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.

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.

Pierre N. Leval, a well-respected judge who sits on the U.S. Court of Appeals for the Second Circuit in New York, has published a full-scale no-holds-barred policy defense of the Alien Tort Statute in Foreign Affairs.   The essay, which is adapted from his lecture to the New York City Bar Association, offers the standard argument in favor of the Alien Tort Statute (it gives victims of human rights atrocities the possibility of justice and compensation).  And he offers a pre-rebuttal to a possibly negative ATS ruling from the U.S. Supreme Court in Kiobel v. Royal Dutch Shell: the fact that other countries do not permit similar civil suits does not mean the United States should also close its courthouse doors.  In fact, it is a good reason to keep them open.

But I found Judge Leval’s advice for foreign countries that might enact their own version of the ATS most interesting and revealing.

Human rights advocates should try to allay predictable objections to countries’ opening their courts. They should start by drafting proposed legislation with modest and realistic goals, building in limitations that may disappoint the most ardent activists but hugely increase the chances of success. For example, a proposed bill for a country should require the approval of the foreign ministry before each suit can proceed to trial and specify that a suit will be allowed only if the plaintiff has no access to just relief in the country of the defendant or in the country where the abuse occurred. The bill should also require a court to dismiss a suit when the defendant can show that the plaintiff has forum-shopped and has access to justice in a country far better suited to hear the dispute, on the condition that the defendant agrees to face trial in that other country’s courts. And it should require an initial showing of probable cause to stave off frivolous, politically motivated suits. Limitations such as these would do much to disarm or convert opponents.

I agree!  In fact, any law allowing for civil suits to enforce universal norms must have these kinds of political and foreign policy safeguards. And critics of the ATS in the United States have repeatedly noted that such safeguards do not really exist in the expansive and textually-unsupported interpretation of the ATS first developed by judges on Judge Leval’s court. Put another way, it is hard to imagine that a new bill in the U.S. Congress creating universal civil jurisdiction would pass without similar limitations.  So why should the courts feel comfortable giving the ATS such a widely expansive role if neither Congress nor any foreign legislature would ever enact such a law if given a choice?

As regular readers of this blog might have noticed, I have become more and more interested China and its engagement with international law issues.   Last year, I proposed to the ASIL Planning Committee that we put together a panel of leading U.S. China law scholars.  But the ASIL organizers pushed back and put together a much more diverse group than I had suggested, which included a U.S. China scholar like Jacques Delisle from Penn, but also Chinese international law scholars like Bingbing Jia of Tsinghua and then added a nice dose of on-the-ground policy analysis from Stephanie Kleine-Ahlbrandt of the International Crisis Group.  It ended up being a terrific mix of style, topics, and expertise.  We didn’t rate a “livestream”, but I wanted to share a few thoughts for our readers on what I think is an important topic. I am not going to attempt to summarize their comments, but simply offer some of my reactions to their key points.

The idea of the panel (at least to me) was to consider whether the “rise of China” in global affairs has changed much about how China interacts with international law. In my crude formulation, the question is now less about what “international law does to China” but more what “China will do to international law.”

Both of the lawyer-panelists (Jia and Delisle) focused on “sovereignty” as the most important principle guiding China’s understanding and engagement with international law.

The U.N. General Assembly has voted in favor of the Arms Trade Treaty, which would do what exactly?  Its proponents say it will create an international mechanism to regulate the international sale of arms and other weapons.  Its critics say it will infringe on the individual rights of citizens and nations to buy and possess weapons by requiring member states to keep national registries of end users.

I am probably more sympathetic to gun rights and the U.S. Constitution’s Second Amendment than most of my fellow co-bloggers, but my general take is that the National Rifle Association should not bother fighting this treaty. Earlier versions of this treaty could have given extra legal and political power to Congress for creating a more aggressive national gun and ammunition registry, but the final text is pretty weak on this point. It requires records of exports, but it only “encourages” records of imports.  For instance,

Article 12 Record keeping
1. Each State Party shall maintain national records, pursuant to its national laws and regulations, of its issuance of export authorizations or its actual exports of the conventional arms covered under Article 2 (1).
2. Each State Party is encouraged to maintain records of conventional arms covered under Article 2 (1) that are transferred to its territory as the final destination or that are authorized to transit or trans-ship territory under its jurisdiction.
3. Each State Party is encouraged to include in those records: the quantity, value, model/type, authorized international transfers of conventional arms covered under Article 2 (1), conventional arms actually transferred, details of exporting State(s), importing State(s), transit and trans-shipment State(s), and end users, as appropriate.
4. Records shall be kept for a minimum of ten years.

(Emphasis added).  A similar approach is followed in Article 3 (exports of ammunition) and Article 4 (exports of gun parts).  There is also no mandatory dispute settlement system, and a weak Secretariat with no enforcement or oversight powers.  With all due respect to Ted Bromund over at Heritage, I am not as worried about the philosophical issues he raises in this critique.

The bottom line is that as a practical matter, I don’t think this treaty can be used to regulate domestic use of firearms, or even the domestic registry of firearms.  In fact, I have doubts that this treaty will do much of anything for anyone given how weak its provisions are.  I have never heard the NRA worry about regulation of gun exports, and in any event, I am sure their members care little about that.

I would hope that the NRA will hold its fire on this treaty, and save its political credibility for laws that really would constrain the right of self-defense and the right to bear arms.  We’ll see.

I was struck by this line from an editorial in an Australian paper about the latest clashes between Sea Shepherd (e.g. the Ninth Circuit’s “pirates”) and Japanese whalers:

A depressingly large number of U.S. media outlets are covering the Italian Supreme Court’s decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal.

I say depressing because this is hardly the most significant international criminal trial going on these days. It is also depressing because most of the U.S. media coverage, and even the “expert” legal commentary, can’t seem to understand that if Italy requests Knox’ extradition, Knox has no double jeopardy defense.

The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty.  Article VI reads:

Extradition shall not be granted when the person sought has been convicted, acquitted, or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested

(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”).  The U.S. has never charged Knox with anything, much less with the murder of her UK roommate.  So Article VI does not bar Knox’ extradition to Italy. Period.

What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over).  The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment.  That is basically what happened here.  Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law.

So Knox had better get ready to be extradited, or she better get ready to move to Brazil. She has no serious double jeopardy defense here that I can see.  Now, if only someone would tell Alan Dershowitz.

Just in case there was any doubt, the Philippines-China arbitration over the South China Sea will go forward.  International Tribunal of the Law of the Sea President Shunji Yanai has appointed a second arbitrator.

The [Philippines] Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

As I discussed here earlier, China’s refusal to appoint an arbitrator does not in any way divest the arbitral tribunal of jurisdiction under the Annex VII of UNCLOS.  President Yanai now will appoint the remaining three arbitrators, as he would do whether or not China had acted to appoint an arbitrator.

The interesting question is what China will do now.  It seems likely that they will continue to ignore the arbitration and question its propriety.  But China can no longer claim that the arbitration cannot proceed without China’s participation.  This article from the reliably hawkish state-owned Global Times offers a pretty clear-eyed analysis, correctly noting that UNCLOS itself grants the ITLOS arbitral tribunal the power to determine its own jurisdiction, and that UNCLOS also specifies the procedure for appointing arbitrators.  It also notes that China’s position is going to be somewhat more difficult, and that the Philippines is using this legal proceeding to level the playing field somewhat in this maritime dispute.

The nationality of President Shunji Yanai has not gone unnoticed.  As this news broadcast puts it, “Expert Says Nationality of ITLoS President Detrimental to China”.  The broadcast (full of ominous shots of the Japanese flags (interspersed with ominous shots of the U.S. flag since the US is often believed to be behind the Philippines litigation) also notes that Japanese nationals have also acquired other important positions within UNCLOS.  If things start to go south for China in UNCLOS institutions, expect this little factoid about Japan’s nefarious control of UNCLOS institutions to pop up more often in the Chinese media.

China still has the option to show up to contest jurisdiction once the tribunal is constituted. I think they could still do that, and that they would have a plausible case against jurisdiction here. But it is seems that China is committed to its path of rejecting the arbitration. Indeed, if the tribunal finds they have no jurisdiction, China wins.  But if the tribunal rules it can hear the case, expect the denunciations of the Japanese- appointed one-sided illegal tribunal to start flowing.