My CNN piece on Trump’s proposed Mexican tariff wall is available here. Given the audience, I kept the discussion at a fairly basic level, summarizing trade law for the general public.
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As discussed in my previous post, last month I was privileged to organize a conference at Notre Dame’s London Global Gateway on the topic of UK trade and Brexit. I discussed the first session in my previous post, which addressed UK trade negotiations with the EU.
In our second session, we discussed the topic of UK trade negotiations outside the EU. The second session featured Jennifer Hillman from Georgetown, Rob Howse from NYU, Simon Lester from CATO, and myself. Jennifer Hillman (beginning at 01:23) focused on possible arguments that, following Brexit, the UK will still remain a member of the existing EU FTAs. Rob Howse (beginning at 25:40) focused on the timing of possible negotiations with non-EU trading partners in the context of the prevailing anti-trade and anti-globalization climate around the world. Simon Lester (beginning at 41:50) focused on the timing and terms of possible negotiations with non-EU trading partners, suggesting that the UK should focus on quickly negotiating simple FTA agreements with key trading partners, and defer to future negotiations deep FTAs. I focused (beginning at 1:00:00) on the EU as the most important FTA partner in the world, and discussed how, after the UK leaves the EU, it will take decades for the UK to simply return to its current status as a major FTA partner. I also discuss the possibility that following Brexit, foreign investors may sue the UK for violating bilateral investment treaties by fundamentally altering its regulatory framework.
On November 7, 2016 I was privileged to organize a conference at the University of Notre Dame’s London Global Gateway on the topic of UK trade and Brexit. The conference had three sessions: (1) UK trade negotiations with the EU; (2) UK trade negotiations outside the EU; and (3) UK’s post-Brexit status within the WTO. The participants were all trade experts, including Lorand Bartels at Cambridge, Meredith Crowley at Cambridge, Piet Eeckhout at UCL, Jennifer Hillman at Georgetown, Rob Howse at NYU, Simon Lester of the CATO Institute, Sophie Robin-Olivier at Paris II Sorbonne, and yours truly.
Today I am linking to the first session that features Piet Eeckhout, Simon Lester, and Sophie Robin-Olivier. Piet Eeckhout focused on the High Court of Justice decision regarding Parliamentary oversight of the Prime Minister’s Article 50 withdrawal from the EU. Simon Lester focused on the possible meanings of the referendum and the likelihood of a “hard” or “soft” Brexit. Sophie Robin-Olivier focused on the linkage between the free movement of goods and persons, and the EU’s likely response to the UK’s attempts to decouple the issues. The discussion then addressed expert predictions of the likely result of UK trade negotiations with the EU. The consensus was that the EU has the stronger negotiating position and will not accept any free trade deal without free movement of persons. If the UK does not accept those terms, then the most likely result will be the UK trading with the EU under WTO rules.
UPDATE: Summary of Session Two on UK Trade negotiations outside the EU is available here.
The Nobel Peace Prize for 2016 has been awarded to Colombian President Juan Manuel Santos. According to the Press Release, the award was given for his “resolute efforts to bring the country’s more than 50-year-long war to an end…. The award should also be seen as a tribute to the Colombian people who, despite great hardships and abuses, have not given up hope of a just peace, and to all the parties who have contributed to the peace process.” The Committee noted that peace in Colombia is now uncertain with the narrow defeat of the referendum on the peace deal. But “the referendum was not a vote for or against peace. What the ‘No’ side rejected was not the desire for peace, but a specific peace agreement.”
The award to President Santos is consistent with a long tradition of awarding the Nobel Peace Prize to architects of peace agreements. There are numerous examples. President Theodore Roosevelt won the prize in 1906 for mediating an end to the Russo-Japanese war. During the interwar period, the prize was awarded to Aristide Briand, Gustav Stresemann, and Sir Austen Chamberlain for the Locarno peace deal between France and Germany. In 1950, Ralph Bunche won the prize for negotiating an end to the Arab-Israeli war in the Middle East. Henry Kissinger and Le Duc Tho won the prize in 1973 for the ceasefire agreement in Vietnam. Anwar Sadat and Menachem Begin (and much later Jimmy Carter) won the prize for the Camp David Accord. Costa Rican President Oscar Arias won the prize in 1987 for negotiating peace in Central America. Yasser Arafat, Shimon Peres and Yitzhak Rabin won the prize in 1994 for the Oslo Peace Accords. And John Hume and David Trimble won the prize in 1998 for the Good Friday Agreement. In short, the award to President Santos is in recognition of one of the most common themes in the long history of the Nobel Peace Prize: those who have sought and achieved an end to conflict through negotiated peace.
There are two items worthy of note about the decision to award the prize to President Santos. First, it is notable that the award was not also granted to FARC leader Rodrigo Londono, better known as Timochenko. Typically following a peace deal, the prize is granted to leaders from both sides of the negotiating table. It is possible that Timochenko was not nominated in time to win the prize (as was the case with Jimmy Carter in 1978), or more likely, there are aspects of Timochenko’s background that the Committee considered disqualifying. Widely suspected of war crimes and drug trafficking, a shared prize between President Santos and the Marxist guerilla leader would have raised eyebrows. (Prizes to unsavory figures like Yasser Arafat and Henry Kissinger are among the most controversial in the history of the Nobel Peace Prize). By singling out Santos for the prize, the Committee maintained the integrity of the prize and lauded the chief architect of the peace deal.
Second, the decision to award the prize to Santos despite the peace deal’s narrow defeat in the October 2 referendum came as a surprise to many. But the Nobel Committee has frequently used the prize to not only honor past achievements, but also spur parties to redouble their efforts to secure peace. No one considered that the Oslo Accords had achieved peace in the Middle East, but it was a high water mark for what was possible in the region. Likewise, the award to Betty Williams and Mairead Corrigan in 1976 was solely about the hope of future peace in Northern Ireland. By awarding the prize only to Santos, it strengthens his hand in the negotiations. It is widely suspected that the principal reason the Colombian people rejected the peace deal was because the amnesty deal was too favorable to FARC, and now Santos will have enhanced moral authority to strike a harder bargain. It also should embolden Santos to continue his efforts to find a peace deal that is acceptable to both the FARC guerillas and the Colombian people.
The awarding of the prize recognizes the tireless efforts of Santos and his mediation team (including my friend and Notre Dame colleague Doug Cassel) to end the longest ongoing civil war in modern history. It is cause for celebration and hope that peace will someday come to the long-suffering people of Colombia.
Unfortunately Republican primary voters have made the remarkable choice to take Donald Trump seriously, and therefore we now have little choice but to contemplate the ramifications of a Trump presidency for United States foreign policy.
In terms of U.S. trade, Donald Trump would be an unmitigated disaster. Trump, of course, has a penchant for incendiary comments, and his statements regarding international trade are as ludicrous and uninformed as much of his other foreign policy positions. Almost everything Trumps says about Chinese trade is wrong. “We don’t win anymore,” “They are taking our jobs,” and “They don’t play fair.” These are all platitudes without substance, but a significant percentage of Americans are buying his snake oil. The answer to our Chinese problem, according to Trump, is a trade war. “The only power that we have with China is massive trade,” Trump says, so we should tax China. “I would tax China on products coming in. Let me tell you what the tax should be… the tax should be 45 percent.” The solution to our trade problems with China, he thinks, is to build a tariff wall. Build a wall and make them pay.
Trump thinks that Mexico will pay for the Mexican wall, and he thinks that China will pay for a Chinese tariff wall. But he is wrong. The American people would pay for the wall with higher consumer prices and reduced American exports.
First, how would such a tariff increase impact American consumers? A 45 percent tariff on Chinese products would be an indirect tax on American consumers. On average, the United States imposes a 3.5 percent tariff on foreign products. Over 20 percent of all United States imports come from China, with a total value of over $500 billion. At 3.5 percent, the tariff on $500 billion worth of Chinese imports is $17.5 billion. At 45 percent, the tariff would be $225 billion. That’s an increase of over 1,186 percent. In other words, assuming Chinese imports continued at their current rate, Donald Trump’s proposed tariff wall with China would reflect an indirect tax on American consumers of over $200 billion. A tax increase of over $200 billion would be one of the largest in American history, greater than the combined tax increases imposed by Presidents Obama, Clinton, and Carter.
To be more concrete, as detailed here, the United States imports from China over $135 billion worth of electronic equipment, over $100 billion worth of machinery, over $30 billion worth of furniture, over $25 billion worth of toys, and over $18 billion worth of footwear. All of us routinely purchase Chinese products, and we each would face a dramatic price increase as the 45 percent tariff is passed on to consumers.
Second, how would the tariff increase impact American exporters? Trump’s tariff wall is undoubtedly illegal under the WTO rules. The rules were designed to make sure that countries keep their trade promises. Donald Trump’s proposal is a blatant breach of our promise to keep tariffs low. All of our tariff rates are “bound,” meaning we have committed by treaty not to increase beyond the bound rate. Every imported product has a bound tariff rate, and under GATT Article II, any tariff above that ceiling violates the WTO rules.
Trump’s proposed tariff wall would break United States’ promise to maintain its current tariff rates. China would have the right to bring an action before the WTO to challenge the 45 percent tariff increase. Just as the United States would undoubtedly win if China tried to do something similar to us, China would undoubtedly win if it challenged the Trump tariff wall. The WTO would demand that the United States keep its tariff promises, and authorize China to raise tariffs on United States’ products coming into China equal to the harm the United States caused to China.
In other words, if China suffers over $200 billion worth of harm from increased tariffs on Chinese products, the WTO would authorize China to increase tariffs on U.S. products by the same amount. Over 7 percent of all United States exports go to China, with total U.S. exports to China exceeding $120 billion.
So if China is hit with over $200 billion worth of tariff increases, China would be authorized to impose over $200 billion worth of tariff increases on $120 billion worth of American exports. Our major exports to China include soybeans ($15 billion), civilian aircraft ($8.4 billion), passenger vehicles ($5.2 billion), copper ($3 billion), corn ($1.3 billion), and coal ($1.2 billion). American workers with jobs in these industries would be severely injured by these WTO-authorized Chinese countermeasures. All those American auto workers, and corn and soybean farmers, and coal miners who support Trump would see their Chinese export market shrink. A tariff increase this dramatic could effectively close the Chinese market to American exports. And it would be completely proper for China to do this to compensate it for our illegal behavior.
In short, the great Chinese tariff wall that Donald Trump proposes to build would severely injure American consumers, making the price of all Chinese products dramatically higher. It also would severely injure American workers, as U.S. exports to the Chinese market would sharply contract. The economic harm that his tariff wall would have on the average American is shocking. Yet his supporters remain blissfully unaware that the United States would not win if it enters a trade war with China.
We are pleased to announce that Opinio Juris will begin an occasional series on international law and Presidential politics. Foreign policy and international law have been a central topic of discussion among the U.S. presidential candidates, and there is much fodder for discussion regarding the fidelity of their positions with the United States’ commitments under international law. The series will address the connection between the U.S. presidential election and international law. As long as it relates to international law, any comment, debate discussion, party platform, or candidate position presented by the Republican or Democratic presidential candidates is fair game for a post.
Rather than present these posts as a symposium subject to specific time constraints, we have decided to run it as an occasional series between now and the November 2016 election. As we have done in the past, we welcome academics to submit guest posts for possible publication. We will focus on the international legal aspects of the U.S. presidential election, not the broader political issues. So please keep your posts confined to international law and Presidential politics.
We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include other voices. So if you want to write a 500- to 1500-word guest post for Opinio Juris about the U.S. presidential elections and international law, please do so beginning this week and continue to do so through the November election. You can send your post to Jessica Dorsey (her email is linked to the right). Our editorial team will review the posts and publish those selected.
Negotiations over the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) have highlighted the growing debate over investment arbitration. Last week the New York Times published an article summarizing objections to the TPP investment chapter. The article notes that politicians, law professors and liberal activists “have expressed fears the provisions would infringe on United States sovereignty and impinge on government regulation involving businesses in banking, tobacco, pharmaceuticals, and other sectors.”
The reference to academic opposition is based on a letter published by the Alliance for Justice with the signatories from numerous law professors. The one-page AFJ letter urges Congress to “protect the rule of law and our nation’s sovereignty by ensuring [investment arbitration] is not included.” Foreign corporations, the letter continues, can use investment arbitration to “challenge government policies, actions, or decisions that they allege reduce the value of their investments…. This practice threatens domestic sovereignty and weakens the rule of law by giving corporations special legal rights, allowing them to ignore domestic courts, and subjecting the United States to extrajudicial private arbitration.”
Today another group of prominent law professors who are experts in investment arbitration have written a lengthy response. The letter (to which I am a signatory) challenges the notion that signing an investment treaty constitutes a loss of sovereignty or undermines the rule of law. “Corporations cannot and will not gain victory simply by arguing reduced investment value.” Instead, a corporation must establish that “a host state has discriminated on the basis of nationality, has failed to accord a foreign investor due process, or has expropriated the property of a foreign investor without payment of prompt, adequate, and effective compensation.” The letter then addresses the contentious issue of regulatory takings, and highlights the limits of corporate claims challenging environmental, health, and safety regulations.
It concludes: “investment treaty arbitration does not undermine the rule of law…. The obligations commonly found in investment agreements—including non-discrimination on the basis of nationality; due process; expropriation of property only for a public purpose and on payment of prompt, adequate and effective compensation; and repatriation of profits—are the hallmarks of a society that is governed by law.”
Frankly, the rebuttal letter is substantive and faithful to the true state of investment arbitration, while the AFJ letter reads more like a piece of political advocacy than a memorandum by scholars offering legal analysis.
Of course, these battle lines are not new. The Multilateral Agreement on Investment was scuttled in the late 1990s because of similar concerns. In the meantime, over 3,000 bilateral and multilateral investment agreements have now been signed, with the United States a signatory to over 50 such agreements. NAFTA and CAFTA-DR are among the most prominent examples of such agreements.
What is new is the potential economic impact of the deals. The sheer size of TTP and TTIP significantly raises the stakes. The TPP countries collectively would represent the largest U.S. trading partner, accounting for 40% of total U.S. goods trade and 25% of total U.S. services trade. As for the TTIP, the combined share of the U.S.-EU GDP is approximately 45% of global GDP and reflects 17% of global foreign direct investment.
Any hope for a TTP or TTIP deal depends on Congress granting the Obama Administration trade promotion authority, which seems increasingly likely. Whether that authority includes investment arbitration remains to be seen. But the fact that the Obama Administration and the vast majority of Republicans in Congress strongly favor investment arbitration in both agreements bodes well for its inclusion.
I started blogging at Opinio Juris in June 2005. My first post was a postcard from India. Since that time I have published over 1,000 posts. During that same ten-year period I have also published dozens of articles and a few books. In light of that background, I thought I would use Opinio Juris’ ten-year anniversary to reflect on the state of law blogging within the legal academy.
In the early days, law blogging was controversial. Many serious scholars were wary of blogging. Crusty established professors at elite schools saw little point in it, and untenured professors were intrigued but nervous. The sweet spot were young newly-tenured (or soon-to-be tenured) professors at reputable non-elite schools eager to build their brand and willing to embrace the medium despite the risks. Chris Borgen, Julian Ku, and Peggy McGuinness seized the opportunity and were the first-movers in the international law blog space.
As soon as I started reading Opinio Juris I knew I wanted to become a permanent contributor. Why? Because professors are in the marketplace of ideas, and blogging presented a whole new medium to sell our ideas. If a scholar is serious about the marketplace of ideas, it is not enough to simply produce a great product. One also has to promote that product in a thoughtful, respectful manner. This is no easy task.
So exactly how does one sell ideas? In the old days, promoting one’s scholarship required an inordinate amount of time speaking at conferences. At those conferences we would spend ten hours of travel time in order present for twenty minutes about an article that we had been working on for fifty-two weeks. If we were lucky, there would be about a hundred people in the audience. The incremental payoff was meager, but with enough effort a scholar could build a reputation.
Blogging completely changed the equation. Now a scholar can spend two hours summarizing an idea, post that summary on a blog, and reach an audience of thousands. That audience is not clustered in a particular geographic region, but is spread throughout the world. That audience is not required to listen to your ideas because they are second-year law review staffers, but they eagerly seek out your ideas because they are sincerely interested in what you have to say. Conferences continue to have their place, but the cost-benefit analysis favors blogging.
After over a decade of experience, the payoff is now clear. There is no doubt that blogging promotes scholarship. Consider law schools where there are well-known, reputable scholars who routinely blog. Where do they rank on SSRN downloads? Invariably law professors who blog are near the top of their respective faculty download rankings. At law schools where there are well-known law professor bloggers—schools like Chicago, Georgetown, UCLA, Alabama, Notre Dame, Ohio State, BYU, George Mason, Temple, Pepperdine, Case Western, American, San Diego, Hofstra, and South Texas—again and again we see permanent bloggers are at or near the top for all time SSRN downloads for their respective faculty.
I seriously doubt that the quality of the scholarship of law professor bloggers is uniformly better than that of their colleagues who do not blog. But there is almost no question that law professors who blog have a distinct advantage when it comes to promoting their scholarship. If I write a blog post and make a passing reference to a recent article, (see, e.g., here and here) there is the distinct possibility that of the thousands who read the post, a significant minority will read the article linked in that post. If I write a blog post specifically about a recent article, I can almost guarantee a download bounce.
As others will discuss during this anniversary symposium, blogging serves many useful purposes. But one undeniable benefit is to provide a platform for law professors to promote their scholarship.
Scholarship is not about producing great ideas. It is about producing great ideas and communicating those ideas to the broader world. Some law professors have embraced a medium that gives them a megaphone to share their ideas. Other brilliant scholars choose to produce great scholarship and forego the opportunity to promote it.
Opinio Juris has carved out a unique place in the international legal academy where we actively promote the ideas of the permanent contributors, and others who reach out to us and use this space to share their ideas.
It so happens that I have been researching the South African Truth and Reconciliation Commission at the same time that the Senate has published an alarming report of abuse and torture committed by Americans in the name of national security. Without equating South African apartheid with the Bush Administration’s policies and practices, I thought that a few insights from the South African TRC are worth highlighting.
First, the Senate Report is a transition point for the United States. Following early revelations of torture, we have had a decade of obfuscation, but now we are moving in the direction of truth-telling. Whatever one thinks of it, the Senate’s actions represent a type of truth commission. Flawed and partisan, but nonetheless a truth commission. Of course, the South African TRC was not simply a truth commission, but also a commission committed to reconciliation and prosecution of key perpetrators. The next step for the United States will be to consider whether and how we approach the next stage in this sad saga, which will involve questions of reconciliation and responsibility.
Second, while the Senate Report has focused on the question of efficacy, we should first and foremost recognize that information released yesterday underscores the moral failure of those who committed unspeakable acts of torture. It will take some time, but we must come to accept that the acts committed in the name of protecting our nation have weakened it. Our standing in the world has been irretrievably diminished. A poem by Desmond Tutu, head of the South African TRC, which he read during the opening session of the TRC in 1996, bears repeating:
The world is wept.
Blood and pain seep into our listening; into our wounded souls.
The sound of your sobbing is my own weeping;
Your wet handkerchief my pillow for a past so exhausted it cannot rest–not yet.
Speak, weep, look, listen, for us all.
Oh, people of the silent hidden past,
let your stories scatter seeds into our lonely frightened winds.
Sow more, until the stillness of this land can soften, can dare to hope and smile and sing;
Until the ghosts can dance unshackled, until our lives can know your sorrows and be healed.
Third, regardless of whether there are prosecutions, at some point those responsible for the policies that led to torture will be invited to apologize. If the South African TRC is any guide, they will refuse. During the South African TRC, in the kindest way possible Desmond Tutu invited former Prime Minister P.W. Botha to apologize. Tutu said to Botha:
I speak on behalf of people who have suffered grievously as a result of policies that we carried out by governments, including the government that he headed. I want to appeal to him. I want to appeal to him to take a chance … to say that he may not himself even have intended the suffering…. He may not have given orders or authorised anything…. I am just saying that the government that he headed caused many of our people deep, deep anguish and pain and suffering…. If Mr. Botha was able to say: I am sorry that the policies of my government caused you pain. Just that. Can he bring himself to say I am sorry that the policies of my government caused you so much pain? That would be a tremendous thing and I appeal to him.
Botha heard this appeal in a court of law, and sat there unmoved and unresponsive. Later, former Prime Minister F.W. de Klerk–the one responsible for freeing Nelson Mandela and setting South Africa on a path toward democracy–was also asked to apologize. He admitted that there were “bad apples” and that security forces committed acts of murder, torture, rape, and assault. But he denied that his administration ever directly or indirectly authorised such actions. Tutu said of de Klerk:
To say I did not know… I find that hard to understand. I have … got to say that I sat there and I was close to tears. I feel sorry for him. I am devastated. [For him] to make an impassioned apology … and then to negate it. All that is required is to say that ‘we believed in this policy but it is a policy that brought about all of this suffering. It is a policy that killed people. Not by accident, deliberately. It was planned.’
His failure to apologize permanently altered Tutu’s estimation of de Klerk.
He would have gone down in history as a truly great South African statesman… What a great man he would have been…. He is a very bright lawyer who qualifies his answers carefully to protect his position, but in doing this he has steadily eroded his stature, becoming in the process a small man, lacking magnanimity and generosity of spirit.
So this is where we are. We are beginning to understand the truth of what happened. Our souls are heavy as we learn of the silent, hidden past. Eventually we will pursue more than just truth. We will discuss a formal truth and reconciliation commission, and will investigate who and how to prosecute the perpetrators of torture. We will hope upon hope for a sincere apology from statesmen, but have little confidence that one will be forthcoming.
That’s the provocative conclusion of the latest research by Joel Trachtman. Trachtman’s articles are typically succinct and seductive, so you owe it to yourself to read the short article (and skim the long appendix).
Trachtman examined 300 different CIL rules and found that only 13 (4.33%) have not been either incorporated in treaties or codified. Trachtman argues that the move toward treaties is because CIL cannot respond effectively to the great modern challenges of international society: global environmental protection, international public health, cybersecurity, financial cataclysm, and liberalization of movement of goods, services, and people. Trachtman also argues that CIL is incapable of addressing enduring challenges of regulating war, protecting human rights, and reducing poverty.
According to Trachtman, the reasons for CIL’s obsolescence are manifold. CIL (1) cannot be made in a coordinated manner; (2) cannot be made with sufficient detail; (3) cannot be made with sufficiently heterogeneous reciprocity; (4) cannot be made with specifically-designed organization support; (5) is not subject to national parliamentary control; (6) purports to bind states that did not consent but failed to object to its formation, and (7) provides excessive space for auto-interpretation by states or undisciplined judges.
For Trachtman, the obsolescence of CIL should lead states to stop arguing about CIL and start legislating mutually beneficial transactions. It should also lead NGOs and advocates to stop trying to “bootstrap a desired CIL past a target state” and instead engage with those states in treatymaking. Academics should “focus our analysis on the politically immanent, interdisciplinary, work of developing proposed rules that are administratively workable and effective, and that achieve actual social goals.” He suggests that the international legal system could survive just fine without CIL. So stop worrying about custom and learn to love treaties.
This is powerful stuff. With this piece Trachtman has done a great service to the academic debate on the relevance of CIL. Perhaps unwittingly, he also has done great service to customary international law by offering a comprehensive appendix that lists 300 of the most important CIL rules. If you want students to quickly grasp the scope and contours of CIL, just peruse the appendix.
Applying Trachtman’s thesis to my world of international economic law, I must concur with much of Trachtman’s argument. International trade law, in particular, is all about negotiating, interpretation, and enforcing treaties. We rarely if ever discuss CIL in a trade class. The very nature of an FTA is that it confers rights and obligations exclusively its Members. The defects of CIL are significant enough that trade law is almost exclusively treaty law.
International arbitration is more complicated. Trachtman only identifies two CIL rules for international economic law (Rule 207 and 208), both codified in the investment chapter of NAFTA Chapter 11. But the norm for investment arbitration is to articulate a general standard of protection in bilateral investment treaties (or FTA investment chapters), and then leave it to arbitral tribunals the task of devising detailed obligations from those general standards. Indeed, most BITs require States to afford investors protection consistent with international law, leaving to tribunals the task of discerning precisely what international law requires. BITs are not codifying CIL, but in a sense they instruct tribunals to create it.
Trachtman would not disagree that CIL is still relevant in limited contexts. He specifically recognizes that occasionally CIL is more precise than a codified rule. International humanitarian law and investment arbitration may be such categories. Likewise, Trachtman would concede that CIL is relevant where the treaty is binding on only a few states, as is the case with rules of state succession.
One can easily find selective instances where Trachtman is wrong. But what I doubt critics will be able to do is refute his general thesis that the codification of international rules through treaties has made CIL increasingly obsolete.
Last week the Ninth Circuit issued a controversial opinion in Mujica v. Airscan, Inc., that sharply limits the scope of human rights litigation. The claims in Mujica arose in Colombia and allegedly implicate corporate collusion with the Colombian military. Following Kiobel the common consensus was that Alien Tort Statute litigation would be severely curtailed based on the presumption against extraterritoriality. Not surprisingly, the Ninth Circuit rejected the Plaintiffs’ claims, finding that where the only connection to the United States was the Defendants’ nationality, the claims do not “touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritorial application.
What is extremely surprising is that the court dismissed the state law claims. Because the court was not exercising supplemental jurisdiction over the state law claims, it could not simply dismiss them without prejudice to be filed in state court. As with almost every other common law tort claim brought in federal district court based on diversity jurisdiction, I fully expected the Ninth Circuit in Mujica to apply California choice of law principles to resolve the claim. (For a detailed analysis of choice of law in the human rights context, see my article here).
As set forth by the California Supreme Court in Kearney, California’s comparative impairment analysis considers whether there is a true conflict between the affected states and applies “the law of the state whose interest would be the more impaired if its law were not applied.” California courts generally favor forum law when (1) the forum has an interest in the dispute and the laws of other affected jurisdictions are not different or (2) when the laws are different and the interests of the forum would be more impaired than the interests of the other jurisdiction. Otherwise they apply foreign law. Applying California choice of law, the Ninth Circuit exercising diversity jurisdiction ordinarily would retain jurisdiction of the state law claims and resolve them under Colombian law (as the government with the greatest interests at stake). The whole purpose of Brainerd Currie’s government interest approach (adopted by the California courts) is to exercise jurisdiction in a manner consistent with the legitimate government interests of the relevant stakeholders.
That is not what the court in Mujica did. Instead it relied on a novel prudential comity analysis to dismiss the claims. It first distinguished between prescriptive and adjudicatory comity, and concluded that Hartford Fire’s “true conflict” approach was inapplicable. Fair enough. But then it applied the comity factors enunciated in Restatement Section 403, which also applies to prescriptive comity. So the “true conflict” approach in Hartford Fire does not apply because that is relevant only for prescriptive jurisdiction, but the limitations on prescriptive jurisdiction in Section 403 do apply in balancing factors under adjudicatory comity. Very strange.
With due credit to my conversations with Trey Childress and Bill Dodge yesterday, if the court was going to invoke adjudicatory comity, it should have relied on the Supreme Court’s decision in Colorado River and appellate court decisions such as Royal and Sun Alliance, Ungaro-Benages, and AAR International. Indeed, the Ninth Circuit’s decision in Neuchatel Swiss General specifically addressed adjudicatory comity and held that courts should not dismiss on the basis of adjudicatory comity except in “exceptional circumstances.” Those cases strongly suggest that adjudicatory comity applies only in exceptional circumstances and only when there is a pending foreign proceeding. The Ninth Circuit in Mujica completely ignored binding Supreme Court and Ninth Circuit precedents.
So what the court should have done in a case of diversity jurisdiction with significant foreign contacts is apply California’s choice of law principles to resolve the common law claims. That almost certainly would have resulted in the application of Colombian law, especially Title XXXIV of the Colombian Civil Code. (The Court could not dismiss the case based on forum non conveniens because the district court already determined that there was not an adequate alternative forum, and that question was not on appeal.) With no other avenues for dismissal, the Ninth Circuit dismissed the claims on the basis of a muddled application of adjudicatory comity, leaving the plaintiffs with no obvious means of redress anywhere.
I have written at length about the rise of transnational tort litigation and the application of choice-of-law principles as the logical response to Kiobel. The Ninth Circuit’s decision in Mujica seems to suggest that that approach is perfectly fine for the typical wrongful death claim involving foreign contacts or parties. But if it is a human rights claim dressed up in the guise of a wrongful death claim, then at least two members of the Ninth Circuit will bend over backwards to dismiss it.
I would be quite surprised if this case is not reconsidered by the Ninth Circuit en banc.
Tomorrow I have the good fortune of participating in the Notre Dame Law Review symposium with leading foreign relations scholars. The topic of the symposium is Bond v. United States. The keynote will be given by Paul Clement, who won the case for Petitioner.
The focus of my discussion will be the relationship between Supreme Court treaty interpretation and the international approach to treaty interpretation. As readers of this blog well know, the Supreme Court has never followed the international approach to treaty interpretation. In the over forty years since the Vienna Convention on the Law of Treaties was signed, the Supreme Court has not relied on its interpretive methodology on a single occasion. This is despite the fact that the Vienna Convention’s interpretive approach (the “Vienna Rules”) reflected the common practice at the time it was adopted, and now reflects customary international law. This is despite the fact that the United States views the Vienna Convention as the authoritative guide to treaty law and practice.
This is not to suggest that the Supreme Court does not utilize the same interpretive tools as the Vienna Rules. Indeed, at one time or another the Court has used every single interpretive tool reflected in the Vienna Rules. It supports reliance on the ordinary meaning of the terms of a treaty. The Court has held that “[a]s treaties are contracts between independent nations, their words are to be taken in their ordinary meaning as understood in the public law of nations.” It recognizes that a treaty should be construed to give effect to its purposes, stating that “[a] treaty should be generally construed liberally to give effect to the purpose which animates it.” It agrees that a treaty should be read in context, reasoning that “when interpreting a treaty, we ‘begin with text of the treaty and the context in which the written words are used.’” It interprets terms in light of subsequent practice and subsequent agreements. It supports recourse to supplementary means of interpretation, such as the negotiating history. It follows general rules of interpretation such as presumptions and constructions that follow ordinary logic and reason. Thus, although the Court has never systematically followed the holistic, unitary approach of the Vienna Rules, it consistently relies on the same interpretive tools.
Bond v. United States marks an important moment in this history of Supreme Court treaty interpretation. Although it did not cite the Vienna Rules, it is the first time that the Supreme Court has analyzed a treaty (and it’s implementing legislation) using the same methodology as the Vienna Rules. That is, the Court interpreted the treaty “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Because the terms of the treaty were ambiguous and could lead to manifestly absurd and unreasonable results, the Court also applied supplementary means of interpretation, including the negotiating history and a federalism presumption.
The ordinary meaning of the term “chemical weapon” was central to the Court’s analysis. “[A]s a matter of natural meaning, an educated user of English would not describe Bond’s crime as involving a ‘chemical weapon.’” The natural meaning of that term accounts for both the type of chemical used and the circumstances in which they were used. No ordinary person would consider that the chemical Bond used was a deadly toxin of the type the Chemical Weapons Convention was designed to address. The ordinary meaning of a “weapon” is an “instrument of offensive or defensive combat.” Using natural parlance, Bond’s behavior was not combat. Interpreting “chemical weapon” to include Bond’s crime “would give the [implementing] statute a reach exceeding [its] ordinary meaning.” Reliance on the ordinary meaning of “chemical weapon” plays a “limiting role” on the scope of the prohibition, and avoids transforming a “statute passed to implement the International Convention on Chemical Weapons into one that also make it a federal crime to poison goldfish.”
The Court in Bond extensively discussed the object and purpose of the Convention. It began with an image of the ravages of chemical warfare during the First World War as the impetus behind the overwhelming consensus that toxic chemicals should never be used as weapons of war. It cited the bold aspirations expressed in the Convention’s Preamble—the complete elimination of all types of weapons of mass destruction used by state and non-state actors in times of war and peace. These purposes were critical to the Court’s interpretation. “[T]he Convention’s drafters intended for it to be a comprehensive ban on chemical weapons … [and] we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct.” Given the purpose of the Convention to address “war crimes and acts of terrorism,” the Court concluded that “[t]here is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.” It found that Bond’s chemical of choice—an arsenic-based compound that causes minor irritation when touched—bore “little resemble to the deadly toxins that are ‘of particular danger to the objectives of the Convention.’” The “purely local crime” that Bond committed “could hardly be more unlike the uses of mustard gas on the Western Front or nerve agents in the Iran-Iraq war that form the core concerns of the treaty.” Accordingly, the United States and the community of nations have no interest in seeing Bond imprisoned for violating the ban on chemical weapons. “[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
The Court also repeatedly cited context as an interpretive aid. It concluded that “the context from which the [implementing] statute arose demonstrates a much more limited prohibition was intended” by the ban on chemical weapons. Rather than rely solely on the statutory definition the Court concluded that the “the improbably broad reach of the key statutory definition” was rendered ambiguous by “the context from which the statute arose—a treaty about chemical warfare and terrorism.” The Court interpreted the term “chemical weapon” in light of the entire Convention, including the Preamble, other treaty provisions, and the Annex on Chemicals. These provisions illuminated the purpose and structure of the ban on chemical weapons, and the nature of the banned chemicals.
Most importantly, the Court twice cited another provision of the Convention, which provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” It cited this provision as contextual support for a federalism presumption. The “constitutional process in our ‘compound republic’ keeps power ‘divided between two distinct governments.’” Faithful to federalism and other constitutional concerns, the Convention only required that “necessary measures” be adopted, leaving to the States how they would be adopted within their constitutional system. This context permitted the Court to interpret the treaty obligation consistent with a federalism presumption, a presumption that has a longstanding history within the Court’s jurisprudence.
Bond raises the possibility that the Court’s interpretive approach could more closely align with the international standard. There already are existing canons of construction that support a greater reliance on the Vienna Rules. Among them is the general rule that treaties are contracts between nations that should be interpreted according to a shared understanding. As the Court recently put it, “[a] treaty is in its nature a contract between nations, not a legislative act.” Therefore, “it is our responsibility to read the treaty in a manner consistent with the shared expectations of the contracting parties.” If the shared expectations of the contracting parties is that treaty terms should be interpreted according to the Vienna Rules, then it follows that the Court could apply that canon not only to interpret the meaning of specific treaty terms, but also to its interpretive methodology. It would not do so because the United States has ratified the Vienna Convention or that the Vienna Rules are otherwise part of United States law. Rather, the Court would rely on them because with every treaty the contracting parties have the expectation that the treaty terms will be interpreted using the Vienna Rules.
Another canon of construction is that the Court should give deference to the Executive Branch’s interpretation of treaties. If the Executive Branch recognizes that the Vienna Rules are the authoritative guide to treaty interpretation, then the Court should give great weight to that conclusion. Ordinarily this deference applies to the Executive Branch’s interpretation of specific treaty terms. But it could also support the Executive Branch’s support for the Vienna Rules as the authoritative guide to treaty interpretation. As the United States argued in one recent case, “[a]lthough the United States has not ratified the Vienna Convention on the Law of Treaties, the United States generally recognizes the Convention as an authoritative guide to treaty interpretation.” If the United States views the Vienna Rules as the authoritative guide to treaty interpretation, and the Supreme Court gives deference to Executive Branch’s interpretation of treaties, then the Court could rely on the Vienna Rules in deference to the Executive Branch.
The Supreme Court has long ignored the Vienna Rules. Bond does not change that fact, but it does give support for courts to rely on the interpretive tools that form the basis for the Vienna Rules. The Court has always accepted the tools of interpretation reflected in the Vienna Rules. It now has accepted those tools as part of a holistic, unitary approach. The Vienna Rules are hidden behind the veil of Bond’s interpretative methodology. Consistent with accepted canons of construction, the Court could rely on the Vienna Rules more explicitly.