Over at Volokh Conspiracy, I have some purely political comments - ie, criticism from a conservative stance - of President Obama’s speech last night.  I’m not cross-posting it here because it doesn’t really have a link to international law as such, but perhaps some readers might be interested.

Last spring I spoke at a Pepperdine torts conference addressing the globalization of tort law. Lots of famous torts scholars in the room, including my former classmate at NYU, Harvard Professor Jonathan Goldberg. I was the only international law guy in the crowd, which actually worked to my advantage given the topic. I chose for my topic what domestic tort law might be able to teach international law about apportioning responsibility among joint tortfeasors.

As of late I have been feverishly working on the symposium paper, and I have come to believe that there is a tremendous amount of fruitful research that could be done regarding the nexus between international law and domestic torts. It is a topic that intersects both public and private international law, a perfect issue for a guy like me who labors in both fields.

Of course the issue of apportioning responsibility for international violations is particularly relevant today, as non-state actors are increasingly charged with aiding and abetting human rights violations. Everyone is focused on whether corporations have rights and duties under international law and, if so, the appropriate standard for aiding and abetting liability (the “purpose” test vs. the “knowledge” test). Curiously, no one is focusing on whether corporations should be jointly and severally liable for a violation, or just severally liable. If a corporation was a minor player in an international law violation, should it be stuck with, say 10% of the damages, or 100%?

One of the issues that I have uncovered is whether public international law or private international law should govern the question of apportioning responsibility, and in making that determination if it matters whether the forum is a domestic court or an international tribunal. I’ll save that for a later discussion.

Assuming for the moment that public international law controls the question of apportioning responsibility, there is a vexing problem as to whether the traditional international law rule of individual liability should be applied, or if one should discern a general principle of international law based on the prevailing practices in most domestic legal systems, which arguably would impose joint and several liability on all joint tortfeasors.

Commentary to Article 47 of the ILC’s Draft Articles on State Responsibility states that:

It is important not to assume that internal law concepts and rules in this field can be applied directly to international law. Terms such as ‘joint,’ ‘joint and several’ and ‘solidary’ responsibility derive from different legal traditions and analogies must be applied with care. In international law, the general principle in the case of a plurality of responsible States is that each State is separately responsible for conduct attributable to it…. The principle of independent responsibility reflects the position under general international law, in the absence of agreement to the contrary between the States concerned.

But does that conclusion also apply now that non-state actors are subjects of international law? If a corporation, an individual, and a State jointly decide to torture someone, does the ILC rule of “independent responsibility” apply? By way of comparison, a review of most major legal systems reveals that joint and several liability is the norm for torts in which the parties acted in concert. If that is so, then one might fashion a general principle of international law from such practice and conclude that joint and several liability is appropriate.

So which is it? No one seems to be asking the question or thinking through possible answers. I’ll say more once the symposium piece is finished, but I just wanted to flag the issue for our readers now.

Our friends at the University of Goettingen in Germany have recently published another issue of the Goettingen Journal of International Law.  The latest issue contains lots of great stuff, including a series of articles focused on the recently concluded ICC Review Conference in Kampala (Talk about fast work!).  GoJIL, which is structured similarly to a U.S. law review, is still a new experiment for an European university, but they certainly have done a great job so far. And they promise more new stuff, including organizing an upcoming conference on “Resources of Conflict- Conflict over Resources.”  Their editors write:

We are proud to announce that the second Keynote-Speech will be delivered by Professor Marie-Claire Cordonier Segger, Director of the Centre for International Sustainable Development Law (CISDL) in Montreal, Canada; the first, as previously announced, will be delivered by Professor Bruno Simma, Judge of the ICJ. The response to our Conference’s Call-for-Papers was overwhelming and we are pleased to have some very distinguished scholars from all around the world present at the Conference and to publish their papers in a special issue in 2011. The Conference will take place from 7 to 9 October 2010; interested scholars and students are invited to attend the conference in the audience and can register on our website until 15 September 2010.

Via Jon Adler at Volokh, I note that the D.C. Circuit issued a fascinating series of opinions today on the effect of international law on the President’s execution of his warmaking powers.  As Steve Vladeck at Balkinization notes, the actual DC Circuit decision was simply a denial of a rehearing en banc of a panel’s earlier decision to reject a Gitmo detainee’s challenge to the legality of his detention under international law.  But the three members of the original panel, Judges Brown, Kavanaugh, and Williams, each appended a very long opinion explaining their further views on this case. While it is true none of it seems to be binding precedent, I hardly think the proper course for lower courts is just to ignore these opinions.  They plainly represent the views of a substantial number of the court’s judges and may eventually prevail.

The reason these opinions are important is that all are focused on the very important conceptual question of whether and how international law affects the President’s powers to conduct the war on terrorism under the authority granted to him by Congress in the September 11 resolution authorization the use of military force (the AUMF).  Two judges argue that customary law cannot limit the interpretation of the AUMF, and one judge suggest that, in some cases, it can.    For those of you outside the U.S. who wonder how the Obama Administration believes it has the authority to use targeted killings against Al Qaeda outside of Afghanistan, these opinions really offer the answer.  Whether or not international law recognizes an armed conflict against Al Qaeda, Congress plainly has authorized the President to engage in the use of military force against Al Qaeda.  On this theory, it really doesn’t matter whether there is an armed conflict as defined by international law. All relevant limitations stem from U.S. treaties and statutes, and not from customary law.

I think this view of how international law impacts the war on terrorism will ultimately prevail.  For the Guantanamo detainees (and for those targeted for killing by the Obama Administration), the correct strategy should be to emphasize their constitutional law arguments. I don’t think their international law arguments are likely to prove decisive.

Professor Pasha Hsieh of Singapore Management University School of Law has asked us to alert our readers about the following call for papers for the 2011 International Law Association Asia-Pacific Regional Conference scheduled for May 29-June 1, 2011 Taipei, Taiwan, Republic of China.

The Chinese (Taiwan) Society of International Law is pleased to hold the International Law Association (ILA) Asia-Pacific Regional Conference from Sunday, May 29 to Wednesday, June 1, 2011 at the Grand Formosa Regent Taipei, a Four Seasons Hotel, in Taipei, Taiwan, ROC. The theme of the conference will be Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges. This conference aims to provide a forum for international law stakeholders to explore the full range of international and transnational legal issues related to the Asia-Pacific region.

…

Proposals from both scholars and professionals are encouraged on any topic relating to international law with a focus on the Asia Pacific. Subject areas may include, but are not limited to, the following:

 General Public International Law

 The Use of Force

 Asia-Pacific Security

 Territorial Disputes

 Teaching and Research of International Law

 The Law of the Sea

 International Frameworks on Fisheries Conservation

 International Criminal Law

 International Protection of Human Rights

 International Economic Law

 The WTO, APEC and ASEAN

 FTAs and the Cross-Strait ECFA

 United Nations and Regional Organizations

 Private International Law

 Enforcement of Arbitral Awards and Court Judgments

Paper and panel proposals must be submitted electronically by December 20, 2010 to ila@nccu.edu.tw. A proposal of no more than 300 words should include the author’s name and full contact information. The conference committee welcomes proposal submissions and conference attendance from ILA members. The conference committee will select proposals and announce the outcome by the end of January 2011. Presenters are required to submit full, referenced papers by April 30, 2011. The Chinese (Taiwan) Yearbook of International Law and Affairs will publish the conference proceedings.

More details on the schedule and topics for papers can be found here.  Sounds like a great conference. I hope to attend myself!

The Washington Post is reporting that a State Department contractor has been charged with leaking defense information to Fox News:

A State Department contractor was indicted Friday by a federal grand jury in the District, becoming the latest target of a series of investigations into unauthorized government leaks to news organizations under the Obama administration.

Stephen Jin-Woo Kim, 43, then a senior adviser for intelligence on detail to the State Department’s arms control compliance bureau, was charged with disclosing national defense information in June 2009 to a national news organization, believed to be Fox News, and lying to the FBI. Kim pleaded not guilty before U.S. District Judge Colleen Kollar-Kotelly.

Although unnamed by the government, Fox News reporter James Rosen wrote a report posted June 11, 2009, saying that U.S. intelligence officials had warned that North Korea planned to respond to a new round of U.N. sanctions with another nuclear test. Rosen reported that the CIA warning was developed through sources inside North Korea.

According to the indictment, Kim disclosed “Top Secret-Sensitive Compartmented Information” that concerned the military capabilities of a foreign nation and intelligence “sources and/or methods,” which “could be used to the injury of the United States.”

I look forward to Marc Thiessen’s impassioned call for Fox News to be prosecuted for espionage and material support for terrorism!  After all, we won’t even have to extradite James Rosen.  (Although perhaps a drone strike would be easier.  Much less paperwork than drafting an indictment.)

I’m a little late (in blogospheric time) to comment on the ACLU/CCR lawsuit today challenging the legality of the Obama Administration’s policy on targeted killings of U.S. citizens. (Hat Tip WSJ Law Blog) Here is the complaint. It’s is not surprising. As I noted before, the ACLU has been making noises about this lawsuit for several months. And, at least with respect to the targeted killings of U.S. citizens outside an armed conflict, they have a pretty decent argument.

To their credit, the ACLU/CCR is making the narrowest possible legal challenge to targeted killings.  They are challenging ”the executive’s asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The challenge mainly rests on U.S. constitutional due process grounds and focuses only on the targeted killing of a U.S. citizen in Yemen, thereby sidestepping any confusion over the status of the war in Afghanistan or Pakistan.  The complaint also seems to concede that there might be circumstances where such a killing might be constitutional due to emergency circumstances or if the sufficient process was provided.  There is also a challenge based on international law and the Fourth Amendment, but I think the Due Process challenge is the strongest claim.

I am not an expert on declaratory injunctions, but I think that is going to be a problem, for reasons I can’t go into here in detail. I assume there will be a political question defense raised here, and I think declaratory injunctions are uniquely vulnerable to this type of defense. Second, although wisely styled as a rights-based challenge, there are lots of reasons to think the Obama Administration will point out it has broad authority from Congress to engage in this kind of targeted killing.  As a matter of domestic law, expect the Obama Administration to stand on pretty firm ground.

The main conceptual issue, though, is the problem of whether there really is an armed conflict outside of Afghanistan/Pakistan for the purposes of the war on terrorism.  If there isn’t, than presumably Congress’ authorization doesn’t extend to targeted killings to places like Yemen.  And the lack of an armed conflict would weaken the international legal foundation for targeted killings.

This has the potential to be a blockbuster lawsuit, forcing the centerpiece of the Obama Administration’s war on terrorism strategy to go under the legal microscope.  It could be a fascinating case, although I expect there to be innumerable procedural hurdles and delays before we get to any interesting parts of this case.

Brad Roth has sent along a link to this New York Times editorial, which begins:

If a country sinks beneath the sea, is it still a country? That is a question about which the Republic of the Marshall Islands — a Micronesian nation of 29 low-lying coral atolls — is now seeking expert legal advice. It is also a question the United States Senate might ask itself the next time it refuses to deal with climate change.

The editorial notes that while the Intergovernmental Panel on Climate Change has a “conservative” estimate of at least a 20 inch rise in sea-levels by the end of the century (excluding any effects of the possible melting of the Greenland and West Antarctic ice sheets), some studies predict a 4 to 7 foot increase. The editorial continues:

Officials in the Marshall Islands — where a 20-inch rise would drown at least one atoll — are not only thinking about the possibility of having to move entire populations but are entertaining even more existential questions: If its people have to abandon the islands, what citizenship can they claim? Will the country still have a seat at the United Nations? Who owns its fishing rights and offshore mineral resources?

The government of the Marshall Islands has asked Columbia Law professor Michael Gerrard for advice. Gerrard “notes that an island can become uninhabitable before the sea level rises above it, because even moderate storms can swamp any agricultural land and render freshwater supplies undrinkable.”

On a related note, see Duncan’s post from a couple of years ago on the Maldives.

I don’t want to get into a pointless back and forth with Kevin on the significance of Bashir’s visit to Kenya. I don’t think the details of his visit change my views much. It still seems much more like a slap in the face than a sign of the ICC’s power. But I think we can agree to disagree on this one (UPDATE: See Kenya’s Defense of the Visit as Necessary to Regional Peace).  After all, there are more important issues afoot.  For instance, yesterday’s NYT contained a (to me) stunning column by columnist Nicholas Kristof calling Obama’s Sudan policy a “failure” that could lead to a horrific bloodbath as soon as next year.  Here’s a line to remember:

For all his faults, President Bush inherited a war in Sudan and managed to turn it into peace. Mr. Obama inherited a peace that could turn into the world’s bloodiest war next year.

I have never claimed to be a Sudan expert, but folks like Kristof (who style themselves as Sudan experts of some sort) are beginning to raise the alarm.  The question though is, what exactly is the flaw in the Obama policy?  Is it not being tough enough on Sudan? Or is it being too tough? Kristof can’t seem to decide. His complaint seems to be that Obama is unengaged. (This seems to be a common complaint about Obama, and I think it is unfair. I am not an Obama supporter, but he does have a lot on this plate right now).

In any event, I think we can all agree that the goal here is to prevent the outbreak of another civil war, which Kristof seems to think is imminent.  I can’t see how the ICC arrest warrant helps this goal, at least in the short term.  The better strategy (which does seem to be the Obama policy), is to acknowledge the ICC arrest warrant, but to de-emphasize its importance.  I doubt fulfilling the arrest warrant will be a condition or a requirement of any new peace deal or even any new engagement with the U.S.    I agree that this is pretty horrible on a moral level.  But when you have no other options (and military action is not an option for this president), you have to live with horrible if it prevents mass murder and genocide.

Julian’s latest snide swipe at the ICC focuses on Bashir’s visit to Kenya, which he describes as a “slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant.”  Not surprisingly, Julian conveniently fails to mention the details of Bashir’s visit:

Sudanese President Omar al Bashir curiously flew in through Nairobi’s Wilson Airport, and not the traditional Jomo Kenyatta International Airport, The Standard On Sunday can report. And Kenya closed its airspace to facilitate President Bashir’s arrival and departure in a well co-ordinated and guarded operation known only to a few, sources said.

Prime Minister Raila Odinga was kept in the dark over the surprise visit, which has kicked off an international storm in view of President Bashir’s status as a wanted man at The Hague.

Security sources indicated that Bashir had negotiated his security and received guarantees before honouring Kenya’s invitation.

[snip]

He attended the national ceremony to promulgate the new Constitution but skipped the luncheon hosted at State House, Nairobi, by the President.

The Sudanese leader, whose arrival at Nairobi’s Uhuru Park in the company of Tourism Minister Najib Balala took Kenyans by surprise, has been indicted by the International Criminal Court (ICC) for allegedly perpetrating genocide and crimes against humanity in the country’s Darfur region.

So, Bashir snuck into Kenya without the Prime Minister’s knowledge, attended the Constitution ceremony, and then snuck out without attending the state luncheon.

Yep, that silly arrest warrant has had no effect whatsoever.  All heads of state sneak around behind the backs of their colleagues, don’t they?

So says a draft UN report that studied events in the Congo between 1993 and 2008:

An exhaustive U.N. investigation into the history of violence in the Democratic Republic of Congo has concluded that the Rwandan military and its allies carried out hundreds of large-scale killings of ethnic Hutu refugees during the 1990s that amounted to war crimes, crimes against humanity and possibly genocide, according to a confidential copy of the report.

The report - which runs 545 pages long and details crimes committed in Congo from March 1993 to June 2003 — represents the harshest U.N. account to date of the conduct of the ethnic Tutsi-dominated Rwandan government, which has largely been credited with liberating the country from the perpetrators of the 1994 Rwandan genocide.

Its release represents a political blow to Rwandan President Paul Kagame, who was re-elected president of his country this month in a landslide election victory that was marred by allegations of political repression against political opponents. His government denounced the U.N. findings as “immoral and unacceptable,” and Rwanda has sought to block the report’s release, according to U.N. sources.

The U.N. inquiry, which was conducted by a team from the U.N.’s Office of the High Commissioner for Human Rights, alleges that Rwanda and its military allies carried out systematic waves of well-planned, highly organized reprisal killings against Hutu refugees in the years after they fled across the border into eastern Zaire, now known as Congo, along with remnants of the former Rwandan military. It also notes that Rwanda’s ethnic Tutsi allies inside eastern Congo were also the target of mass killings and persecution.

The report documents more than 600 incidents of large-scale killings in Congo from March 1993 through June 2003, which it claims constitute war crimes and crimes against humanity. It notes that the “systematic and widespread attacks described in this report reveal a number of damning elements that, if proven, could be classified as crimes of genocide.”

Rwanda’s response — which includes threatening to stop cooperating with the UN, particularly with regard to peacekeeping — is predictable, given its long history of threatening to take its ball and go home whenever the international community dares criticize its (increasingly authoritarian) government.  But it will have a difficult time discrediting the head of the team that conducted the study and that authored the report, my friend Luc Cote, who spent four years as a prosecutor at the ICTR and three years as the chief prosecutor at the Special Court for Sierra Leone before taking over the UNHCHR mission.

Others have already commented on the leaked draft, so I will wait until the report itself is released to offer additional comments.  I did, however, want to respond to this statement in the Washington Post:

The report does not identify individuals believed responsible for the crimes documented in the report, naming only the armed group responsible for such crimes. But it noted that the U.N. High Commissioner for Human Rights, Navanethem (Navi) Pillay, would maintain a confidential database of alleged war criminals that could be used in the event that a court is set up to prosecute them.

There is, of course, a court that is already set up to prosecute at least some of the crimes mentioned in the report: the ICTR.  The tribunal has jurisdiction not only over crimes committed in Rwanda in 1994, but also over “Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994.” Any crime committed in the Congo during 1994 by a Rwandan citizen (which would include crimes committed by Congolese rebels in which a Rwandan citizen was complicit) is thus within the ICTR’s jurisdiction.

The ICTR has, to its great shame, continually turned a blind eye to crimes committed in Rwanda and the Congo by Kagame’s RPF forces.  Perhaps this report will finally spur it to action.

Our friend and OJ guest contributor Professor Greg Gordon passes along the following call for papers — for international law scholars and other subject areas for the Central Law Schools Association 2010 meeting. Full announcement after the jump:

Lots of ironies in this story about Kenya hosting Sudan’s President Bashir at a ceremony celebrating the establishment of its new “U.S.-style” Constitution.

NAIROBI, Kenya - Kenya’s president signed a new constitution into law Friday that institutes a U.S.-style system of checks and balances and has been hailed as the most significant political event since Kenya’s independence nearly a half century ago.

Joining African leaders at the festivities was Sudan’s president who faces charges of genocide and crimes against humanity in connection with violence in Darfur, where U.N. officials estimate 300,000 people have died.

This is quite a slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant. If Bashir is not prevented from traveling to ICC signatories like Kenya, then the arrest warrant looks even more toothless. As far as I know, the ICC Statute does not contain any sanctions for parties that violate its terms, but I suppose other states or the Security Council could penalize Kenya and Chad for their violations.  I don’t see this happening, which offers yet another reason to think the entire plan to arrest Bashir was probably a dumb idea to begin with.

It’s not often that you run into a story that combines international arbitration, Kremlin politics, post-Soviet autocrats, utopian urban projects, transnational networks, electoral politics, and chess.  So, read on…

According to the New York Times’ chess blog,

A lawsuit against the World Chess Federation will be heard by arbiters at the Court of Arbitration for Sport on Sept. 15 and 16, two weeks before an election for the presidency of the federation.

The lawsuit by five national federations and the presidential campaign of Anatoly Karpov is seeking to have the ticket of Kirsan Ilyumzhinov, the incumbent, disqualified.

A quick pause here to say a few words about the curious case of Kirsan Ilyumzhinov, who not only has been the president of FIDE, the World Chess Federation, since 1995 but is also the President of the Republc of Kalmykia, an autonomous republic within the Russian Federation.  The New York Times has described Ilyumzhinov as a “whimsical strongman.” (!?)  The BBC, however, notes that

Mr Iyumzhinov denies persistent accusations of diverting the republic’s resources for his own use as well as of human rights abuses and of suppressing media freedom. When Larisa Yudina, editor of the republic’s only opposition newspaper was murdered in 1998, he strenuously rejected allegations of involvement.

What is “whimsical” about a strongman who allegedly steals from his own people (and may even order them killed)? Why, that he would devote millions of dollars to construct on the windswept Russian steppes Chess City– a model city devoted to the glory of chess! (For a travel narrative of two American chess players going to Kalmykia to meet Ilyumzhinov– and many other Kalmyks–and visit Chess City, read The Chess Artist).

Suffice it to say that Ilyumzhinov has intertwined his personal reputation and his republic’s reputation (and finances) with international chess competition. And he is a polarizing figure both in Kalmyk politics and in chess politics. And now his fifteen year reign over the world Chess Federation is being challenged in an international sports arbitral forum… [more via the "Continue Reading" link]

The report is here.  I have neither the time nor the stomach to fully engage with it, but I couldn’t let paragraph 82 pass without comment:

82. The United States is currently at war with Al Qaeda and its associated forces. President Obama has made clear that the United States is fully committed to complying with the Constitution and with all applicable domestic and international law, including the laws of war, in all aspects of this or any armed conflict. We start from the premise that there are no law-free zones, and that everyone is entitled to protection under law. In his Nobel Lecture, the President made clear that “[w]here force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct…[E]ven as we confront a vicious adversary that abides by no rules…the United States of America must remain a standard bearer in the conduct of war.”

This is the clearest statement I’ve found that the US believes — wrongly — that the global war on terror formally qualifies as armed conflict.  (Which is convenient, given the US’s intention to ramp up drone strikes against Al Qaeda in Yemen.)

I also had a nice chuckle at the idea that the US “start[s] from the premise that there are no law-free zones, and that everyone is entitled to protection under law.”  That will certainly be news to the three men (at least) the Obama administration transferred to Bagram so they would not have the right to file habeas petitions, a move recently endorsed by the D.C. Circuit in Al Maqaleh v. Gates.

So reports Reuters:

The Dutch prosecutor’s office said on Friday it would look into whether Dutch peacekeeping soldiers should face criminal charges over the 1995 massacre in the Bosnian town of Srebrenica.

About 8,000 Bosnian Muslim men and boys were killed at Srebrenica after Bosnian Serb forces overran the United Nations-protected enclave where Dutch troops were stationed to protect civilians.

The massacre eventually led to the fall of a Dutch government in 2002 after a damning report by the Dutch Institute for War Documentation into the events surroundings the killings.

The Netherlands has always said, however, that its troops were abandoned by the United Nations, which provided them no air support in the U.N.-designated “safe area”.

In a statement, the public prosecutor’s office said victims’ relatives last month requested an investigation into the massacre, adding a probe would take several months to complete.

It said it would decide whether to hold a full-fledged criminal investigation after completing initial inquiries.

This is an interesting development.  I blogged a few months ago about a Dutch court of appeals decision upholding the UN’s immunity from a civil lawsuit brought by relatives of the Bosnian Muslims killed at Srebrenica.  That was almost certainly the right decision, both legally and practically — forcing the UN to pay damages would only undermine its peacekeeping efforts, however flawed they may be.  A criminal prosecution, however, is a different animal.  On the one hand, the UN would not be directly affected by convictions, and there is no a priori reason why peacekeepers shouldn’t be held accountable for international crimes.  On the other hand, it is reasonable to wonder whether prosecuting peacekeepers for failing to keep the peace would deter states from contributing peacekeepers in the future.  (This situation is a bit different, given that we are talking Dutch peacekeepers being investigated by Dutch prosecutors. I can’t see that happening in the US or UK.)

The other issue, of course, is whether the Dutch peacekeepers really did aid and abet the crimes committed at Srebrenica.  The Reuters article quotes a professor at Utrecht University as saying that “the legal criteria for allegedly aiding and abetting genocide seem not fulfilled here. The mere fact that civilians were handed over to the Bosnian Serbs is not sufficient for criminal liability.”  True enough — the prosecution would also have to prove mens rea.  But the professor’s claim still seems a bit hasty: as Furundzija established long ago, aiding and abetting genocide does not require the defendant himself to possess the specific intent required by genocide; knowledge that the principal offender possesses that intent suffices.  Moreover, even if the peacekeepers did not know that the Bosnian Serb troops intended to commit genocide, they might have known that the troops intended to kill the Muslim men and boys, in which case they might have aided and abetted various war crimes and/or crimes against humanity.

I’ll be keeping an eye on the situation.

OK, that’s not exactly the title of this piece at Huffington Post, but the observations from Gary Arndt about Americans and the World sound true to me.  Arndt has been traveling around the world since 2007, for no particular reason (see his travel blog here and yes, I’m very jealous of his life). Here are some my favorites from his list of 20 Things He Learned Traveling Around the World. Most seem about right to me.

4) People don’t hate Americans. I haven’t encountered a single case of anti-Americanism in the last three-and-a-half years. Not one. (And no, I don’t tell people I am Canadian.) If anything, people are fascinated by Americans and want to know more about the US. This isn’t to say they love our government or our policies, but they do not have an issue with Americans as people. Even in places you’d think would be very anti-American, such as the Middle East, I was welcomed by friendly people.

5) Americans aren’t as ignorant as you might think. There is a stereotype that Americans don’t know much about the rest of the world. There is some truth to that, but isn’t as bad as you might believe. The reason this stereotype exists is because most other countries on Earth pay very close attention to American news and politics. Most people view our ignorance in terms of reciprocity: i.e. I know about your country, why don’t you know about mine? The truth is, if you quizzed people about third-party countries other than the US, they are equally as ignorant. When I confronted one German man about this, I asked him who the Prime Minister of Japan was. He had no clue. The problem with America is that we suffer from the same problem as the rest of the world: an obsession with American news. The quality of news I read in other parts of the world is on a par with what you will hear on NPR.

6) Americans don’t travel. This stereotype is true. Americans don’t travel overseas as much as Brits, Dutch, Germans, Canadians or Scandinavians. There are some good reasons for this (big country, short vacation time) and bad ones (fear and ignorance). We don’t have a gap year culture like they have in the UK and we don’t tend to take vacations longer than a week. I can’t think of a single place I visited where I met Americans in numbers anywhere close to our relative population.

….

12) Everyone is proud of where they are from. When you meet someone local in another country, most people will be quick to tell you something about their city/province/country that they are proud of. Pride and patriotism seem to be universal values. I remember trying to cross the street once in Palau, one of the smallest countries in the world, and a high school kid came up to me and said, “This is how we cross the street in PALAU!” Even crossing the street became an act to tell me about his pride in his country. People involved in making foreign policy should be very aware of this.

13) America and Canada share a common culture. This may irk Canadians, but we really do share a common North American culture. If you meet someone overseas, it is almost impossible to tell if they are American or Canadian unless they have a particularly strong accent, or they pronounce the letter “z.” It is easier to tell where in England someone is from than it is to tell if someone is from Denver or Toronto. We would probably be better off referring to a “North American” culture than an “American” culture. What differences do exist (Quebec being the exception) are more like differences between states and regions of a similar country.

….

17) English is becoming universal. I estimated that there were at least 35 native languages I would have had to have learned if I wanted to speak with locals in their own tongue. That does not include all the languages found in Papua New Guinea or Vanuatu or regional dialects. It is not possible for humans to learn that many languages. English has become the de facto second language for the world. We are almost to a point where there are only two languages you need to know: whatever your parents speak… and English. English has become so popular it has achieved an escape velocity outside of the control of the US and UK. Countries like Nigeria and India use it as a unifying language in their polyglot nations. Other countries in the Pacific do all their schooling in English because the market just isn’t there to translate textbooks into Samoan or Tongan.

I wanted to flag for interested readers an upcoming event at the British Institute of International & Comparative Law (BIICL). On September 10, BIICL will host its Fifteenth Investment Treaty Forum, with a focus on recent developments in international arbitration procedure. Topics will include disclosure of evidence, state privilege, transparency of hearings, and whether or not investment arbitration is (or should be) different from commercial arbitration. Doak Bishop will provide the Keynote Address.  Other invited speakers include Alejandro Escobar, Vaughan Lowe and Lucy Reed.  For more information on the event and registration details, see here.

Last month the Second Circuit issued a remarkable ruling that threatens to upend the longstanding rule of successor state liability for the credit obligations of predecessor states. It did so by ruling that the automatic assumption of liability of sovereign debt of the predecessor state under international law is not a “commercial activity” within the meaning of the FSIA. In so holding, the Second Circuit ruled that without some affirmative action by the successor state, it is immune from liability for the commercial obligations of the predecessor state. In other words, each new state starts with a blank financial slate.

The case of Mortimer v. Germany, is complex, involving 1928 local public debt owed by the state of Prussia, a Länder within the German Republic. Following the Second World War, the German Republic was divided into West Germany and East Germany, and then united again in 1990. Thus, since the time the public debt was guaranteed, the government went through two state successions, one in 1949 and a second in 1990. Approximately one-third of the bonds were issued by obligor banks in West Germany, and the remaining two-thirds by obligor banks in East Germany. The current market value of the bonds alleged exceeded $400 million.

The bondholder sought to enforce the bonds against Germany, but to no avail. The Second Circuit ruled that with respect to the West Germany bonds the express assumption of liability for those bonds through enactment of “validation laws” constituted a “commercial activity” within the meaning of § 1605(a)(2), as affirmed in Republic of Argentina v. Weltover. But because the bondholders never validated the bonds the plaintiff, under the Iqbal pleading standard, “failed to plausibly allege that it either met the statutory validation requirements … or was not required to do so.”

The more significant holding is with respect to the East German bonds. East Germany never expressly assumed liability for the Prussian bonds. The question therefore, was whether the plaintiff could identify any “commercial activity” that would satisfy the FSIA standard. The Second Circuit concluded that the plaintiff could not.

“We hold that automatic assumption of liability by a successor state, even if established, would not meet the requirements of the FSIA’s commercial activity exception…. Accession to liability by the rules of customary international law entails no action by the successor state with respect to the commercial activity at issue—the assumption of liability. The state performs no action when it automatically assumes liability. This stands in sharp contrast to a country’s assumption of liability through an explicit act, such as West Germany did here. Because no “action” within the meaning of § 1605(a)(2) occurs when a successor state accedes to liability, the requirements of FSIA’s commercial activity exception are not met in that context and jurisdiction under the FSIA based on such an accession will not lie.”

The problem with this reading, of course, is that it completely ignores the original commercial activity of the predecessor state of Prussia in 1928. When Prussia guaranteed the obligations of the banks, that was a commercial activity under then-existing international law. The Second Circuit makes no mention whatsoever of this activity, nor does it recognize the retroactive application of the FSIA as affirmed by the Supreme Court in Austria v. Altmann.

The result of the Second Circuit’s holding is to render claims against the commercial debt of a predecessor state unenforceable, absent express assumption of liability by the successor state. It effectively transforms the customary international law rule of automatic successor liability for public debt into one of conditional successor liability. The effect of this ruling is to preclude creditors from enforcing all predecessor public debt against state successors, at least in the financial headquarters of the United States.

(Disclaimer: Tai-Heng Cheng and I wrote an amicus brief on the issue of successor liability in support of the plaintiff).