Author Archive for
Austen Parrish

Kiobel Insta-Symposium: A More Positive Outlook for International Law

by Austen Parrish

[Austen Parrish is the Interim Dean and a Professor of Law at Southwestern Law School in Los Angeles.]

With Kiobel, the general mood among those in the human rights community is pessimistic. Because it curtails use of the Alien Tort Statute, viewing the decision as a loss is tempting. From this perspective, Kiobel is another indication that the Court continues to reinvent itself with a particular brand of conservative activism, the U.S. remains hostile to international law and its institutions, and corporate interests have won out over the protection of individuals. For others, the Court’s finding that the Alien Tort Statute does not redress claims of human rights violations by foreigners against foreigners on foreign soil is scratched up as win on the side of those pushing for tort reform, for those who believe there is too much litigation in the United States,  and for those who courts, as un-elected institutions, need to be carefully watched and constrained in the area of foreign affairs.  While those of a more conservative orientation have celebrated the case as ending litigation “run amok,” the reaction among many concerned with protecting human rights has been to decry the result and paint the case as a setback.

But there’s a different way to describe the case than these two narratives: one that’s more positive for international law and its institutions.  Viewed through a different lens, Kiobel is a case about whether the United States should privilege unilateralism over multilateralism, and whether it prefers international over pluralistic approaches to global governance.  The case may signal a modest retreat from a failed strategy of aggressive American unilateralism (viewed by other countries as illegitimate and legal imperialism) that has taken root in a number of public and private law contexts. In this way, to the extent Kiobel helps to inter unilateral regulation of foreigners for conduct occurring abroad – not just in ATS cases, but also in a wide-range of other contexts –  the case is not a setback for international law or human rights, but rather a vindication of them.   To reach this conclusion, one must believe that international law should generally be advanced through multilateral consensus, rather than unilateral means.  Unilateral extraterritorial regulation of the foreign-cubed variety, where one state purports to dictate conduct in another state’s territory, is in tension with international norms and basic principles of democracy.  It’s also a perspective that believes human rights become universal not through some sort of predetermined inevitability, but only through careful building of alliances and legitimacy between different groups joined in purpose.  The concern therefore should not be that U.S. courts will become the world’s courts.  Rather it’s that any court, in any nation, can assert authority to right what it perceives to be the world’s wrongs.  If human rights involves contested ideals, it’s unclear that the human rights community should desire that sort of pluralistic experimentation.  While we may be comfortable with a U.S. court developing human rights norms, there’s a significant question whether other courts will develop human rights tendentiously or not, or whether those conceptions of human rights will be more illiberal and non-western, or at least different than ours.

Through this lens, Justice Breyer’s concurrence takes on greater meaning than Chief Justice Roberts’ opinion or even Justice Kennedy’s.  The Roberts opinion was hardly surprising.  It tracked what the Court had done in Morrison and how the Court’s more conservative justices had generally interpreted the presumption against extraterritoriality.  Commentators may disagree whether the use of the presumption was doctrinally correct, but the opinion was broadly consistent with how other jurisdictional statutes have previously been interpreted.  Rarely has the Court found that Congress intended to use all the power granted to it under international law or the U.S. Constitution (see, e.g., the interpretations of the…

A Response to Milanovic: The Lure of Extraterritoriality

by Austen Parrish

Austen Parrish is a Professor of Law and the Vice Dean at Southwestern Law School.

I’m grateful to Opinio Juris for inviting me to comment on Marko Milanovic’s book on the Extraterritorial Application of Human Rights Treaties. The book makes a meaningful contribution to an increasingly important issue of treaty interpretation, and the book’s sweeping treatment of how different courts and entities have addressed whether treaty-based human rights obligations apply beyond borders deserves praise. Few authors have provided this sort of detailed doctrinal description, and none to this degree of thoroughness. For these reasons, the book is a valuable resource.

Because I see much to praise in Marko’s work, my comments are less in the form of a critique and more in the form of a set of observations, with the hope that they will spur further discussion. Given space constraints, I’ll limit myself to three.

First, a key assessment underlying much of the book’s prescription is that current approaches to jurisdiction are often unprincipled and conceptually confused. Marko is likely correct in that diagnosis. But is that a bad thing? Unlike Marko, I’m not as convinced that this confusion is necessarily problematic, at least if I confine my objectives to the goal of promoting human rights. Broadly interpreting human rights treaties to be geographically unbounded will not for certain advance human rights. Nor do I believe Marko’s particular prescription – advocating for a distinction between positive and negative obligations – will necessarily do so either.

Morrison and Extraterritoriality: More Thoughts

by Austen Parrish

[Austen Parrish is a Professor of Law and Vice Dean at Southwestern Law School.  His scholarship focuses on extraterritoriality and the uses of domestic law and courts to resolve transboundary challenges.]

The decision is yet a day old, and already much has been said about Morrison.  As Julian notes, there is a lot to ponder in the case.  But some quick initial reactions perhaps are worth making.

In some ways, the case is not remarkable.  The decision and concurrence are as much focused on classic debates over statutory interpretation and the relationship of the courts to the legislature than anything peculiar to extraterritoriality.  Justice Scalia, applying a robust presumption against extraterritoriality, embraces a clear statement rule: the court should not presume that Congress intends to regulate the overseas conduct of foreigners absent clear and unmistakable evidence of Congressional intent.  The concurrence, written by Stevens, in contrast reflects a greater willingness to engage in a broader search for legislative intent.  While conflicting rationales may exist behind the decision, the Court as a whole is nervous over broadly expanding the geographic reach of U.S. laws absent at least some evidence that Congress intended the laws to apply so broadly.  Unlike in the antitrust context, Congress had not revised the anti-fraud provisions of the Securities Act to define the scope of its application in cases involving foreign elements. To this extent, the opinion is in line with the Court’s other recent pronouncements involving extraterritorial laws, such as in cases like Microsoft v. AT&T (2007), Small v. United States (2005), Spector v. Norwegian Cruise Line (2005), F.Hoffman-La Roche v. Empagran (2004) etc., where the presumption against extraterritoriality, in varying degrees, has been consistently reaffirmed.

In other ways, however, the case could potentially have wide ranging implications.  The case emphatically sweeps away the prior understanding of many lower courts that the U.S. Securities Law can apply to fraudulent investment deals outside the U.S., if those deals have some effect within U.S. territory.  The opinion, however, has implications in other contexts, separate and apart from the securities laws.  Over the last few decades, the so-called effects test has been used increasingly by courts as a way to allow U.S. courts to remedy transnational harms.  No longer limited to the antitrust or commercial contexts, courts apply all sorts of public and private laws to activity occurring abroad.  Courts have done so even when Congress has been silent, and no legislative intent can be found.  Several courts have assumed extraterritorial jurisdiction based on the fiction that Congress inevitably intends to regulate all conduct where adverse effects are felt within the United States.  The decision in Morrison should curtail that controversial practice.

The opinion may also have a very immediate impact.  The Court is considering whether to grant certiorari in the case British American Tobacco Co. v. United States. That case, in the context of the U.S government’s RICO suit against the tobacco industry asks whether civil RICO applies to the overseas conduct of a British defendant.  In that case, the D.C. Circuit bypassed the presumption against extraterritoriality and held that once an effect is felt within the United States, extraterritorial jurisdiction may be presumed.  The D.C. Circuit went beyond earlier lower court decisions that suggested that when an effect is felt in the United States, the presumption is reversed.  On Monday, the Court will announce its decision whether to accept certiorari in the BATCO case.  As John Elwood has pointed out over at the Volokh Conspiracy, it “may be that the Court simply decides to grant, vacate, and remand [the BATCO case] in light of [the Morrison] decision.” .  An amicus brief on that case, in which I was involved, can be found here.

While I have mixed emotions as to whether a clear a statement should be required from Congress or whether legislative intent to regulate extraterritoriality can be ascertained in other ways, the Court’s decision seems a step in the right direction.  A patchwork of incompatible rules has governed issues of extraterritoriality.  Although many scholars are nervous about a broad reading of the presumption against extraterritoriality, Morrison reaffirms the continuing importance of that canon of construction and should therefore make it easier for lower courts to apply.  More importantly, the case should temper the excesses of a broadly read effects test, which in recent years has given U.S. courts near universal jurisdiction.  As I have argued elsewhere, the effects test is problematic for a number of reasons and limiting its import through use of the presumption against extraterritoriality, seems a positive development.

A final point.  Although the more conservative and the more liberal members of the court are in general agreement that legislation should not be automatically read to apply to foreign conduct, the rationale behind that agreement is likely very distinct (more so than what is revealed by the Scalia-Stevens sparring over statutory interpretation).  While the more conservative justices are concerned about canons of construction, clear statement rules and legislative prerogative, the court’s more liberal members appear concerned with unreasonably interfering with the sovereign interests of other nations and to avoid unnecessary conflict between nations.  How this alliance will play out in other cases on the margins, particularly non-market cases involving environmental, labor, and other public laws, is less than clear.

A Response: Reciprocal Unilateralism

by Austen Parrish

As an initial matter, thanks to Professor Craik for his kind and well-thought out comments to our article. I should note that Neil has done some wonderful work on transnational environmental governance and the use of environmental impact assessments. Just as one example, his paper on deliberation and legitimacy in transnational environmental governance is excellent and well worth the read.

But on to the task at hand… To a large extent, Neil agrees with our analysis on the loosening restrictions on extraterritoriality. Yet Neil is somewhat unconvinced of our overall thesis. He emphasizes that there remains substantial disincentives for Canadian provinces to embrace unilateralism in the form of enacting a statute that would permit transnational litigation. Neil then outlines what he perceives to be the key remaining barriers to suit. Certainly, Neil is correct on one level. Disincentives for suit still exist. But I’m less convinced than Neil that they are insurmountable as they once were. Let me explain.

First, Neil describes the various transgovernmental networks at play in the U.S.-Canadian relationship, where he believes policy may more likely be influenced. As a descriptive matter, Neil is correct to point out the existence of a whole host of transgovernmental cooperative activities, some formal and some informal. Many subnational actors engage in an ongoing discourse over environmental policy impacting the two countries. But it’s difficult to see how these networks meaningfully reduce the likelihood of transnational litigation. Those networks appeared impotent to stop the filing of the Pakootas lawsuit, or to reduce tensions in other recent heated cross-border disputes, such as Devils Lake, the Softwood Lumber impasse, oil drilling in the Arctic National Wildlife Reserve, and many others. Some of the cooperative activities that Neil highlights support, rather than undermine, our thesis. As I discuss in this article, the Great Lakes Compact and Agreement, for example, specifically include citizen suit provisions, permitting for the first time cross-border litigation as a means of enforcing the terms of the Compact. And ultimately, how successful these transgovernmental networks have been is far from clear. Although Ontario filed formal comments objecting to the EPA’s New Source Review Program under the Clean Air Act, what weight, if any, those comments were given is uncertain. Some believe the comments fell entirely on deaf ears, or at least were given much less weight than the concerns of other U.S. stakeholders. In fact, Ontario has had a long history of objecting to U.S. environmental regulations as being insensitive to Canadian concerns (think of the 1980s with Acid Rain). If anything, history suggests that the sort of relationship that Ontario has tried to cultivate with the state governments has not been terribly effective in protecting Canadian interests.

Neil then turns to the jurisdictional hurdles that remain. Neil believes that any statutory approach taken toward remedying Ontario pollution would need “to seek damages from polluters regardless of location.” We agree. Ontario has its own housecleaning to do, and would need to enact a neutral statute, similar to the one that existed in Imperial Tobacco. We do not suggest that Ontario could enact a statute that discriminates solely against foreign (i.e. U.S.) polluters – such a statute would surely fail. We also agree with Neil’s observation that Canada’s position on extraterritorial jurisdiction is “less fulsome than the American position.” But as the U.S. has broadly interpreted the effects doctrine to permit prescriptive and legislative jurisdiction in a wide-range of contexts, other countries have started also to permit extraterritorial jurisdiction when substantial effects are felt within their countries. The result has been a dramatic rise in the last decade of other countries extraterritorially applying their laws (from antitrust, to securities, to human rights, to criminal law claims). Why Canadians would buck these world-wide trends is unclear. Viewed from a different perspective, if the U.S. increasingly relies on extraterritorial laws without considering comity (e.g., Pakootas, but also other cases like Hartford, where a multilateral balancing approach incorporating comity concerns was rejected), Canada may have little choice but to engage in a tit-for-tat strategy, despite that strategy being antithetical to its long-term goals.

In the end, Neil and I are more in agreement than disagreement. Neil is right on point when he concludes that “unilateralism lacks predictability, and ultimately, it lacks any transformative potential to create a shared normative vision regarding common threats to the natural environment.” But I think Neil’s position – like mine – is an outlier among current international legal theorists. Few scholars seem concerned about the use of domestic courts to solve transnational problems, while at the same time encouraging and embracing multilateral agreements. In fact, academics perhaps should be concerned how current international scholarship has become so polarized on this point. On the one hand — to use a term often ascribed to Peter Spiro – “sovereigntists” appear content to generally attack international law and its institutions as a threat to American uniqueness, without providing an alternative approach to serious transboundary challenges. On the other hand, many internationalists encourage the use of extraterritorial laws despite the long-term drawbacks and the potential to undermine the development of more meaningful international law. Look at the burgeoning literature encouraging the use of the Alien Tort Statute as a means of redressing human rights abuses under universal jurisdiction (as an aside: I’d be interested in what others think on this broader point; I hope readers will comment.) The result is that Neil, Shi-Ling, and I may be on the fringes when we see extraterritorial lawsuits as a method for bringing uncooperative partners back to the bargaining table. (If you’re interested, I’ve explored this last issue, international legal theory, the global growth of extraterritoriality, and the decline of multilateral lawmaking, in a new paper.) Given all this – and the changes in law and science that make such suits more plausible than before – Canadians might well be wise to seriously consider extraterritorial transnational litigation as a pragmatic necessity.

One last point, before our guest stint ends. I wanted to extend some thank yous. First, thanks to VJIL and Opinio Juris for hosting this forum: a great idea. I should also have mentioned that the portion of our article describing the Devils Lake dispute drew heavily from the work of Opinio Juris’s own Duncan Hollis. Duncan’s work on Devils Lake and his scholarship on state consent and the changing sources of international law is first-rate. Second, I think I speak for both Shi-Ling and myself when I say working with VJIL has been an excellent experience. The journal’s suggested edits to our article were on point, meticulous, and well-thought out. VJIL provided us with timely suggestions and feedback in easy-to-understand redlines. The article was taken quickly to publication, and the board was responsive to our emails and requests. In short, we were very pleased to have decided to publish with VJIL. From an author’s perspective, VJIL’s reputation as one of the nation’s premier international law journals is well-deserved. In particular, special thanks goes to Naja Armstrong-Pulte for her careful edits, and to Christopher Hammer and Chris Ripple for their help in the other stages of the production process.

The Risk of Using Domestic Law to Solve Transboundary Harm

by Austen Parrish

Shi-Ling nicely describes the crux of our article, and the different perspectives that we brought to the project. Here – very briefly – I wanted to take a step beyond our paper and elaborate on my nervousness over using domestic laws, applied extraterritorially, to solve transboundary (or international) problems. What Shi-Ling accurately describes as my lament.

I agree with Shi-Ling that sometimes subnational litigation may be necessary to provide some relief to otherwise intractable problems. Our article, of course, advocates a transboundary lawsuit. Certainly it makes sense for Canadians to explore using domestic environmental regulations to remedy U.S. pollution having a substantial effect and causing significant harm in Canada. This is particularly the case when the U.S. seems disinterested in seriously exploring bilateral or diplomatic solutions, and when the U.S. itself has commonly unilaterally applied its own domestic laws extraterritorially in a wide-range of contexts. The pending Pakootas v. Cominco case (the Trail Smelter dispute) currently on cert. petition to the U.S. Supreme Court — where CERCLA has been applied against a Canadian company for activities solely occurring in Canada – may well cause Canadians to rethink their reluctance to extraterritorially apply their own laws.

But to my mind, extraterritorial lawsuits (i.e. transnational litigations) are problematic. In some ways, recent international legal scholarship has encouraged these suits. Sovereigntist/revisionist scholars have pushed internationalists to turn domestically with their sustained attack against international, multilateral instruments as a threat to American democratic sovereignty. On the other hand, internationalists have also turned away from traditional sources of international law and multilateralism, believing the traditional view that international lawmaking should be the sole business of nation-states to be anachronistic. Instead, substate/nonstate actors are encouraged to create and enforce international law. The academy is filled with international scholars who now embrace constructivist, pluralist, and transnational perspectives.

Yet I suspect that extraterritorial lawsuits undermine what both groups of scholars value most. States applying their domestic laws extraterritorially (i.e., asserting their own legislative or prescriptive jurisdiction) undermines the collective determination of states to resolve disputes bilaterally or multilaterally. In short, domestic lawsuits may threaten the creation of meaningful international laws. Scholars who are skeptical about international law as a threat to democratic sovereignty should be even more concerned. Extraterritorial lawsuits lead not only to patchwork solutions, but also are antithetical to democratic self-rule. In fact, extraterritorial lawsuits threaten democratic sovereignty to a much greater extent that international law ever has. So as much as I believe a Canadian lawsuit is possible to remedy transboundary pollution, broadly speaking I am nervous about what it portends for international law. In the long-term, bilateral and multilateral treaties (and their institutions) often will remain the best way to address transboundary challenges.