Category Archives: The Law of Nations

International law. Yes, it exists.

Samantar v. Yousuf, Last Minute Thoughts

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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?

-Susan

The Convention on Cluster Munitions Will Enter Into Force

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Two days ago, the Convention on Cluster Munitions (the Oslo Agreement) achieved its 30th ratification — and therefore, by its own terms, enough support to becoming a binding international instrument on all ratifying nations. (Art. 17.) It will do so on Aug. 1, 2010.

Although 104 nations have signed the Oslo Agreement, it took Tuesday’s ratifications by Burkina Faso and Moldova to trigger the entry into force provisions. This brings the total number of ratifying nations to 30, and

include[s] states that led the “Oslo Process” effort to create the Convention (Norway, Austria, Holy See, Ireland, Mexico, and New Zealand), states where cluster munitions have been used (Albania, Croatia, Lao PDR, Sierra Leone, and Zambia), cluster munition stockpilers (Belgium, Denmark, France, Germany, Japan, Moldova, Montenegro, and Slovenia), as well as Spain, the first signatory country to complete destruction of its stockpile. Other ratifying states are: Burkina Faso, Burundi, Luxembourg, Macedonia, Malawi, Malta, Nicaragua, Niger, San Marino, and Uruguay.

Enough of those states have been involved in cluster bomb manufacture or stockpiling for the treaty to also embody some state practice in support of the norm. In fact, half of the fourteen countries that have actually used cluster bombs since the formation of the United Nations have now signed or ratified the treaty.

Of course, this still leaves the major manufactures of cluster bombs — the U.S., Russia, China, North Korea, Pakistan, India and Israel — who are not on board with the treaty.

Although the United States has not been a signatory, it has taken a few steps towards limiting the use of its own cluster munition resources. In early 2009, the Cluster Munitions Civilian Protection Act was introduced, but has since stalled in Congress. That legislation would have banned “most” uses of cluster munitions by the U.S. In March 2009, a separate bill was passed that banned all but a “tiny fraction” of cluster bomb exports.

The U.S. continues to maintain that cluster bombs are a legitimate military weapons, and that their absence would create a “capability gap” for military forces. Because the Oslo Agreement does not allow for any reservations — a practice the U.S. frequently resorts to when it does wish to enter a treaty of this nature — and because the U.S. has made clear it does not intend to enter into a complete abandonment of its cluster munitions programs, it is extremely unlikely that the U.S. will sign, let alone ratify, the treaty.

However, even if it does not participate in any actions on the international plane to reduce the harm to civilians caused by cluster bombs, the U.S. has repeatedly shown that, on the domestic level, it intends to regulate its own use of the weapons. Although the CMCP bill has stalled, in 2008, even before the drafting of the Oslo Agreement, Defense Secretary Gates issued a memo with regulations aimed at minimizing any potential harm to civilians caused by U.S. use of cluster munitions. [PDF]

-Susan

The International Law of Antarctic Whiskey of Historical Value

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A New Zealand expedition is planning to drill for one hundred year old whiskey in Antarctica, from two crates left behind by the Nimrod Expedition in 1909.

The Nimrod Expedition, lead by Sir Ernest Shackleton, came within 97 miles of the South Pole before they gave up and came home. They’d originally brought with them 25 crates of McKinlay’s scotch, but two were found to have been left behind in the expedition’s Cape Royds base hut.

However, a century of ice and snow isn’t the only thing standing in the way of the whiskey’s recovery. International law may also pose a barrier, as the hut at Cape Royds has been designated an Antarctic Specially Protected Area (ASPA) under Annex V to the Protocol on Environmental Protection to the Antarctic Treaty. Art. 8(4) of the Annex requires that “Listed Historic Sites and Monuments shall not be damaged, removed or destroyed.” Although temporary removal of objects for conservation purposes is permitted, and taking samples of the whiskey for study would be permitted, the crates and most the whiskey are prohibited from being removed completely by any one party under current treaty law. Today, preservation of the hut is the responsibility of the New Zealand Antarctic Heritage Trust, hence their carrying out of the whiskey mission.

There are a couple sources of treaty requirements regarding Shackleton’s whiskey and other historical relics. Resolution 3 from ATCM XXXII incorporated the Guidelines on Preservation of Historic Areas, which states:

“To that end, Parties should notify the other Parties of the discovery, indicating what remains have been found, and where and when. The consequences of removing such remains should be duly considered. If items nonetheless were removed from Antarctica, they should be delivered to the appropriate authorities or public institutions in the home country of the discoverer, and remain available upon request for research purposes.”

Measure 5 of ATCM XXXII, “Revised Management Plan for ASPA 121 (Cape Royds),” is more specifially relevant to the McKinley whiskey, as it addresses the handling and conservation of artifacts from the Nimrod Expedition. The plan became effective in July, 2009. Section 7(vii) requires that:

“Material may be collected or removed from the Area only in accordance with a permit should be limited to the minimum necessary to meet scientific or management needs.”

“Any new artifacts observed should be notified to the appropriate national authority. Relocation or removal of artifacts for the purposes of preservation, protection or to re-establish historical accuracy is
allowable by permit.”

So while recovering a sample of whiskey with a syringe to take back for study would qualify as a “scientific need,” it or any other materials retrieved must remain in the hands of a public institution and be available to other nations for research purposes. Incidentally, I do not know exactly what “permits” are required or where they are obtained from, but I find it depressing to know that not even the remote icefields of Antarctica are free from the strictures of bureaucracy.

Finally, part of me suspects that the whiskey retrieval mission is less about getting a sample of historical whiskey and more about an awesome publicity campaign. Or possibly just part of an advertising war between whiskey makers — Jameson’s may dive into the sea during a storm to recover a barrel of their whiskey, but McKinlay’s can trump that by sending an expedition to Antarctica to retrieve Shackleton’s lost whiskey cache.

-Susan