Google Earth Map for the Timor Sea Maritime Boundary Dispute

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.

I. The Indonesian-Australian Seabed Boundary Agreement (1972)

In the beginning, there was the gap:

1972 Seabed Boundary, with coordinates

1972 Seabed Boundary, with coordinates

Australia and Indonesia entered into the 1972 seabed boundary treaty, which established a maritime boundary that was significantly north of the median line between Indonesia and Australia. The boundary in front of Portuguese-controlled Timor remains unfixed.

In 1975, Portuguese exited the scene, and Indonesia promptly invaded. Indonesia and Australia try, and fail, to enter into an agreement establishing the maritime boundary between Australia and Indonesian Timor.

II. The PFSEL (1981)

In 1981, Indonesia and Australia still had not entered into any permanent treaty arrangements over their maritime boundaries, but they did succeed in reaching a Memorandum of Understanding concerning the Provisional Fisheries Surveillance and Enforcement Arrangement. This MOU did not establish any agreement as to the seabed resources, but provided a working arrangement for other maritime concerns in the region by establishing the Provisional Fisheries Surveillance and Enforcement Line (PFSEL). The PFSEL was drawn roughly along the median between the coasts of Timor and Australia, and this line would later be largely replicated as the water column boundary in the 1997 Treaty between the Australia and Indonesia, establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries

1972 seabed boundary (red) and 1981 PFSEL (white)

1972 seabed boundary (red) and 1981 PFSEL (white)

III. The Timor Gap Treaty (1989)

In 1989, Australia and Indonesia entered into the Timor Gap Treaty, which came into effect in 1991. The TGT, if taken in a generous light, could be described as a “creative compromise.” It was ultimately reached by simply setting aside the question of maritime boundaries, and instead establishing three ‘zones of cooperation’ in which Australia and Indonesia could jointly produce the petroleum found in the disputed Timor Sea region. Tax revenues from Zone A were split between Australia and Indonesia 50%/50%; in Zone B, Australia paid Indonesia 10% of the tax revenues it collected; and in Zone C, Indonesia paid Australia 10% of the tax revenues it collected.

The three 'Zones of Cooperation' established by the Timor Gap Treaty (1989)

The three ‘Zones of Cooperation’ established by the Timor Gap Treaty (1989)

The coffin-shaped design of the Zone of Cooperation Whole (“Zone”) was a deliberate choice made by Indonesia and Australia, and it does not directly reflect maritime boundaries that would be suggested by international law. Essentially, the parties agreed that the widest part of the Zone would be placed where the “Timor gap” lay, in between the opening left by the 1972 seabed boundary line, and the Zone would then become narrower both to the north and south of the Timor gap.

Northern and Southern Boundaries of the Zone

The northern and southern boundaries of the Zone have a relatively objective basis for their placement. The northern boundary of the Zone is drawn along the deepest point of the Timor Trough, and represents the full extent of Australia’s claim to the Timor Sea under its “natural prolongation” principle. Australia’s maritime claims are based on its belief that it has sovereign rights to the entirety of its continental shelf — which in its view, extends to the lowest point along the seafloor between two adjacent states:

Eastern boundary of the Zone of cooperation, with elevation profile showing Timor Trough/Northern boundary of Zone

Eastern boundary of the Zone of cooperation, with elevation profile showing Timor Trough/Northern boundary of Zone

In contrast to the northern boundary, the southern boundary of the Zone is drawn along a line 200 nautical miles off the coast of the island of Timor. This represents the fullest possible extent of a state’s claim to an EEZ under UNCLOS. When the sea between two adjacent states is less than 400nm (as is the case in the Timor Sea), both states are unable to have a full 200-mile EEZ, and instead the EEZ is typically drawn along a median line. However, when negotiating the Timor Gap Treaty, the parties’ compromise in setting the Zones of Cooperation is that it would reflect both Indonesia and Australia’s maximum possible maritime territorial claims.

Southern boundary of the Zone is 200 nautical miles off from Timor's coast

Southern boundary of the Zone is 200 nautical miles off from Timor’s coast

Internal Zone Boundaries

The division between Zone A and Zone B is drawn along the median between Australia and Timor. This boundary is close — but not identical — to the median line established in the Provisional Fisheries Surveillance and Enforcement Arrangement, along the PFSEL. (Side note: the 1997 water column agreement between Australia and Indonesia establishes a median line that is identical to the PFSEL for every point outside of the Timor Gap. Inside the Timor Gap, the points of the 1997 boundary correlate to the points of the Timor Gap Treaty, but with coordinates that run slightly to the north of the TGT’s points.)

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Close-up of the western leg of the boundary between Zone B (south, green) and Zone A (north, blue), showing the coordinates from PFSEL (black dot, purple text) and the 1997 Water Column treaty establishing the median boundary (white),  as well as the identical coordinates of the Timor Gap Treaty (1989) and Timor Sea Treaty (2002)  (overlapping, depicted  in green in screen cap).

The division between Zone C and Zone A lies somewhat close to the original 1972 seabed boundary, but the angle of the division does not all match the angle of the 1972 division. Instead, it appears as if Zone C was demarcated on the basis of seabed features, as it appears to track a ridge on the southern side of the Timor Trough, where the “canyon” levels off somewhat (marked with red arrow on map, elevation data shown on bottom), which leads to the northern and southern boundaries of Zone C being somewhat parallel:

Southern plateau of Timor Trough, marking southern boundary of Zone C

Southern plateau of Timor Trough, marking southern boundary of Zone C

Western Lateral Boundaries of Zones A and B

The lateral boundaries of the Zone (marking the width of the Zone as it runs east-west) are more arbitrarily drawn than the longitudinal boundaries. The western lateral boundary of the Zone is particularly odd, as it is in fact two different boundaries. Unlike the eastern boundaries for Zones A and B (which are roughly identical) the western boundaries for Zones A and B show a marked and unexplained divergence. It appears that the western boundary of Zone A (in royal Blue) was established by a line drawn from the mouth of the Kamanasa River through the point of A17, which then terminates where it meets the median boundary between Australia and Indonesia (in white), to intersect at the point marked by point B(e). The western boundary of Zone B (in cyan), although roughly similar, runs at a different angle from Zone A’s boundary. Zone B’s boundary appears to have been established by drawing a line from the mouth of the Tafara River through point B(e), which then terminates where it meets the 200 nautical mile line of Timor’s EEZ (the southern border of Zone A), to intersect at the point marked by B(d):

Eastern and Western lateral boundaries of Zone of Cooperation, extended to shore of Timor

Eastern and Western lateral boundaries of Zone of Cooperation, extended to shore of Timor
(The points marking A(c) and A(n) are not pictured, because their coordinates are the same as points A16 and A17 from the 1972 Seabed Treaty. Note that A16 and A17 are the bookends to the “Timor gap”.)

The logic behind the placement of the Zone’s western boundary is not immediately apparent. It is often said that the western boundary is a “simplified” equidistant line that divides the territorial seas between Portuguese Timor and Indonesia, but there is reason to question this assumption. First, the western lines simply don’t appear to be an equidistant boundary, as it is claimed; it may perhaps be a “simplified” line of equidistance, but if so, it’s an unintuitive approximation of that. Second, the boundaries of the Zones are unerringly straight; they draw direct line into the coasts, and not angled in a manner that would suggest they are following an organic boundary division. And, third, based on the historical context, it makes little sense for the lateral boundaries of the Zone to have been drawn along a line of equidistance. In 1989, there was only a single sovereign on the island of Timor, and that was Indonesia. The purpose of the Timor Gap Treaty was to resolve the division of an undelimited maritime boundary between a sovereign that held the entirety of the north and a sovereign that held the entirety of the south; there was absolutely no need to calculate the boundary of two adjacent sovereigns on the northern side, or to have the division of the Zone reflect that. The Zone was plainly a compromise, as shown by its Trough-marked northern border and 200nm southern border, and there is no reason to assume that the western and eastern border were not also based on pragmatic considerations — as opposed to reflecting the sovereign territory of the state of Timor-Leste, which no longer existed.

And from the maps, it does very much appear that the western boundaries had been drawn in reference to geographic features on Timor. Both the Zone A and Zone B western boundaries line up directly with river mouths on Timor’s shore:

Extension of western boundary of Zone B (green) and Zone A (blue) to Timor shore

Extension of western boundary of Zone B (green) and Zone A (blue) to Timor shore

If the Zone established by the Timor Gap Treaty were the result of compromise and pragmatically drawn boundaries (which, from all the evidence, appears to have been the case) then it makes more sense that the western boundary was not intended to represent the then-nonexistent Timor-Leste’s territorial waters, but instead was chosen on the basis of other concerns. Yes, using the Tafara and Kamanasa Rivers to establish the western boundaries for the Timor Gap Treaty would be somewhat arbitrary, as these two rivers are not themselves significant boundary markers, but that further suggests that the boundary had little or nothing to do with Timor-Leste. The mouth of the Massin river, called the Mota Talas, is a far more significant geographical marker. The Massin River, which is the river immediately to the west of Tafara and Kamanasa, is the is the boundary between Timor-Leste and Indonesia today. If the Zones of Cooperation had truly been drawn to delineate the territorial sea of what was Portuguese Timor, then you would expect the western boundary of the Zone to lead directly to Mota Talas.

But it doesn’t. Below, Mota Talas has been marked with a black pushpin, and the boundary line from Mota Talas to point B(e) has been marked in black, showing what a boundary from Mota Talas would look like, compared to a boundary from either Kamanasa or Tafara:

Angle of hypothetical boundary drawn from the Timor-Leste/Indonesian border through the point marked B(e) from Timor Gap Treaty (in black)

Angle of hypothetical boundary drawn from the Timor-Leste/Indonesian border through the point marked B(e) from Timor Gap Treaty (in black)

Close-up of the theee rivers where western lateral boundaries converge on shore of  Timor

Close-up of the theee rivers where western lateral boundaries converge on shore of Timor

So why draw the western boundary from Tafara or Kamanasa instead of Mota Talas? Admittedly, this distinction doesn’t make a huge difference in terms of total sea area — using the boundary drawn from Tafara, marked by the cyan line, instead of the boundary drawn from Mota Talas, marked by the black line, would exclude approximately 131 square nautical miles from the shared territory of Zone A, leaving it exclusively in Australia’s possession.

Given this marginal difference in total area, even if the lateral boundary should have been drawn from Mota Talas, is Timor-Leste truly prejudiced today by having a territorial sea that is drawn from the Tafara or Kamanasa, instead of from Mota Talas?

Well, yes. One reason why Australia may have chosen not to use Mota Talas becomes immediately apparent once you turn on the markers for the Laminaria-Corallina gas fields:

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Close-up of western boundary of Zone A, showing boundary line of Zone A (blue), boundary line of Zone B (green), and a hypothetical boundary line drawn from Mota Talas line (black). Note the convenient placement of Laminaria-Corallina wells, which would all have bee enclosed in the JPDA/Zone a had the boundary been drawn from the actual border of Timor-Leste and Indonesia. By drawing the line instead from two rivers farther along Timor-Leste’s coast, Australia can claim 100% of the tax revenues from  the Laminaria-Corallina fields.

It could be a coincidence. But you can understand my skepticism.

In any event, if the western lateral boundary of Timor’s EEZ and territorial sea were to be re-drawn today (and, if I were in charge of the world, the one that I would I draw),a more appropriate division might be provided by the proposed boundary depicted below, in yellow:

Alternative western lateral boundary between Australia, Indonesia, and Timor-Leste (yellow)

Alternative western lateral boundary between Australia, Indonesia, and Timor-Leste (yellow)

This boundary preserves the angle established by the Timor Gap Treaty (and the Timor Sea Treaty), which is not terribly far off from the angle of an equidistant line, but it shifts the maritime boundary’s starting point to its appropriate beginning at Mota Talas.

This proposed division also reflects the equidistant-influenced 1972 Seabed Boundary. Although the 1972 line was drawn to reflect Australia’s “natural prolongation” claim, the ultimate boundary was a compromise between a continental shelf division (which lies along the Timor Trough) and an equitable division based upon the shape of the Timorese and Australian coast line. The boundary line that runs between points A18 and A17 of the 1972 treaty partially reflect the straightening of Timor’s coast, as it turns to run more directly east — and this straightening in the coast begins just before the border of Indonesia and Timor-Leste. This would also suggest that a more appropriate maritime boundary between Timor-Leste and Indonesia would fall somewhere west of A17 and east of A18, instead of on A17 itself.

Eastern Lateral Boundaries of Zones A and B

The eastern lateral boundaries of Zones A and B are nearly aligned, with angles that have only the barest degree of difference. The boundary has been established along a line that starts in the middle of the island of Leti (at mile 4 of an 8-mile island), and then moves southwest until it meets the 200nm boundary south of Zone B. Its angle is somewhat arbitrary, though; instead of drawing the eastern boundary through A16, as might be expected, the line intersects the 1972 boundary between A16 and A15. In some respects, it could have been drawn to represent a “simplified” line of equidistance. But, once again, as with the western boundary, there is only an approximate resemblance to the hypothetical equidistant line, and it has a more pronounced convergence away from Timor than would be expected, if the boundary were based on a territorial division between Indonesia and Timor-Leste. And, also like the western boundary, there is no reason to expect that, in 1989, Indonesia and Australia would have established the eastern boundary of their Zone of Cooperation so as to reflect the appropriate territorial division between Australia, Indonesia, and a nonexistent third state.

The eastern boundary may also have been established simply to mirror the angle of the western boundary, and provide for a more symmetrical Zone. Whatever the reason, the eastern boundary goes from Leti Island on a westerly angle to where it intersects the median line, at the point marked by A(m) (which is now point M from the Timor Sea Treaty), before finally terminating at the 200nm line, at the point marked by B(b).

But the angle created by starting the boundary at Leti is unequitable and arbitrary when applied to a territorial division between three sovereigns. When the eastern boundary was created, that wasn’t an issue, since all of the islands were Indonesian; Leti served as a convenient geographical base to use as a reference point in plugging up the Timor Gap, and the boundary did not need to take into account the competing claims of a sovereign state across the channel from Leti. A more equitable line might be something approximately along the boundary line shown below, in yellow. This boundary represents an equidistant division beginning at the median of Leti and Jaco, but which angles back towards the west to represent the effect of Indonesia’s straight baselines. The territory covered by the Sunrise IUA has also been shaded in, in orange, for reference:

TS14

Alternative eastern lateral boundary between Australia, Indonesia, and Timor-Leste (yellow)

Once again, the result of this change is small, but significant. Timor-Leste’s territory would encompass an approximately 70% of the Sunrise-Troubadour field region, as opposed to the 20% that falls within the JPDA today.

Eastern and Western Lateral Boundaries of Zone C

The lateral boundaries for Zone C (which converge closer towards Timor) are almost entirely arbitrary: they were established by taking the northern-most point on the Australian coast that lies to the east of the Timor gap (Melville Island) and the northern-most point that lies to the west of the gap (Long Reef) and then drawing a line from those geographical features through points A16 and A17, respectively. Those lines then terminate where they intersects with the Timor Trough (northern boundary of Zone C).

The western and eastern lateral boundaries of Zone C are shown below, with extensions drawn to the northernmost points of Long Reef and Melville, for reference:

Lateral boundaries of Zone C, drawn from Melville Island through A16 to the Timor Trough (eastern), and from Long Reef through A17 to the Timor Trough (western)

Lateral boundaries of Zone C, drawn from Melville Island through A16 to the Timor Trough (eastern), and from Long Reef through A17 to the Timor Trough (western)

Timor Gap, All Lateral Lines

Finally, by extending the lateral boundaries of Zone B south, to where they meet the Australian coast, and north, to where they meet the coast of Timor, you can see the truly inequitable shape created by the Zones of Cooperation (and, subsequently, by the JPDA):

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IV. Timor Sea Treaty (2002) and the Joint Petroleum Development Area 

Following Timor-Leste’s independence, Timor-Leste and Australia negotiated the Timor Sea Treaty. The TST essentially preserved Zone A of the TGT, shown below in royal blue, and provided for a division of control and tax revenue from petroleum production in that area. Following the TST, the status of the areas to the east and west of the JPDA that lie between the red and white lines remained uncertain.

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V. The Sunrise IUA and CMATS (2006)

Following the boundary lines established by the TST, approximately 80% of the resource-rich gas fields known as Greater Sunrise remained in no-man’s land. Although the 20% of Greater Sunrise that lies within the JPDA would be governed by the TST (with revenues split 90%/10% in Timor-Leste’s favor) the other 80% of Greater Sunrise was unaccounted for by the TST. Under the Certain Maritime Arrangements in the Timor Sea treaty, which put it into place the earlier (but unratified) Sunrise IUA, a Greater Sunrise area was established, shaded in orange below, which provided for Timor-Leste and Australia to split the revenues from production within the area 50%/50%.

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VI. The Lowe Opinion

The Lowe Opinion (2002) is a paper that was prepared at the behest of an energy company that had previously been divested from any opportunity of developing the oil and gas fields in the Timor Sea. Following Timor-Leste’s independence, corporations who were not among the select consortium that had an enshrined right in the Australian-issued leases (i.e., everyone other than Woodside and its JV buddies) had a financial stake in encouraging Timor-Leste to take a more aggressive stance in negotiations with Australia regarding the delimitation of the seabed boundary.

The Lowe Opinion was intended to encourage Timor-Leste to do just that, and, in order to show Timor-Leste the full extent of what was potentially on the bargaining table, it proposed an alternate plan for establishing the maritime boundaries between Timor-Leste and Australia that was tilted in Timor-Leste’s favor. It did so primarily by drawing the southern/northern boundary along the median boundary (in white), and then re-drawing the lateral boundaries in an, err, aggressively equitable fashion, so that Timor-Leste had more maritime territory to the east and west of the JPDA. The proposed lines from the Opinion are shown below in neon pink:

The proposed maritime boundaries of the Lowe Opinion

The proposed maritime boundaries of the Lowe Opinion

The eastern lateral boundary shows two hypothetical lines — one is a median line drawn equidistant between Timor and Leti’s coasts, while the line farther east is drawn so as to give only a partial effect to the Leti Islands, owing to their smaller size.

The Lowe Opinion does correctly point out that points A17 and A16 from the 1972 Indonesian-Australian Seabed Boundary are arbitrary points that reflect what was convenient to the drafters of the Timor Gap Treaty, rather than reflecting what international law would provide for. Although the Opinion’s western lateral boundary is overly generous, and just as arbitrary as the JPDA’s current western boundary, it does represent a good faith claim Timor-Leste could have asserted when going into negotiations with Australia. (And it is certainly far more reasonable, and far more in good faith, than Australia’s own starting position was.) The eastern lateral boundaries proposed in the Lowe Opinion range from fairly reasonable to, at the most extreme, a fairly unreasonable discounting of Indonesia’s own territorial seas. The effect the Lowe Opinion’s proposed eastern lateral boundaries would have, if adopted, would be to place all, or substantially all, of Greater Sunrise within the EEZ of Timor-Leste.

-Susan

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

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.

There was also the risk that, at some future date, Timor would eventually achieve independence. Such an event would undermine the durability of any seabed boundary agreement that Australia had entered into, whether it was with Portugal or Indonesia. If Australia succeeded in negotiating a favorable seabed boundary in the Timor Sea, only to have Timor later gain independence after all, Australia would face significant pushback from the world community for having plundered a tiny nation’s “only major asset” before that nation had the ability to protect itself:

if Portuguese Timor achieved independence and believed such a prior [seabed boundary] agreement was not in its interests, there might be strong criticism of Australia for making an agreement with Portugal over Timor’s head to deprive Timor of what may be its only major asset–oil. If Australia thus became a focus of antagonism, we would almost certainly lose much of our capability to influence or assist newly independent government. On the other hand, if a boundary line negotiated now gained wide acceptance this would in turn allow petroleum exploration to proceed with more confidence than at present. Moreover, a newly independent government in Timor might not wish to upset relations with Australia by seeking to renegotiate an established boundary line albeit one negotiated by its former colonial rulers. (However, it could be unwise to rest too heavily on this assumption.)

(Cablegram, September 26, 1974).

Australia was well aware that an Indonesian annexation of Timor would create the potential for future upheaval and revolution in East Timor. If and when that eventuality finally came to pass, Australia would have a much stronger position if it did not have any culpability for the original Indonesian take-over. So, although Australia “favoured association of Portuguese Timor with Indonesia,” Australia had a significant long-term interest in avoiding any perception that it was “hand[ing] over” Timor to Indonesia. Instead, Australia wanted to maintain a public perception of being committed to “self-determination,” and to avoid any appearance that Australia was assigning Timor to Indonesia without the consent of Timor and against Timor’s own self-interest:

The second part of our policy flows from our commitment to self-determination. This stems from the Government’s general philosophy-in the United Nations and elsewhere-but also from an assessment that to decide the future of Portuguese Timor against the will of its inhabitants might well lead to instability and trouble later on. Moreover, some Australians, with the example of Irian Jaya in mind, would be very sensitive to any appearance that decisions on Portuguese Timor’s future were being taken without proper consultations with the people there.

(Draft Submission, December 5, 1975).

Aside from more general (although still very significant) concerns about how Timor would affect Australia’s relationship with Indonesia, the delineation of the seabed boundary — and consequently the division of control over the Timor Sea’s petroleum — was Australia’s sole policy interest in Timor itself. An example of this is shown in a 1974 memo concerning how to word a policy statement on the Timor situation. Australian officials wanted to minimize any perceived interest in Timor, but felt that they could not credibly deny having any interest in Timor. The following proposal was suggested:

Australia naturally has important particular interests in Portuguese Timor (for example, in oil exploration in the delineation of the continental shelf) but we have no ambition to achieve a special position there.

The euphemistic amendment of the “in oil exploration” to “in the delineation of the continental shelf” was accompanied by a note making it clear that the Timor Sea gas and oil fields — which Australia’s access to would be determined by any seabed delineation — was in fact Australia’s predominant concern in the island:

Timor was of little intrinsic interest to Australia. Our commercial and trade interests are minor. Our only substantial interest in bilateral relations is in delineation of the continental shelf. Our special interests stern from the problem of P[ortuguese] Timor as a factor in our relations with Indonesia.

(Minute, September 20, 1974).

The May 3, 1974 planning paper, supra, further discussed Australia’s interests in the Timor Sea oil resources, but that portion has been redacted and is not available for public review. The note concerning the redaction acknowledges, however, that Australia’s concern was with the sovereignty over gas and oil fields in the Timor Sea, and how Australia’s commercial activities in Timor were in conflict with UN resolutions on self-determination by Portuguese colonies:

Sections omitted [with the May 3, 1974 Paper] deal with Australia’s limited commercial and aviation interests in Portuguese Timor and possible oil concessions in as yet undelineated areas of the Timor Sea. In 1973 UN resolutions called on governments to discourage participation in commercial enterprises contributing to Portugal’s domination of its colonial territories or detrimental to the interests of their inhabitants. While it could be argued that Australian commercial activities were incompatible with support for those resolutions, the lack of ‘significant political agitation’ or Indonesian interest in the territory meant that its status was unlikely to become an issue at the UN in the short term.

In the end, Australia tacitly acquiesced to the Indonesian annexation, believing that the Timor Sea could be delineated in a way most favorable to Australia if Timor were under Indonesian control:

We are all aware of the Australian defence interest in the Portuguese Timor situation but I wonder whether the Department has ascertained the interest of the Minister or the Department of Minerals and Energy in the Timor situation. It would seem to me that this Department might well have an interest in closing the present gap in the agreed sea border and that this could be much more readily negotiated with Indonesia by closing the present gap than with Portugal or independent Portuguese Timor.

I know I am recommending a pragmatic rather than a principled stand but this is what national interest and foreign policy is all about, as even those countries with ideological bases for their foreign policies, like China and the Soviet Union, have acknowledged.

(Letter from Richard Woolcott, Australian ambassador to Indonesia, August 17, 1975).

It’s not that Australia was unmoved by the humanitarian concerns caused by Indonesia’s invasion; Australian officials acknowledged that the Timorese people had been deprived of their right to self-determination, and expressed concern about that result. Ultimately, however, Australia decided on a path of acquiescence to the Indonesian annexation, and in January 1976, shortly after Indonesia had moved into Timor, Australia’s Indonesian ambassador acknowledged that Australian’s long-term national interest was best served by a “Kissingerian” approach to the Timor situation:

On the Timor issue…we face one of those broad foreign-policy decisions which face most countries at one time or another. The Government is confronted by a choice between a moral stance, based on condemnation of Indonesia for the invasion of East Timor and on the assertion of the inalienable right of the people of East Timor to the right of self-determination, on the one hand, and a pragmatic and realistic acceptance of the longer-term inevitabilities of the situation on the other hand.

It is a choice between what might be described as Wilsonian idealism or Kissingerian realism. The former is more proper and principled but the longer-term national interest may well be served by the latter. We do not think we can have it both ways.

(Letter from Woolcott, January 5, 1976).

Although Australia chose to take what it saw as the path of realism, rather than idealism, it is unclear if Australia’s long-term national interests were ultimately served by that decision. It’s possible that Woolcott got it backwards; the ‘realist’ response may have instead served Australia’s short-term interests, at the expense of longer-term advantages. With the benefit of hindsight, it is abundantly clear, at least, that an Indonesian Timor did not result in political stability. While it saved Australia from bearing the expenses and entanglements of supporting a newly independent neighbor in 1975, that outcome was only delayed, not avoided.

And the choices Australia made prior to the Indonesian annexation have resulted in significant prejudice to Australia’s current position in the Timor Sea. Over the next 22 years, between 1976 and 2002, there would be three very important developments that would radically change the legal and political landscape (seascape…?) of Timorese maritime boundary delineation:

  • First, international law of the sea would go through a period of extensive development and codification. One very significant change in this body of law would be the entry into force of the UN Convention on the Law of the Sea, in 1994. In general, these legal developments were not favorable to Australia’s claims to sovereignty over much of the Timor Sea. Although the precise boundary between Australia and Timor-Leste remains undelineated to this day, if determined according to the provisions of UNCLOS and modern international practices of apportionment along median lines, Australia’s jurisdiction would not include much of the petroleum in the Timor Sea that Australia had intended to develop.
  • Second, Timor-Leste would eventually obtain independence after all, following a 1999 referendum. Because Timor-Leste did not consider itself bound by the unfavorable territorial treaties that had been negotiated by Indonesia on its behalf, Australia and the newly formed nation of Timor-Leste would need to re-negotiate how governmental control over the Timor Sea would be divided between them.
  • And, third, Australian companies would go on to invest approximately $250 million in the Greater Sunrise gas fields, in anticipation of being able to exploit the natural gas reserves found there, the total amount of which is valued in the billions. As a result of this significant outlay, the corporations that made up the Greater Sunrise joint venture agreement would have an intense interest in preserving Australia’s bureaucratic control over the gas fields, as well as in preserving favorable tax rates and ensuring the existence of a stable legal regime that would create a more favorable climate for further investment.

From Australia’s perspective, these developments have not been in harmony with one another. Australia now faces significant (and well-funded) internal pressures from domestic corporations who have a strong interest in Australia maintaining control over the Timor Sea, and yet Australia’s claims to sovereignty over this territory have grown increasingly inapposite to international law.

And, once again, Australia’s response to this conflict has been to pursue a strategy that, while nominally “realist,” runs a real risk of coming at the expense of its longer-term political, economic, and legal interests.

-Susan

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

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.

Continue reading

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

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

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

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?

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

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

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

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