[John H. Knox is Henry C. Lauerman Professor of International Law at Wake Forest University School of Law]

As Anthony Colangelo has already noted, the fundamental difference between the majority and the Breyer concurrence in Kiobel is that the majority opinion applies a presumption against extraterritoriality, and the Breyer concurrence a presumption against extrajurisdictionality.  Kiobel illustrates how stark the difference can be.  The majority’s refusal to allow ATS suits for torts beyond U.S. territory is likely to result in the dismissal of most ATS litigation.  The concurrence’s approach would allow the great majority of pending ATS suits to continue, as long as they did not extend beyond certain accepted bases for legislative jurisdiction under international law.  (Justice Breyer specifies the two most important bases, territory and nationality, and adds a third – a substantial and adverse effect on “an important American national interest” – that would appear to include not only protective jurisdiction and some types of jurisdiction based on effects, but also, as he makes clear, universal jurisdiction for a limited set of crimes constituting the modern equivalents of piracy, such as torture and genocide.)

As Anthony says, the Breyer concurrence more or less adopts his suggestion, which is to use international principles of jurisdiction in interpreting laws “designed to implement international substantive law,” such as the ATS.  I think that the Breyer concurrence ’s approach is also consistent with a more general use of the presumption against extrajurisdictionality in interpreting all federal laws, which I described three years ago in the AJIL.  Kiobel again illustrates the superiority of a canon linked to international jurisdictional norms to one based on a strict presumption against extraterritoriality.

Although the presumption against extraterritoriality has become the more commonly cited canon, the presumption against extrajurisdictionality is the one with the longer history.  An early offshoot of the Charming Betsy canon, it emerged in the piracy cases of the early nineteenth century (such as United States v Palmer) that are now erroneously cited as the first uses of the presumption against extraterritoriality.  The presumption against extraterritoriality branched off from the earlier presumption in the twentieth century, and attained its current pride of place only after being promoted by the conservative justices on the Supreme Court in a series of decisions since the late 1980s.  Over the same period, the presumption against extrajurisdictionality was reduced to lurking in the margins of Supreme Court opinions.

It deserves greater attention.  Two of the Court’s principal justifications for the presumption against extraterritoriality are predictability (which it cited in Morrison in 2010) and the avoidance of foreign conflicts (cited in Kiobel).  But predictability is obviously not served by overturning decades of settled jurisprudence from federal appellate courts, as the Court has now done for the second time in three years.  And while foreign governments may well be uneasy about assertions of universal civil jurisdiction for all human rights violations, there is no reason to believe that the concurrence’s limited bases for jurisdiction in accordance with international law would cause the same types of problems.

Let’s be clear:  the real motivation underlying the Court’s use of the presumption against extraterritoriality is the conservative justices’ dislike of the aggressive use of federal law, which the presumption gives them a convenient tool to restrict.  The concurring opinion shows that there is another approach, one that I hope a future Court will follow in construing the ATS and, beyond that, other federal laws.   

[John Knox is Professor of Law at Wake Forest Law School]

The Supreme Court’s decision to send Kiobel back for reargument on whether the Alien Tort Statute allows courts to recognize a cause of action for violations of the law of nations in foreign territory will focus attention on the presumption against extraterritoriality, as Anthony Colangelo pointed out in his recent post here. Here are a few more thoughts to add to Anthony’s interesting analysis of that possibility.

For a couple of reasons, the presumption against extraterritoriality doesn’t apply neatly to ATS claims, as the Ninth and DC Circuits said in their 2011 decisions in Sarei v Rio Tinto and Doe VIII v Exxon Mobil. The presumption is a rule of statutory construction, but Sosa made clear that ATS claims are products of federal common law — the ATS just provides a basis for jurisdiction over the claims. Moreover, everyone seems to agree that the scope of ATS claims must include piracy, which means that the reach of the law must extend beyond U.S. territory.

For the Court to use the presumption to restrict ATS claims, then, it would have to introduce a new wrinkle or two. It could say that it applies to jurisdictional statutes (or at least to this one), or it could adopt the presumption as a prudential rule suitable for common-law claims. Once it found a basis for using the presumption, it could say that the presumption is overcome for the high seas but not for foreign territory, along the lines of the Kavanaugh dissent in Doe VIII. In itself, such an outcome wouldn’t be all that surprising – the Court has often manipulated the presumption in creative (albeit inconsistent and unpredictable) ways, most recently in its 2010 decision in Morrison, which for the first time grafted a “focus” test onto the presumption.

However, the Court’s decision may turn on a different issue. In the oral argument, Chief Justice Roberts asked whether allowing ATS claims arising in foreign countries would violate international law. In principle, I’m all in favor of construing the scope of federal law in light of international limits on jurisdiction – in fact, I argued a couple of years ago in the AJIL that the Court should replace its presumption against extraterritoriality with a new and improved presumption against extrajurisdictionality.

Could the Court apply such a presumption here? In his dissent in Sarei, Judge Kleinfeld argued that the law of nations simply prohibits jurisdiction over “foreign-cubed” actions – that is, actions by foreign plaintiffs against foreign defendants arising from torts committed in other countries – even if the actions arise from violations of universally recognized human rights norms. In fact, Judge Kleinfeld’s sources don’t support that conclusion. There isn’t a flat rule against universal civil jurisdiction over certain human rights violations – but neither is there a clear endorsement of the principle. The Restatement says that international law doesn’t preclude such jurisdiction, but in a massive 2006 report on extraterritorial jurisdiction, a task force of the International Bar Association said: “Considering that the concept of universal civil jurisdiction is relatively new, that there are methodological disagreements, that state practice can be and is interpreted in different ways, that recent developments demonstrate ongoing changes and evolution in state practice, and that scholarship in this area reflects conflicting views, the committee felt that it would be most appropriate to recognize that there is a degree of uncertainty with respect to the concept.”

Generally, the Court shouldn’t treat the lack of certainty as the equivalent of a prohibitory rule, especially if the Solicitor General adopts the position of the Restatement. There is a real likelihood, though, that even in the absence of a clear rule, the Court may use the complaints of countries such as the UK and the Netherlands to justify drawing in the scope of ATS claims.

As in Empagran, the Court may say that even if the claim has a connection with the United States, the connection must be strong enough to make the exercise of jurisdiction not “unreasonable.” Or it may base its decision on comity, as Germany’s amicus brief urges it to do.

Either way, the result may be a step backwards in the implementation of human rights law.

[John H. Knox is a Professor at Wake Forest University School of Law]

My Essay tries to answer a simple question (simple to state, anyway):  What duties, if any, does human rights law place on states to address climate change?  At first, the answer may seem equally simple.  It may seem evident that climate change already violates human rights, including rights to life, health, and property.  As the Arctic warms, survival has become more difficult for the Inuit, for example, and shrinking glaciers endanger mountain communities that depend upon them for water.  If climate change continues unabated, the effect on human rights will grow in scope and severity.  To take the most dramatic example, rising sea levels will force millions of people to abandon their homes and, eventually, require the evacuation of small island states.  Since climate change threatens such massive interference with human rights, it may seem obvious that states must try to ameliorate its effects.

It is more difficult than it may first appear, however, to nail down whether and how climate change triggers obligations under human rights law.  For the most part, that law sets out vertical duties that states owe to their own people, not diagonal duties that they owe to residents of other countries.  There can be no doubt that states have vertical obligations to do what they can to protect their own people from the effects of climate change.  By themselves, however, those duties may not go far enough.  Because of our country’s wealth, size, and location, Americans are very unlikely to suffer harm from climate change as rapidly or drastically as residents of the Maldives, for example, one of the lowest-lying countries in the world.  At the same time, the Maldives cannot protect its citizens from climate change by itself.  Does human rights law impose obligations on the United States to help the Maldivians and others like them?  Are states’ duties under human rights law diagonal as well as vertical?

For the last two years, a group of small island states led by the Maldives has successfully pressed the UN Human Rights Council to consider the implications of climate change for human rights.  In response to a request by the Council, the Office of the High Commissioner for Human Rights (OHCHR) published a report in January 2009 concluding that climate change gives rise to obligations on states that extend not only to their own residents, but also to people living in other countries.  Not all states have accepted this conclusion, however, or its possible implications.

My Essay examines the connection between climate change and human rights law in light of the large and rapidly growing jurisprudence of human rights bodies on environmental rights.  The jurisprudence imposes strict procedural requirements on states, such as a duty to carry out environmental impact assessment, but it largely defers to states’ substantive decisions on environmental standards.  That approach makes sense in the context of the cases that have developed it, which have involved environmental costs and benefits felt within a single polity, which can decide for itself how to balance them.  The approach does not easily apply to harm such as that caused by climate change, however, whose causes and effects concern many different polities.

I argue that the solution is to look to the duty of international cooperation, which requires states to try to act as a single global polity to address the global threat of climate change.  By providing a basis for the application of the environmental human rights jurisprudence, this approach would allow states some flexibility as to the substance of their joint decisions, but only if they follow procedures designed to ensure full, well-informed participation by those most affected.  Moreover, the substance of decisions that result from such processes would not be entitled to complete deference: under no conditions could states allow climate change to destroy the human rights of the most vulnerable.

This issue continues to percolate through the UN human rights system.  In response to the OHCHR report, the Human Rights Council adopted a resolution in March, at its tenth session, encouraging its special rapporteurs and other special mandate-holders to consider climate change within their mandates.  At its next session, in June, the Council held a panel discussion on human rights and climate change, at which a surprisingly large number of governments made statements.  There seemed to be something close to a consensus among them that human rights law does have something to say about climate change.  What exactly that is will become clearer over time . . . although perhaps not quickly enough to help to avert the coming global disaster.

[John Knox is a professor at Wake Forest School of Law where he teaches international environmental law. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision.]

Roger’s, Dan’s, and Hari’s thoughtful posts explain why Massachusetts v EPA is an important case in several respects, particularly, of course, for international efforts to address global warming. Without downplaying the importance of the case, I thought I would devote this post to explaining why the case left me feeling happy, but far less than euphoric. From least to most important, here are three reasons why the Mass v EPA glass is half-empty.

First, it’s further evidence that the Supreme Court, composed of nine of the smartest lawyers in the country, assisted by two or three dozen of the smartest law clerks, is largely clueless about international law. I understand that the case didn’t address international law directly, but it did attempt to characterize briefly the international legal framework, and managed to average about one basic error per sentence. Can you spot the three mistakes in the following three sentences?

The first President Bush attended and signed the United Nations Framework Convention on Climate Change (UNFCCC), a nonbinding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of “prevent[ing] dangerous anthropogenic [i.e., human-induced] interferences with the [Earth’s] climate system.” The Senate unanimously ratified the treaty. Some five years later . . . the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions.

Answers at the end of the post.

Second, this decision was way too close, especially on the merits. Isn’t it kind of amazing, and appalling, that Justice Scalia received four votes for a dissent that would have allowed EPA to defer making a judgment on whether greenhouse gases cause or contribute to dangerous air pollution, on the ground that it might interfere with the president’s “comprehensive approach to climate change” (sic)? And that would have alternatively affirmed EPA on the ground that it has reasonably concluded that the science is still too uncertain to allow it to form a judgment on whether greenhouse gases endanger public welfare? And that would have alternatively affirmed EPA because carbon dioxide isn’t an air pollutant?

Third, by itself the case will not require effective regulation of greenhouse gas emissions in the foreseeable future, if ever. The Court held that EPA has the authority under sec. 202 of the Clean Air Act to regulate greenhouse gases, but it didn’t require it to do so. EPA still has a chance on remand to provide an explanation about why it shouldn’t. It’s hard to imagine any explanation passing muster with this Court, but the process of deciding and relitigating will take years, and who will be on the Court then? Moreover, the case only addressed EPA’s authority to regulate new cars. The envlawprofs listserv has debated whether the case paves the way for carbon dioxide to be listed as a criteria pollutant under sec. 108, which would open the door to a broader range of regulations, including on stationary sources like coal-fired power plants. Personally, I think it does, but it may take another round of litigation to convince this EPA. And listing a pollutant would merely require EPA to set a national ambient air quality standard (NAAQS). Setting a NAAQS for CO2 would be tremendously difficult and lead to further litigation. The last effort to tighten a NAAQS was delayed in court for over five years. And setting a NAAQS just begins the process; the next step would be for states to prepare implementation plans (SIPs) to achieve the NAAQS. EPA has to approve the SIPs, which takes time, and even after approval, SIPs often don’t attain the NAAQS. Many states have still, after decades of trying, been unable to bring themselves into attainment with the NAAQS for specific pollutants within their areas.

All this is kind of depressing me. So let me end by saying that the glass is half-full, too. Most important, it helps to puncture the bubble of unreality within which this administration has been living for six years. Like the Baker/Hamilton commission’s report on Iraq, the Court’s opinion is a tribute to fact. In brief, it says, “Climate change is a real problem. The U.S. government can do something about it. In fact, the Clean Air Act requires EPA to do something about it. EPA isn’t doing anything, and its excuses for not doing anything are too feeble to take seriously. EPA should get to work.” I completely agree with Dan that to have an effective international approach to climate change, the United States has to take the lead, as it did on ozone, by taking stronger actions on climate change domestically. The court’s opinion helps to pave the way for such actions. But to be effective, the next steps should be legislative. If we wait for EPA to fix this problem for us, we’ll be waiting a long time.

OK, here are the answers.

Error 1: The Court said, “The UNFCCC is a ‘nonbinding agreement’.” Wrong. The UNFCCC, like all treaties, is binding on its parties. See Vienna Convention on the Law of Treaties art. 26, probably the most fundamental principle in all of treaty law. What the Court probably means is that the UNFCCC didn’t require the parties to reduce greenhouse gas emissions. That isn’t the same thing.

Error 2: The Court said, “The Senate . . . ratified the treaty.” No, it didn’t. It provided its advice and consent. See U.S. Constitution art. II, sec. 2. Ratification of a treaty occurs when the president delivers an instrument of ratification to the proper recipient in accordance with the terms of the treaty. See VCLT art. 14.

Error 3: The Court said, “The UNFCCC signatories met in Kyoto and adopted a protocol.” The signatories didn’t meet; the parties met. Signing a treaty does not normally bind a signatory to it. Ratification or the equivalent is usually required. Certainly the UNFCCC requires it. See UNFCCC art. 22.

Are these minor mistakes? Well, they don’t affect the outcome of the case, but they’re mistakes that any halfway attentive student would avoid after taking one class in international law. What does it suggest that no one on the Supreme Court knows enough about international law to catch them?

[John Knox is Professor of Law at Wake Forest University Law School and a discussant in the Opinio Juris Symposium]



Hari’s paper describes the contributions law-and-geography and legal pluralism can make to understanding climate change litigation and, by extension, other important international problems. She contrasts this pluralist vision to a traditional view of international law, which is much more state-centric. Just how state-centric she sees it I found a bit unclear, but the gist seems to be that under the traditional approach, “formal nation-state consent” is necessary for the creation of international law, and that, perhaps, states are the only subjects of international law. Hari also refers, more approvingly, to a “modified Westphalian” approach, which seems to differ from traditional law in recognizing that non-states can be subjects, too.



Almost no one today believes that only states can be subjects of international law. To believe that, one has to close one’s eyes to fairly large areas of the law, like human rights law and international investment law. The modified Westphalian view, however, is very much alive and well, and in fact I think nearly every international lawyer is a modified Westphalian. I am, at least (although I prefer post-Westphalian, because that sounds cooler), since I believe both that state consent is the basis of international law and that non-states can and do have rights and duties under international law. (Actually, I have a human-rights vision of international law, according to which the true basis of international law is popular support, but I’m pragmatic enough to accept the existing system’s reliance on national-government decisions as proxies for the will of the people until and unless better proxies can be developed.)



The question, then, is how the pluralist approach is different from the modified Westphalian approach to international law. If I understand Hari correctly, she considers but rejects a version of the pluralist approach that would expand the concept of “international law” to include non-state actors in its creation, as too radical a change; instead, she would leave “international law” unchanged, but build (or recognize) a larger structure of “international lawmaking” around it. The idea is that non-states like California (in its climate change cases) and the Inuit (in their petition to the Inter-American Human Rights Commission), could be considered international lawmakers, even if the end-result of their activities wouldn’t be formal international law. For me, several of these terms call for greater specificity. It’s unclear, for example, whether under the pluralist approach the end-result of California’s and the Inuit’s actions could be considered law, but not international law; or international law, but not formal international law. Putting that aside, however, Hari’s main point is that the traditional approach is too constrained, and “seems to fit poorly how international law is actually made.” The pluralist approach, in contrast, provides an “expanded vision of how those relationships [e.g., between formal and informal dialogue”] might count as law.”



This argument seems to depend on the premise that there is an underlying reality that legal pluralism recognizes and that the traditional and modified Westphalian approaches don’t. But Hari sees the modified Westphalian position too clearly to claim that it doesn’t recognize a role for non-state actors; in fact, she describes how it does recognize such a role. The real difference therefore seems to be only in what we call what’s going on. And this is the nub of the problem, for me: I don’t see how merely calling California and the Inuit international law-makers “has the potential to be more effective than the existing, limited treaty regimes,” as Hari claims. She correctly says that international law as it exists today hasn’t solved the climate-change problem, but how would the pluralist approach be any better?



I could understand an argument for expanding the sources of binding international law, so that (for example) the IAHRC could issue legally binding decisions on governments (and, presumably, on the Inuit, too – why leave them out?) to do something about climate change. I could understand that argument, but not necessarily agree with it – I’m not sure I would trust the IAHRC, as much as I respect it, to do a better job than the existing system, with all of its problems. (For one thing, if the IAHRC had that kind of power, you’d start to see very different people appointed – by governments, naturally – to the IAHRC. Out with the Reismans, in with the Rehnquists.) But, as noted above, Hari doesn’t seem to be arguing for this change. Instead, she seems to be saying that enormous benefits would follow from merely calling California and the Inuit law-makers, even though the law they’re making isn’t what we would necessarily consider binding international law, or binding at all.



But why would that make such a difference? Again, the modified Westphalian approach can and does take into account what non-state actors do. And just because it doesn’t call bringing domestic cases, or petitions to expert bodies without the authority to make binding judgments, law-making doesn’t mean that it ignores the effects of those actions. More importantly, the modified Westphalian approach doesn’t deny that non-state actors can make international law. It recognizes, for example, that a differently empowered IAHRC could make binding decisions in cases originally brought by non-state actors. And hey presto, there’s already an IAHRC that does! The American Convention on Human Rights allows the other IAHRC – the Inter-American Human Rights Court – to issue decisions binding on parties to the Convention, and those decisions can arise in cases brought by the Commission in response to petitions like the one brought by the Inuit. Of course, the Europeans, more internationally minded here as elsewhere, have done away with the middle-commission and now allow non-state actors to bring cases directly to the European Court of Human Rights, which can issue binding decisions. I don’t think any competent international lawyer would deny that those decisions are international law, and that bringing cases to that court is part of a process of making international law, even though the petitioners are not states.



My point is that international law is already plenty diverse. It has many entry-points for non-state actors not only to influence the creation of international law, but to cause the creation of international law through institutions like international tribunals, treaty bodies, etc. I don’t see how the pluralist approach better captures what’s going on, or will necessarily accelerate the creation of such entry-points.



So what’s the problem? You call it tomato, I call it tomahto . . . . If Hari and other pluralists think their description is more accurate, what difference does it make? I see one possible adverse collateral effect. Despite Hari’s efforts to say California and the Inuit can be international law-makers even though they’re not resulting in (formal) international law, it seems to me that if you have an international law-maker, what they produce is by definition international law. And if we start calling non-binding decisions and norms “international law,” then we will cheapen the term. It’s completely understandable that Hari and others (including me, actually) want to make sure that groups like the Inuit have ways of entering the big tent of international law-makers. But we have to be careful not to devalue the very thing that they’re trying to get access to: the bindingness of international law.



The main benefit of international law – its raison d’être – is that it is binding, and that in particular it constrains governments. Governments aren’t the center of the international law universe for no good reason; they’re the center because they’re the loci of greatest power. Governments are the ones with the armies and the police forces, the courts and the prosecutors, the prisons and the interrogators. Creating a body of international law that constrains governments, even to the relatively small, inadequate degree that it does, has taken an immense amount of effort, and even that effort is under constant assault from those who argue that international law is meaningless. If the meaning of “international law” is expanded to include non-binding norms, then the effect will be that eventually all international law will be treated as non-binding. If everything is international law, then nothing is . . . which is exactly what the realist and “fortress America” critics of international law have argued all along.