Second Circuit’s Error in Kiobel

This is kind of petty, and not particularly timely, but the Second Circuit’s decision in Kiobel contained one pretty blatant error I wanted to point out. It’s a minor mistake, and entirely insignificant regarding the outcome of the case, but it is perhaps indicative of a lack of familiarity with the history of the Alien Tort Statute:

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — has led many defendants to settle ATS claims prior to trial. Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade), and the Supreme Court in its entire history has decided only one ATS case.

Although much of this statement is subjectively wrong, the last line is outright false. Sosa was not the first — O’Reilly De Camara v. Brooke, 209 U.S. 45 (1908) was the first case brought under the Alien Tort Statute to make its way to the Supreme Court. Although the case was not particularly significant, it is notable in that it “perhaps implies that an unjustified seizure of an alien’s property in a foreign country by a United States officer would come within it.” See Khedivial Line, S. A. E. v. Seafarers’ Intern. Union, 278 F.2d 49 (2d. Cir. 1960).

The rest of that paragraph from the Kiobel decision is also dubious.

ATS cases “often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances.” The Second Circuit is abusing the meaning of “unique,” here. Events that took place abroad and in chaotic or troubled circumstances are in fact frequently litigated in US courts, albeit usually involving fact patterns that are different from the typical ATS case.

The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — Juries may be capable of awarding multibillion-dollar verdicts in ATS cases, but that is true for all sorts of cases. The only case the Second Circuit cites to is Karadzic, which was a default judgment. Moreover, a jury decision on the merits in favor of a plaintiff in a corporate defendant case has happened exactly once in any ATS case ever, in Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008). Just once. That is hardly grounds for invoke the specter of “juries awarding multibillion-dollar verdicts.”

… has led many defendants to settle ATS claims prior to trial. Wait, don’t courts consider it a good thing when cases settle before trial? And wait a second here — “many defendants” is quite a stretch. I am only aware of seven ATS cases ever that resulted in a settlement. I’m willing to assume there are a few out there that I’ve missed, but not many. The Second Circuit itself lists only two. There have been, by an extremely conservative estimate, maybe three hundred ATS cases in total that were “legitimate.” By legitimate, I mean not jail-mail and not filed by obviously crazy people. Of these three hundred or so cases, under a dozen have ever resulted in a settlement. So at the extreme, a mere 3% of ATS cases wind up settling. The average settlement rate for torts in federal courts is around 67%. I therefore find it absolutely ridiculous that the Second Circuit is using the threat that “many defendants settle before trial” as a reason for why the ATS is ‘dangerous’ or ‘unpredictable.’

There are other errors in Kiobel that are more significant, and are legal errors rather than factual ones, but these mischaracterizations are telling. The court was not simply adjudicating the merits of the plaintiffs’ claims — obviously the court found that its fears of what the ATS was capable of doing to be significant enough to include in its opinion. But these fears were based on stilted facts, not on the actual record.

-Susan

Corporate Participation in International Law: Some Historical Examples

It has probably become apparent by now that the idea that corporations are noncognizable under international law is one that irritates me to no end. There is, obviously, a great deal of unsettled law out there regarding exactly how liability for violations of international law accrues to non-state entities. But corporations have played a vital role in the development of international law for just about as long as “international law” can be said to have existed, and there is no historical basis for the idea that corporations cannot, as a matter of law, be a participant in or violator of international law.

At some point I will write some more on the subject, but for now, I want to at least throw some links up that give some historical examples. The Transnational Corporation in History: Lessons for Today? is a highly recommended starting point. It gives a good overview of how the legal character of corporations has developed, and how the private/public distinction has always been unclear, oftentimes deliberately so:

Corporations and states are commonly represented as having an oppositional relationship. Corporations represent the private; states represent the public. Corporations represent the efficient, the natural, and the spontaneous; states represent the inefficient and the contrived. The ascendancy of the corporation means the decline of the state. But these commonly held views are ahistorical and tend to ignore the complex relationships between states and corporations. Modern incorporation is simply a matter of fulfilling formal registration requirements. There are few surviving remnants of the old notion that incorporation is a privilege conferred by the state. This Article aims to redress the balance somewhat by telling aspects of the history of the corporate form that have been obscured by modern forms of incorporation and modern conceptions of the public and the private. In a modest way this Article intends to show just how recent the public/private paradigm actually is and how selectively such concepts have been applied.

Compared with the French trading companies generally, the English and Dutch companies were considered to be much more independent and able to operate at arms length from their respective governments. The agents of the Dutch and English companies were regarded as employees and servants of groups of merchants, rather than the subordinates of their governments. The British considered themselves traders first and territorial rulers second. Of course, the proper mix of the East India Company’s functions was contested, tended to be in the eye of the beholder, and changed dramatically over the period of the company’s existence.

And how questions over the status of corporation under international law are not new:

The British East India Company certainly took advantage of its ambiguous status—successfully emphasizing its sovereign powers when it wished to avoid contractual debts to local rulers, protesting to the Royal Navy that its status would be reduced in the eyes of the locals if it had to acknowledge the superiority of the British naval fleet, and all the time relying for its trading advantage on the might of British naval power and on the calculated and limited use of force. It charged merchants fees for safe passage and was able to do so as an exercise of its monopoly and sovereign powers. It was graphically and finally reminded of its subordinate status, however, when Queen Victoria took over from the company in 1858. The company had survived in various guises and with mixed public and private motives for 250 years.

But throughout the 18th and 19th centuries, corporations were assumed to be competent at conducting activities that, today, we generally believe only a true sovereign could do. Corporations could start wars, engage in diplomacy, claim new territories, and enter into international agreements. Treaties between corporations and state or state-like entities flourished during this time period, i.e., the treaty between the Dutch East India Company and the Ali Raja, the Treaty of Giyanti, and the Treaty of Allahabad. Some treaties, such as the treaty between the British East India Company and nascent Singapore, lead to the creation of what would eventually become modern day nation states.

Also worth checking out is this 1769 letter, An Enquiry Into the Rights of the East India Company of Making War and Peace and of Possessing Their Territorial Acquisitions Without the Participation or Inspection of the British Government, which gives a good example of how, even then, people were confused about how sovereign a corporation could be, when there was no “official” grant of sovereignty.

I am not trying to say that the role of corporations in international law is crystal clear — it is obviously not. But the idea that corporations are unrecognizable under international law, and that states can use the corporate form to immunize the profits its citizens have made from engaging in violations of international law, is an extremely modern one, and in its own way is a very radical idea.

-Susan

The International Law Scholarship of Samuel Clemens

Mark Twain’s recently re-released The Treaty With China: Its Provisions Explained is a fascinating read. As the Journal of Transnational American Studies, Spring 2010, writes:

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.

-Susan

First President Steals Copy of Vattel’s Law of Nations, Uses It To Break Treaty With France

On Oct. 5, 1789, President Washington checked out Vattel’s Law of Nations from the Manhattan library, and failed to return it. He has now wracked up a $300K late fee on that and another volume, although the odds of collecting on the debt are, as the library acknowledges, remote.

I’m not so disappointed in GW’s failure to return the book as I am in the fact he had to borrow a copy of Law of Nations at all. Surely the man should have possessed his own copy of the book. After all, Vattel was a significant influence on the U.S. Constitution — but then again, maybe GW only got around to reading it until after the Constitution had been finished up, and suddenly George found himself in charge of faithfully executing what was in it.

Even before George Washington was president, however, he would have dealt with people quoting Vattel at him. John Jay, the future first Chief Justice, wrote to GW, who was presiding over the Constitutional Convention, and made a recommendation to him regarding the requirements of holding office under the new Constitution. Jay’s letter borrows the phrasing of “natural born citizen” from Vattel’s Law of Nations:

“Permit me to hint, whether it would be wise and reasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

Still, perhaps George Washington made good use of his stolen copy of the Law of Nations. Less than four years after he checked it out, in 1793, Vattel played an important role in an early United States’ foreign affairs crisis, when the actions of the French ambassador, Edmond-Charles Genêt, threaten America’s neutrality to European conflicts. Hamilton and Jefferson wrote to Genêt, in which they defended the right of the United States to suspend the treaties in place between itself and France. Vattel, they conceded, had written that there was a “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” However, Hamilton argued that, although France may have had a right to changes its government, France did not have any right to force the United States to become involved in that civil conflict. If international law allowed for such a situation, “[t]his would be to give to a nation or society, not only a power over its own happiness, but a power over the happiness of other Nations or Societies. It would be to extend the operations of the maxim, much beyond the reason of it—which is simply, that every Nation ought to have a right to provide for its own happiness.”

This was (and is) a pretty subtle question of international law, really. In the case of a nation torn by civil war, to which faction is a duty arising to that country under international law owed? To the established government? To the belligerents? At what point do the belligerents become the establishment, and are therefore the inheritors of the rights and duties under treaties incurred by previous administrations?

Young America, following a policy of neutrality set by President Washington, simply did not want to become involved. Ambassador Genêt was less than impressed with the Washington Administration’s reliance on the subtleties of international law, however. He wrote back, angrily, accusing the federal government of “bring[ing] forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”

This all sounds pretty familiar, really. For as long as the U.S. has been a nation, it has been using complicated interpretations of international law in order to avoid duties incurred under treaties. And for all the haters out there who think America shouldn’t bother itself with international law, I say that if it was good enough for George Washington to steal, it’s good enough for us to pay attention to today.

-Susan

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

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

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

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

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

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 own territory, after all — merely that a state have some territory to speak of, even if the seat of government is not located there. For instance, the internationally recognized governmental body of Somalia has at times operated out of the neighboring territory of Kenya, due to the unstable situation inside of Somalia itself.

Additionally, although the concept of statehood as a corporate-esque abstraction — a social construct characterized by its citizens voluntary allegiance, with little or no regard for the geograpgical location — has been a somewhat common trope in science fiction, there is in fact some modest precedent for the idea under international law. The Order of Malta, for example, has no territory of its own, but it 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

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

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

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

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

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

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