Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

I have to admit I am a bit surprised that President Yanai did not appoint any arbitrators from East Asia or Southeast Asia. As it turns out, the Annex VII tribunal will have four Europeans, three of whom are currently serving as judges on ITLOS.  Chris Pinto of Sri Lanka will be the only member of the tribunal from Asia (broadly defined).  I would have appointed a Chinese national and a Philippines national, which would be in keeping with the tradition of many other interstate arbitrations.

It turns out that I had the opportunity to meet Philippines Solicitor General Jardeleza, who is spearheading the Philippines arbitration team, just yesterday at an event sponsored by the U.S.-Asia Law Institute at New York University.  I got some great insights in to the strategy behind the Philippines’ decision to pursue arbitration, which I hope to share in a later post.  But for now we can say that the arbitration is going to happen, for sure.

If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

(Emphasis Added).  So the tribunal has a legal duty to consider the jurisdictional issue seriously and to ensure that the Philippines’ claim is well-founded.  No “default” judgments can be issued here (Nor would that be in the interest of the Philippines anyway).

Longtime readers know that I have often criticized (unfairly in many readers’ eyes) the snail’s pace of dispute resolution before the International Court of Justice.  I respect the ICJ as an institution, but I have never thought it has lived up to its potential as the “principal judicial organ” of the United Nations.  On the other hand, I will give credit where credit is due.  Unlike the U.S. Supreme Court, which is still battling over whether audio recordings of its oral arguments can be distributed live, the International Court of Justice has done a nice job putting video of its oral hearings online.  Like the International Tribunal for the Law of the Sea, the ICJ is not shy about putting videos online for the world to see and gape over.

Now, like the U.S. Supreme Court oral arguments, these arguments are not exactly the stuff of thrilling drama.  I admit I did not make it through the entire six hours of video on the recent Cambodia-Thailand Temple of Preah Vrear case (I made it through about six minutes, to be honest).  But it helps everyone who studies or practices before the ICJ, or simply wants to understand the ICJ, to be able to see the various submissions, the different orders, and the oral arguments, and the final judgment online.

Indeed, the ICJ arguments (video here) in the Temple of Preah Vrear case is getting pretty good play in Thailand, if these articles in the English language Thai paper The National are any indication (all of the top articles at this hour are about the ICJ hearing).  Indeed, one of the Thai government’s attorneys, Alina Miron, an associate of Thai counsel Alain Pellet, has become a social media celebrity in Thailand due solely to her performance during the oral argument.  It was the quality of the arguments, to be sure, but I have a feeling the fact that her personal appearance may have also made her a star.

Obviously, turning our attorneys or justices into celebrities is not important, but even so, the US Supreme Court could take a lesson from the ICJ here.  Sure, it may be impressive to shroud your processes and arguments in obscurity to make it seem more mysterious, but I don’t think it serves the long term interests of the institution.  Let the cameras in!

In addition to the Ku/Yoo essay in Forbes, I’ll just point out two more positive takes on Kiobel from FOBs (friends of the Blog).

In Lawfare, John Bellinger expresses satisfaction with the Roberts opinion, and takes some credit for raising the presumption against extraterritoriality issue in government briefs during the Bush Administration and in the first round of Kiobel briefing.  He also adds a quick note on Bauman, guessing that the Court will reverse on personal jurisdiction grounds and not reach the ATS issues.

In the WSJ, Eugene Kontorovich of Northwestern Law offers a more sweeping take on Kiobel. My favorite line: “Yet many who think the U.S. should not be the world’s policeman nonetheless want it to be the world’s judge.”  (One question: Is the converse also true?)

The whole essay is worth reading. He also offers a cautionary lesson for academic lawyers, most of whom failed to take the extraterritoriality issue more seriously. 

The unanimous vote in Kiobel also shows how the legal academy and bar tend to underestimate the strength of arguments that they politically disfavor. Foreign-cubed suits had proceeded for decades without any serious questions raised about their propriety. Instead, professors largely cheered them on. Nearly everyone anticipating the Kiobel decision (including myself) predicted a Supreme Court vote starkly divided on ideological lines. Yet all nine justices voted unreservedly in favor of ending ATS suits against foreign corporations….

Professor David Kaye has a thoughtful essay in the latest issue of Foreign Affairs analyzing the growing level of cooperation between the U.S. and the ICC.   He correctly notes that the U.S. is not only no longer actively hostile, but it has taken various steps in recent years to actively support the work of the ICC (most notably in Uganda against the LRA).

We’ve already discussed the relationship between U.S. conservatives and the ICC here, and I suspect the future of US-ICC cooperation will depend on the views of U.S. conservatives who can still muster 40 plus votes in the Senate (and may get more soon).  As Kaye notes, there is no prospect of U.S. ratification of the ICC Rome Statute now or in the foreseeable future. And the Palestine investigation that Kevin mentions below is going to return the ICC to the U.S. Congress’ attention in the context of Israeli relations, which is the absolute worst context for the ICC.

I would say the ICC’s only hope of US ratification one day lies in a slow cultural change. Perhaps this new NBC drama “Crossing Lines”  will help.  Then again, since it seems to propose that the ICC will operate with a shadowy investigative team of former cops, I wonder if this might backfire…

Our discussion of Kiobel has been fascinating, but it has been focused on the question of what exactly is left of the ATS in the future and what differences exist between the majority opinion and the various concurrences.

In our contribution today to Forbes.com, John Yoo and I focus on Kiobel’s significance in light of the history of ATS litigation.  Building on my earlier post on this subject, we argue that the real significance of Kiobel is its unanimous rejection of an interpretation of the ATS that would grant universal jurisdiction.

The Supreme Court’s unanimous decision last week to dismiss a lawsuit alleging human rights violations by Royal Dutch Shell in Nigeria is already being portrayed as a victory for big corporations over human rights victims. While the decision will allow some multinational corporations to avoid being sued in the United States for business activities overseas, the real significance of the Court’s decision is that it provides a wise example of judicial restraint and deference to the role of Congress and the President to set American foreign policy.

In particular, we argue:

Kiobel’s unanimous rejection of universal civil jurisdiction is thus the most significant part of its ruling. Writing for the Court, Chief Justice John Roberts held that the presumption that U.S. law does not apply to acts outside the territory of the United States should apply to ATS cases. Championed by Justice Antonin Scalia in an earlier 2010 decision involving the reach of U.S. securities laws, this rule forces Congress and not the courts to decide whether to apply U.S. law to foreign activity.

This common sense rule reserves for the political branches the crucial right to weigh the foreign policy consequences of subjecting foreign conduct to U.S. law. It also gives Congress a chance to determine whether it wants to give private plaintiffs the power to enforce such norms or keep it in its traditional home, the President and the executive branch.

So before we all end up in the weeds of interpreting Roberts’ last paragraph and Kennedy’s concurrence, let’s keep in mind the bigger picture.  Nine justices rejected the universal jurisdiction reading of the ATS.  Breyer’s concurrence would have preserved only Filartiga-style safe harbor cases under a weird (or at least creative) version of the protective principle.  This is already a pretty big shift in most observers’ understanding of the ATS, and, in our view, a welcome one.

One idea that Kiobel has put to rest (at least here in US courts) is the idea that the ATS could be fairly read as a grant of universal civil jurisdiction.  On this theory, the ATS could be applied to overseas activities if the nature of the alleged action was so heinous as to rise to the level of a universally proscribable crime (see here for Donald Donovan and Anthea Roberts’ take on this).   The Court seemed to take this idea pretty seriously in Sosa v. Alvarez-Machain.  At least, Justice Breyer seemed to do so in his concurrence to that decision.

That concurrence hinted that Justice Breyer was untroubled by ATS cases which satisfied the international standards of universal jurisdiction because such cases would be unlikely to cause friction with foreign governments. Here is Justice Breyer back in 2004.

…[R]ecognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement §404, Comment b. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. [citation omitted] Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well. 

Indeed, Sosa could have been read as a universal civil jurisdiction decision, although it was grounded in U.S. historical analysis that seemed to coincide with universal civil jurisdiction.  Still, as I noted before, Justice Breyer did not build on the Sosa concurrence in today’s Kiobel opinion.  Instead, he revived the quite rarely invoked “protective” principle to justify the ATS’ extraterritorial reach.  He then added that preventing war criminals from winning a “safe harbor” in the U.S. was within the protective principle (that’s a somewhat dubious interpretation to me).  This is a much narrower approach than I would have expected from his Sosa concurrence.

Indeed, I am somewhat surprised that this narrower Breyer approach, which would still have knocked out most ATS corporate lawsuits, did not manage to win Justice Kennedy’s vote. It certainly looks like it was designed to do so.  But having lost Kennedy, I guess Breyer figured he would simply go forward anyway with his narrower concurrence.  But this also means that the idea of “universal civil jurisdiction” under the ATS, both as a matter of law but also as a matter of justifying the ATS on policy grounds, is dead.  The heinousness of the crime alleged is not as important as identifying a distinctly American interest in the case. This really shifts the ground in the ATS public relations wars, and will be much harder for the ATS advocates to overcome.

[Apologies for all the random short posts, I think what make blogging interesting, sometimes, is that one can think out loud online.  Dangerous, I know, but fun too!]

Here is one quick take:  As Deborah noted below, the Supreme Court voted 9-0 that the Kiobel plaintiffs should be dismissed because their claims against a foreign corporation for actions in a foreign jurisdiction did not belong within the jurisdictional ambit of the ATS.

Five justices (including the sometimes squishy Justice Kennedy) voted to apply the presumption against extraterritoriality, an interpretive rule, to the ATS.  Although the language is a little mushy here and there, the court’s opinion makes very clear that the rule announced in Morrison v. National Australia Bank applies to the ATS.  In Morrison, the Court held that there is a broad presumption that congressional statutes are not meant to regulate extraterritorial activity unless there is a clear statement in the statutory text.  This presumption cannot be overcome simply because there is some minimal connection to the U.S, like being listed on the U.S. stock exchange or even doing business here.  The exact contours of this rule are a little fuzzy, for instance, it is somewhat uncertain what the rule would be if the defendant was a U.S. corporation, but it seems clear to me that most of the corporate ATS defendants will win dismissals from their ATS lawsuits after this decision.  Almost all of them are being sued for foreign conduct, and often through actions of foreign subsidiaries, and rarely with any action by the corporate actors based in the U.S.

It is also worth noting that the four justices who did not join the opinion, nevertheless would have voted to dismiss the case against Shell anyway because of the lack of a territorial nexus or connection to the national interest of the U.S. While the concurrers would have included preventing the U.S. from being a safe harbor for war criminals within the U.S. national interest, they would not have found that punishing corporations for their complicity with war crimes and torture abroad was enough to satisfy their test.

So this means that the ATS wars over corporate liability are almost over. I say almost because under the majority opinion, U.S. corporations might still be sued for domestic conduct and, perhaps, for foreign conduct if that conduct was also deeply connected with domestic acts.  This seems unlikely in most ATS cases, and it is worth noting that the severity of the crime that the corporation was alleged to have committed does not change the analysis, even under the Breyer concurrence.  A theory that the ATS can be justified in universal civil jurisdiction cases has been rejected, 9-0.

Bottom line: Corporate general counsels!  Rest easy, your long, transnational ATS nightmare is over!

Interestingly, the four liberal justices would have also dismissed the Kiobel plaintiffs on a different theory: that this case (involving actions by a foreign corporation against foreign plaintiffs in a foreign sovereign’s territory) does not “substantially or adversely affect an important American national interest…”  In other words, Justice Breyer seems to want to graft the “protective” principle of prescriptive jurisdiction onto the ATS, rather than the universality principle that I would have expected.  Here is a summary of Justice Breyer’s proposed reading of the ATS.

… I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.

It is worth noting that Justice Kennedy offered a very short concurrence. Here is the complete text of his concurrence, which should hearten ATS supporters that there is some room for future extraterritorial ATS cases (a very small room, I guess).

The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

Here is the bottom line of the Roberts’ opinion, which makes it sound like this whole ATS thing is really a simple application of Morrison v. National Australia Bank.

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

It also makes clear that “mere corporate presence” would not be enough to trigger US territorial jurisdiction under the ATS.  I sense a new litigation front opening up.

(UPDATE: Whoops, Ken beat me to the punch. Still, look here for more comments soon.) Here is the opinion. I am just going through it now, but it looks like the ATS is going to be severely restricted on territoriality grounds for the near future.  More from all of us later on today.

The Asahi Shimbun is running a couple of interesting features on the International Court of Justice and Japan’s relationship with it.  One essay features interviews with Japan’s current and former members of the ICJ: President Owada and former vice-president Oda.  The other explores what might happen if Japan were to somehow send its disputes with China and Korea to the ICJ.

“Since we are already facing such an explosive situation, it would probably be good for Japan to take action and suggest that China file a claim–and then respond in court,” said Yoshio Otani, 73, an honorary professor at Hitotsubashi University.

To date, however, the Chinese side has made no move to file a claim unilaterally.

“The stances of both countries with regard to the Diaoyu (Senkaku) Islands are too far apart to be able to bring the problem to a third party, including to the ICJ, for resolution,” said Xinjun Zhang, 45, an associate professor at Tsinghua University in Beijing. “The issue of territory, even domestically, is intertwined with ethnic pride. It is a very sensitive matter. Currently, it would be better to think about how to manage the issue rather than try to resolve it.”

I am not sure I agree with Prof. Zhang that the stances of the two countries are “too far apart” to go to a third party, since that is kind of always the case in these kinds of disputes.  But I do agree that it is hard to imagine the China-Japan dispute going to the ICJ.

Having said that, it might be smart politics for Japan to announce its willingness to take the Diaoyutai/Senkaku disputes to the ICJ, and put the onus on China to reject the offer. Japan is already becoming ICJ-savvy in the upcoming Australia Whaling case (hearing finally scheduled for June), they might feel like the ICJ is a good forum for them.   In our panel last week at ASIL, Stephanie Kleine-Ahlbrandt suggested that that Japan had already privately made such an offer, and had been turned down.  I wonder if it is now time for Japan to go public with this offer.  Then again, maybe it should sit still and wait and see how the Philippines arbitration turns out, since China has not so suffered any serious damage from their non-response to that claim.