Author Archive for
Peter Spiro

Kiobel Argument Goes Badly for Shell (FWIW)

by Peter Spiro

The transcript in the Kiobel case has been posted here.

Shell counsel/former Stanford dean Kathleen Sullivan seems to have been on her heels for much of her argument time. Big sticking point on her claim that the ATS was not intended to cover piracy or a “reverse Marbois.” (No, that is not a wrestling move; it’s the counterfactual in which the famous attack of a French diplomat by an American occurs in France, not Philadelphia). See pp. 25 and following.

Paul Hoffman, on the other hand, stood his ground pretty well, allowing for the possible interposition of procedural bars to the making of Alien Tort claims (as pushed by Sotomayor). He got in an effective IG Farben analogy and even a little human rights speechifying (see p. 55). Breyer gets the award for zinger of the day: “if Hitler isn’t a pirate, who is?” (Anyone want to do the legal math on that one?)

So predictions of the ATS (extraterritorial) demise may be premature. On the other hand, recent experience demonstrates that predictions based on oral arguments are not especially reliable.

We’ll be hosting guest posts here on the Kiobel argument through the middle of this week.

In Free Trade Move, Honduras Privatizes Three Cities, Extremely (A New Kind of Company Town?)

by Peter Spiro

Story here:

Investors can begin construction in six months on three privately run cities in Honduras that will have their own police, laws, government and tax systems now that the government has signed a memorandum of agreement approving the project. . . .

The “model cities” will have their own judiciary, laws, governments and police forces. They also will be empowered to sign international agreements on trade and investment and set their own immigration policy.

To make it even weirder, appeals from courts in the cities would be to Mauritius and then to the UK Privy Council (according to this earlier report).

This strikes me as the leading edge of a potentially huge development, in which private actors more formally get their own pieces of turf and the lines between sovereign entities further blur. This is by no means to necessarily to celebrate the development (science fiction suggests this dystopian destination). But it does deepen the challenge to received doctrine, and it will require legal innovation to situate the new, private city-state in the world of international law.

Libya Killings and Speech Labels: The First Amendment According to Google

by Peter Spiro

At risk of dipping back into this touchy subject, there’s this interesting development as reported in today’s NY Times: Google has blocked the film that has provoked embassy (and now KFC) attacks from youTube sites in Libya and Egypt:

Google said it decided to block the video in response to violence that killed four American diplomatic personnel in Libya. The company said its decision was unusual, made because of the exceptional circumstances. Its policy is to remove content only if it is hate speech, violating its terms of service, or if it is responding to valid court orders or government requests. And it said it had determined that under its own guidelines, the video was not hate speech.

Maybe the hate speech/offensive speech distinction can be elided by the smart folks in Google’s foreign ministry. If material is literally setting off global firestorms through its dissemination online, Google will strategically pull the plug. (You can bet, of course, that Google is consulting with official foreign ministries on this, in the way that diplomats do.)

Do people who have a problem with the hate speech ban have a problem with Google’s action here? Seems to me hard to argue with, at least as deployed in this targeted way, if it stops a lot of senseless violence and dangerous instability. Private actors, of course, aren’t subject to the First Amendment (or parallel international law constraints). Of course there is another side of the coin, as when internet companies more clearly do the bidding of anti-democratic authorities.

US Envoy Killing Bolsters Case for Hate Speech Ban

by Peter Spiro

The deplorable killing of Chris Stevens in Libya suggests a foreign relations law rationale for banning hate speech.

Remember, the Benghazi protests were prompted by this film depicting the prophet Mohammed in not very flattering terms. The equation from the protesters at the US consulate in Benghazi: this film was produced by an American; we will hold America responsible for it.

The result: national foreign relations are seriously compromised by the irresponsible act of an individual. For structural and functional reasons, that doesn’t make a lot of sense. It’s the rationale behind the Neutrality and Logan Acts. A similar rationale undergirds the ouster of states from foreign relations – along the lines of Hamilton’s dictum in Federalist No. 80 that “the peace of the Whole should not be left to the disposal of the Part.”

And the First Amendment? Call me a relativist. We have some pretty good empirical data from the scores of other countries that ban hate speech (in part through signing on to article 20 of the International Covenant on Civil and Political Rights) that a permissive approach to hate speech is not a prerequisite to functioning democracy. On the contrary, our European friends would argue that democracy is better served by banning such material. Either way, our exceptionalism on this score doesn’t serve us very well.

This isn’t any sort of apology for the killing (especially ugly given Stevens’ dedication to the rebel effort against the Gaddafi regime). In the first instance, it’s a recognition of international realities: do we want to take hits like this so that films like that can be made? In the second, it’s a recognition of where international law is going on the issue: in a different direction than we are.

UPDATE: I appreciate the comments below as well as this thoughtful post by Mark Movsesian, and I’m persuaded by the drift. As Mark points out, the film is offensive speech, not hate speech, so the episode doesn’t supply an example in which US submission to article 20 would make a difference. In other words, this isn’t a case in which the US has deviated from IL. The episode does resonate, nonetheless, in the tradition of foreign relations law exceptionalism – in which we abandon our ordinary constitutional optic in the face of international imperatives (doctrinal manifestations of which are many).

I do stand by the Stanford Law Review article in which I argue that the Constitution should bend (and has bent) to international law, which Eugene Volokh takes a shot at here, even when it implicates the constriction of rights. The logic has changed, though. It’s not so much that it serves the national interest (as in the foreign relation law logic above). It’s more that international law is demonstrating resiliency in protecting rights, in something approaching a constitutional system. If we don’t like something about international law, we can work to change it (just as we work to change domestic legal systems). As we become more enmeshed in international law, the less capacity there is simply to opt out.

Obama Presses Citizenship (Can It Be Revived?)

by Peter Spiro

President’s Obama’s speech this evening to the Democratic Convention spun citizenship as a central theme:

We believe in something called citizenship – a word at the very heart of our founding, at the very essence of our democracy; the idea that this country only works when we accept certain obligations to one another, and to future generations. . . .

Because we understand that this democracy is ours.

We, the People, recognize that we have responsibilities as well as rights; that our destinies are bound together; that a freedom which only asks what’s in it for me, a freedom without a commitment to others, a freedom without love or charity or duty or patriotism, is unworthy of our founding ideals, and those who died in their defense.

As citizens, we understand that America is not about what can be done for us. It’s about what can be done by us, together, through the hard and frustrating but necessary work of self-government.

So you see, the election four years ago wasn’t about me. It was about you. My fellow citizens – you were the change.

As Timesman Jonathan Weisman tweeted, “Certain shock of recognition with the word ‘citizenship.’ You just don’t hear it very often anymore.”  Very true. The last major presidential address that played up citizenship was George W. Bush’s first inaugural speech (another point of continuity!).

It plays nicely as a rhetorical matter, but I don’t think it computes. It’s easy but empty to speak of the rights and responsibilities of citizenship. They don’t really exist any more. The only distinctive responsibility of citizenship is jury duty. Rights . . . well, just ask Anwar al-Awlaki.

I get the message about thinking beyond oneself, about mutual obligation, an obviously worthy orientation. But that’s about “good citizenship” in some moral, universalist sense, not about membership in the state.

Can There Be a “Global Solution” to Strategic Olympic Nationality?

by Peter Spiro

With opening ceremonies about to get underway  in London, there’s a discussion on Olympic nationality over at the NY Times Room for Debate with contributions from myself, Ayelet Shachar, Ian Ayres, and Jean-Loup Chappelet. Ayres and I agree that the current regime is unfair to both spectators and athletes by excluding would-be top competitors. Ayres would allow countries to grant citizenship and Olympic eligibility as they see fit; I would get rid of the eligibility rule altogether.

Shachar and Chappelet, on the other hand, see abuse in the current regime. No doubt there are “strange nationalities.” In some cases, individuals have exploited an anomalous basis for citizenship in countries to which they have little or no affective (or effective) attachment – often on the basis of a parent or grandparent’s nationality. In others, countries have in effect bought competitors, with a grant of citizenship as a necessary part of the bargain.

I don’t see this is as a problem, except to the extent that it depends on luck of the draw (either you have that grandparent or you don’t). But even if it were, I don’t know how you police against it. Chappelet calls for a “global solution”, Shachar for a “coordinated international response”.

But what would the solution look like? The current regime already imposes a three-year “cooling off” period in cases of nationality transfer, except where the country of origin agrees to a waiver (often in the wake of an NOC-NOC payment). You couldn’t reasonably make that any longer.  I suppose you could attach a residency requirement as well, to police against the grandchild phenomenon. Who’s to say that national eligibility on that basis is illegitimate? In some cases the affective attachment will be meaningful, as anyone with a close relationship to a grandparent will understand.

So there’s no way to shore up the system, which only gets leakier as states adopt more relaxed citizenship practices.

If It’s Thursday, It Must Be London (Mitt Romney Edition)

by Peter Spiro

Mitt Romney is holding a fundraiser this evening in London. (Here’s a nice scene-setter.)  Almost quaint how he promises not to criticize Obama while abroad, in the tradition of politics stoppping at the water’s edge (as if physical location still mattered in the context of completely transnationalized media).

Three quick thoughts:

1. This kind of extraterritorial campaigning is becoming routine. Lots of US citizens live abroad (estimates of as many as seven million), they can vote come November, and (way more importantly) they have a lot of money. For Romney’s purposes, London is just a little east of the Hamptons!

2. I wonder if Romney will get an earful about new IRS practices regarding foreign account holders and the notorious (at least among nonresident Americans) law known as FATCA. Nonresidents have some discrete interests as such, but they don’t seem to have organized very well as a special interest group. (It would be easier if there were a First Overseas District in Congress — an approach now used by other countries, for example France, in which external citizens have their own representatives in national legislatures).

3. Why is it someone who lives in London can donate money when some people living in the US can’t?  Some of the donors at tonight’s dinner may never have resided in the United States (it is possible to be a US citizen for life without ever having set foot in the US, though I doubt that would be true of the private-jet set around the table with Mitt).  Bluman v. FEC presented a very plausible challenge to the ban on campaign donations by nonimmigrants in the US (brought by two very sympathetic plaintiffs – one a lawyer, one a doctor, one Republican, one Democrat, both here on long-term work visas). That was given the back of the hand by the Judge Kavanaugh, on a well-dressed but basically ipse dixit basis.

What Will the Medal Count Be for “None of the Above”: Olympics Allows Non-National Competitors

by Peter Spiro

The International Olympic Committee will allow marathoner Guor Marial to compete as a man without a country. From the IOC’s executive board summary of its decision in the case:

Passport-less athlete approved to compete
The EB also approved a request to allow marathon runner Guor Marial to compete in the London 2012 Games as an Independent Olympic Athlete (IOA) under the Olympic flag. Marial was born in what is now South Sudan, which does not currently have a recognised National Olympic Committee. The athlete, who does not hold a passport from any country, is a permanent resident (refugee status green card) of the United States but not a citizen. As such, he is unable to compete for the United States, South Sudan or Sudan. Marial qualified for the Games with an A Standard time on 2 October 2011.

More background here.

This is not a first time for “Independent Olympians” – more than 50 competed in Barcelona in 1992, most apparently from the former Yugoslavia in the absence of successor National Olympic Committees there, and others have haled from Kuwait, East Timor, and the Netherlands Antilles. I suppose the Marial case fits comfortably in those precedents, though a quick search of the Olympic Charter itself doesn’t cough up an obvious formal basis for the category.

If nothing else, Marial proves the obvious point that for non-team competitions, national affiliation is not an inherently necessary organizing principle.

Postnational Justice: Honduras Looks to Outsource Appeals to Mauritius (and London)

by Peter Spiro

From the Guardian, an account that even an academic would have a hard time making up: Honduras may allow for extraterritorial appeals in some number of jurisdictions, amounting to “semi-independent city-states,” established to improve investment appeal:

The complex constitutional agreement under discussion involves Mauritius – an island 10,000 miles away in the Indian Ocean – guaranteeing the legal framework of the courts in the development zones, known locally as La Región Especial de Desarrollo (RED).

Mauritius, a member of the Commonwealth, still uses the privy council in Westminster as a final court of appeal. Consequently any cases originating in Honduras could progress to the appeal courts in Mauritius and eventually reach the judicial committee of the privy council in London.

If this sets a precedent, the possibilities are pretty much endless. The article does note that the privy council has otherwise seen a decline in business, as Caribbean countries opted out from Commonwealth jurisdiction by way of preserving their use of the death penalty. It also notes that the scheme may be limited to investment disputes, so in some ways it’s not much different than using ICC-type arbitration. But the proposal would seem to introduce new possibilities for national courts. If British justice is reliable justice, consider it a new-world export market.

“American” Samoans Want US Citizenship

by Peter Spiro

“Non-citizen nationals” – a very small group of “Americans”. Anyone born in a state of the United States is a citizen under the 14th Amendment. Almost everyone else born in sovereign US territory (Puerto Rico, Virgin Islands, Guam) has citizenship at birth by statute. The only folks who don’t have citizenship at birth are those born in American Samoa and the Swains Islands, and they’re now challenging that fact in court (here is Ashby Jones’s account in the WSJ).

The status has its drawbacks. As highlighted in the complaint, as non-citizen nationals, Samoan Americans 1) can’t vote, even when resident in the US, 2) are ineligible for some public sector jobs (even some open to permanent resident aliens), and 3) can’t serve as officers in the US armed forces.

This is an anomaly — only 55,000 people live in American Samoa — and it’s something Congress should fix. There’s no apparent downside to extending citizenship to these people (who are as nationals permitted to immigrate to the US – even naturalize as citizens, through the ordinary process).

The lawsuit will bring some attention to the problem. In the meantime, it has little chance of success in the courts. The plaintiffs are up against a clear historical interpretation of the Citizenship Clause extending it to so-called incorporated territories only. To the extent that they’re making out an equal protection claim (why Guam and not us?) it comes up against Congress’ plenary powers over the territories. Not that any of this makes sense in a world in which “citizen” and “national” are otherwise basically synonymous.

Scalia Unhinged: Taking (US State) Sovereignty Very Seriously

by Peter Spiro

I know that most readers of the blog are interested in international law, not immigration law, but Justice Scalia’s concurrence/dissent in Monday’s SB 1070 decision has something for everyone. Scalia takes the trope of formal sovereignty as among the states of the United States to its logical endpoint:

As a sovereign, Arizona has the inherent power to ex­clude persons from its territory, subject only to those limitations expressed in the Constitution or constitution­ ally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. . . . We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants.  We are talking about a federal law going to the core of state sovereignty.

The opinion references Vattel at length. (Scalia at one point calls him “De Vattel”, as no one past the third-year of law school should do — but perhaps this is just a clever ploy to burnish his anti-internationalist credentials.)

His bottom line: “Arizona is entitled to have ‘its own immigration policy’—including a more rigorous enforcement policy—so long as that does not conflict with federal law.”

I’m not unsympathetic to the bottom line here, though emphatically on the assumption that non-constitutional constraints will better show Arizona the sins of its restrictionist ways. (For Richard Posner’s critical take on Scalia’s position, see this.) And better an entertaining, envelope-pushing, meant-to-offend opinion like Scalia’s than the dry, conventional stuff of Justice Kennedy’s opinion for the Court (complete with a sentimentalist homage to naturalization ceremonies at its conclusion). Kennedy treads familiar ground in framing immigration as a matter of foreign relations, and thus subject to near-exclusive federal power. In an era of disaggregation, I think “one voice” should be discarded to the department of dead metaphors. I’ll take the Supreme Court as a lagging indicator on the point.

In the meantime, the decision is the worst of both worlds for anti-immigration advocates, who can’t decide if this was a victory or not.  If the Court had stiffed them altogether, it would have supplied powerful political ammunition for a crackdown at the federal level. As it is, the Court’s hedged validation of the “papers, please” provision won’t give restrictionists much to work with in Arizona or other state capitals, at the same time that they’re deprived of any boost in national politics.

Update: NY Times has more reax to the Scalia opinion here.

In Other Supreme Court News: International Law Studiously Avoided in Juvenile Life-Without-Parole Case

by Peter Spiro

The Supreme Court has struck down state laws mandating juvenile offenders to be sentenced to life without parole with its decision in Miller v. Alabama. The decision is part of a logical progression from decisions constitutionally barring the death penalty for juvenile offenders (Roper v. Simmons) and life sentences for juveniles for crimes not involving murder (Graham v. Florida).

What’s interesting for our purposes: this is another decision in which the Court makes not even a passing reference to international or foreign law.  Miller follows on Kennedy v. Louisiana in that regard (though Justice Kennedy give IL a nod in Graham).  The Court would have had plenty to work with; international practice is clearly moving away from life sentences in any context, most of all where juveniles are involved or there’s no possibility for parole. (See the amicus brief in the case from Amnesty International and other human rights organizations.)

An unconscious omission? Not a chance. The Court saw a significant backlash from its references to international law in Roper, Atkins, and Lawrence. All nominees to the Court are now asked in confirmation hearings for their positions on the use of foreign law, and all (Democrats included) freely disavow it. International law is the third rail of constitutional jurisprudence these days.

But that doesn’t mean international law is inconsequential in this context. International norms are affecting domestic actors, including states, whose practice is relevant to Eighth Amendment determinations. And the justices of course can take IL into account on the sneak, as it were, by way of adjusting US rights standards to international law without drawing the fire that explicit references will draw. The result is the same: the US comes into line.