, the TVPA, unlike the ATS, is an almost purely domestic instrument. Although the TVPA indirectly incorporates international law in its definition of extrajudicial killing, and, in its preamble, specifically cites that the statute’s purpose is to carry out the U.S.’s obligations under international treaties, the TVPA is simply not a creature of the law of nations.

The TVPA was specifically designed by the U.S. Congress to accomplish certain specified domestic goals. If instead the TVPA had been drawn directly from international instruments, however, it seems very likely that a different conclusion would have been reached in Mohamad. In particular, Article 14 of the UN Convention Against Torture (“the CAT”) would seem to lobby in favor of vicarious liability in civil claims brought by torture victims:

 “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

The CAT’s specification that states are to implement civil claims that provide for “an enforceable right to fair and adequate compensation” suggests that the CAT is concerned not simply with imposing punitive, quasi-criminal measures against torturers, but rather with implementation of an effective means for torture victims to be compensated for their injuries. A system of vicarious liability for torture is therefore more consistent with goals of the CAT as expressed in Article 14, as this would increase the likelihood of full reparations being made to torture victims. This is because vicarious liability is specifically geared towards making tort victims whole, whereas a system of pure individual liability emphasizes concern at seeing a wrong-doer punished.

Instead of incorporating this broad goal of repairing torture victims to the fullest extent possible, as articulated by the CAT, the U.S. Congress made plain its desire to see that only morally culpable wrong-doers were to be held financially culpable under the TVPA. This same legislative background is nonexistent when it comes to the ATS, however, making the Court’s analysis in Mohamad irrelevant to their ultimate determination of the similar question posed by Kiobel.

-Susan

Ecopiracy in the Contiguous Zone

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It’s been a relatively exciting week for international law of the sea. Not only has Iran been demonstrating the importance of territorial seas, why straight baseline measurements matter and when they are appropriate, and the differences between transit and innocent passage, but now three Australians are helping to illustrate the concept of contiguous zones, thanks to their unauthorized boarding of a Japanese whaling support ship:

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

Is the Strait of Hormuz Governed by Treaty or by Customary International Law?

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The Strait of Hormuz, as news articles in recent weeks have repeatedly stressed, is kind of a big deal when it comes to the global oil trade. The Strait, which is a mere 20 miles across at its narrowest point, connects the Persian Gulf and the Gulf of Oman — and also connects the rest of the world with 40% of its daily oil tanker traffic.

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

ATS Reversal Watch: M.C. v. Bianchi

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I thought I’d drag myself out of blogger purgatory to make a brief comment on a recent decision out of the Eastern District of Pennsylvania that I noticed earlier this evening. In M.C. v. Bianchi, Chief Judge Bartle denied a Motion to Dismiss on the basis that ATS jurisdiction can be conferred over non-state actors based purely on the heinousness of their actions. Assuming there is an appeal, I think it’s a safe bet the Third Circuit will swat this one down once it is reviewed, because the decision’s basis under international law is rather shaky.

My gut feeling is this is just a case of hard facts make bad law, because Defendant Anthony Bianchi, millionaire and convicted serial child rapist, is one of the least sympathetic litigants you could possibly have, and it’s not hard to see how one might be very strongly motivated to extend any assistance available to the unnamed minor plaintiffs.

But being a really horrible person does not magically invoke the jurisdiction of the ATS. Judge Bartle seems to have taken the requirement that only ‘extreme’ violations of international law are sufficient to invoke ATS liability to mean that, the more morally heinous an act is, the greater the likelihood is that there exists a cause of action for a tort in violation of the law of nations:

“Given the young age of his victims and the frequency with which Bianchi engaged in these heinous acts, this case is extreme enough for subject matter jurisdiction to exist under the ATS. What occurred here is a serious transgression of international law that is ‘specific, universal, and obligatory.’ Under all the circumstances, we conclude that Bianchi’s sexual assault of children through sex tourism falls within the ‘very limited category’ of claims cognizable under the ATS as a violation of the law of nations.” Quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732.

To put it charitably, the decision is something of an international law train wreck. Its primary justification seems to be the existence of a international instrument condemning acts like those committed by Bianchi:

“[I]n support of this court’s jurisdiction, plaintiffs point to the Optional Protocol on the Rights of the Child, Sale of Children, Child Prostitution and Child Pornography (“Optional Protocol”).” … The Optional Protocol bans the ‘offering, delivering or accepting, by whatever means, a child for the purpose of … [s]exual exploitation of the child.’ S. Treaty Doc. No. 106-37 at art. 3(1)(a)(i). It also declares that parties ‘shall ensure that all child victims of the offences described in the present protocol have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible.’ Id. at art. 9(4).

Although the U.S. is a signatory to the Optional Protocol, because that treaty is not self-executing, Plaintiffs had to go the law-of-nations route for the ATS suit, rather than relying on the treaty alone. But calling something ‘customary international law,’ even if it were, does not mean that it automatically comes with a cause of action against private parties. Judge Bartle notes that “‘[The Optional Protocol] also provides that ‘each State Party shall take measures, where appropriate, to establish the liability of legal persons’ for these offenses, both criminal and civil,” and then blithely goes on to assume, “[t]hus, the Optional Protocol clearly contemplates the liability of private individuals.” But that’s not what it says at all. The treaty clearly contemplates obligating nations to prohibit child sex crimes as a matter of domestic law, not making child sex crimes in themselves a violation of international law.

Other than the Optional Protocol, the decision’s basis for finding a violation of international law is based on the following:

“[C]ourts across the United States have acknowledged that child sex tourism … is uniformly admonished by the international community as reprehensible.”

“[Bianchi’s] crimes represent a global problem, whereby individuals from developed nations travel to less developed nations to prey on young children from impoverished communities.”

“Courts have been willing to recognize claims by children under the ATS, even where the same claims would not be actionable if brought by adults.” Citing (questionably) Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 1019-22 (S.D. Ind. 2007).”

But none of this is sufficient to establish that Bianchi’s crimes were “a serious transgression of international law that is ‘specific, universal, and obligatory.'” His actions were evil and illegal, but not a matter of the law of nations.

Judge Bartle’s judicial over-reach in the name of universal jurisdiction is by no means an isolated decision. There is in fact fairly ample, if scattered, support for the idea that jurisdiction over Bianchi would be proper, under the argument that international commercialized child rape (I cannot bring myself to use the monstrously inadequate euphemism of ‘sex tourism’) is a modern crime akin to the traditional offenses of piracy and slavery. Eugene Kontorovich [PDF] has called this claim the “piracy analogy”. The piracy analogy is

the argument that [universal jurisdiction] is based on principles implicit in the earlier, piracy-only universal jurisdiction. According to the piracy analogy, international law treated piracy as universally cognizable because of its extraordinary heinousness. Universal jurisdiction was never about piracy per se, the argument goes, but about allowing any nation to punish the world’s worst and most heinous crimes. Thus universal jurisdiction over human rights violations is simply an application of the well-settled principle that the most heinous offenses are universally cognizable and not, as critics contend, a radical and dangerous encroachment on nations’ sovereignty.

The Bianchi decision is a text-book example of the piracy analogy in action, and of the mistaken belief that the world’s evils are best fought by expanding the nebulous jurisdictional reach of international law to encompass them. However, while states can and do use international law as a means of combating offenses that are universally condemned, as they have with the Option Protocol on the Rights of the Child, the mere fact that an offense can be regulated by international law cannot transform it into a violation of international law.

-Susan

All* Alien Tort Statute Cases Brought Between 1789 and 1990

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As an addition to my post on successful cases brought under the Alien Tort Statute, below is a list of failed cases under the ATS from its enactment in 1789 through 1990. These are only the cases that were dismissed outright by the court — the list of ATS suits that were either successful, or which were ultimately unsuccessful but at least made it before a jury, are listed in the above link.

I am reasonably confident that the list is a complete list of all losing ATS cases for that time period. Of course, I’ve probably jinxed myself by saying that, but other than maybe some unreported cases I couldn’t get my hands on, pretty much all of the ATS cases for that time period should be here. … That said, if you know of some I’ve missed, please let me know in the comments!

Of course, given that the ATS’s invocation in federal courts has been expanding at an exponential rate, the overwhelming majority of ATS cases were brought after 2000. So this list has a long way to go yet.

Alien Tort Statute Cases Dismissed by the Courts (Complete Through 1990)

1. Moxon v. The Brigantine Fanny, 5317 F.Cas. 942 (D.C.Pa. 1793). “Neither does this suit for a specific return of the property, appear to be included in the words of the judiciary act of the United States, giving cognizance to this court of ‘all causes where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States.’ It cannot be called a suit for a tort only, when the property, as well as damages for the supposed trespass, are sought for.”

2. O’Reilly De Camara v. Brooke, 209 U.S. 45, 28 S. Ct. 439 (1908). This is the first time the ATS went before the Supreme Court. (It is also the first time an ATS claim was subject to a motion to dismiss for failure to state a cause of action.) The case involved an alleged violation of the Treaty of Paris, and “was brought by the Countess of Buena Vista, a subject of the King of Spain, residing in Havana, Cuba, against Maj. Gen. John R. Brooke, to recover damages alleged to have been caused to the plaintiff by an order of Gen. Brooke, made August 10, 1899, when he was military governor of the Island of Cuba, abolishing the right or franchise to slaughter cattle in the city of Havana, owned by the plaintiff.” “Again, if the plaintiff lost her rights once for all by General Brooke’s order, and so was disseised, it would be a question to be considered whether a disseisin was a tort within the meaning of [the ATS]. In any event, the question hardly can be avoided whether the supported tort is ‘a tort only in violation of the law of nations’ or of the Treaty with Spain. In this court the plaintiff seems to place more reliance upon the suggestion that her rights were of so fundamental a nature that they could not be displaced, even if Congress and the Executive should unite in the effort. It is not necessary to say more about that contention than that it is not the ground on which the jurisdiction of the District Court was invoked. ” “[W]e think it plain that where, as here, the jurisdiction of the case depends upon the establishment of a ‘tort only in violation of the law of nations, or of a treaty of the United States,’ it is impossible for the courts to declare an act a tort of that kind when the Executive, Congress and the treaty-making power all have adopted the act. We see no reason to doubt that the ratification extended to the conduct of [the General].”

3. Pauling v. McElroy, 164 F.Supp. 390 (D.D.C. 1958). Suit to enjoin nuclear weapons testing. Request for injunction not a tort, and accordingly no relief available under ATS.

4. Khedivial Line, S. A. E. v. Seafarers’ Union, 278 F.2d 49 (2 Cir. 1960). Right of free access to ports not sufficient to establish jurisdiction.

5. Madison Shipping Corp. v. National Maritime Union, 282 F.2d 377 (3rd Cir. 1960). “[I]njunctive relief was prayed for on the theory that the appellants’ acts were violative of the appellee’s rights under the Treaty of Friendship, Navigation and Commerce made between the United States and the Republic of Liberia on August 8, 1938, 54 Stat. 1739. Jurisdiction of both of these claims was asserted to be pursuant to Sections 1331 and 1350 of Title 28 U.S.C. [I]t was [also] alleged that the appellants tortiously interfered with the appellee’s contractual relations in violation of the law of Pennsylvania. Injunctive relief and damages were prayed for, and jurisdiction was asserted to be pursuant to Sections 1332 and 1350, Title 28 U.S.C.” Except the court was reviewing the case under interlocutory appeal, and none of the questions before it reached the requisite standard, so the case was booted out.

6. Bowater S. S. Co. v. Patterson, 303 F.2d 369 (2nd Cir. 1962) (in dissent). Interesting, although questionable, early analysis of the ATS. Majority dismissed the case for lack of jurisdiction on unrelated grounds. In a dissenting opinion, Judge Lumbard, apparently raising the issue sua sponte, argues that the ATS granted the court a separate basis of federal jurisdiction. the Plaintiff, the Bowater Steamship Company, Ltd., was an English corporation. It “advance[d] a claim under the treaty ‘To regulate the Commerce between the Territories of the United States And of his Britannick Majesty,’ signed and ratified in 1815, 8 Stat. 228, and extended indefinitely on August 6, 1827, 8 Stat. 361.” According to Judge Lumbard, “This is sufficient to give the district court jurisdiction under 28 U.S.C. §§ 1331 and 1350.” However, the relevant treaty did not provide the substantive law, but rather guaranteed a federal form for the litigant. Therefore, the dissent would have, apparently, used the ATS as a means of providing jurisdiction for an alien to assert a claim under New York state tort law.

7. Lopes v. Reederei Richard Schroder, 225 F.Supp. 292 (E.D.Pa.1963). Dismissied; doctrine of unseaworthiness held to be not part of the law of nations.

8. Upper Lakes Shipping Limited v. International Longshoremen’s Ass’n, 33 F.R.D. 348 (S.D.N.Y. 1963). Plaintiff brought claim “arising under the treaty between the United States and Canada concerning the boundary waters between the United States and Canada.” Court found that treaty’s only available remedy was for plaintiff to “seek the espousal of its claim by the Canadian Government and its presentation to the International Joint Commission.”

9. Seth v. British Overseas Airways Corp., 216 F.Supp. 244 (D.Mass. 1963). Not an interesting case. “The theory of the third count is that this Court has jurisdiction under 28 U.S.C. § 1350 because this is a ‘civil action by an alien for a tort only, committed in violation of a treaty of the United States. … There being no evidence that BOAC committed a tort or violated any act of Congress, Counts 2 and 3 are dismissed with prejudice.”

10. Damaskinos v. Societa Navigacion Interamericana, S. A., Pan., 255 F.Supp. 923 (S.D.N.Y.1966). “Negligence in providing a seaman with a safe place in which to work, and unseaworthiness of a vessel in that respect, are not violations of the law of nations.”

11. Valanga v. Metropolitan Life Insurance Co., 259 F.Supp. 324 (E.D.Pa. 1966). “[A]ctions to recover funds based upon life insurance contract obligations do not impress this Court as being of the calibre of the cases which have been allowed recourse to § 1350. Plaintiff has failed to indicate the impact of defendant’s conduct as violating the “law of nations.” The mere fact that an individual breaches the contractual duty owed to an alien does not mean that such conduct is so flagrant as to warrant this court to conclude, as a matter of law, that it constitutes a violation of the rules of conduct which govern the affairs of this nation, acting in its national capacity, in its relationships with any other nation.”

12. Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir. 1973). Nigerians’ claims alleging fraudulent employment training contracts failed to state a claim involving an international law violation.

13. IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975). Source of the ATS’s famous epitaph:  “[t]his old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know whence it came.” Court found that “[t]hou shalt not steal” is not part of the law of nations.

14. Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975). “[T]he illegal seizure, removal and detention of an alien against his will in a foreign country would appear to be a tort . . . and it may well be a tort in violation of the “law of nations’… We are reluctant to decide the applicability of § 1350 to this case without adequate briefing. Moreover, we are reluctant to rest on it in any event. The complaint presently does not join the adoption agencies as defendants.”

15. Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976). Seizure of Jewish plaintiff’s property in Nazi Germany and repudiation of 1948 settlement agreement may have been tortious, but not an international law violation.

16. Papageorgiou v. Lloyds of London, 436 F. Supp. 701 (E.D.Pa. 1977). Dismissed under the doctrine of forum non conveniens.

17. Soultanoglou v. Liberty Trans. Co., 1980 U.S. Dist. LEXIS 9177 (S.D.N.Y.). “Negligence in providing a seaman with a safe place in which to work, and unseaworthiness of a vessel in that respect, are not violations of the law of nations. []. Soultanoglou has failed to provide the Court with contrary authority. … The Court accepts Magistrate Raby’s conclusion that section 1350 is inapplicable here.”

18. Huynh Thi Anh v. Levi, 586 F. 2d 625 (6th Cir. 1978). There is no universally accepted international right that grants grandparents rather than foster parents custody of children.

19. Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978). Claims arising out of crashed airplane are a tort, but not one in violation of international law or U.S. treaty.

20. Akbar v. New York Magazine Co., 490 F. Supp. 60 (D.D.C. 1980). Libel not a violation of international law or treaty.

21. Canadian Transport Co. v. U.S., 663 F.2d 1081 (D.C.Cir. 1980). “Appellants’ second cause of action alleged that the exclusion of TROPWAVE violated the Treaty of Commerce and Navigation of 1815 between the United States and Great Britain (the 1815 Treaty), 8 Stat. 228. 33 Appellants argue that the District Court had jurisdiction to award them damages under 28 U.S.C. § 1350 (1976), which provides: ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’ Because nothing in the language of this statute indicates that the United States has waived its sovereign immunity from tort suits for treaty violations, the District Court’s decision dismissing this cause of action must be affirmed unless appellants can show another basis for concluding that sovereign immunity has been waived.”

22. Trans-Continental Inv. Corp. v. Bank of Commonwealth, 500 F. Supp. 565 (C.D. Cal. 1980). “Plaintiffs do not claim that any treaty has been violated nor do they suggest that any such claim can be pleaded. Thus, the invocation of Section 1350 jurisdiction is posited directly on their claim that ‘fraud is a universally recognized tort.’ This is essentially the same argument that was made in IIT v. Vencap, Ltd., and the answer must be the same, while the statement is undoubtedly true, universal recognition does not, per se, make the rule a part of ‘the law of nations,’ construed in accordance with Article III.”

23. Cohen v. Hartman, 634 F.2d 318 (5th Cir. 1981). Tortious conversion of funds (embezzlement) is not a violation of the law of nations.

24. Jafari v. Islamic Republic of Iran, 539 F.Supp. 209 (N.D.Ill. 1982). “[T]he ‘law of nations’ does not prohibit a government’s expropriation of the property of its own nationals.”

25. B.T. Shanker Hedge v. British Airways, 1982 U.S. Dist. LEXIS 16469 (N.D. Ill.). “The plaintiff alleges that he suffered physical injuries when he was struck by a luggage cart while he stood at the lost and found area controlled by the defendant at the airport in Geneva, Switzerland.” Yeah, not exactly a tort in violation of the law of nations. Now maybe if he’d sued for tortiously bad airline food… *rim shot*. But a somewhat interesting note: “This case alleges a tort, but not one in violation of the law of nations or any treaty of the United States. If jurisdiction were held to exist under this statute over this cause, the exercise of such jurisdiction would probably be in violation of Article III of the Constitution.”

26. Canadian Overseas Ores Ltd. v. Compania de Acero, 528 F. Supp. 1337 (S.D.N.Y. 1982). Suit to recover “spare parts and related equipment.” “[T]his suit is not one to recover allegedly expropriated property and accordingly 28 U.S.C. § 1350, conferring jurisdiction over suits “by an alien for a tort only, committed in violation of the law of Nations,” does not provide a constitutional jurisdictional predicate for the suit. As the Court of Appeals stated in the footnote relied on by CANOVER, ‘commercial violations … do not constitute violations of international law.'”

27. De Wit v. KLM Royal Dutch Airlines, 570 F. Supp. 613 (S.D.N.Y. 1983). Trade secret and employment action. “The court finds that such extraordinary circumstances are not present here and therefore de Wit’s claim of jurisdiction under this provision is also lacking.”

28. Zapata v. Quinn, 707 F.2d 691, 1983 U.S. App. LEXIS 27589 (2d Cir. N.Y. 1983). “This is an unusually frivolous civil rights action brought under 28 U.S.C. § 1350 and 42 U.S.C. § 1983 by the winner of $273,178 in the New York State Lottery against its director, claiming that New York regulations, which provide that the winnings will be paid partly in cash and the balance by way of an annuity over 10 years instead of in one lump sum, deprived her of property without due process of law.”

29. Ramirez de Arellano v. Weinberger, 724 F.2d 143 (D.C.Cir. 1983). “As for remedies (available to the Honduran corporations alone) under the Alien Tort Statute: Assuming without deciding that that legislation allows suits against the United States, in the case.it nonetheless applies only to so-called transitory causes of action. Neither an action seeking ejectment nor an action seeking money damages for trespass would lie, since they are both local actions.”

30. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984). The ATS gets Borked.

31. Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C.Cir.1984). ATS raised as jurisdictional ground, but court found it unnecessary to address the claim.

32. Munusamy v. McClelland Eng’r, Inc., 579 F. Supp. 149 (E.D. Tex. 1984). This case is something of an accidental invocation of the ATS, and should probably be discarded for purposes of looking at ATS issues:  “[]he Plaintiffs insist the court has jurisdiction by virtue of” the ATS and three other jx statutes, and the causes of action were various, but included “the General Maritime Law of the United States and of Nation.” But the ATS issue is never discussed, and then the case got lost in a FNC procedural quagmire.

33. Tamari v. Bache & Co., 730 F.2d 1103 (7th Cir. 1984). Boring case, not useful: “[t]he alleged violations include excessive trading and churning of the accounts; making false representations, false reports and false statements to the Tamaris; and deceiving the Tamaris as to the true condition of the accounts.” “We note that 28 U.S.C. § 1350 has been narrowly construed and would not supply a basis for federal jurisdiction over the common law claim.”

34. Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985). My favorite part of this case is the dismissive reference to “so-called ‘customary international law.'” Court found that either the acts of the defendants were private acts and not covered by the ATS, or else were the acts of officials and therefore barred by sovereign immunity: “It would make a mockery of the doctrine of sovereign immunity if federal courts were authorized to sanction or enjoin, by judgments nominally against present or former Executive officers, actions that are, concededly and as a jurisdictional necessity, official actions of the United States.”

35. Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. 1332 (S.D.N.Y. 1984). Plaintiffs, British citizens, sought to enjoin the deployment of ninety-six cruise missiles at Greenham Common, Great Britain. “Based on these alleged consequences of deployment, the Greenham plaintiffs contend that the deployment of cruise missiles contravenes several customary norms of international law, subjecting them to tortious injury actionable under the Alien Tort Claims Act, 28 U.S.C. § 1350.” No surprise that the court found that “[t]he instant case presents a non-justiciable political question.” Besides which, their claim wasn’t for a tort.

36. Jaffe v. Boyles, 616 F. Supp. 1371 (W.D.N.Y. 1985). Interesting case, and not just because it involves bounty hunters. Plaintiff was seized and dragged across the Canadian border into the US, where he was prosecuted. Court found that the US-Canada extradition treaty did not create private right of action, and as ATS is jurisdictional only, there was no tort a private person could sue for: “Any alien torts committed against Jaffe in violation of the law of nations occurred in Toronto with his seizure and continued with the crossing of the border here. The extradition treaty may well have been violated at the moment the border was crossed, but as already discussed, plaintiffs have no private right of action under that treaty.” So in a way, this case could go down into the “jurisdiction under ATS” column — the court did find that there may well have been a tort in violation of a US treaty, but it’s not one that Plaintiff was able to recover for.

37. Guinto v. Marcos, 654 F.Supp. 276 (S.D.Cal. 1986). Plaintiffs brought suit alleging Philippines government and seized and suppressed a film. Court rejected the filmmaker’s ATS claims: “However dearly our country holds First Amendment rights, I must conclude that a violation of the First Amendment right of free speech does not rise to the level of such universally recognized rights and so does not constitute a “law of nations.”

38. Saltany v. Reagan, 702 F. Supp. 319 (D.D.C. 1988). Boring case. ATS claim brought and then smacked down under FSIA.

39. Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir. 1988). Plaintiff, a British citizen, was stuck in a Debtor’s Prison in Saudi Arabia, for two years, and brought claims against his creditors for false imprisonment and assault and battery. Plaintiff “allege[d] that the defendant corporations conspired with the Saudi government to have him jailed. He further alleges that, knowing of his incarceration and the type of treatment he was receiving, the defendants purposefully delayed giving their unilateral release of their claims in order to force him to sign mutual releases and covenants not to sue.” The court found it lacked PJx over all all defendants but Price Waterhouse. Those claims were dismissed because Plaintiff “simply cannot demonstrate any causal connection between Price Waterhouse’s conduct and his prolonged imprisonment or torture. In this case, there is no evidence that Price Waterhouse was responsible, directly or indirectly, for Carmichael’s initial incarceration. Second, Price Waterhouse owed no affirmative duty to Carmichael simply to release him from an obligation that he admitted owing. And finally, no evidence was adduced in the 12(b)(1) proceeding that Price Waterhouse in any way conspired with or aided and abetted in the act that we have assumed constituted the violation of international law, that is, the official torture of Carmichael.

40. Jones v. Petty-Ray Geophysical Geosource, Inc., 722 F. Supp. 343 (S.D. Tex. 1989). Complaint did not allege Plaintiff was an alien, nor did it plead any violation of the law of nations. “The plaintiff’s complaint alleges that Sudan was negligent in failing to warn plaintiff’s decedent of imminent political danger and violence and failing to provide adequate police protection and security to decedent. However, the plaintiff has not shown where this cause of action arises under the ‘law of nations’ and has not cited any persuasive source that recognizes a sovereign’s duty to protect foreign nationals from harm.”

41. Von Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1 (D.D.C. 1990). Dismissing default judgment against USSR that was granted for, inter alia, claims under the ATS. Court found FSIA barred judgment.

42. Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990). Dismissed, court found “all claims were barred by doctrines of absolute immunity, qualified immunity, and for failure to state a claim, and lack of pendent jurisdiction.”

43. Castillo v. Spiliada Maritime Corp., 732 F.Supp. 50 (E.D.La. 1990). Plaintiffs claimed “retaliatory discharge under the Alien Tort Statute, 28 U.S.C. 1350 et seq.” Unsurprisingly, the case didn’t go anywhere.

————-

Partial, in-progress list of post-1990 cases:

44. Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668 (S.D.N.Y. 1991). Amlon involved the shipment of allegedly hazardous copper residue to a purchaser in England for metallic reclamation purposes. Among its claims, the purchaser sought recovery in tort under the Alien Tort Statute, and “assert[ed] that the complaint does allege facts that constitute a violation of the law of nations. In particular, plaintiffs argue that FMC’s conduct is violative of the Stockholm Principles, United Nations Conference on the Human Environment (adopted June 16, 1972), to which the U.S. is a signatory.” The court said yeah right, nice try: “reliance on the Stockholm Principles is misplaced, since those Principles do not set forth any specific proscriptions, but rather refer only in a general sense to the responsibility of nations to insure that activities within their jurisdiction do not cause damage to the environment beyond their borders.”

45. Koohi v. U.S., 976 F.2d 1328 (9th Cir. 1992). No waiver of sovereign immunity. ATS claim dismissed in a quick footnote.

45. Hamid v. Price Waterhouse, 51 F.3d 1411 (9th Cir. 1995). “The wrongs alleged are in substance fraud, breach of fiduciary duty and misappropriation of funds. Although the conduct was international in scope, no violation of what has traditionally been the subject of international law is claimed. International law includes more than international treaties. But looting of a bank by its insiders, and misrepresentations about the bank’s financial condition, have never been in the traditional classification of international law.”

46. Aquinda v. Texaco, Inc., 945 F. Supp. 625, 627 (S.D.N.Y. 1996). Court in Aquinda referenced the possible application of § 1350 for environmental practices “which might violate international law.” Suit was subsequently dismissed on grounds of comity, forum non-conveniens, and failure to join a necessary party.

47. Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362 (E.D.La. 1997). Court found that plaintiff “failed to articulate a violation of the international law. Plaintiff states that the allegations support a cause of action based on three international environmental law principles: (1) the Polluter Pays Principle; (2) the Precautionary Principle; and (3) the Proximity Principle. None of the three rises to the level an international tort.” Court also suggested that corporation could not violate international environmental law.

48. Jogi v. Piland, 131 F. Supp.2d 1024 (C.D. Ill. 2001). Dismissed, court held that ATS claims require a tort in violation of treaty, not just any treaty violation.

49. Mendonca v. Tidewater, Inc., 159 F.Supp.2d 299 (E.D.La. 2001). Boring case; lots of alleged violations of international law that make no sense. “the plaintiff can cite no solid support for his claim that the conduct complained of rises to the level recognized by the law of nations.”

50. Doe I v. The Gap, Inc., 2001 WL 1842389 (D.N.Mar.I. 2001). Plaintiffs brought claims of forced labor and deprivation of fundamental human rights in violation of international law. Interestingly, the court accepted the idea that a purely private actor could be held liable under the ATS, but that plaintiffs failed to prove their slavery claims, so the ATS claim was dismissed: “Although international law generally governs the relationship between nations, and thus a violation thereof almost always requires state action, it has been recognized that a handful of particularly egregious acts — genocide, war crimes, piracy, and slavery — by purely private actors can violate international law. As of now, however, only the acts mentioned above have been found to result in private individuals being held liable under international law.” “The court has above determined that plaintiffs have failed to make out a claim for the less egregious act of involuntary servitude and thus it need not consider whether the Unocal court’s equation of forced labor with slavery is sustainable on the facts as alleged here. As to plaintiffs’ claims of other alleged human rights violations, no court has yet accepted plaintiffs’ contention that the freedom to associate and the right to be free from discrimination are standards that have as yet evolved into norms of customary international law sufficient to invoke and be actionable under the ATCA.”

51. Tachiona v. Mugabe, 386 F.3d 205 (2d Cir. 2004). Dismissal of ATS claims for sovereign and head of state immunity.

52. Bancoult v. McNamara, 370 F.Supp.2d 1 (D.D.C. 2004). Plaintiffs tried to claim a “violation of the ATS.” Dismissed.

53. Schneider v. Kissinger, 310 F.Supp.2d 251 (D.D.C. 2004). Claims under TVPA and ATS against Kissinger dismissed. ATS claims did no fulfill the requirements of §2679(b)(2)(B), although TVPA claims “arguably did.” But TVPA claims still dismissed, as “[i]n carrying out the direct orders of the President of the United States, Dr. Kissinger was most assuredly acting pursuant to U.S. law, if any, despite the fact that his alleged foreign coconspirators may have been acting under color of Chilean law. In addition, the TVPA claims appear to be barred by Dr. Kissinger’s qualified immunity from suit.”

54. Ganguly v. Charles Schwab & Co., Inc., 2004 WL 213016, (S.D.N.Y. 2004). Foreign investor seeking to hold brokerage firm liable for losses failed to allege any violation of international law.

55. Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164 (C.D.Cal. 2005). Court found act of state doctrine did not apply, and refused to dismiss certain ATS claims. It then, however, dismissed the entire case, under the political question doctrine.

56. Holland v. Islamic Republic of Iran, 496 F.Supp.2d 1 (D.D.C. 2005). TVPA only good against individual defendants.

57. Joo v. Japan, 413 F.3d 45 (2005). “We hold the appellants’ complaint presents a nonjusticiable political question, namely, whether the governments of the appellants’ countries resolved their claims in negotiating peace treaties with Japan. In so doing we defer to “the considered judgment of the Executive on [this] particular question of foreign policy.”

58. In re Iraq and Afghanistan Detainees Litigation, 479 F.Supp.2d 85 (D.D.C. 2007). Defendants were immune under the Westfall Act. Because the Geneva Convention is not a law enacted by Congress, but rather an international agreement, it does not fall within the Westfall Act’s exception for statutes.

59. Taveras v. Taveraz, 477 F.3d 767 (6th Cir. 2007). Court found parental child abduction does not violate law of nations. Further, “the nexus between Mr. Taveras’s asserted injury and the alleged law of nations violation (that the right of the United States to control who enters its borders was infringed) is highly tenuous, at best. As Sosa definitively established that the underlying tort itself must be in violation of the law of nations to be cognizable under the ATS, we reject Mr. Taveras’s Adra-styled argument that Ms. Taveraz’s fraudulent entry into the United States is sufficient to implicate a law of nations infraction and thereby propel his purely domestic tort action within the jurisdictional ambit of the ATS.”

60. Jama v. Esmor Corr. Serv., 2008 WL 724337 (D.N.J. 2007). “Four of Jama’s claims went to the jury [including] violation of the Alien Tort Claims Act, 28 U.S.C. § 1350.” Ignoring the fact that you cannot violate a jurisdictional statute, the jury found “no liability against any defendant under the Alien Tort Claims Act.” However, it several of the Defendants did settle, so this one can go in both the win column and the loss column.

61. Ruiz v. Fed. Gov’t of the Mexican Republic, 2007 U.S. Dist. LEXIS 74736 (W.D. Tex. 2007). “In his Complaint, Ruiz contends that the defendants’ actions have violated the UN Charter and the UDHR. Neither of these documents create a tort actionable under the ATS.

62. Harbury v. Hayden, 522 F.3d 413 (D.C.C. 2008). Stating that “the ATCA cannot be the subject of ‘a violation’ of a federal statute because the ATCA provides no substantive rights that could be the subject of any claimed violation”.

63. Presbyterian Church of Sudan v. Talisman Energy, Inc. (2d Cir. 2009). Second Circuit found that corporate defendant not liable for assisting others’ alleged violations of the ATS in the absence of evidence it intended that those violations be committed.

65. Hurst v. Socialist People’s Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007): “In their Opposition, Plaintiffs assert for the first time a claim by Mulroy under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, on the grounds that they asserted jurisdiction under the statute in their complaint, and they seek leave to amend if the claim was not sufficiently pleaded. The ATS does not provide jurisdiction over foreign states.”

66. Hoang Van Tu v. Koster, 364 F.3d 1196 (10th Cir. 2004). 10-year statute of limitations adopted from TVPA to bar claims.

67. Rojas Mamani v. Sanchez Berzain, 636 F.Supp.2d 1326 (S.D.Fla. 2009). TVPA claim — dismissed for failure to exhaust all remedies.

68. Turedi v. Coca-Cola Co., 343 Fed.Appx. 623 (2nd Cir. 2009): Dismissed for forum non conveniens.

-Susan

Supreme Court of the Philippines Threatens to Hold Professors Who Condemned Plagiarism In Contempt

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Previously, Mike posted about a decision from the Supreme Court of the Philippines that extensively plagiarized an article written by two American legal scholars. That case, Isabelita Vinuya v. Executive Secretary, also reached a decision contrary to that of the article the Supreme Court had plagiarized from, despite the extensive copy-and-paste job done on the source material.

37 professors at the University of the Philippines College of law issued a statement condemning the plagiarism. Now, the Philippines’ Supreme Court has threatened to hold the professors in contempt:

[Justice] Del Castillo was accused of plagiarizing portions of his ruling on World War II comfort women, but the Supreme Court cleared him, saying there was “no malicious intent” in the “accidental decapitation” of the attribution marks that would indicate that the research material was borrowed.

The court also threatened to crack its whip on the 37 law professors who aired a statement against Del Castillo, saying the Code of Professional Conduct for lawyers prohibits members of the Bar from airing public statements that tend to influence public opinion while a case is pending.

Can you imagine if that was the rule in the U.S.? That would essentially outlaw legal bloggers.

In its Rule to Show Cause issued against the professors, the Supreme Court stated that it

“could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration.” The Vinuya case was controversial enough, it added, but the law faculty “would fan the flames and invite resentment against a resolution that would not reverse the said decision.” The court said this was contrary to the faculty’s obligation as law professors and officers of the court and violated the Code of Professional Responsibility.

There is little doubt, though, that the critics’ charges of plagiarism are accurate. In its order dismissing the plagiarism allegations, the Court excused the failure to cite directly quoted text by noting that, “Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.” In other words, it’s the “Bill Gates ate my homework” defense.

-Susan