Posts Tagged ‘international law’

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Brazil Gears Up to Punish the United States for Violating WTO Judgments

March 11, 2010

In a dispute that’s been going on for years now, Brazil is preparing to levy tariffs on 102 different U.S. goods in retaliation for the U.S.’s refusal to comply with a WTO cotton subsidies decision back in 2005.  The WTO permitted Brazil to impose the sanctions, which will amount to about $830 million, in light of the U.S.’s resistance to removing illegal cotton subsidies. 

This whole kerfuffle has certainly made me look stupid, as I wrote a 2006 thesis examining the political reasons why the United States complied with the original ruling.  Although the U.S. did remove certain subsidies, it left others intact.  It’s those leftover subsidies that continue to bother Brazil. 

As I’ve mentioned before, this kind of countermeasure is interesting because it is perhaps the only form of pure “retaliation” sanctioned under international law that gets a stamp of pre-approval.  (The countermeasures rationale does, however, often serve as a post hoc justification for an act that would otherwise violate international law.). 

-Michael

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Can the Mere Recognition of a State Be a Violation of International Law?

February 23, 2010

In the past few days, Russia has purported to enter into several agreements with Abkhazia, an autonomous region in Georgia that had proclaimed its own sovereignty and is now attempting to achieve recognized statehood. These agreements include the establishment of direct air traffic between Russia and Abkhazia (including an obligation on Russia to help repair the airport there) and the formalization of Russian presence in Abkhazia with a 49-year lease on a Russian military base in the region.

Abkhazian leaders have also proposed a law allowing Russians to purchase houses in Abkhazia on the same terms as Abkhazian citizens.

According to Georgia, these agreements were “illegally signed by an occupying power and a puppet regime”. NATO has likewise denounced the pacts as illegal. Given that Abkhazia is merely a region of Georgia under international law, the pact with Abkhazia cannot change Russia’s status as an illegal occupier of Georgia – and a violation of Article 2:4 of the UN Charter. (For obvious reasons, this poses a large hurdle on Georgia’s accession to NATO. If Georgia did succeed, the U.S. and other NATO nations could potentially be obligated under international treaty law to go to war with Russia.)

A few days ago, the Georgian president, Mikheil Saakashvili, released a statement on Georgia’s relations with Russia:

Recognition of independence of regions of Abkhazia and South Ossetia was illegal and their occupation was illegal as well, although they do not call it occupation any more, they take the territory legally, but say it’s not occupation. What do you call it then, is it a military tourism? What are these Russian troops doing then illegally in the other country’s territory? The way Russian propaganda works is very clear – you blame someone of what you are doing or going to do.

Although Russia’s occupation of Abkhazia is plainly illegal, the accusation that the mere recognition of Abkhazia and South Ossetia is a violation of international law is a more intriguing claim. Can the recognition of a state be, in itself, an illegal act?

So far, only four states recognize Abkhazia: Russia, Nicaragua, Venezuela, and, as discussed previously on this blog, Nauru. For two of these states, recognition may have in fact been in violation of international law. Both Venezuela and Nicaragua are signatories to the Montevideo Convention, and under Article 11 of that treaty,

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

So at least in theory then, Venezuela and Nicaragua could be in breach of a treaty obligation, although not CIL. Russia, however, along with all other non-American states, is not party to the Montevideo Convention. How then could its recognition of Abkhazia violation international law? Even had Russia not formally recognized Abkhazia, it would be entitled under international law to treat Abkhazia has a pseudo-sovereign in certain respects. For instance, during the American Civil War, the United Kingdom did not recognize the Confederacy as a sovereign state, but did accord them a “belligerent” status that allowed for Confederate ships to enter into ports on the same terms as ships flagged by recognized states. Even today, many nations will recognize private contracts, such as marriage, that were entered into under the auspices of a non-state, even if for other purposes the non-state is denied to have any independent existence.

The power to recognize other states is a privilege of statehood — not a duty. Had the constitutive theory of statehood had become a controlling principle of international law, there would be a stronger foundation for President Saakashvili’s claims about Russia. Judge Lauterpacht, a proponent of the constitutive theory, even suggested that international law should impose a duty on states to recognize other states.

This idea never took hold, however, and instead, under the declarative theory, states can use whatever criteria they wish when deciding whether or not to extend recognition to a new state, even if it otherwise meets all objective qualifications for statehood. Customary international law is more or less settled today on a declarative approach to statehood that declares a state is a state when it satisfactorily meets certain indicia of sovereignty. A state, therefore, is any entity that possesses “a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.”

But this formulation is more of a definition of what a state should be than any sort of normative command constraining state behavior. Although an argument could be made that a state is in violation of international law when it purports to “recognize” an entity that does not possess these four criteria, I would expect many states to outright reject the validity of this norm — given how subjective evaluations of statehood often are, if 77 states recognize a state and 116 do not, would the 77 now be committing an illegal act? On the close cases, obviously not. But even defining what is and is not a “close case” is a tricky call.

What about a state’s recognition of the statehood of something unambiguously inapplicable? What would it mean for one state to recognize, say, a cruise ship as an independent state? Or how about something truly absurd – how about a toaster? Would this be an “illegal” act, or would it be more akin to a null command, something that is simply not cognizable under international law?

Obviously, there are a lot of actions a state could take as a result of its recognition of another state that would contravene international law. But the act of recognition or non-recognition in itself is harder to characterize as something that can be “illegal.”

Meanwhile, whether or not Russia’s recognition of it was justified, Abkhazia is attempting to obtain further international support for its claims to sovereignty, perhaps recognizing that having Russia as its patron is more likely to result in Abkhazia’s relegation to puppet state status than in true statehood. Currently, Abkhazian delegates are visiting foreign countries throughout South American, attempting to establish diplomatic ties with and, more importantly, receive recognition from nations there:

The agenda of the Abkhazian delegation’s working visit to the region includes the development of economic relations with Latin American countries, he said.
“We are looking for ways to fill our relations not only with political statements, but also with specific economic projects,” the acting foreign minister said.
During the tour of Latin America, the Abkhazian delegation will visit Venezuela, Argentina, Ecuador, and Bolivia.

Up until now, the recognition Abkhazia has received from other states has been either politically or monetarily motivated. By attempting to secure ties with other countries through “economic projects,” Abkhazia hopes to establish international recognition that is not merely nominal but also persuasive proof of its sovereignty. To this end, Abkhazia has made a point of emphasizing that it possesses both a moral right to its statehood as well as a positive claim to statehood under international law:

Abkhazia insists that the question of its recognition “be considered not only in terms of the right to self-determination, but primarily in terms of view of international law,” the acting foreign minister said.
“In both cases Abkhazia has indisputable arguments,” he added.

More and more, I am becoming convinced that Abkhazia and, to a somewhat lesser extent, South Ossetia, are positioning themselves in a manner that will eventually allow them to make legitimate claims to statehood. They are obviously a long ways off, I would not be surprised if, within the next decade, one or the both of them find seats in the General Assembly.

-Susan

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Haiti, Humanitarian Assistance, and Extrinsic vs. Intrinsic Motivation: Why an International Law of Humaniatarian Assistance Would Reduce Foreign Aid

January 15, 2010

Right now, thousands of individuals from at least a score of nations are in Haiti, having been rapidly deployed there to offer assistance to the millions of Haitians now homeless, injured, or worse, as a result of the recent earthquake. Hundreds of millions of dollars have been pledged in aid, with more donations pouring in every day.

In Haiti, as has been the case in the wake of many other recent natural disasters, the state practice of rendering aid to the devastated region is widespread and pervasive. However, as far as I am aware, not a single nation has announced that it is sending aid to Haiti because it believes international law requires that it do so. There is no opinio juris, but merely states acting on the basis of their own independent motivations. And yet, it seems that every state that can offer assistance is doing so — not to mention so is every international organization, NGO, and corporation out there. Sub-state entities are offering help, too; a search and rescue team from Fairfax, Virginia, has been sent down to Haiti to help victims trapped in the rubble. Hell, even tiny little Togo has offered aid, along with a number of other developing nations. For a more complete account of who is doing what, a very detailed listing can be found at Relief Web. The list is as impressive as it is diverse.

Although human rights play a very large role in today’s international law jurisprudence, I suspect that, at least in cases involving high profile natural disasters, placing an affirmative duty on states to provide humanitarian assistance would ultimately reduce the amount of aid rendered.

Simply put, there just is not a need to give such a principle the force of law. For many reasons, among them moral duty and political posturing, states are already adequately motivated to supply aid in times of humanitarian crisis.
Aid — in the form of money, food and water supplies, search and rescue teams, infrastructure support, medical personnel, and much more — was immediate and widespread. The difficulty in getting aid to Haitian citizens has nothing to do with foreign states failing to act in support and everything to do with the horrendous conditions on the ground.

But if rendering humanitarian assistance were made to be an affirmative duty under international law, all the reasons for which states now offer foreign aid would be vastly diminished, and the total amount of aid given would almost certainly decrease.

“Crowding out” — otherwise known as the motivation crowding effect, to distinguish it from other kinds of crowding out — holds that offering external rewards or punishments to encourage someone to perform a task can, somewhat counter-intuitively, actually reduce people’s incentives to act, as the extrinsic reward undermines their intrinsic motivation. Developed both by economists and psychologists, the motivation crowding effect theory is a widespread phenomenon that appears in many different situations: [PDF]

The basic idea that rewards, and in particular monetary rewards, may crowd out intrinsic motivation emanates from two quite different branches of literature in the social sciences. Thirty years ago in his book The Gift Relationship Titmuss (1970) argued that paying for blood undermines cherished social values and would therefore reduce or totally destroy people’s willingness to donate blood. Though he was unable to come up with any serious empirical evidence his thesis attracted much attention. A second literature stems from psychology. A group of cognitive social psychologists have identified that under particular conditions monetary (external) rewards undermine intrinsic motivation. The application of rewards for undertaking an activity thus has indirect negative consequences, provided intrinsic motivation is considered to be beneficial

…

[T]here exists indeed compelling empirical evidence for the existence of crowding out and crowding in. This conclusion is based on circumstantial evidence, laboratory evidence by both psychologists and economists as well as field evidence by econometric studies. The evidence refers to a wide variety of areas of the economy and society: children’s learning behavior; patients’ readiness to take prescribed medication; monetary and symbolic rewards for undertaking various laboratory tasks; the tendency to reciprocate in the laboratory setting reflecting work conditions in a firm; the amount of trust exhibited in a laboratory situation of incomplete contracts; the reaction of managers to various forms of supervision by their superiors; the preparedness to offer voluntary work; the observation of time schedules in daycare centers; the on-time flight performance in the airline industry; the readiness to accept nuclear waste repositories (and other locally unwanted sites); and the amount of civic virtue exhibited, in particular with respect to fulfilling one’s tax obligations (tax morale).

If offering humanitarian assistance to foreign nationals struck by disasters became a legally mandated duty, either as a part of customary international law or enshrined in treaties, I see little reason to believe that there would be any increase in the amount of aid rendered. In the wake of disasters, the citizens of states who were now obligated to send money to foreign countries would feel resentment, not generosity, towards those in need of aid. States could no longer compete for moral brownie points with one another, or use aid as a means of obtaining soft power to support their political agendas. All of these motivating factors are far more compelling reasons for states to give aid than would be international law, which is a notoriously flimsy motivator of state action.

States would likely still give aid, of course, if they believed they were required to by law. But they would give only enough to satisfy whatever their duty was, and would use clever lawyers to reduce the amount they were required to give, or to explain why a “humanitarian disaster” was not really a humanitarian disaster and therefore no duty to render aid existed.

-Susan

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This Land Is Your Land: A Response to Susan

January 13, 2010

“I’ve always said to my men friends, If you really care for me, darling, you will give me territory. Give me land, give me land.”

Eartha Kitt had it right: land is critical.  It’s certainly unfortunate that global warming is turning the country that gave us “.tv” into a modern-day Atlantis.  Even though that sucks, that doesn’t mean submerged island nations will get to dub themselves a “nation” even when their homes dip into the deep blue sea.

The territory requirement is an important one in international law.  Without a territory, a number of questions would arise surrounding any putative “state.”  If the measure of a government is its exclusive monopoly on force within its own territory, how would we measure the effectiveness of a landless regime?  As a sovereign nation, what rights would a landless nation really possess?  (After all, the principle of inviolability would become irrelevant.)  How would one define members of this transient state?  Could anyone simply declare themselves a member — or would a blood test or sacred oath be required?  How could a state be considered “independent” (another requirement of statehood) when its people necessarily fall under the control of another sovereign authority?

More importantly, granting statehood without territory would set a troubling precedent.  Does that mean that every group of people that lost its territory through troubling circumstances gets to call itself an independent state?  Welcome to the UN, Chechnya!  Can the Assyrians finally get a seat, too?  How about the Sahrawis?  And of course, we can all agree that Palestine would be a state, once and for all.

Moreover, the existence of some “sovereign-like” entities doesn’t really help the island nations’ case very much.  One could say that the United Nations and other intergovernmental organizations also exhibit sovereign-like characteristics.  (Heck, the U.N. even controls territory sometimes.)  Nevertheless, I don’t think anyone would argue in good faith that these pseudo-sovereigns deserve recognition as ‘states.’  The sandbar idea probably isn’t going to fly either.  After all, if there’s no requirement that land be inhabitable for a new nation to form, folks can start forming countries on the fly.  I could found Michaeland at the bottom of the Pacific, because who says the land has to be above water?

Unlike Susan, I find it difficult to imagine a future of landless territories.  Susan’s conception gives undue weight to a single characteristic of statehood:  the capacity to enter into relations with other states.  But, as Judge Jessup said, “[O]ne cannot contemplate a state as a kind of disembodied spirit . . . [T]here must be some portion of the earth’s surface which people inhabit and over which its Government exercises authority.”

-Michael

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Climate Change and the Jurisprudence of Statehood: Is a State Without a Territory Still a State?

January 12, 2010

I went to the program ASIL had yesterday on “Rights-Based Responses to Climate Change Induced Displacement,” which discussed the role of international law in handling ‘environmental migrants’ and internally displaced persons who are forced out of their homes as a result of conditions brought on by climate change. One of the speakers brought up an interesting scenario I had not considered before.

Rising sea levels may pose a serious risk to the national security of many island nations. For states such as the Bahamas and Tonga, a higher sea level is a grave threat, as the low lying parts of their territories that are at the greatest risk of going under tend also tend to be the areas of greatest habitation. But for other island nations, such as Kiribati, the Marshall Islands, the Maldives, and Tuvalu, climate change may pose a more severe and existential threat: these states may actually be at risk of becoming entirely submerged by rising sea levels. If these island states were to become completely swamped so that no part of their islands were above sea level, effectively leaving them with no physical territory to call their own, would they continue to exist as an entity recognized by international law?

Prof. Kälin mentioned the possibility of citizens of these at-risk countries becoming “stateless” if their islands go under. But statelessness, as he put it, could mean being without a nationality, not being without a state.  Even if an island nation were swamped, it does not necessarily imply that its government would not continue to exist.

Under international law, the traditional criteria for statehood does include “territory.” However, would such a formalist interpretation prevail after a climate related disaster sunk a whole nation? Or, in practical terms, would any state really have the callousness to stand up and announce, “It is unfortunate that the Maldives was submerged by rising sea levels, but we now object to its continued claims of statehood and UN Membership”? Maybe I am being too generous, but I doubt it.

There is also the possibility that any sunken nation could build up a tiny sandbar over the remains of their country, if the technical requirement of territory is found to be mandatory. There is no requirement that a state’s government be located within its territory, after all, merely that it have some. For instance, the recognized government of Somalia has in the past operated out of Kenya.

Additionally, although statehood as a fluid entity that exists as a corporate-esque structure rather than as bound to a specific geographical region has been a somewhat common science fiction trope, there is in fact some modest precedent for that idea under international law. The Order of Malta claims to be a non-state sovereign entity, and has permanent observer status with the UN. It has diplomatic relations with 103 states, and even issues its own currency and stamps. Although most international scholars reject the notion that the Order of Malta is an “actual” sovereign entity, it clearly does exhibit some sovereign-like traits in practice.

Perhaps a nation submerged by rising sea levels would face a future similar in some respects to the current status enjoyed by the Order of Malta, although it seems likely a formerly-territoried state would face far less objection to its continued claims of sovereignty. The theoretical underpinnings of statehood have always been forced to evolve and adapt to changing political structures, however; it is not too difficult to imagine a hypothetical future world in which the idea that statehood is dependent upon attachment to a patch of dirt is considered to be archaic.

-Susan

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How California, Bermuda, and Hogonas Are Undermining the International Legal Order

January 5, 2010

Via Legal Theory, a cool if short article on the implications of sub-state activity in the international realm, Sovereignty, Territory and Fluidity: Lessons from Hoganas.

The modern conception of statehood, with its neat division of sovereign territories along recognized and inviolable boundaries, seems sometimes to be the inevitable geopolitical structure of the world, but it is of course a relatively modern invention — sovereignty, as we recognize it today, only emerged in the past two or three centuries. There is no reason to assume it will be the perpetual condition. Probably the most frequently discussed threat to sovereignty is the emergence of supra-state entities such as a “world government,” or at least a “continental government” in the style of the European Union. A second, lesser, challenge to the state model is the uncertain status of non-governmental non-state entities, such as the Red Cross.

But often overlooked is the role of sub-state entities in undermining sovereignty. Not only are top-down systems changing the nature of international law, but so are new bottom-up patterns of behavior emerging from domestically-recognized internal sub-sovereign entities.

A high profile example of this occurred recently, with Bermuda’s resettlement of ex-Guantanamo detainees.

At the time of the Uighur transfer, the government of the United Kingdom launched public protests because neither the government of Bermuda nor the government of the United States discussed the potential transfer with it at any point prior to the actual transfer of the Uighurs. The diplomatic intricacies of the relationship between these states are beyond the scope of this paper. However, this example is important to the paper’s overall discussion of states and sub-states in that it involves an outside state – and a powerful ally of the United Kingdom at that – recognizing that a sub-state could enter into an agreement which was in direct violation of the explicit laws of the sub-state and the state of which it is a part. Further, it illustrates an instance in which a sub-state derogated from accepted law and practice in order to insert itself into an issue for which the larger state has an accepted stance and acted in contravention of the larger state’s policy in the realm of security and international relations

Under “pure” international law, the only recognizable entities are states. Sub-states — let alone individual people — are simply non-existent on the international plane. But in the U.S., individual states, not the federal government, form the bulk of the vanguard for international environmental law developments.

[M]any individual states – including powerful states such as California and New York – have thwarted these [U.S.] policies and grouped together to engage in carbon capping and trading on a regional level. Additionally, the State of California has entered into climate change related agreements with Canadian provinces and outside states, such as Brazil and China, although the United States government has not done so.

Finally, in Sweden, the town of Hogonas in bringing into sharp relief some of the complications to the sovereignty model caused by the European Union. Although by domestic law, Sweden’s Riskbank is the only entity that can declare what will be accepted as legal tender, the southern tourist town of Hogonas has simply announced and put into effect a plan for local merchants to accept Euros as well as krona. In fact, this is not merely a violation of domestic law — even under international instruments, it is unambiguously clear that such fiscal decisions are to be made at the national level.

[I]f the Swedish government had acted to stop Hoganas’ acceptance of the euro, this paper would have an entirely different discussion. However, Hoganas’ actions in defying the stance of the Swedish government regarding the euro, as well as the layers of statutory and constitutional laws which established the state as the ruling authority in matters of monetary policy, finance, and international and EU relations were not stopped or counteracted by the Swedish authorities. The mayor and merchants of Hoganas openly announced that they would be accepting the euro as of January 1, 2009, and no national efforts were made to stop them, although it was accepted that such actions were in contravention of Swedish governmental and popular policy regarding the use of the euro and the retention of the krona.

…

Taken together, these examples suggest that international law is becoming the site of fluidity in the relationship between sovereignty and territory. Certainly, the classic understanding of the fixed nature of sovereignty and territory continues to exist in international law, perhaps most obviously when a portion of a state’s sovereign territory is threatened or attacked by another state or group of actors. Yet outside of such extreme examples, fluidity does exist and international law is increasingly impacted by it.

-Susan

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How Much Noopolitik Do You Want For That Realpolitik?: Nauru’s Recognition of Abkhazia

December 29, 2009

The recognition of a State by another State is usually based upon a mixture of factual and political concerns — factually, does the state meet all the traditional criteria of statehood, and politically, what are the risks and rewards of recognizing or refusing to recognize another sovereign. The tiny island nation of Nauru, however, has shown the potential of a third important consideration: raw financial compensation.

For $50 million, Nauru has effectively sold its vote in the statehood electoral college to the fledgling international entity of Abkhazia. Hat tip International Law Prof.

Nauru, an eight-square-mile rock in the South Pacific with about 11,000 inhabitants, was no pushover, according to the influential Russian daily newspaper Kommersant. In talks with Russian officials, Nauru requested $50 million for “urgent social and economic projects,” the newspaper reported, citing unnamed Russian diplomats.

This is not the first time Nauru has put a price tag on recognition of statehood. Back in 2002, in a somewhat more contentious situation, Nauru switched its recognition from Taiwan to the PRC for $130 million. So in merely 7 years, the price has already fallen dramatically, by $80 million.

This could of course be a case of price discrimination — Nauru knows China can afford to pay a lot more than Abkhazia — or perhaps it could be argued that Nauru’s recognition was more valuable to China as it was not just a vote for them it was a vote against Taiwan. But I think it is more likely that the difference in price can be attributed to a decrease in the service’s value.

State recognition is more art than science, but the specific motivations behind a State’s decision to recognize another State do affect how much weight that choice to recognize is given when it is factored into the overall statehood calculation. Now that we know Nauru is willing to give a vote of statehood to any wannabe sovereign that can meet its price, the significance of recognition by Nauru as an indicia of statehood will be severely discounted. Therefore, the more often Nauru engages in recognition-for-cash sales, the more Nauru’s recognition will decrease in value. Just like the phosphate that once sustained Nauru’s economy, recognition is a non-renewable resource, and will not sustain Nauru forever.

Essentially, for a mere $50 million, Nauru has sold off a portion of its international law making power to Abkhazia.

On the other hand, Abkhazia may benefit from the trade in other ways. Although Nauru’s recognition is worth little in itself, the fact Abkhazia was able to demonstrate its ability to acquire $50 million, engage in international diplomacy with another recognize state, and donate a sum of money as “foreign aid” could signal to other nations that Abkhazia is a serious player after all.

Under Article 1 of the Montevideo Convention, the fourth and final qualification for statehood is a “capacity to enter into relations with the other states.” The deal may have been somewhat sordid and tacky, but nevertheless, by acquiring Nauru’s recognition, Abkhazia proved it had the capacity to engage in foreign relations.

-Susan

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The Alien Tort Statute Under the Obama Administration: Executive Suggestions vs. Explicit Requests

December 9, 2009

On December 1st, the United States Government filed a Statement of Interest (SOI) [PDF] in defendants’ appeal from In re S. African Apartheid Litig., 617 F. Supp. 2d 228 (S.D.N.Y. 2009) to the Second Circuit, seeking reversal of the district court’s denial of the defendants’ motion to dismiss. The U.S. brief, in a turn around from its previously voiced opinions on the case, argues that the Second Circuit should decline to find jurisdiction and allow the litigation to continue in the district court.

Background on the case: The South Africa Apartheid Litigation — a combination of the Khulumani and Ntsebeza cases — has been winding its slowly through the courts for a few years, bouncing its way back and forth between the District Court and the Second Circuit. Plaintiffs have alleged that several major multinational corps are guilty of “aiding and abetting” the apartheid South African government, and eight years ago the plaintiffs brought suit under the Alien Tort Statute. After going back in the district court on remand, the defendants filed for dismissal, inter alia, on comity. They lost, and sought interlocutory appeal of the dismissal, with a hearing in the case set for January 6, 2010.

A major issue, however, is whether the Second Circuit can even hear the appeal of the dismissal. For interlocutory appeals, in addition to two other factors not at issue here, a decision by the district court must be effectively unreviewable on appeal from a final judgment.

The U.S. Government’s SOI asks the court of appeals to find it has no jurisdiction over the case because the U.S. has not explicitly asked for its dismissal. Therefore, according to the U.S., requiring defendants to wait until a final order in the case is given does not impair any of the U.S.’s interests (not the defendants’ interests), and accordingly jurisdiction for interlocutory appeal is not present. As stated in the government’s brief,

when a defendant seeks appellate review of a district court’s order denying a motion to dismiss a suit predicated on the adverse consequences on the Nation’s foreign relations, the court of appeals has jurisdiction under the collateral order doctrine only if the district court denied defendant’s motion despite the fact that the Executive Branch explicitly sought dismissal of the suit on that ground. The requirement of an explicit request for dismissal on foreign policy grounds by the Executive Branch is, in our view, critical.

The U.S.’s implicit endorsement of continuing the apartheid litigation was apparently precipitated by a letter recently sent by the South African Justice Minister [PDF]. Previously, South Africa has strenuously objected to having South African apartheid-era torts tried in American courts. However, in September, 2009, Minister Radebe wrote to the district court, unsolicited, stating that “[t]he Government of the Republic of South Africa, having considered carefully the judgement of the United States District Court, Southern District of New York is now of the view that this Court is an appropriate forum to hear the remaining claims of aiding and abetting in violation of international law.” Shortly thereafter, the U.S. filed its own SOI in which it evinced no objections to continuing the case. The impression given is that, once South Africa dropped its objections, all of the U.S.’s objections immediately evaporated as well — and that so long as the foreign sovereign involved is happy, the U.S. has no concerns of its own.

But something more is going on here. Despite the SOI’s careful language, which stresses repeatedly that the U.S. never “explicitly request[ed]” a dismissal, and its framing of earlier U.S. involvement as merely an attempt to express “concerns” about procedural scope, this is in reality a radical shift from the U.S.’s previous stance under the Bush Administration. Let’s take a look at what the U.S. had to say back in 2007:

“[i]t would be extraordinary to give U.S. law an extraterritorial effect in [these] circumstances to regulate [the] conduct of a foreign state over its citizens, and all the more so for a federal court to do so as a matter of common law-making power. Yet plaintiffs would have this Court do exactly that by rendering private defendants liable for the sovereign acts of the apartheid government in South Africa.” Brief of the United States of America Amicus Curiae Supporting Defendant-Appellees, at 21, Khulumani v. Barclay Nat. Bank, Ltd., 504 F.3d 245 (2d Cir. 2007).

This is not a statement given by a government that merely has “concerns” that can be easily resolved with a few tweaks. And according to Jack Goldsmith and Curtis Bradley, “This should have been enough for dismissal.”

However, because Obama inherited this case from Bush, he — or rather, his legal people — are trying to impose their new policy stances in a manner that is not blatantly inconsistent with previous government filings. So in the U.S. Government’s Dec. 2009 SOI, they are forced into using rather cagey language: “[t]he requirement of an explicit request for dismissal on foreign policy grounds by the Executive Branch is, in our view, critical.” Because Bush’s legal team forgot to preface its filings with the legal equivalent of ‘mother may I,’ the U.S. Government can now argue that despite all of their earlier protests and disagreements with allowing the litigation to continue, the government never actually wanted the case to be dismissed. A few years back in Sosa, the Supreme Court stated “there is a strong argument that the federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” This statement still holds true, save that Obama is clarifying now that “the Executive Branch’s view” means only official requests — in other words, executive suggestions must now be phrased as executive demands.

Essentially, under the legal analysis offered by the government’s SOI, any opinions given by the U.S. Government in an ATS case will be treated as just another voice in the crowd (if perhaps a particularly loud one), unless and until the U.S. tells the Court, “Hey, hold up now, this time we’re actually being serious! We actually want it to be dismissed now! Consider this an explicit request!” If the U.S. opposes an ATS case but merely “reference[s] the adverse foreign policy consequences of recognizing plaintiffs’ claims,” [SOI, p. 10, referring to previous appellate briefs filed by the U.S. in Khulumani], then, according to the government’s filing, the U.S. is just making a legal argument acknowledging that foreign policy concerns exist, it is not actually invoking an Executive Branch smack down.

Unfortunately for Bush, he didn’t know about this new safe word. So instead of making an Official Executive Suggestion That the Court Stop Its Shenanigans, like he thought he was doing, Bush just gave the court a heads up on his personal legal opinion.

As for those wondering why the government’s opinion on the South African apartheid litigation has changed under Obama, well, remember — the State Department’s new legal advisor is Harold Koh, and it seems very likely that the U.S. Government’s brief was partially (or more) a result of his influence. Koh, prior to his current post, had joined a brief in the Khulumani case arguing for a broad aiding-and-abetting standard for corporate liability for complicity in foreign human rights abuses. And, as everyone knows, Koh’s also a Godless, U.N.-worshipping America-hater. With him in charge, the Obama Administration is getting ready to throw an Alien Tort Statute party, and all corporate human rights violators are invited. Until Obama explicitly says they’re not.

-Susan

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Evaluating the Amanda Knox Trial: A Response to Susan

December 7, 2009

Although I find the entire Amanda Knox saga tragic, I have to say that I feel very different about it than Susan apparently does.  True, there is a lot about the Amanda Knox trial that is unsettling: a prosecutor advancing bizarre case theories, a jury apparently driven by nationalist pride, a sensationalist media account that likely tainted the jury pool, etc.  Still, I’m not sure if this case merits State Department involvement, let alone “the big guns.”

As much as we might prefer otherwise, American standards of justice do not apply around the world.  Indeed, it is difficult to establish any principles of due process and justice that apply with equal weight throughout the world.  (Although Article 14 of the International Covenant on Civil and Political Rights is an attempt to define such rights, even that list is controversial and sometimes ambiguous.)  Thus, Americans cannot expect to enjoy the protections of “American” due process everywhere they go; travel should be accompanied by a recognition that one leaves the protective sphere of America and enters places where the protections might be minimal at best. 

Therefore, the government of the United States should probably only get involved in foreign trials in two instances: (1) where a trial violates well-established principles of international law or (2) where a trial violates the laws of the country where the trial is held.  Even in the second instance, however, involvement should be limited, as a nation should be permitted to interpret its own laws and administer its own system in the manner of its choosing.  Most of the critiques of the Knox trial I have seen don’t implicate either situation, however.  Instead, they are simple attacks on the “weight of the evidence” or the “bias of the prosecutor.”  I don’t think that merits American intervention.

These principles may seem disquieting in a situation like the Amanda Knox trial.  How can we really allow such an “injustice” to proceed?  Nevertheless, as Susan noted, our American system of justice is not that receptive to outside influences.  See, e.g., the Medellin situation involving Texas’ rejection of an ICJ order and international condemnation of our death penalty in general.  If we wish to construct our system of justice in a sphere free from outside influence, we should treat other systems in the same manner.

Lastly, I would question the notion of “American” justice.  It almost goes without saying that American prosecutors are often imperfect instruments of justice, and American juries are often motivated by impure considerations (e.g., racism, a hatred of the poor, etc.)  Outrages upon justice happen over here too, perhaps more often than we care to think about.  I think there’s even some possibility that Amanda Knox would have been found guilty in a stateside trial, given her conflicting accounts and strange behavior following her roommate’s death.  True, the prosecutor’s case theory probably would not have involved any satanic orgies, but in the end that doesn’t matter that much.  And had Amanda been tried in her home state of Washington, she would have been subject to the death penalty (unlike in Italy, where the death penalty is not an option).

As I said, this is not a happy case at all.  But I think it’s important to look past our anger and ask if we actually have a principled leg to stand on before we start taking diplomatic measures against Italy.

-Michael

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Death Row Phenomenon Revisited

December 2, 2009

As I noted a while ago, there seems to be an increasing interest in U.S. jurisprudence in the notion of a “death row phenomenon.”   That interest was reflected yet again in a denial of certiorari in the case of Cecil Johnson, who spent 29 years waiting to die (11 on death row) before being executed early today.  In a statement [PDF] accompanying that denial, Justices Stevens and Breyer both expressed great concern about the length of Johnson’s stay on death row:

[There are] two underlying evils of intolerable delay. First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.  Second, “delaying an execution does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death.”  Thus, I find constitutionally significant both the conditions of confinement and the nature of the penalty itself.

[snip]

One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification.

(citations omitted)

Justice Thomas responded with a concurrence in the denial [PDF] that directly rejects any notion of death row phenomenon and mocks the philosophy’s implicit reliance on international law:

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument.  I was unaware of any constitutional support for the argument then.  And I am unaware of any support for it now.  There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

[snip]

[Justice Stevens's view] deviates from the Constitution and . . . proponents of his view are forced to find their support in precedent from the “European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”

[snip]

At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature.  There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in a statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.”  I have no doubt that such a system would avoid the diminishing justification problem JUSTICE STEVENS identifies, but I am equally confident that such a system would find little support from this Court.

(citations omitted)

This is a great articulation of both sides of the argument.  Frankly, I don’t know which way to come out on this one, but it should be interesting to see what role international law plays in a debate over the proper interpretation of the Eighth Amendment.

-Michael

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