I couldn’t resist posting this rather scary video of a girl swallowed by a sidewalk sinkhole in Xi’an China. Sure, this doesn’t mean China won’t be a key and influential power in world affairs.  But it does remind us that China is not exactly the inevitable global juggernaut it is sometimes portrayed as.  This is actually not the first time this has happened recently in China. Luckily, this story has a happy ending… a taxi driver jumped in to save the day. (h/t shanghaiist)

Last week, the good folks at the American Enterprise Institute and the Federalist Society hosted a book roundtable on Taming Globalization.  In addition to John Yoo and myself, we were joined in a very lively discussion by Prof. Martin Flaherty of Fordham and Prof. Jeremy Rabkin of George Mason (with Jennifer Rubin of the Washington Post as moderator).  While John and I are certainly used to receiving some criticism from the left, we are both a little surprised when we are attacked from the right. So Prof. Rabkin’s criticism (around the 36:10 minute mark) of our view that the U.S. will continue to engage with most aspects of the international legal system was refreshing and challenging.  And Prof. Flaherty’s take on the book’s lack of originalism was also unusual.  For a further summary taste of the discussion, check out the event webpage. Special thanks to Michael Greve of AEI and Lee Otis of the Federalist Society for organizing this event.

One of the most popular arguments made against the Second Circuit’s interpretation of the Alien Tort Statute in Kiobel v. Royal Dutch Shell is essentially a policy argument:

How could it be possible for Congress to have intended to allow corporations to immune from claims of serious international law violations while at the same time allowing individuals to be liable?  

This policy argument, I pointed out here, makes the respondents’ legal position in Kiobel singularly unattractive.   The Supreme Court’s unanimous decision, however, last week in Mohamed v. Palestinian Authority makes this argument a little less unattractive.  In Mohamed, the Court held, 9-0, that the the Torture Victim Protection Act’s use of the term “individual” does not permit claims against organizational entities like the Palestinian Authority.  Although the Court does not explicitly say so, this would also shield corporations from TVPA lawsuits.

As Michael Ramsey notes at the always intelligent Originalism Blog, this decision is another triumph of statutory textualism over all possible methods of statutory interpretation. The Court’s unanimous embrace of statutory textualism, he notes, came despite some quite persuasive purposive or policy based interpretations made by the petitioners.  Indeed, the Court acknowledged that it is possible that the  ”Act would be rendered toothless by a construction of “individual” that limits liability to natural persons….But [such limitations] are ones that Congress imposed and that we must respect.”

The Kiobel Court may not ever reach the corporate liability issue, but if they do, Mohamed should offer respondents some cover for their positions.  To be sure, the ATS is a different situation because it offers no textual guidance at all on the corporate liability question. Courts are left to ponder whether implying corporate liability would fit within their ATS federal common law making powers. The Supreme Court has instructed them, in Sosa, to limit their use of international law to only those most universal and uncontroversial norms.

Whether corporate liability is one of those international norms has been the main field of dispute in the Kiobel briefing.  But even if it is not an international norm, the court still faces the question as to whether Congress would have wanted to imply a cause of action against corporate entities. The answer is not all that clear. They might have wanted to include corporate entities within the ambit of the ATS, but, as was the case in the TVPA, they very well might not have gone the other way.

I’ve been following the standoff between the Philippines Navy and Chinese “surveillance” ships in the South China Sea (or West Philippines Sea) with some concern. As I noted here, China has some rather expansive territorial claims in the South China Sea that countries like the Philippines are resisting.  But given the relative sizes of their navies, it is obvious that the Philippines cannot rely on military force to resist China’s claims. But I am doubtful that the Philippines’ attempt to invoke the UN Convention on the Law of the Sea or the International Tribunal of the Law of the Sea will have much effect here.  Here is China’s argument, according to a Filipino newspaper:

“Until 1997, the Philippine side has never disputed China’s jurisdiction of and development of Huangyan Island. On the other hand, the Philippines indicated on a number of occasions that Huangyan Island was beyond its territory. According to international law, including the United Nations Convention on the Law of the Sea, the Philippines’ claim of jurisdiction and sovereignty rights over Huangyan Island with the arguments of Exclusive Economic Zone is groundless. Unclos allows coastal states to claim a 200-nautical mile EEZ, but coastal states have no rights to infringe on the inherent territory and sovereignty of other countries,” it said.

China’s position is that this is a question of sovereignty, and not the Law of the Sea.  There is no basis for the ITLOS to assert jurisdiction over this dispute, without China’s consent.  This seems right to me.  Except that no one is sure exactly what the basis of China’s sovereignty claim is, but assuming it has one, then the Law of the Sea is not going to help the Filipinos out here.

I know these polls might not reflect a whole lot of deliberation or thoughtfulness, but still, it is amazing to me:

Nearly three quarters of Britons think human rights have become a ‘charter for criminals’, a poll has revealed.

It showed a strong majority of 72 per cent hold negative views about the role of human rights laws.

Only one in six said human rights had not become a charter for criminals and the undeserving.

This is not a good trend for the ECHR and it would be interesting to see if this type of popular opinion will make a difference in UK policy or reform of its implementation of the ECHR.

Ben Davis sends me this update on the new evidence submitted to the International Criminal Court against the Catholic Church.

Today, a survivor-led support group for sex abuse victims, which is under attack by U.S. Catholic officials, submitted to the International Criminal Court (ICC) new and extensive documentation that the organization says shows ongoing child rape by Catholic clergy and continuing cover-ups by bishops and Vatican officials. The Survivors Network of those Abused by Priests (SNAP) says the new evidence, submitted by SNAP’s attorneys at the Center for Constitutional Rights, underscores the urgent need to prevent future child sex crimes and cover-ups and hold church officials accountable for widespread

I assume that this new evidence is part of the difficult case for the clergy-abuse-victims at the ICC, especially in trying to establish that the abuses were a “crime against humanity.”  As I (and a bunch of commenters) suggested here back in September, this is a difficult, longshot case.  But the evidence is quite powerful, even if I still don’t see how it quite fits the legal requirements for ICC jurisdiction.

The faculty of Osgoode Hall Law School at York University in Toronto are either pretty gutsy, or totally insane…

After eight months of controversy, York University has dropped plans for a joint international law program with Jim Balsillie’s think tank, having failed to convince its law professors that academic freedom would be guaranteed.

And the collapse of the deal underscores how tricky public-private partnerships with the Ivory Tower can be, even as Queen’s Park is calling on the private sector to invest more in higher learning.

York officials announced the $60 million deal was off late Monday, just hours after the faculty council of Osgoode Hall law school voted 34 to 7 against working with Balsillie’s Centre for International Governance Innovation (CIGI) to create 10 research chairs in international law and funding for 20 PhD students. Eight members of the council abstained.

I don’t know the details, but $60 million for the study of International Law! Wow! And it’s in Canadian dollars, which is maybe the safest currency in the world!  Hey Mr. Balsillie, Osgoode Hall may not need your money, but [insert every school ranked below Harvard and Yale], America welcomes your loonies!

The Telegraph commits one of my pet peeves in this headline and article on the Greek Debt Crisis:

I seriously doubt Greek bonds were issued under “international law”. Rather, I am sure they were issued under the law of some other country (the U.K.?).  So why does even the Telegraph refer to it as “international law.” Is it a Britishism? Someone help me out here….

I sense there is a trend of domestically-focused US civil rights and labor groups seeking to make their case in international fora.

1) CCR announces that the Inter-American Commission of Human Rights has accepted a case from a Guantanamo detainee.

2) Labor and civil rights groups have filed a complaint in the International Labour Organisation challenging Alabama’s immigration law.

3) The NAACP has brought its voter-id case to the U.N. Human Rights Commission.

These actions generally follow failures (or likely failures) to win their cases in U.S. courts.  Interestingly, none of the bodies mentioned here have any binding authority over the U.S., but that is not the point.  They can and will put some international attention on U.S. policies, and perhaps rally a little bit of domestic concern as well.  Not much concern, but perhaps just enough to make it worth the rather substantial cost and effort.

Tod Lindberg of the Weekly Standard worries that the “pristine” legality of the Libya intervention (under international law, at least), is preventing the U.S. from taking similar actions again Syria.

As matters stand, intervention in Syria would be anything but a “model.” The real question for the Obama administration, however, is whether Libya has set a standard for intervention so pristine as to render the United States incapable of action in the absence of perfect conditions. Time is running out for the administration to demonstrate otherwise.

Harold Koh offered at the ASIL meeting a nuanced (and somewhat unclear) explanation of the U.S. government’s current policy toward Libya. Here is what I take as his key analysis of the effect of Libya on current policy on Syria:

In so saying, we specifically see no inconsistency between the U.S. approach to Syria and the U.S. approach to Libya. Neither our legal theories, nor our strategic objectives, nor our moral commitments have changed. What is different are the facts. As President Obama observed several weeks ago, in Libya we had “a UN Security Council mandate . . . and we knew that we could execute very effectively in a relatively short period of time.” As difficult as Libya was, the President added, “[t]his is a much more complicated situation. . . . [T]he notion that the way to solve every one of these problems is to deploy our military, that hasn’t been true in the past and it won’t be true now.” With respect to Libya, the Security Council of course adopted two important Resolutions, 1970 and 1973. The proposed Security Council resolutions on Syria have differed substantially from 1970 and 1973 in their terms. Moreover, from a practical perspective, it is by no means clear that the type of actions taken to protect Libyan civilians would have the same effect in Syria.

I don’t know about the practical difference an intervention would make in Syria and Libya. But I notice Koh has elided the (fairly justifiable) complaint by China and Russia that NATO did not exactly stick to “protection of civilians” in its NATO intervention, which suggests they won’t buy that cover story this time.  Which means Lindberg is probably right. There will be no Security Council authorization and therefore there will be no Syria intervention.

We are pleased and honored this week to host Professor Jan Dalhuisen, Professor of Law at King’s College London, a visiting professor at the University of California Berkeley, and the Miranda Chair at Catholic University Lisbon.  Professor Dalhuisen will share some thoughts on a topic we too often ignore here at Opinio Juris: the transnationalization of private law.

Professor Dalhuisen graduated from the University of Amsterdam, where he also received his PhD, and from the University of California at Berkeley. Prior to entering the academy, he served as an in house counsel to the oil and gas industry, thereafter as a senior investment banker in London. He is a member of the NY Bar, a frequent international commercial and foreign investment arbitrator, a Fellow of the Chartered Institute of Arbitrators in London,  a member of the ICSID Panel of Arbitrators in Washington, a member of the Advisory Board of Linklaters in London, and Of Counsel to the Miranda law firm in Lisbon.

He is the author of Dalhuisen on Transnational and Comparative Commercial, Financial and Trade Law (4th Ed. 2010,  Hart Publishing Oxford), and Dalhuisen on International Insolvency and Bankruptcy (Matthew Bender), several other books and numerous articles.

Welcome Professor Dalhuisen!

Here is an excerpt from my report on the Chevron-Ecuador Panel at this year’s ASIL meetings, published over at ASILcables.org:

In my view, the best way to understand Chevron v. Ecuador is as a marriage gone horribly wrong, where, as usual, the children are the biggest losers.  In this case, the “children” are theLago Agrio plaintiffs, most of whom are part of an Ecuadorian indigenous group and, as Prof. Judith Kimlinger of CUNY reminded the audience, the  real injured parties in this case.  These plaintiffs have borne the vast brunt of physical and environmental injuries resulting from the partnership between Chevron and Ecuador.   For most of the time that Texaco (which was acquired by Chevron after all of the key events had already occurred) operated in Ecuador, they did so in an effective partnership with the PetroEcuador, the state-owned enterprise formed by the Ecuadorian government.   This marriage/partnership lasted for decades, before it was terminated in 1990.  And although there was a “separation agreement” that included provisions to remediate areas that suffered pollution, both parties have accused the other of failing to fulfill its duties.  Things began to get out of hand in the late 1990s when a new law was passed in Ecuador making the domestic litigation against Chevron possible, and ultimately resulting in the massive (possibly fraud-laden) $18 billion judgment.