Author Archive for
Peter Spiro

Samuel Moyn Applauds the Death of the Alien Tort Statute

by Peter Spiro

Columbia University historian Samuel Moyn has a tough post up on the Foreign Affairs website on Kiobel and the arc of the Alien Tort Statute, which he sees as having served the narrow constituency of us rather than being true to the historical origins of human rights:

The ATS has been a boon for U.S. law schools, in which students rightly interested in saving the world have been taught to view the statute as an all-powerful tool. But the popularity of the law might have led them to neglect the fact that it offers only a quick fix for a few people with access to U.S. courts, not fundamental change.

The takeaway, with which I’m sympathetic: human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.

Far better would be to move on to other ways of protecting human rights — less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. If it moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble.

I’m sure there will be room for both paths, that is, for some to keep at it with the ATS while others look to put non-judicial mechanisms better to work. But one takeaway for US law schools would be to give a little more play to the latter. Pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.

Will the Bangladesh Factory Tragedy Kill Voluntary Corporate Codes?

by Peter Spiro

Probably not. The tragedy in Bangladesh — more than 400 dead — on the heels of a fire there in November, is no doubt casting a negative light on non-governmental certification schemes.

But there’s no clear alternative. Voluntary codes of conduct are now routinely subject to institutionalized third party supply-chain monitoring (evidenced by the fact that a number of monitoring firms are themselves publicly traded companies). Obviously, the system is coming up short, as critics vigorously note (see, for instance, this labor-funded study released last month). Many are pushing for something that looks more like public regulation. In that view, the recent Bangladesh episodes look like the global equivalent of the Triangle Shirtwaist fire in 1911, which ushered in the modern era of workplace safety regulation in the United States.

That’s not the the way it’s going to play out, at least not for now. The capacity just isn’t there, either nationally or globally, to fully legalize labor rights. But there are new approaches mixing private-public components that are gaining traction. The most notable example, at the global level, is the UN Guiding Principles on Business and Human Rights. That may set a long-term baseline from which to refine labor rights and other norms into workable practices on the ground. In an interesting (and well-timed) essay in the Boston Review, MIT’s Richard Locke sees promise in regulation by host governments, even in the developing world. Public regulators can overcome capacity deficits by taking a more measured, strategic approach, using carrots to create conditions (e.g., transparency) that improve the effectiveness of private schemes. In the end, only the state can create the level playing field necessary to their success.

The result is some form of polycentric governance, for what that’s worth. The Bangladesh tragedy is training unprecedented attention on the question of how better to hold corporations to human rights norms, defining it as one of the major issues of globalization. It may be, as John Ruggie says of the Guiding Principles, the end of the beginning.  But even the basic outlines of a durable solution still seem over the horizon, and a lot of institutional mapping and empirical study remains to be done.

Human Rights Will Survive Kiobel

by Peter Spiro

This is a tough loss for the human rights advocacy community, ending an era that began with the Second Circuit’s rediscovery of the Alien Tort Statute in its 1980 decision in Filartiga v. Pena. As Julian highlights below, Justice Kennedy may have left the door ajar to future claims, but only barely. Even Breyer’s concurrence — the rejection of the claim was unanimous, which must make it hurt a little more — sets a bar of a “distinctly American interest”, which may translate in the days of compartmentalized multinationals to the presence of US citizen victims. Lots of claims are going to get thrown out in Kiobel’s wake.

Does this mean that corporations can turn a blind eye to human rights? Not a chance.

Human rights is now a core component of corporate social responsibility, which, at least among major transnational corporations, is no longer optional. The United Nations is moving to bring human rights directly to bear on corporations through such initiatives as the U.N. Global Compact and the Guiding Principles on Business and Human Rights (see John Ruggie’s important new book on the latter). Accountants, shareholders, NGOs, and other private standard-setters are increasingly vigilant to human rights compliance (think Apple and Foxconn to highlight only one recent example). Human rights is being internalized in the corporate psyche, a process not contingent on the survival of the ATS.

There may even be alternative legal avenues. State tort law presents some promising possibilities. Kent Greenfield suggests reviving corporate “ultra vires” doctrine as another possible entry point for human rights. The ATS helped police and facilitate corporate compliance with international law, but other forms of discipline will work to help fill the gap created by its eclipse.

Will International Law Impact the Gay Marriage Cases? Conservatives Seem to Hope So.

by Peter Spiro

It should be no surprise that there is an amicus brief in support of striking down the Defense of Marriage Act from a global angle, charting an international trend towards recognition of same-sex marriages. (The brief is on behalf of a select lawprof group – Harold Koh, Sarah Cleveland, Larry Helfer, and Ryan Goodman, part of a trend toward elite, small-list amici filings also evident here and here.) The brief skillfully plays to the Court’s self-interest and the opportunity to enhance its international prestige: “Courts in other countries have invoked this Court’s reasoning in Lawrence, for example, to strike down laws that impinge upon the intimate relations between gay and lesbian couples. The Court’s ruling in this case is likely to have similar influence.” That’s a line that might appeal to a certain swing Justice.

At the same time, there’s no hint in the brief that international law requires the recognition of gay marriage, an argument that would be hard to make. The brief does no overreaching, well advised in the face of serious blowback to the Court’s recent invocations of international law on the way to progressive results. The caution starts with the cover page: the brief is filed on behalf of “foreign and comparative law experts,” not international law ones.

Leave the international law argument to . . . Jeremy Rabkin?

Rabkin and a group of mostly European academics and former jurists have filed a brief in support of California’s decision (through the ballot measure Proposition 8) to reserve marriage for opposite-sex couples. The basic argument: most countries have left the question to democratic processes, which “national and international courts have overwhelmingly refused to trump.” That fact establishes, the brief argues, that there are “rational, non-invidious reasons based in secular public policy considerations” for a jurisdiction’s refusal to recognize same-sex marriage. Variation on the question is fully compatible with “international norms.” [My quotation marks, not theirs!]

The brief carefully qualifies the salience of international practice. “Of course, foreign law and practice cannot and should not determine the meaning of U.S. Constitutional guarantees.” But that practice apparently stands as an empirical resource, a “lesson,” at least.

In the end, I suspect the Court will ignore foreign and international practice in the Windsor and Perry decisions, consistent with its recent posture to things foreign. But the gay marriage cases might mark an important turning point on this particular front of the Culture Wars. With their brief, conservatives may have conceded the threshold salience of international practices. The door can’t be completely shut on this material, whether the Court expressly acknowledges it or not. Once they’ve played the international law card themselves, conservatives can hardly cry foul next time it’s played against them. (Rabkin himself will have to lose the label “fantasy world” when speaking of international law.) Perhaps conservatives have come to understand that they can win on this turf, too. (Check out Justice Scalia’s dissent in Roper for pointers.) The bottom line: global practice becomes more deeply entrenched in the everyday of American constitutional law.

Hollis Treaty Volume Garners ASIL Award

by Peter Spiro

OJ’s own Duncan Hollis has been awarded the American Society of International Law’s “Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars” for his edited volume The Oxford Guide to Treaties. (Other honorees this year are Jeremy Waldron and Petros C. Mavroidis.) From the citation:

The Oxford Guide to Treaties brings clarity to a topic of central importance to policymakers, practicing attorneys, and a wide range of academics. Comprehensive in its scope, and equally valuable both to those coming to treaties for the first time and to those who have spent many years poring over texts, the Oxford Guide provides the reader with detailed explanations of the key rules and issues that mark contemporary international treaty law and practice. With contributions from leading scholars and practitioners, and expertly edited, the Oxford Guide will serve as the authoritative reference volume in this field for years to come.

We had a roundtable on the book on the blog last November. Congratulations to Duncan, very well deserved!

Is Another Treaty Question Headed to the Supreme Court?

by Peter Spiro

Is there a private right of action under the Hague Convention on the Civil Aspects of International Child Abduction? The Fourth Circuit said no in 2006, the Second Circuit now says yes, in an opinion released on Monday (the case is Ozaltin v. OzaltinReuters recap here).  Sounds like SCOTUS will have to take the question. Attention student note writers!

This may be a matter of small-bore treaty interpretation — how to apply implementing legislation in light of the treaty text, particulars good for this train and time only. But one might wonder if recent history makes it a little more freighted than that, after the Court skipped around the private-rights issue through the VCCR litigation in Sanchez-Llamas and Medellin. Could this be yet another vehicle for the Court in its campaign to obstruct the insinuation of international law?

Obama’s New Citizenship (Is Anyone Listening?)

by Peter Spiro

From the closing of last night’s State of the Union:

We may do different jobs, and wear different uniforms, and hold different views than the person beside us. But as Americans, we all share the same proud title:

We are citizens. It’s a word that doesn’t just describe our nationality or legal status. It describes the way we’re made. It describes what we believe. It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations; that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter in our American story.

This now qualifies as a refrain, in the DNC acceptance speech, the second inaugural, and now this. Has Obama arrived at a theme for his second term?

Let’s call it the New Citizenship.

Great stuff, if anyone were buying. But there isn’t enough solidarity on the ground for even so thoughtful and impassioned an exponent as Obama to pull this off. Americans are migrating away from this sense of mutuality (at least specially with other Americans), and no leader is going to be able to reverse the trend. That may be too bad, but that’s probably just the way it is.

Obama Citizenship Discourse Watch (Second Inaugural Edition)

by Peter Spiro

It was a liberal speech, but also a nationalist one. Obama returned to the citizenship theme of his DNC acceptance speech:

My oath is not so different from the pledge we all make to the flag that waves above and that fills our hearts with pride. They are the words of citizens, and they represent our greatest hope. You and I, as citizens, have the power to set this country’s course. You and I, as citizens, have the obligation to shape the debates of our time, not only with the votes we cast, but the voices we lift in defense of our most ancient values and enduring ideas.

This speech was inward-looking, situated in the task of a particular state, defining responsibilities and rights in a nationally bounded fashion. There was no “global citizen” vibe in the way of candidate Obama’s Berlin speech in July 2008. More “We the People,” as in the people of the United States. Equality, yes, but in a national frame.

The domestic editorial response will be positive, in a measured way. I wonder if international opinion will be more tepid (even with the big shout-out to climate change initiatives). This wasn’t a speech that had much for an international audience. That’s probably too bad, since I’m sure there was a big one.

Jon Stewart Takes Down Treaty Rejectionists: “Please Tell Me This Is Rock Bottom”

by Peter Spiro

In case you missed it, Jon Stewart at his best on the Senate’s rejection on Tuesday of the Disabilities Convention:

 

The floor debate on the CRPD can be found in the Congressional Record here, starting at page S7365. Not very edifying reading on either side. Here’s a sample from Senator Inhofe:

It seems as though most of the time when the U.N. conventions or treaties come up that I have been opposed to them, and my concern always has been that of sovereignty. I do oppose the United Nations Convention on the Rights of Persons with Disabilities because I think it does infringe upon our sovereignty, establishing an unelected United Nations bureaucratic body called the Committee on the Rights of Persons with Disabilities and a Conference of State Parties. These unelected bureaucratic bodies would implement the treaty and pass so-called recommendations that would be forced upon the United Nations and the United States if the United States is a signatory. . . .

We don’t need the United Nations bureaucrats changing it in our country in the name of worldwide advocation. . . . I know a lot of people feel that no idea is a good idea unless it comes from an international organization. I kind of fall at the other end of the spectrum.

Yes, kind of at the other end of the spectrum. For their part, proponents bent over backwards to stress the lack of any effect of the convention on U.S. law, as if to concede, any human rights treaty that did actually require changes to U.S. law would be a non-starter.

Senate Rejects Disabilities Treaty (Sovereigntism Lives, or Does It?)

by Peter Spiro

Story here on how the CRPD went down. The tally was 61-38, five votes short of the two-thirds necessary for approval.

On the one hand, the defeat demonstrates sovereigntism’s staying power. The anti-internationalist Right has been energized by a flight of treaties baring the putative menace of global governance — the Law of the Sea, the Arms Trade Treaty, and the Convention on the Rights of Persons with Disabilities.   Alarmists at Heritage and elsewhere have had a lot of fodder to work with in calling fellow travelers to the virtual barricades. Rick Santorum will surely claim responsibility for the CRPD’s defeat in trying to revive his political fortunes.

On the other hand, it’s only because of the treaty clause’s supermajority rule that their veto is worth anything. Anti-treaty forces clearly no longer represent a majority of the American people.

Might the second term present an appropriate juncture for a constitutional gambit? Assuming that 15 Republicans could be brought across the aisle, any of these or other agreements (eg the Children’s Rights Convention) could be submitted and approved as congressional-executive agreements, that is, with simple bicameral majority support. The US failure to sign on to broadly subscribed multilateral agreements is making us look stupid. Let’s update our constitutional mechanisms (a continual process with many, many examples in the realm of foreign relations) to better serve the national interest on the global stage.

Sephardic Jews Get Right of Return – To Spain

by Peter Spiro

Spain is now granting citizenship automatically without any residency requirement to those who can demonstrate descent from those Jews expelled from Spain more than 500 years ago. The rule could make as many as 3 million Sephardic Jews worldwide eligible for Spanish citizenship (600,000 of them in the United States, including a number who identify as Hispanic). The details remain a little sketchy, but assuming no costs and minimal bureaucratic hoops one can expect a good subscription for the offer (Spanish citizenship may not be so valuable these days, but EU citizenship is).

The rule has some superficial similarity to Germany’s approach to Holocaust survivors stripped of German nationality under the Nazi regime. German law provides for the “restoration” of citizenship to survivors and descendants, with no residency, language facility or other requirements.

But count me a skeptic on the Spanish measure. Unlike the German situation, we’re talking way distant past. The Sephardic diaspora has no relationship with the modern Spanish state in the way that Holocaust victims do; it would be a messy world if all ancient wrongs had to be made right. Of course doling out citizenship is cheap. Could it be that Spain is using redress as an economic recruiting tool? It is perhaps not a coincidence that Spain also announced last week an offer of immigrant visas (the equivalent of a US green card) to those who buy houses worth 160,000+ Euros.

Meanwhile, 750,000 Moroccan migrants in Spain have to satisfy a ten-year residency requirement for naturalization. The Inquisition also resulted in the expulsion of their ancestors, the Moors. Why aren’t they getting a new citizenship deal, too? Incongruous that someone whose family hasn’t lived in Spain for half a millennium can sign up for citizenship when someone living there today can’t.

University of Michigan Seeking Assistant Dean for International Affairs

by Peter Spiro

Job posting here. This would be a fabulous opportunity for someone with an international law background. Michigan of course has one of the country’s top international law faculties and led the way in requiring transnational law as part of its first-law curriculum.