How Corporate Law Invented the Doctrine of Specific Jurisdiction, or Why Sovereignty Plays No Role in Specific Jurisdiction

This week, the Supreme Court issued its decision in Daimler AG v. Bauman, holding that a U.S. District Court in California does not have personal jurisdiction over a German corporation to hear a foreign tort claim brought by Argentinian plaintiffs, even when that corporation has U.S. subsidiaries that do frequent business in California and can be said to be “at home” in California. Actually, the Court went much further than that: not only does the U.S. District Court in the Northern District of California not have jurisdiction to hear the claim against Daimler, the Court’s decision leaves the strong implication that neither would any other court in the U.S., whether state or federal. In Bauman, the Court was forced to assume that Daimler’s U.S. subsidiaries – who are incorporated in or have a principal place of business in New Jersey and Delaware –  were “at home” in California. Even then, the Court concluded that no jurisdiction over Daimler existed. Since bringing suit in a state where Daimler’s subsidiaries were “at home” was not sufficient to confer jurisdiction, the Bauman plaintiffs’ claims would apparently fail no matter where in the U.S. it had been brought.

What is also of particular interest in Bauman, though, is the majority opinion’s relatively detailed recap of the history of general jurisdiction and specific jurisdiction. In doing so, the Court takes pains to portray Bauman as the natural and predictable progeny of the Court’s 1945 decision in International Shoe Co. v. Washington, as well as an extension of its more recent decisions in J. McIntyre Machinery, Ltd. v. Nicastro (2011) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). The Court’s decision reaffirms that, post-International Shoe, general jurisdiction has become the red-headed stepchild of the Supreme Court’s personal jurisdiction jurisprudence: yes, it does exist, but it’s not particularly significant, and whenever possible we’re going to try to focus on specific jurisdiction instead.

But Bauman’s history of personal jurisdiction neglects one very significant part of the story: the origins of specific jurisdiction. Although Bauman claims that, post-International Shoe, “specific jurisdiction has been cut loose from Pennoyer’s sway,” this metaphor mistakenly assumes that the two were ever pinned together in the first place. Specific jurisdiction was not derived from Pennoyer, nor from common law conceptions of general jurisdiction. Specific jurisdiction is instead the bastard child of corporate law and the Full Faith and Credit Clause, first born out of state legislatures’ needs to regulate the interstate activities of corporate entities, and later transformed by federal courts into a constitutional due process doctrine which imposed federal limits on state regulation of commerce. See, e.g., International Harvester Co. of America v. Kentucky, 234 US 579 (1914); and Whitaker v. Macfadden Publications, Inc., 70 App.D.C. 165 (1939).

Today’s judicial doctrine of specific jurisdiction was created as a statutory scheme to ensure that corporations could be sued even when they were acted outside of the state in which they were incorporated. Well over a century later, International Shoe adopted the doctrine, jettisoned its statutory origins, and announced that it was now a constitutional basis for regulating the reach of state courts via the Due Process clause of the Fourteenth Amendment. Unsurprisingly, the resulting legal concept is neither seamless nor entirely internally coherent. Although International Shoe attempted to shoehorn specific jurisdiction into the Court’s pre-existing framework of personal jurisdiction, but personal jurisdiction’s doctrinal lineage is very different from that of specific jurisdiction. Personal jurisdiction, as an expression of a state’s inherent sovereign authority, is a creature of international law. As result of this mismatch between jurisdictional concepts, nearly 70 years after International Shoe, the Supreme Court is still grappling today with how to resolve this basic conflict between the competing sovereignty-based and due process-based regimes of personal jurisdiction.

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Prudential Considerations, Canons of Construction, and Other Mechanisms of Judicial Receivership

In United States v. Windsor, there is one aside from Justica Scalia’s dissent, written in his trademark snarky fashion, which particularly stands out to me. Scalia, describing himself as being “wryly amus[ed]” (and by which he means “impotently furious”) at the majority’s approach to Article III’s case-or-controversy requirement, makes the following observation:

(Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.)

How very true. Alas, where was this Scalia in Kiobel? I seem to recall that, in that particular instance, he was quite content to join in with a majority opinion which happily forsook jurisdictional limitations, in favor of a mercurial, and curiously flexible, rule of statutory interpretation. And I can’t help but find this faintly hypocritical. At least when it comes to prudential standing, the Court is being perfectly honest about whose whim it is following. As opposed to the polite fiction now known as the presumption against extraterritoriality, which permits the Court to aver that it is merely following the whims of the legislature — after having ascertained those whims, of course, through the application of its own esoteric art.

But then again, I suppose Scalia always does save the mocking, legal realist jibes for his dissents. It often seems that his formalism is reserved solely for those occasions on which his opinion gets enough votes to be the majority.


p.s. Someone should tell Scalia that citing reverently to Justice Taney in a civil rights decision is probably a bad idea.

How EEOC v. Arabian American Oil Co. Invented the Modern Presumption Against Extraterritoriality

The presumption against extraterritoriality (“PAE”), like all canons of construction, is a shorthand rule of interpretation used by judges to determine how a statute should be applied. Under the PAE, where there exists ambiguity as to the geographical scope of a statute, the court is required to limit the statute’s application to acts which occur within the territorial limits of the United States. But the PAE, as originally construed in EEOC v. Arabian American Oil Co. (1991) (“Aramco”), and as elaborated upon in Morrison v. National Australia Bank Ltd. (2010) and, more recently, in Kiobel v. Royal Dutch Petroleum (2013), is of a relatively modern vintage for a judicial canon, as it did not exist in its current form until the second half of the 20th century. Prior to the 1950s, the PAE, as it is understood today, did not exist. The modern PAE is instead a conflation of two older canons of construction, and although both those canons are often described as ‘presumptions against extraterritoriality,’ neither canon functioned in the manner that the PAE does today.

These two prior canons, although related both to each other and the modern PAE, were used by the courts two answer two separate questions of statutory construction, and did not typically overlap in their application. The first of these canons, which for purposes of this post has been dubbed the presumption against absurdities (“PAA”), was a presumption that a statute does not provide for extraterritorial application when doing so or when such an interpretation would necessarily imply that the court possesses an unflattering opinion of Congress’ competence. The second canon, which will be referred to here as the presumption against universality (“PAU”), provided that when a statute uses words such as “any,” or “all,” or “every,” those words would not be presumed to have been intended literally when the statute’s context shows that Congress used those words with a more limited definition in mind.

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Kiobel’s Bowman Problem: Where the Legislature Has Enacted Laws to Defend the U.S. Government’s Interests, the Presumption Against Extraterritoriality Does Not Apply

Last week, in Kiobel v. Royal Dutch Petroleum, et al., the Supreme Court deviated from its prior two decisions under the ATS, and held that the ATS does not confer jurisdiction over violations of the law of nations that occur within a foreign territory. The ATS, the Court can concluded, can be presumed to apply to activity on the high seas, but nevertheless cannot be presumed to apply to activity that occurs outside of both U.S. territory and the high seas:

the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. ‘[T]here is no clear indication of extraterritoriality here,’ and petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.

Although I fully agree with the Court’s conclusion that jurisdiction did not exist over the claims being asserted by the Kiobel plaintiffs, the majority’s reliance on the presumption against extraterritoriality to reach this holding is ill-placed. The Court’s claim that the ATS was not intended to apply abroad is ahistorical, as the legislature is not required to specifically define a locus for statutes enacted to defend the U.S.’s security interests. The nature of the statute is itself proof that it was intended to apply outside of U.S. territory.

Kiobel acknowledges that the First Congress’ intent in including the ATS in the Judiciary Act of 1789 was, at least in major part, in order to “avoid[] diplomatic strife” by ensuring there would be a federal forum in which the citizens of foreign states could be provided relief for violations of the laws of nations. If such relief was not made available, and an alien’s injuries were not remedied, then the United States could itself be liable for a breach of international law. Because a private individual’s violation of international law could endanger the United States’ national interest, and require the United States to offer restitution for the offense, an ATS suit was a matter of public, and not private, concern.

Given that background, it seems incongruous to hold that the ATS does not evidence an intent to apply extraterritorially. In fact, the Court’s own case law has already reached that same conclusion, finding that the presumption against extraterritoriality does not apply to laws which “are enacted because of the right of the Government to defend itself” — the precise purpose for which the ATS has been enacted. United States v. Bowman, 260 U.S. 94 (1922).

Bowman found that the presumption against extraterritoriality did not apply to a federal statute prohibiting “conspir[ing] to defraud a corporation in which the United States was and is a stockholder,” even though no extraterritorial locus specified in the statute’s text. Nevertheless, the Supreme Court reversed the district court’s holding that it lacked jurisdiction over the offense — which had taken place on ships in the high seas and in the territory of Brazil — because the crime had been “committed without the jurisdiction of the United States or of any State thereof and on the high seas or within the jurisdiction of [a foreign state].” Therefore, the Court concluded,

We have in this case a question of statutory construction. The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.

But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.

Although Bowman concerned a criminal statute, and not a civil act, the Court’s reasoning in that case applies to the ATS with equal force. It was not necessary for Congress to make specific provision for the ATS’s jurisdictional reach, because the ATS could be presumed to reach any act which might endanger the U.S.’s national interests, so long as such jurisdiction could be exercised in conformity of international law. (And if the U.S. was prohibited under international law from exercising jurisdiction over a particular offense, then the ATS’s purpose would not be implicated anyway, because in such a case the U.S. would not be at risk of breaching international law by failing to provide a forum or remedy.)

Bowman also refutes Kiobel’s holding that the ATS could be implied to cover piracy even in the absence of a specific provision noting that Congress intended the statute to apply to the high seas. Although the majority conceded that the ATS extended to acts that took place outside the U.S. — which is precisely the sort of statutory construction that the presumption against extraterritoriality prohibits — the Court was unconcerned by this inconsistency. The majority swept this issue aside by stating, “We do not think that the existence of a cause of action against [pirates] is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign[.]” But as Michael noted in a previous post, this distinction between ‘high seas’ and ‘foreign territory’ is a wholly new creation, unsupported by prior case law. This decision is also inconsistent with Bowman, in which the Court noted that, for statutes to which the presumption against extraterritoriality has been held to apply, it applies equally to acts committed on the high seas as to acts committed on foreign territories. Prior to Kiobel, when a statute failed to specify a locus, there was no basis by which a statute could be held to differentiate between the high seas and foreign territories — either both were out or both were in, absent a specific Congressional directive that such a distinction be made.


The Trojan Horse in Kiobel: Royal Dutch Shell’s Conflation of Prescriptive and Adjudicative Jurisdiction

When the Supreme Court decided to rehear arguments in Kiobel, it instructed the parties to address the following question:

Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

In its Supplemental Brief addressing this question, Respondents came up with two arguments for why the answer to this question is “never.” First, Respondents argue, that the presumption against extraterritoriality prevents the ATS from applying in cases with an international component. And second, international law prohibits a state from using its prescriptive jurisdiction to recognize the claims presented by plaintiffs in Kiobel.

Both of these arguments are underwhelming. It is Respondents’ argument concerning an alleged lack of prescriptive jurisdiction, however, that is problematic. Respondents’ first argument is misguided, but primarily due to its overemphasis on the importance of the presumption against extraterritorial application, and a corresponding failure to address the broader context of the question posed by the Supreme Court in its order for rehearing. Respondents’ second argument, in contrast, is not an argument addressed at Kiobel’s merits; it is instead a Hail Mary pass, aimed at promoting certain policy objectives extending well beyond Respondents’ short-term interests in the Kiobel litigation. Respondents’ purpose in making this second argument was to attempt to influence the development of international law in a way that is favorable to Respondents’ corporate interests. It is Respondents’ hope that, through its deliberate conflation of prescriptive and adjudicative jurisdiction, Respondents will be able to bait the U.S. Supreme Court into enshrining, as precedent, a previously-unrecognized restriction in international law limiting states’ ability to regulate corporate behavior.

Respondents’ primary argument for why Kiobel should be dismissed is that the Supreme Court must read into the Alien Tort Statute a prohibition on any cause of action arising from events that took place abroad. But Respondents have ignored the fact that this canon, known as the presumption against the extraterritorial application of U.S. law, is but a minor component of a comprehensive jurisdictional scheme regulating the jurisdictional reach of U.S. courts. The United States, in its Supplemental Amici Brief in Kiobel, thoroughly catalogued many of the other components of this jurisdictional infrastructure, and described the role they play in regulating the jurisdiction of U.S. courts in hearing cases under the Alien Tort Statute. These components include:

  • Exhaustion of remedies;
  • Forum non conviens;
  • Personal jurisdiction/due process;
  • Act of State;
  • International comity;
  • Political question; and
  • Case-specific judicial deference.

Although the presumption against extraterritoriality can be a factor in considering whether the exercise of jurisdiction over an ATS claim is appropriate, Respondents have elevated the importance of this single rule of statutory interpretation to an absurd degree. The question posed by the Supreme Court, in its request for reargument, is addressed at the limits imposed by the U.S.’s jurisdictional scheme as a whole — not the constraints imposed by any individual element of it.

Nevertheless, the majority of Respondents’ Supplemental Brief is spent addressing, in exhaustive detail, the limitations imposed by the presumption against extraterritoriality. Although there are lots of reasons to think that Respondents have turned a molehill into a mountain with their extraterritoriality argument, and I won’t get into all of them here (not in this post, anyway), here are, briefly, two points that suggest that presumption against extraterritoriality is insufficient, standing alone, to justify a dismissal of Kiobel:

1. As is repeated in many of the amici briefs, the first Congress would have been equally concerned about a U.S. citizen attacking a diplomat in Canada and avoiding liability by hiding in the U.S., as it would have been concerned about a U.S. resident attacking a diplomat in the United States. Ultimately, the purposes behind the ATS’s enactment are not compatible with a presumption that Congress intended to create a tort scheme that would allow the U.S. to serve as a safe haven to those who violate international law abroad, while only providing an enforcement mechanism against those who violate international law while easily reachable in the U.S.

2. Respondents ignore the fact that the Supreme Court has already, albeit implicitly, affirmed the reach of the ATS to acts occurring on foreign soil. In O’Reilly de Camara v. Brooke, 209 U.S. 45 (1908), Justice Holmes dismissed a suit brought under the ATS for acts that occurred in Cuba, on the grounds that the plaintiff’s claim for damages was based on property that she had no recognizable rights to. Before dismissing on those grounds, however, Holmes’ decision briefly “mention[ed] some technical difficulties that would have to be discussed before the plaintiff could succeed[,]” and noted that plaintiff’s claim had several other defects. Notably absent, however, is any hint or suggestion that plaintiff’s claims were invalid because they concerned events that occurred in Cuba, and not in the United States.

Prescriptive Jurisdiction

Respondents’ second — and more dangerous — argument is that permitting Kiobel to be heard in a U.S. court is a violation of international law, and therefore, pursuant to the Charming Betsy canon, the ATS should not be interpreted in a manner that would authorize a U.S. court to hear a case like Kiobel. In reaching this conclusion, however, Respondents deliberately mischaracterize the nature of their argument: while Respondents repeatedly claim that “a U.S. court’s exercise of prescriptive jurisdiction under the ATS” is prohibited by international law (Respondents’ Supplemental Brief, at 47) (emphasis added), Respondents’ actual arguments in support of this claim only address limitations on a U.S. court’s exercise of adjudicative jurisdiction.

This isn’t simply an error or misunderstanding on Respondents’ part; it is an intentional conflation of two distinct concepts. Respondents want the Supreme Court to find that the United States lacks prescriptive jurisdiction to regulate foreign corporate activities, not merely that U.S. courts lack adjudicative jurisdiction to hear claims about those activities.

This is because Royal Dutch Petroleum’s corporate interests would be best served by a norm of international law that minimizes a state’s authority to regulate the foreign activities of corporations, even for corporations that are incorporated or headquartered in that state’s territory. As far as Shell is concerned, having Kiobel dismissed on, say, forums non conveniens grounds, or for reasons of international comity, would only be a partial victory for Shell at best. Even if Kiobel is dismissed from New York federal courts, Shell hasn’t won all that much as long as the plaintiffs are still able to turn around and re-file their claims in London or the Hague.

And so Respondents insist throughout their brief that their argument is concerned with prescriptive jurisdiction. Respondents even going so far as to quote the entirety of the section on prescriptive jurisdiction from the Restatement (Third) of the Foreign Relations Law of the United States — perhaps hoping that the Supreme Court will focus on analyzing how the available bases of prescriptive jurisdiction apply to the situation in Kiobel, and fail to notice the fact that prescriptive jurisdiction is irrelevant here. Examples of these efforts at mischaracterization in Respondents’ brief include the following:

“Affording a federal-common-law claim under ATS jurisdiction … would violate international law because there is no accepted basis on which the United States may prescribe its law to govern such a case. ” (Id., at 38).

“the Charming Betsy presumption is not overcome by the text or historical context of the ATS, neither of which affirmatively indicates that federal courts should assert … any prescriptive jurisdiction with respect to conduct on foreign soil.” (Id., at 47).

“A U.S. court’s exercise of prescriptive jurisdiction under the ATS and federal common law as to conduct on foreign soil typically will violate international law[.]” (Id.)

But Respondents’ actual arguments, with the sole exception of its brief aside regarding sec. 402 of the Restatement (Third), are addressed exclusively at the question of why the Court’s exercise of adjudicatory jurisdiction under the ATS, at least in Kiobel, would be in violation of international law:

“That is because adjudication of such a case in a U.S. court clearly violates the international-law norm against universal civil jurisdiction.”

Respondents provide a long list of authorities that Respondents would have the Court believe support its claims that prescriptive jurisdiction is the actual issue in Kiobel. However, Respondents’ authorities consist solely of foreign court decisions concerned with the question of adjudicative jurisdiction. It is only Respondents’ use of delicate phrasing that creates a suggestion that these sources address the topics of the prescriptive power of legislative branches, when in fact that subject is never addressed. For instance, Respondents allege the following:

To the contrary, foreign governments and tribunals view the assertion of civil—as opposed to criminal—universal jurisdiction as a violation of international law. In Jones v. Ministry of Interior for the Kingdom of Saudi Arabia, [2006] UKHL 26, the United Kingdom’s House of Lords observed that “there is no suggestion that [universal civil jurisdiction] represents current international law.”

But Jones v. Saudi Arabia was not about “foreign governments” prescribing jurisdiction. Instead, the opinions begins with the following description: “[t]he issue at the heart of these conjoined appeals is whether the English court has jurisdiction to entertain proceedings.” (Also notable is the fact that Respondents’ quote from Jones — “there is no suggestion that [universal civil jurisdiction] represents current international law” — is actually an instance in which the UK court summarizes Breyer’s concurring opinion in Sosa. That hardly counts as foreign authority on whether or not the U.S. had the ‘prescriptive jurisdiction’ to enact the ATS!)

Every single foreign source that Respondents cite to is, once reviewed, clear a case concerned with adjudicative jurisdiction:

An Australian appellate court similarly explained, in rejecting a plaintiff’s contention “that international law confers universal jurisdiction on the Australian courts to hear and determine a civil claim of torture[,] … [t]here is a considerable body of authority denying the existence of such jurisdiction, despite the recognition of the prohibition of torture as jus cogens.”

An allegation of an abuse of a “jus cogens” norm committed anywhere in the world, cannot alone justify the civil jurisdiction of the U.S. courts. Such jurisdiction, without any underpinning of a clear connection with the forum (i.e. truly “universal” jurisdiction), is only well established in the criminal context.

Moreover, Respondents’ reliance on sec. 402 of the Restatement (Third) of Foreign Relations is particularly odd — not to mention inappropriate — given the explicit textual support for the ATS that the Restatement provides just a couple short sections later, at section 404. Respondents dismiss section 404’s explicit grant of prescriptive jurisdiction to “define and [] punish” violations of international law by stating:

“this principle refers to universal criminal jurisdiction and offers no support for the assertion of universal civil jurisdiction.”

But either Respondents are willing to knowingly distort the authorities they cite to, or else Respondents simply didn’t bother to read all of section 404, because this principle absolutely provides support for an assertion of universal civil jurisdiction. See sec. 404, at comment b:

Universal jurisdiction not limited to criminal law. In general, jurisdiction on the basis of universal interests has been exercised in the form of criminal law, but international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy in tort or restitution for victims of piracy.

Finally, in light of Respondents’ own exclusive reliance on case law dealing with adjudicative jurisdiction, not prescriptive jurisdiction, Respondents’ argument for why the Court should disregard the authorities cited to by Petitioner is particularly absurd:

[i]n fact, Petitioners’ authorities are inapposite … because they exercised adjudicative (rather than prescriptive) jurisdiction.

The legal strategy employed here by Respondents can best be described as the “these are not the droids you’re looking for” argument. It is an attempt to distract the Court from what Respondents are actually proposing: that the U.S. should recognize a new norm of international law which imposes expansive limitations on a sovereign’s power to regulate corporate coduct. Trussed up in language of “adjudicative jurisdiction,” this attempted intrusion on state sovereignty seems much more palatable — and, who knows, maybe some of the judicial minimalists on the bench will fall for it. But look at what Respondents are actually saying:

A U.S. court’s exercise of prescriptive jurisdiction under the ATS and federal common law as to conduct on foreign soil typically will violate international law even in cases where the defendant is a U.S. individual or corporation. … In the typical “foreign-squared” ATS case, the exercise of prescriptive jurisdiction will be unreasonable because, while the U.S. has a connection with the defendant, the activity being regulated neither takes place in the United States nor has direct effects here[.]

This is — technically speaking — insane. No one can seriously doubt that the U.S. has the power to regulate the foreign activities of its domestic corporations. And yet Respondents go one step father, and claim that doing so would actually be a violation of international law. Respondents are not arguing that it is only the United States that lacks the authority to prohibit Royal Dutch Petroleum from committing human rights abuses in Nigeria — Respondents are arguing that the United Kingdom and the Netherlands don’t have that authority either.

With that in mind, I would like to review how Royal Dutch Petroleum describes, in its Supplemental Brief, the international norm that it is proposing should be adopted by the Supreme Court in Kiobel:

In the typical “foreign-squared” ATS case, the exercise of prescriptive jurisdiction will be unreasonable because, while the U.S. has a connection with the defendant, the activity being regulated neither takes place in the United States nor has direct effects here; the plaintiffs have no connection with the United States; the foreign state has a strong interest in regulating the alleged conduct; and U.S. attempts to regulate may conflict with that foreign state’s law.

Keeping the factual situation alleged by the Kiobel plaintiffs in mind, here is an attempted translation of what Respondents actually mean to say in the above paragraph:

Even if Royal Dutch Shell was a U.S. company, it would be unreasonable, and therefore a violation of international law, for the U.S. to prescribe a domestic law prohibiting Royal Dutch Shell from committing human rights abuses in Nigeria. U.S. law regulating Royal Dutch Shell’s joint ventures with foreign sovereigns would be unreasonable because, although Royal Dutch Shell is incorporated in the U.S., all of the human rights abuses are being committed in Nigeria, and these human rights abuses don’t actually cause any harm on U.S. territory. The victims of these human rights abuses have no connection to the U.S. (aside from being subject to human rights abuses committed by a U.S. company). Nigeria has a strong sovereign interest in how foreign corporations conduct their business in Nigeria, and whether or not those corporations respect human rights. Attempts by the U.S. to prohibit Royal Dutch Shell from engaging in foreign human rights abuses would necessarily conflict with Nigerian law, which specifically permits and condones Royal Dutch Shell’s actions there.

This translation is slightly tongue in cheek, but the scheme proposed by Respondents is specifically advocating against the existence of prescriptive jurisdiction to regulate foreign human rights abuses. Respondents’ argument goes too far to be taken seriously.

In short, Respondents would have the Court believe that it would be a violation of international law for the United States to institute a civil cause of action against U.S. nationals who, acting under a grant of government authority, violate international law while abroad. In fact, under international law, the United States would itself be liable for breaching international law in those circumstances. See Draft Articles on State Responsibility, Art. 5 (“The conduct of … a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”). And yet, under Respondents’ bait-and-switch theory of ‘prescriptive jurisdiction,’ international law actually prohibits the U.S. from making civil reparations available in that situation.

The Charming Betsy argument contained in Respondents’ Supplemental Brief is nothing more than at attempt at judicial misdirection. Although Respondents do make the (valid) argument that the U.S. lacks of adjudicatory jurisdiction to hear ATS claims regarding purely foreign conduct — an argument they would be idiots to avoid making, since its the strongest argument in favor of Kiobel’s dismissal — Respondents attempt to sell this argument as a much broader limitation on state’s sovereignty.

Simply put, it is not sufficient for Royal Dutch Petroleum’s purposes to have Kiobel dismissed solely for a lack of adjudicatory jurisdiction. What Respondents wants — and Respondents are hoping the U.S. Supreme Court will provide a global precedent for — is a finding that states not only lack the jurisdiction to adjudicate claims regarding a corporation’s foreign human rights abuses, but that states lack the authority to prohibit such human rights abuses in the first place, even when those abuses are committed by a state’s own nationals.


The Source of the ICC’s Privileges and Immunities in Libya: Experts on Missions Immunity, Customary Immunity, or Immunity by Security Council Resolution?

Saif Al-Islam Gadaffi, son of recently deposed Libyan dictator Muammar Gaddafi, was captured last year by local officials in Zintan, Libya, and has been held there ever since. Although the International Criminal Court has had an arrest warrant issued for Saif since June 2011, and since Saif’s capture been requesting that Libya transfer him into the ICC’s custody, Saif has remained in the control of the Zintani militia.

Last week, an ICC defense lawyer and her translator were arrested in Libya for “spying” and for providing illegal assistance to Saif. The Zintani militia that detained Melinda Taylor, the defense attorney appointed by the ICC to represent Saif Al-Islam, are now claiming that she had transmitting secret letters to her client. Two other ICC officials who were with Taylor were not arrested, but opted to remain with her and her Lebanese translator:

The four were in Zintan so that Taylor could meet with her client, Saif al-Islam Qaddafi, to discuss his defense in the ICC case against him. The court issued an arrest warrant last June for Saif, as well as his father Muammar and former Libyan intelligence chief Abdullah al-Senussi, for crimes against humanity committed during the regime’s brutal attacks on civilian demonstrators in early 2011. Now, the Libyan authorities claim that Taylor and Assaf exchanged documents with Saif, and had “recording equipment” with them during the interview. Neither activity would be unusual for an attorney-client meeting, but Taylor and her team are supposedly being investigated on charges of spying. Libyan authorities have said that they will be held for 45 days, and frequent references to “threats to national security” do not inspire confidence in their fate thereafter.

The reaction of the international community to the arrests has been oddly muted, perhaps in part due to uncertainty regarding the legal status of Libya’s actions under international law. Although Taylor was an ICC agent who was arrested for performing her official duties, it is not clear that international law actually prohibits Libya from arresting Taylor in this situations. To muddy the waters even further, the arrest of the ICC agents follows right on the heels of Libya’s challenge to the ICC’s jurisdiction to even hear the case against Saif — the first such jurisdictional challenge that the ICC has faced in it short history.

The odd and unfortunate situation has come about as a result of the nature of the ICC’s jurisdiction over Saif Al-Islam, which was not derived from any treaty obligation incurred by Libya but rather through a resolution of the U.N. Security Council Resolution. Resolution 1970 (2011), which authorized the initial multilateral intervention in Libya, also contained a provision referring the situation in Libya to the ICC:

ICC referral

4.  Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

5.  Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

6.  Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

7.  Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

8.  Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

The ICC’s authorization to prosecute human rights violations in such situations is provided via Article 13(b) of the Rome Statute. Referral of a case by the Security Council is the only manner by which jurisdiction can be conveyed to the ICC for a crime committed in the territory of a state that is not a party to the Rome Statute.

But even with a Security Council referral, the ICC’s jurisdiction is not necessarily guaranteed — the other jurisdictional requirements contained in the Rome Statute must also be met. Although Libya did not voluntarily authorize ICC jurisdiction, it still has the right to challenge that jurisdiction under Article 19 of the Rome Statute. Libya is in fact currently pursuing a jurisdictional challenge in regards to the ICC’s jurisdiction to prosecute several of the would-be defendants, including Saif. Libya asserts that ICC jurisdiction would be improper under Article 17(1)(a) of the Rome Statute, as “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” In Libya’s May 1, 2012 filing to the ICC, Libya moved to have the case deemed inadmissible before the ICC, claiming that the new Libyan transitional government was properly pursuing criminal charges against Saif and the other defendants through Libya’s domestic criminal justice system.

The ICC has indicated, however, that it is not going to concede jurisdiction without a fight. On June 5th, just two days before the kidnapping of Taylor’s party, the Office of the Prosecutor (OTP) filed its response to Libya’s challenge. Although it was conceded that Libya had in fact brought domestic charges against the defendants, which under principles of complementarity would prevent the ICC from trying the case, the OTP concluded that Libya has failed to demonstrate that it has the practical ability to actually carry out a prosecution of Saif Al-Islam Gadaffi itself:

The Applicant has demonstrated that it has taken concrete steps to investigate the same person for the same conduct at issue in the case before the ICC. Further, there is no evidence to suggest that the Applicant is not genuine in its investigation and prosecution of Saif Al-Islam. However, there remain questions about its ability to advance the investigation and prosecution of Saif Al-Islam. Therefore the Court should accept the Applicant’s offer to provide further information, including the testimony of the General Prosecutor, to provide clarity on its ability to advance its case.

The OTP was concerned in particular about Libya’s failure to afford Saif Al-Islam with defense counsel:

However, despite the Applicant’s predictions at the time it filed its challenge on 1 May 2012, it does not appear that Saif Al-Islam has received a defence lawyer  within Libya, a precondition to presenting to him the charges and completing the  investigation under Libyan law”. This lack of progress could be related to the restrictions established because the Zintan militia exercise custody over him. The Prosecution is mindful of the substantial challenges faced by the Applicant, but this apparent lack of progress raises questions about whether the Applicant is able to “otherwise carry out its proceedings” within the meaning of Article 17(3). Therefore, the Prosecution submits that the Court should require the Applicant to appear before the Court to provide additional information on its ability to advance the investigation and prosecution of Saif Al-Islam.

Given the timing of these events, it could seem at first glance that the arrest of Taylor on June 7th was in retaliation to, or at least related to, the OTP’s filing on June 5th indicating that it intended to proceed with criminal charges before the ICC. There is another wrinkle, however — the Libyan transitional government was not responsible for the arrest of the ICC officials. Rather, it was a local Zintani militia group — the same group holding Saif Al-Islam — that detained the ICC defense counsel, apparently at the militia’s own initiative. The Zintani militia group has been holding Saif as a way of gaining leverage over the federal Libyan government, and now they may have decided to double up on their claims by taking the ICC staff as prisoners too.

So the whole situation is a mess right now. The ICC is claiming that it maintains jurisdiction to prosecute Saif for war crimes due, in part, to Libya’s inability to provide Saif with access to counsel. Local government actors in Libya have now kidnapped the ICC defense counsel that was being provided to Saif, for their own motives, which tends to confirm the ICC’s assessment regarding Libya’s ability to try Saif and the other defendants in its own courts. And the Libyan transitional government is still trying to argue that the ICC shouldn’t have jurisdiction to bring charges, but lacks sufficient control over the Zintani militia to either try Saif for itself or to free the ICC staff.

But while the arrest of the ICC defense counsel is clearly a poor diplomatic move on Libya’s part, it is less certain whether it also constitutes a breach of international law. Some commentators have suggested that the ICC staff have immunity from domestic judicial processes, but the source of such immunity is debatable.

1. The ICC’s Agents Have No Immunity in Libya through the Rome Statute. States Parties to the Rome Statute are obligated by Article 48 to provide the ICC with “such privileges and immunities as are necessary for the fulfilment of its purposes.” But Libya is not a party to the Rome Statute, and is not bound by any international obligations through that instrument. (Nor is Libya a party to the Agreement on Privileges and Immunities of the International Criminal Court, which supplements and expands the immunity of Court officials, but likewise only applies to states that are signatories to the instrument.)

Even though the Security Council has referred the situation in Libya to the ICC, that does not have the effect of conferring the treaty obligations contained in the Rome Statute onto Libya.  Paragraph 4 of Resolution 1970 did not, in itself, curtail any of Libya’s jurisdiction as sovereign, but instead expanded the jurisdictional reach of the ICC to permit it to bring charges against violators of human rights in Libya — in effect, the Security Council has delegate a sliver of its own administrative jurisdiction to the ICC, to permit it to bring charges against a crime that was otherwise not within its jurisdictional ambit. But the ICC was not granted any rights to enter the territory of a sovereign entity which had not already ceded those rights to the ICC via treaty.

[Update: Over at EJIL Talk, Dapo Akande makes the argument that the treaty obligations contained in the Rome Statute can also be imposed on a state by Security Council resolution. Article 48 of the Rome Statute, he argues, now applies to Libya

because the UN Security Council, in referring the Libyan situation to the Court, has imposed the Statute on Libya. In SC Res 1970, the SC decided that Libya shall cooperate with the ICC. That resolution does not make it explicit that this is an obligation to cooperate in accordance with the Statute. However, … the obligation to cooperate under SC Res 1970 is an obligation to cooperate in accordance with the Statute. It is the Rome Statute that defines and sets out the boundaries of Libya’s obligation to cooperate. Art. 48 is part of that obligation of cooperation. Just as ICC  parties have an obligation to accord immunities to ICC personnel, so does Libya. Indeed, this provision is absolutely crucial to the cooperation obligation. Were Libya not obliged to provide immunity to ICC personnel working on the situation referred to by the Security Council, the obligation to cooperate would be rendered meaningless. Libya would be able to frustrate ICC investigation simply by using its national law and legal processes to harass ICC staff.

This explanation is not entirely satisfying to me. Akande’s argument is that, through a one line resolution ordering Libya to “cooperate” with the ICC, the Security Council has essentially forced Libya to become party to the Rome Statute and incur all the obligations of a party to that treaty. But which parts of the Rome Statute? All of them? Or just the ones that the Court finds convenient to invoke? Why is Article 48 automatically applied to Libya, but not Article 88 — which mandates that “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part”? Or may Libya propose changes to the ICC’s Rules of Procedure and Evidence pursuant to Article 51? And what about financial contributions to the ICC — is Libya on the hooks for those too?

Secondly, the text of the Rome Statute does not necessarily support the claim that the entirety of the instrument applies to cases where jurisdiction is invoked through Article 13(b) — after all, the Rome Statute does clearly provide at different points provisions governing “States Parties” and other provisions that govern simply “a State.” This would imply “States Parties” refers only to parties, while “a State” includes both parties and states that have voluntarily accepting jurisdiction in a specific case or had jurisdiction forced upon them.

But, the Rome-Statute-Applies-Automatically argument certainly does make things more convenient. I’d just be more comfortable with it if the Security Council was required to be explicit before it could mandate a state’s accession to a treaty.]

2. The ICC officials have no immunity from domestic judicial process, but by arresting them, Libya is failing “to cooperate fully with the [ICC] and the Prosecutor”, as it is required to do by Security Council resolution. Over at Opinio Juris, Kevin Jon Heller has suggested that the immunity of the ICC officials derives solely from Security Council Resolution 1970. However, strictly speaking, this is not an argument that the ICC officials have “immunity.” That is, it is not that Taylor and her interpreter have a special immunity from judicial process under international law, but rather that Libya had a more general prohibition against failing to cooperate with the ICC. In the present situation, it so happens that  Libya’s failure “to cooperate fully with and provide any necessary assistance to” the ICC took the form of Libya’s decision to arrest the ICC’s officials. However, Libya would be equally in violation of international law had it, say, built a giant wall around Zintan that prevented Taylor and her interpreter from entering.

The claim that the ICC’s “immunity” is nothing more than a side effect of the Security Council’s mandate of cooperation is also supported by Article 87 of the Rome Statute, and Article 17 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. Article 17 of the Negotiated Relationship, which is titled “Cooperation between the Security Council of the United Nations and the Court,” provides at Section 3 that:

Where a matter has been referred to the Court by the Security Council and the Court makes a finding, pursuant to article 87, paragraph 5 (b) or paragraph 7, of the Statute, of a failure by a State to cooperate with the Court, the Court shall inform the Security Council or refer the matter to it, as the case may be, and the Registrar shall convey to the Security Council through the Secretary-General the decision of the Court, together with relevant information in the case.  The Security Council, through the Secretary-General, shall inform the Court through the Registrar of action, if any, taken by it under the circumstances.

In other words, the Security Council is the ultimate arbiter of whether or not a state is failing to abide by its command that the state in question cooperate with the ICC, and is the entity that is responsible for taking action when its orders are not being followed. Although the ICC has the ability to notify the Security Council of any incidents that may arise, the state’s obligation is solely to the Security Council and not to the Court. So, at least pursuant to Article 87 of the Rome Statute or Article 17 of the Negotiated Relationship, the proper procedure for the ICC in this situation is to refer the issue to the Security Council and let them decide how to figure it out. So far, however, the only sort of decisive action that the Security Council has taken in response to the matter is to release a press statement:

The members of the Security Council express serious concern over the detention in Libya since 7 June 2012 of the International Criminal Court (ICC) staff members, and urge Libyan authorities at all levels and all concerned to work towards immediate release of all the ICC staff members.

The members of the Security Council emphasize that it is the legal obligation of Libya under the Council’s resolution 1970 (2011) to cooperate fully with and provide any necessary assistance to the ICC pursuant to that resolution.

This press statement indicates that the Security Council is of the position that Libya’s obligation to release the ICC staff members is derived from resolution 1970, and not from an alternative source under international law. However, although Libya is certainly obligated to cooperate with the ICC pursuant to the Security Council resolution, this may not be the sole source of the rights of the ICC’s agents in Libya. Taylor, as the ICC appointed defense counsel for Saif, may also have true immunity under international law through two other sources, discussed below.

3. The ICC’s Agents May Have Immunity as Agents on Missions Pursuant to the Convention on the Privileges and Immunities of the United Nations. Because Libya has not ceded any of its jurisdiction to the ICC, any immunity that the ICC officials have comes not through the Rome Statute, but through the U.N. conventions to which Libya is a party. Pursuant to the Convention on the Privileges and Immunities of the United Nations (CPIUN), the U.N.’s officials are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.” However, as the ICC is not itself a U.N. agency, the ICC’s personnel are not covered by the terms of that instrument, at least not directly. But it is possible that, at least in this particular case, and owing to the nature of the ICC’s involvement in Libya, ICC officials have agent on mission immunity pursuant to the CPIUN.

Section 22 of the Convention on the Privileges and Immunities of the U.N. provides for immunity not just for U.N. officials, but also for “Experts on Missions for the United Nations”:

Experts  (other  than officials coming within the scope of article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded … immunity from personal arrest or detention and from seizure of their personal baggage[.]

Could the ICC defense counsel be Experts on Missions for the U.N., and therefore immune from criminal prosecution pursuant to the CPIUN? After all, the ICC’s jurisdiction to prosecute Saif was provided by the U.N.’s Security Councilm, and was supplemented by Paragraph 5 of Resolution 1970, which instructed that “Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” The ICC was only in Libya pursuant to the Security Council’s mandates, performing work that the Security Council had requested.

The question turns upon the meaning of “Experts on Missions” under the treaty. The ICJ’s Advisory Opinion

On the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations would lend some support to the claim, anyway:

The Court will … consider first what is meant by “experts on missions” for the purposes of Section 22, and then  the meaning to be attached  to  the expression “period  of  [the] missions”[.] …

The  General Convention  gives  no definition  of  “experts  on missions”. Al1 it does is to clarify two points, one negative and the other positive. From Section 22 it is clear, first that the officials of the Organization, even if chosen in consideration of their technical expertise in a particular field, are not included in the category of experts within the meaning of that provision; and secondly that only experts performing missions for the United Nations are covered by Section 22. The Section does not, however, furnish any indication  of  the nature,  duration  or place  of these missions.

Nor is there really any guidance in this respect to be found in the travaux préparatoires of the General Convention. The Convention was initially drafted and submitted to the General Assembly by the Preparatory Commission set up at San Francisco in June 1945; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary official records do not make it possible to ascertain the reasons for the addition

The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an officia1 of the Organization, and to guarantee them “such privileges and immunities as are necessary for the independent exercise of their functions”. The experts thus appointed or  elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission. …

To sum up, the [International Court of Justice] takes the view that Section 22 of the General Convention is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions; that during the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel; and that those privileges and immunities may be invoked as against the State of nationality or of residence unless a reservation to Section 22 of the General Convention has been validly made by that State.

Although Taylor was clearly acting on behalf of the ICC at the time of her arrest, she was acting on a mission that had been delegated to the ICC by the Security Council. Possibly, then, that is sufficient to grant her immunity from prosecution under Article 22 of the CPIUN, as the ICJ’s Advisory Opinion is clear that it is not necessary for the expert to have a contract with the U.N. or to be paid by the U.N. to be entitled to immunity. “Experts on Missions” are determined not by their administrative title, but by the nature of their mission, and their immunity extends to the extent necessary to permit the expert to carry out her duties.

As Taylor was on a mission to serve as defense counsel for Saif Al-Islam, and that mission was performed at the (albeit indirect) behest of the Security Council, and as Libya’s arrest of Taylor interfered with the ICC’s ability to afford a criminal defendant with the right to counsel that is provided both by international law and by the Rome Statute, Taylor may have had immunity from prosecution pursuant to the CPIUN.

4. The ICC’s Agents May Have Functional Immunity by Operation of Customary International Law. It is also possible that the ICC officials’ immunity from criminal prosecution exists entirely apart from any treaty or convention. Although diplomatic immunity is often codified in treaties and other international instruments, it is also a part of customary international law, at least as it applies to the foreign officials of sovereigns. But do agents of international organizations, like the agents of foreign states, posses functional immunity under customary international law?

Functional immunity, as opposed to the more general immunity ratione personae granted to heads of states and other diplomatic bigwigs, is the immunity of foreign officials in relation to acts performed in their official capacity. If Taylor had been acting on behalf of a foreign state rather than an international organization, she would not be entitled to any general immunity under customary international law, but she would likely be entitled to functional immunity. As counsel for Saif, it was Taylor’s performance of her official duties that lead to her arrest — and thus functional immunity would presumably apply.

However, Taylor was not acting in Libya on behalf of a foreign state, but on behalf of an international organization. Whether or not the customary norm of diplomatic immunity extends to officials acting on behalf of international organizations in general, or to officials of the ICC in particular, remains an unsettled question. There is conflicting domestic case precedent cutting both ways, and although the state practice is largely there, measuring the opinion juris in this situation is made somewhat difficult by the lack of official pronouncements.

In any event, the question of the ICC official’s diplomatic immunity under customary international law is more convoluted than I care to get into in this blog post, but there is a decent argument to be made that such a norm  of immunity does in fact exist. Even if agents of international organizations are not granted a blanket immunity under CIL, for instance, they could have immunity in circumstances such as those surrounding Melinda Taylor’s presence in Libya. It could also be bolstered in this particular case by other tenants of international law, as a showing that the functions carried out by Taylor as an IO agent, and for which she is arrested, are the sort of functions for which IO agents are customarily immune from sovereign interference, even if there is no generally applicable immunity.  For instance, human rights law provides for a right to assistance of counsel in all criminal proceedings —  and a norm providing ICC defense counsel with immunity from criminal prosecution that is intended to interfere with that right would be consistent with both human rights norms and with the norms of diplomatic immunity as applied to states. Similarly, this customary norm of IO immunity could be held to apply automatically to IO agents that are in a state pursuant to a lawfully ordered intervention. That is, when the Security Council takes the step of interfering with a state’s sovereignty by ordering that the state accept certain IO officials and agents into its territory, there could be an implicit norm that the Security Council has also usurped the state’s sovereign right not merely to exclude that person, but also to pursue criminal charges against that person for engaging in the acts that they were sent to the state to perform.


Samantar v. Yousuf…

… was anticlimactic. Although we succeeded in running into quite a few GW Law people, we did not succeed in getting seated. (I may have succeeded in getting frostbite, however.)

Poor Michael was #52 in line, and they only let a grand total of 50 in. So he has the distinction of being the second loser. Although the first loser had it worst — it was the second time in which he had been the first person to not get seated at a hearing. I will accept some responsibility for us missing the hearing, as I had the bright idea of changing our meet up time from 6am to 7am. Poor form, I know.

The guards stationed in front of the steps informed us that it had been less crowded for friggin’ McDonald than it was for Samantar, which is ridiculous, because it was rainy and cold and Samantar does not involve guns.

Also I still maintain that Michael lost his spot to Harold Koh, who came waltzing across the plaza with his entourage about five minutes before the oral argument started. Excuse me, sir, I do not believe that the U.S. is a party to this case, so you can just go wait in line with the rest of us, thank you very much.

Anyway, as a very poor consolation prize, we were at least in the first group for the silly 3-5 minute viewing exercise they have for tourists. Didn’t really see or hear much, though. The transcripts are up for the case now, but I think at this point I will have to put off reading it until tomorrow. Will probably have more thoughts then.

But I swear, if I ever find out that that class of 8-10 year olds that was let in got seated and we didn’t, I will lose all faith in American democracy.


Samantar v. Yousuf, Last Minute Thoughts

There are two questions in Samantar v. Yousuf that I suspect almost certainly will not get addressed in the morning, at least not in any substantive way, but I’ll post them here now in the hope that I am wrong and I’ll be able to talk about them in greater length tomorrow. These would be:

(1) The statehood of Somalia v. Somaliland, and the ability of the former to adopt the acts of officials that took place in a territory it no longer has any control over, outside of legal fiction. Obviously even if they do bother with the question, the Court will end up punting it to the political branches and making their recognition the be-all end-all, but I would still love to see statehood get addressed in one of the Justice’s opinions. Even better would be for the Court to address the factual issues regarding Somalia or Somaliland’s existence or non-existence, but I won’t hold out hope for that.

(2) The Constitutional question of FSIA’s purported grant of personal jurisdiction over state officials via service of process. If petitioner succeeds on his arguments, there could be a problem with FSIA’s provision for service of process over foreign states — namely, service of process (done anywhere, not just tag-service) is considered sufficient for obtaining personal jurisdiction over a state. But if officials = state for purposes of the FSIA, allowing mere service to create personal jurisdiction for foreign official defendants would create a Constitutional due process issue.

I mostly want #2 to be addressed because I would love to see the Supreme Court finally address the giant gaping inconsistency in U.S. law that is our personal jurisdiction jurisprudence. Since personal jurisdiction is a question of Fifth (or Fourteenth) Amendment due process, if petitioner prevails, we could, at least theoretically, wind up with some interesting issues of the “Constitutional rights” of foreign states that have never had contact with the U.S.

At any rate, I’m sure there will be some amusement to be had tomorrow, out of the slight irony in the case that the side most heavily relying on the support of international law and argues that the court should find it has expansive powers to decide the questions involved is the side hoping that the Court does not find jurisdiction to hear an ATS/TVPA claim, while the side that is calling for a strict adherence to the separation of powers and arguing that any judicial interference would result in Dire Consequences is the side hoping that the court does hear the underlying claim. Strange bedfellows, and all that.

For what it’s worth, I’m rooting for the respondent. Jurisdiction should be found here — to do otherwise would lead to absurd results. That a given defendant claims to have been some sort of official office holder for some sort of government that may have once existed is not sufficient to give him a blanket claim to immunity in U.S. courts. Rather than making this a jurisdictional matter, this case should be heard on a substantive level, with the act of state doctrine helping to provide the proper rules of decision.

Plus, finally, the fact Samantar cherry picks between the multitude of “Somali” governments to find a couple that support his claim is hilarious. If you’re trying to claim sovereign immunity, referring to “the transitional governments,” plural, of your supposed State does not much help your case. If any warlord in Somalia with enough followers can claim to be the sovereign, why on earth should the FSIA or international law believe that Samantar managed to siphon off some immunity for himself?


Standing, Remedies, and Establishment Clause Violation Through Disparate Impact

Out of guilt from shooting down my co-blogger’s noble campaign to get me to go to the Salazar v. Buono hearing this morning (I am sorry, but I do not get out of bed at 5:30am for the Establishment Clause), I figured I’d make up for it by at least writing a little about the case.

If you want to know more about Salazar, check out Scotuswiki’s write up, but, in brief: smallish cross on federal preserve, National Park Service decided to take it down, Congress forbid the use of any federal funds in taking it down, Buono sued under the Establishment Clause, court agreed with Buono, cross was put in a box, Congress sold the land the cross was on to a private group, government alleges that fixed any problem, Buono kept suing alleging that the transfer was invalid, district court ageed, Ninth Circuit agreed, now they argue about it before SCOTUS.

The mere selling off of the property doesn’t fix things by itself. The federal government maintains some control over the cross still as they designated the cross a national memorial. One of only 45 in the U.S. It’s pretty clear Congress took special measures to save the monument because it was a cross — no one could in good faith believe they’d take such attentive care of it has it been depiction of Ganesh. Moreover, government ownership or non-ownership of the monument is not itself dispositive — in last term’s Summum decision, Judge Alito noted that “persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf . . . . This is true whether the monument is located on private property or on public property, such as national, state, or city park land.”

Besides, a general hallmark of private speech is the ability to change the content of your speech or to cease speaking all together. The owners of the Sunrise Rock Cross have no such ability. Under 18 U.S.C. §1369, they would apparently be committing a federal crime if they tried to change or destroy the monument. So it’s not really “private” speech if the government is requiring the speech, on penalty of imprisonment.

But ignoring the merits for now, I want to take a look at the procedural issues. On appeal, the government is raising two issues: first, that Buono lacks requisite standing as his harm is “ideological” rather than “religious,” and second, Congress’ transfer of the land the cross is on to a private party successfully remedied any constitutional problems that had existed.

mojavecross1The standing issue is actually pretty interesting, especially Buono’s arguments that the court lacks jurisdiction to hear Salazar’s argument that Buono lacked jurisdiction. Buono alleges that (1) If the government wanted to appeal the standing issue, it had to do so within 90 days of Buono I (2004), which they did not, and (2) Anyway that claim is barred by res judicata. As for the merits as to standing, basically, in these lines of cases, plaintiffs’ allege injuries that boil down to some version of “but it hurts my feelings.” Offended sensibilities normally do not provide for standing, but in the context of the Establishment Clause, a lot of the time offended sensibilities truly are going to be the biggest injury suffered — so if “offense” isn’t particularized enough of an injury, a huge chunk of EC violations will be immune to review.

But let’s say we get through all the procedural arguments, hear it on the merits, and Buono wins. What is his remedy now?

One issue arises from what Buono himself alleges the harm to be. Buono, a Roman Catholic, has specifically stated he has no particular objection to the displaying of religious symbols on government property, he just thought that the preserve should be open to displays of all faiths. (A Buddhist group requested and was denied permission to put up their own monument in 1999). So the most straight forward remedy to Buono’s injury wouldn’t really be simply chucking out the old monument, when in itself its not causing the harm.

So conceivably it could be remedied by simply allowing any religious group that wanted to put up a monument to do so. Now, this is Not Going To Happen. Once people from kooky sects all over the place start showing up asking permission to put up their monument of their god, which just happens to resemble sexually explicit imagery/depictions of Jesus as a cyborg/Prince Philip, Duke of Edinburgh, they will quickly reach a decision to remove all religious imagery rather than allow any. (Mojave has 1.6 million acres — you can fit a lot of religious paraphernalia in there if you were going to allow that.)

And I don’t think the Court would find (assuming again the Court manages to wade through all the standing issues to get there, which is doubtful) that any Establishment Clause violation is fixed simply by removing all further government interest in the monument, such as its designation or the federal ability to continue to regulate it. The major issue is that the cross strongly appears to be government endorsed speech, removing a few additional government entanglements won’t solve that. So the remedy would be to remove the cross.

Now, although the land was sold off, the government still maintains a number of interests in the cross, including a property interest in the possibility of reverter, which was provided for under the bill that decreed the land transfer, § 8121. Ignoring how this concerns the merits of the case, how might this it affect any possible remedy assuming a violation is found?

In Salazar, that’s all pretty clear. The district court enjoined the actual land transfer, even though the “mechanics” of it were completed, so the Supreme Court could simply uphold the injunction. Even if the sale could not be enjoined, thanks to the cross’s status as a monument, there are a number of other ways the government could be ordered to take back control of the land and remedy the violation. From the Ninth Circuit’s opinion,

Even if the land were transferred under § 8121(a), it may revert to the government under § 8121(e), or as provided in other statutes. In particular, we noted that 16 U.S.C. § 431 authorizes relinquishment of lands containing “national monuments” to the federal government, and 16 U.S.C. § 410aaa-56 authorizes the Department of the Interior to “acquire all lands and interest in lands within the boundary of the [Mojave] preserve by donation, purchase, or exchange.”

But what about in a case where this isn’t clear cut? I don’t know enough about this area of law to predict what would happen, but it seems to me there are some seriously thorny issues that could arise here, in a similar case where the transfer is not enjoinable and there are no other statutes that can be used to get it back.

What’s to stop the government from building a couple dozen giant statutes on various federal lands that declare “Ahura Mazda is Our Lord”, and then selling off all the patches to private bidders? Assuming all the formalities of the sale are complied with, fair consideration is given by the private party, etc., what remedy would even be available? Would there now be a Takings Clause issue, if the government were ordered to take the land back and take down the Ahuras? What if the properties have changed hands a few times since the initial transfer? Or it had been twenty years? Or if the new owners “promised” to take down the monuments, but kept randomly putting them back up from time to time? I think this is my primary issue with the government’s case in Salazar: it proves too much. And trying to fix any mess created would not be a simple task.

Finally, for a brief note on the actual merits–

Cases like Salazar are fairly frequent, and the vast majority of them involve the government displaying Christian symbols and refusing to allow non-mainstream-Christian faiths to display their own. The pattern is unmistakable — the government will defend to its last legal breath its ability to display indicia of adherence to the Christian faith, but not any other symbol of religious worship. It’s the pervasive pattern, rather than any one odd cross up on a hill somewhere, that causes the Establishment Clause concerns. No, the Sunrise Rock Cross does not in itself a threat to religious liberties or the First Amendment, but the disparate impact of the government’s choice in which monuments to defend is itself a violation of the Establishment Clause.