Author Archive for
Roger Alford

“We Have Waited Too Long for Our Freedom. We Can No Longer Wait.”

by Roger Alford

The drive from Paarl to Cape Town was only forty-five minutes. The plan was for Nelson Mandela to address the world at the Grand Parade, the great public square adjacent to the Fort of Good Hope, where South Africa’s founding father Jan van Riebeck had established a toehold for the Dutch East India Company in the 17th century. As Mandela drew near to the Grand Parade an enormous crowd enveloped his car. A massive hailstorm of joyous fists hammered down on the boot and bonnet. Well-wishers jumped on the car in celebration, and it began to shake violently. “I felt as though the crowd might very well kill us with their love,” Mandela recalled. Attempts to clear a path were futile and Mandela sat there, stranded in his vehicle for hours. After over ten thousand days of imprisonment, Mandela was now imprisoned by tens of thousands of his most ardent supporters.

Parade marshals eventually came to the rescue, and Mandela finally reached his destination several hours late. Standing on the balcony of the City Hall overlooking the Grand Parade, he looked down on “a boundless sea of people cheering, holding flags and banners, clapping and laughing.” He began his speech in his native Xhosa tongue, leading the massive crowd in the responsive chant that was a regular feature of anti-apartheid gatherings.

“Power!” Mandela bellowed with his fist raised.

“It is ours!” replied the cheering crowd.

“Power!” Mandela repeated.

“It is ours!” yelled the throngs.

“Africa!” chanted Mandela.

“Let it come back!” they chanted back.

“Let it come back!” Mandela replied.

“Africa!” they answered, in a crescendo that was decades in the making.

As the crowd settled down, Mandela embarked on a militant speech that embraced the battle against apartheid on all fronts. “Our struggle has reached a decisive moment,” Mandela said. “We call on our people to seize this moment so that the process toward democracy is rapid and uninterrupted. We have waited too long for our freedom. We can no longer wait.” Saluting communists and combatants, embracing international sanctions, and vowing to continue the armed struggle against apartheid, Mandela catered to his swelling ranks and flamed the fears of his nervous opponents. After twenty-seven years of internal exile, Mandela knew that the first step toward peace was to restore his leadership within the African National Congress.

White South Africans were shocked by Mandela’s fiery speech. The day before President F.W. de Klerk had assured them that Nelson Mandela was “committed to a peaceful solution and a peaceful process.” After hearing the speech, de Klerk felt deceived. “I realized once again that the road ahead would be extremely difficult.”

The great question that had vexed South Africa for decades was, “Not if, but when?” When would the dawn come? The sun-tipped mountains shone bright, but the great valleys, the valleys where old men and women scratched the red blood soil to survive, remained in darkness. “When,” in the words of Cry the Beloved Country, would “that dawn … come, of our emancipation, from the fear of bondage and the bondage of fear?” “Why, that,” Alan Paton concluded, “[was] a secret.” Forty years after that forlorn question was asked it remained an unanswered secret.

The answer did not come on February 11, 1990, the day of Mandela’s release. Nothing Mandela said that day assuaged white fears or emancipated black bondage. At most one could glimpse the first lights of the new dawn on the tips of the mountain. “The road ahead may be long and hazardous,” wrote Archbishop Desmond Tutu, “but at long last it seems what so many have prayed and fasted for … seems more attainable than ever before.”

President F.W. de Klerk, the one responsible for Mandela’s freedom, was more sanguine: “I was struck by an inescapable truth: an irreversible process had begun—and nobody could predict precisely how it would end.”

Morality Play at the WTO

by Roger Alford

“[N]othing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures … necessary to protect public morals.” Article XX(a), GATT 1994

The long-awaited WTO panel decision on the EU’s ban of seal products is now available. The case raises one of the most interesting unanswered questions regarding WTO jurisprudence: to what extent may Member States impose trade restrictions based on moral or ethical concerns? Can a Member State impose a trade ban because the manner in which a product is produced violates the State’s own subjective understanding of public morals? The answer from the WTO panel is a resounding yes.

The case arose out of the EU’s concern for animal welfare. Seal hunting often involves the inhumane killing of seals resulting in needless suffering. The EU banned the importation of seal products, but exempted hunting by Inuit communities (IC hunts) and in furtherance of marine resource management where seals threatened fishing stocks (MRM hunts). Canada and Norway objected to the ban on seal products, and filed a case before the WTO. A WTO panel issued their report last week.

The case required the WTO to assess whether public morals can justify the ban on seal products. Under WTO jurisprudence, the standard for what constitutes “public morals” is exceedingly easy to satisfy. As stated in US–Gambling, “public morals” are “standards of right and wrong conduct maintained by or on behalf of a community or a nation.” The content of public morals “can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.” (See para. 7.380). In essence, the WTO panel must assess whether there is public concern about a particular issue and whether that concern is animated by that particular Member State’s public morals. (See para. 7.383).

In EU–Seal Products, the WTO panel examined the text of the regulation and the legislative history as evidence that there was public moral concern about the issue. Ethical concerns expressed in the text of a regulation combined with legislative debate about the morality of the issue appeared to be sufficient for the panel. (The panel dismissed public surveys as inconclusive). On finding that there was a EU concern, the panel held that the:

EU seal regime’s objective is to address the moral concerns of the EU public with regard to the welfare of seals, including the incidence of inhumane killing of seals and EU participation as consumers in and exposure to economic activity which sustains the market for seal products derived from inhumane hunts. EU public concerns on seal welfare appear to be related to seal hunts in general and not to any particular type of seal hunts. In other words, all inhumane seal hunts are of concern, not just commercial hunts. (See para. 7.410).

The key holding was that seal welfare is a matter of EU public morals that justifies the ban on seal products. (See para. 7.505; 7.631). As for the exceptions, the WTO panel rejected the EU’s exemptions for IC hunts, finding that Inuit hunts in Greenland were large-scale commercial operations that were similar to the Canadian and Norwegian commercial hunts covered by the rule. In addition, the exception for MRM hunts was rejected because the EU did not apply the exception in an even-handed way as compared to Canadian and Norwegian hunts. (See 7.650).

Several points are worthy of emphasis. First, the WTO has embraced moral pluralism. This includes what Rob Howse and Joanna Langille describe in this YJIL article as “noninstrumental moral beliefs” grounded in philosophical or religious beliefs. Islamic countries may ban alcohol, Hindu countries may ban bovine meat, and Israel may ban non-kosher meat. Not because there is anything inherently harmful about those products, but simply because they violate the public ethic of that community. As Howse and Langille put it, “public morals” may be justified either as “instrumental regulation designed to counter certain social ills, or as expressive regulation designed to express or give force to intrinsic moral intuitions or shared values.” The fact that there is not universal concern for seal welfare, or that Canada and Norway do not share EU’s concerns, is irrelevant for WTO purposes.

Second, the public moral concerns may derive from conduct that is wholly extraterritorial to the Member State. Under this reasoning, a Member State should be free to impose a ban on products that destroy the rainforest in the Amazon, harm child laborers at rubber plantations in Africa, or advance blatant government corruption in Asia. Personally, that makes sense to me in light of the prison labor exception (Art. XX(e)) included in the original GATT 1948 to address extraterritorial evils such as products manufactured in concentration camps and gulags. But it is nonetheless a controversial proposition.

Third, satisfying a WTO panel that a matter is of ethical concern requires little more than the sponsor of the legislation making sure to include appropriate language in the preamble of the draft regulation and raising moral concerns on the floor of the legislature. The test is easily met in the hands of a skillful legislator. The indeterminacy of establishing a genuine moral or ethical public concern regarding a particular practice is fraught with uncertainty.

Fourth, determining whether a restriction is “necessary” to protect public morals requires the WTO panel to determine the efficacy of a means in pursuit of an intangible goal. How does one determine whether a trade ban is necessary to further moral objections to inhumane hunting? The WTO panel indicated that as long as the trade restriction materially contributed to the objective of reducing demand and avoiding exposure, it satisfied the “necessity” requirement. (7.636-7637).

Fifth, the public morals exception may become the new battleground for WTO litigation. Rather than consistently ignoring this exception and rushing to litigate Article XX(b) (protection of human, animal, or plant health or life) or Article XX(g) (protection of exhaustible natural resources), the new litigation strategy may be to identify how a trade restriction advances ethical concerns of the Member State. In the future, we may see IP piracy restrictions justified as a reflection of public concern about the morality of stealing, a carbon tax implemented out of moral concerns for the ethics of sustainable development, and restrictions on any number of Chinese products justified out of concern that Chinese workers are subjected to a mandatory one-child-per-family policy implemented through forced abortions. After EU–Seal Products the public morals argument is open for creative interpretation.

To be clear, I support a liberal reliance on public ethics to justify legitimate trade restrictions. But the difficulty is how to cabin the morality exception to avoid abuse. EU–Seal Products is now before the WTO Appellate Body for review and clarification.

Omit Needless Words

by Roger Alford

Watching my youngest son draft and redraft his high school essays under the watchful eye of his English teacher, who is smitten by the inerrant wisdom of Strunk and White’s Elements of Style, I was curious how the best legal scholarship in the country fares by classic rules of writing.

To simplify my task, I have chosen one rule that is easily quantifiable. In discussing elementary principles of composition, Strunk and White admonish writers to omit needless words:

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts…. Many expressions in common use violate this principle…. In especial the expression “the fact that” should be revised out of every sentence in which it occurs.

So how do the top law journals perform under the microscope of William Strunk and E.B. White? In the countless hours of drafting and editing, do the top scholars and top student editors adhere to this elementary principle of composition?

The results are not encouraging. (Alas, I too plead guilty in my own scholarship). A ten-year search of the number of occurrences “the fact that” appeared in the flagship journals of the top law schools reveals the following:

Harvard Law Review: 869
Michigan Law Review: 496
Yale Law Journal: 459
Columbia Law Review: 436
Chicago Law Review: 431
NYU Law Review: 428
Penn Law Review: 408
California Law Review: 406
Stanford Law Review: 388
Virginia Law Review: 364

So on average the top journals misuse this phrase almost fifty times a year, and the Harvard Law Review misuses it over eighty times a year.

In our obsession with rankings, we can take solace in “the fact that” the Harvard Law Review is the best among the best at using this needless expression.

Lower Courts Narrowly Interpret Kiobel

by Roger Alford

It’s been over five months since the Supreme Court rendered its landmark decision in Kiobel v. Royal Dutch Petroleum. A quick review of lower court decisions suggests that Kiobel marks the end of the Filartiga revolution in the United States.

The most significant lower court ruling to date is Balintulo v. Daimler AG where the Second Circuit rejected plaintiffs’ argument that Kiobel did not preclude claims based on foreign conduct when the defendants are Americans. Nor did the claims “touch and concern” the territory of the United States based on American interests to support the struggle against South African apartheid. In other words, according to the Second Circuit domestic conduct is required for an ATS claim to proceed under Kiobel.

The Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States…. If all the relevant conduct occurred abroad, that is simply the end of the matter under Kiobel…. In all cases, therefore the ATS does not permit claims based on illegal conduct that occurred entirely in the territory of another sovereign.

There are numerous district court cases that are in accord, dismissing ATS claims based on the absence of domestic conduct, regardless of the nationality of the defendants. There is not a single case in which the defendant’s American nationality has been sufficient to displace the presumption.

A few cases further clarify whether claims “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritoriality.”

A magistrate judge in Mwani v. Bin Laden held that an attack on the U.S. embassy in Kenya plotted in part within the United States could overcome the presumption. “If any circumstances were to fit the Court’s framework of ‘touching and concerning the United States with sufficient force,’ it would be a terrorist attack that (1) was plotted in part within the United States, and (2) was directed at a United States Embassy and its employees.” By contrast, a federal court in Kaplan v. Central Bank of Iran held that a foreign terrorist attack that killed Americans but targeted another country would not be sufficient to overcome the presumption.

The case of Sexual Minorities Uganda v. Lively, involving an American defendant who allegedly led a campaign of persecution against the LGBT community in Uganda, represents a rare example of substantial conduct within the United States sufficient to displace the presumption. A federal district court in Massachusetts held that where an American defendant engaged in tortious acts that “took place to a substantial degree within the United States, over many years, with only infrequent actual visits to Uganda…. Defendant’s alleged actions in planning and managing a campaign of repression in Uganda from the United States are analogous to a terrorist designing and manufacturing a bomb in this country, which he then mails to Uganda with the intent that it explode there.” In other words, territorial conduct with extraterritorial injuries are sufficient.

Another district court emphasized that it was not sufficient to simply find some conduct within the United States. In Giraldo v. Drummond Company, Inc., a federal district court in Alabama held that even if certain corporate decisions were made within the United States to support human rights abuses abroad, the focus is not on finding some domestic conduct, but what type of conduct occurred at home and abroad. “Where a complaint alleges activity in both foreign and domestic spheres, an extraterritorial application of a statute arises only if the event on which the statute focuses did not occur abroad. Of course, the ATS focuses on the torts of extrajudicial killings and war crimes and … the tort at issue occurred abroad in Colombia, and not in the United States.” This opinion seems to follow Justice Alito’s concurrence, requiring the domestic conduct to violate the law of nations.

As to what constitutes the territory of the United States, a federal court in Al Shimari v. CACI International, Inc. suggested but did not decide that de facto sovereignty might be enough. “The Court finds inconclusive, at best, Plaintiffs’ support for their contention that the United States held de facto sovereignty over Iraq during the relevant period in this case…. It would be difficult to conclude that the United States, to the exclusion of all other involved nations, exercised complete jurisdiction over Iraq.” One wonders whether a claim based on human rights violations in a location where the United States did exercise de facto sovereignty, (i.e., Guantanamo Bay) might be enough.

So there you have it. It is still too early to reach any serious conclusions about Kiobel‘s progeny. But the early scorecard does not look promising for plaintiffs.

Forty Years Ago Today: Pinochet’s Coup in Chile

by Roger Alford

PinochetI have been in Santiago, Chile for the past few days keynoting an international law conference at the Pontifical Catholic University of Chile. It’s an impressive law school in one of the most beautiful cities in South America.

I was fortunate to arrive on the eve of the fortieth anniversary of the defining moment in Chilean history: Augusto Pinochet’s coup d’état on September 11, 1973. Protests are planned throughout the country to memorialize the detained and disappeared. I’m not sure what the norm is in Santiago, but this week Pinochet was very much on the minds of Chileans, with television and newspapers filled with stories on the Pinochet era. An estimated 3,200 were murdered and 38,000 tortured during his reign. I spoke at length with students and professors about their reflections on Augusto Pinochet.

Pinochet’s reputation has plummeted in the past two decades. Almost everyone I spoke with said that the Pinochet extradition trial in the United Kingdom was the turning point. At the time he was arrested in London in October 1998, the country was divided, with as many defending as condemning him. But the international condemnation that ensued in 1999 altered pubic opinion in Chile. Now the vast majority of Chileans view Pinochet as a dictator, and he has precious little support among the the younger generation. Only with the older generation is there a significant minority that defends the Pinochet era.

I raise this because I think many outsiders view the Pinochet trial as an inconclusive failure. He was never extradited to Spain. Despite numerous attempts, he was never convicted at home or abroad for his human rights violations. But the legacy of the extradition trials in Britain and criminal investigations in Chile have left a lasting impact on Pinochet’s reputation. The law students I had the privilege to interview uniformly condemned the man. The names of his victims are memorialized around the country. He was never convicted, but he stands condemned by the Chilean public.

“I Have a Dream”

by Roger Alford

Fifty years ago today, on the morning of August 28, 1963, Martin Luther King looked out from his suite at the Willard Hotel as crowds began mulling around the Washington monument. He had stayed up until four in the morning drafting and redrafting his speech. As King looked on, his aides were furiously typing the finished draft for distribution to the press. King’s greatest fear was that the march would turn violent. “If that happens,” King told Ralph Abernathy, “everything we have done in Birmingham will be wiped out in a single day.” Turn-out was a close second on King’s list of concerns. He had hoped for 100,000 marchers, but at the scheduled start date of 9:30 a.m., less than 25,000 had gathered at the Washington monument.

Within an hour the numbers surged to 90,000 with many more on the way. By the time entertainers had finished their warm-up act and the formal speeches began, the crowd exceeded 200,000. The following day the New York Times described it as “the greatest assembly for a redress of grievances that this capital has ever seen.”

The program called for ten speakers representing many of the leading civil rights, religious, and labor groups in the nation. The program started late and progressed slowly, with several spotty and uninspired speeches. The first speaker to capture the audience was young John Lewis, who gave a defiant jeremiad indicting “politicians who build their careers on immoral compromises and ally themselves with open forms of political, economic, and social exploitation.” Lewis demanded federal legislation that would provide real protection. “We are tired of being beaten by policemen. We are tired of seeing our people locked up in jail over and over again, and then you holler ‘Be patient.’ How long can we be patient? We want our freedom and we want it now.”

Roy Wilkins, executive-secretary of the National Association for the Advancement of Colored People, used humor to praise Kennedy’s bill by promising to “emancipate” Southern politicians from office if they did not support the civil rights bill. Mahalia Jackson, the Queen of Gospel, sang a Negro spiritual that brought the crowd to tears. Finally, Martin Luther King took the podium to a thunderous applause.

King began the speech by proclaiming that today would “go down in history as the greatest demonstration for freedom in the history of our nation.” He recalled the broken promises of the Emancipation Proclamation. “We’ve come to our nation’s capital to cash a check…. America has defaulted on this promissory note in so far as her citizens of color are concerned…. And so we’ve come to cash a check, a check that will give us upon demand the riches of freedom and the security of peace.” He warned of future civil rights demonstrations until these demands were met. He admonished his followers against “drinking from the cup of bitterness and hatred.” He praised redemptive suffering. He urged his listeners to go back home with the confidence, without “wallowing in the valley of despair.”

Then, midway through his speech, King went off script. He embarked on a theme he had preached many times before: the prophetic dream of a future harmonious America. For members of the civil rights movement, it was nothing new; King routinely preached that God would redeem America. But on this day, millions of Americans watched for the first time as a black preacher, the most eloquent one in the country, prophesied about a future day of racial reconciliation:

So I say to you, my friends, that even though we must face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream that one day this nation will rise up and live out the true meaning of its creed—we hold these truths to be self-evident, that all men are equated equal.

I have a dream that one day one the red hills of Georgia, sons of former slaves and sons of former slave-owners will be able to sit down together at the table of brotherhood.

I have a dream that one day, even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, … one day, right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today!

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places shall be made plain, and the crooked places shall be made straight and the glory of the Lord will be revealed and all flesh shall see it together.

The crowds were on their feet in thunderous applause. Millions watched that day, and the country was transfixed by the peaceful demands for racial equality. What could have been a day of violence and riots was a day of dignity and hope.

President Kennedy, after meeting with civil rights leaders, issued a statement praising the march. “One cannot help but be impressed with the deep fervor and the quiet dignity that characterizes the thousands who have gathered in the nation’s capital from across the country to demonstrate their faith and confidence in our democratic form of government.”

Linos Book Symposium: Comments by Roger Alford

by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad.

I want to push Katerina a bit on the question of actors involved in the diffusion process. She notes that “many academics, judges and commentators emphasize how references to foreign law reflect elite predilections antithetical to the views of ordinary voters, especially ordinary Americans.” (p.26). The context of that criticism, of course, is constitutional comparativism by the Supreme Court in cases such as Roper v Simmons and Lawrence v. Texas.

Almost ten years ago I too expressed concern about the countermajoritarian difficulty of the Court adopting international and foreign norms that run counter to American majoritarian values. As I put it in this article, “the international countermajoriatian difficulty would suggest that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards…. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard.” (p. 59).

Katerina does not address constitutional comparativism per se, but she clearly voices her support for the democratic diffusion of norms. Her book presumes that “international norms and democracy are mutually reinforcing” and that “democratic processes are an engine, not an obstacle, for the spread of policies across countries.” (p.2). The book also presumes political rather than judicial avenues for the diffusion of norms, with elected politicians constrained to borrow from and reference large, rich, and proximate countries and prominent international organizations to advance their own policy preferences.

So my question for Katerina Linos is whether her theory of democratic diffusion supports or undermines arguments for constitutional comparativism. She explains at length how democratic diffusion occurs, but does not clearly indicate her preference for this type of diffusion over alternatives. Does her convincing case for democratic diffusion undermine undemocratic diffusion by policy elites in the judiciary who are unresponsive to and unconstrained by majoritarian preferences?

In short, does her theory posit that policy diffusion is better when it occurs through democratic processes than when it is imposed by judicial elites? To take concrete examples, is it better with controversial questions such as juvenile death penalty (Roper v. Simmons) or gay marriage (United States v. Windsor) for policy preferences to be advanced through democratic diffusion or judicial diffusion?

My own sense is that the Supreme Court experimented with policy diffusion of global norms through constitutional adjudication ten years ago, but has since retreated from that approach, and that democratic diffusion of global norms is the new normal. Indeed, just yesterday in Windsor the Court expressed its sensitivity to the democratic diffusion of norms with respect to gay marriage:

In acting first to recognize and then to allow same-sex marriages, New York was responding ‘to the initiative of those who [sought] a voice in shaping the destiny of their own times’…. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other…. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. (pp. 19-20).

A Review of Andrew Guzman’s Overheated

by Roger Alford

I read my friend Andrew Guzman’s book Overheated: The Human Cost of Climate Change with great interest because I know Guzman is exceedingly capable at communicating complex ideas in an accessible format. He’s done that throughout his career, and Overheated is no exception. Like Hari Osofsky, I commend the book to our readers. Before you teach the law of climate change, give your students the facts by assigning portions of this book.

The science behind climate change is one of those issues that is beyond the comprehension of most intelligent individuals. Therefore, the translation and simplification of what is at stake is essential for public awareness and for the development of policies. The greatest virtue in Andrew Guzman’s book is taking conservative estimates of global warming and then graphically portraying the consequences of such changes. As Guzman puts it,

“[T]his book has tried to explain as clearly and honestly as possible how the effects that scientists have identified will actually affect people. If it is successful, readers will appreciate that the climate-change crisis will affect more than just our physical world. The consequences we really care about are those that affect humans, and … many hundreds of millions of people … will be badly hurt as the earth warms….” (p. 212).

It is difficult to grasp the human costs of climate change. Guzman does so by taking abstract problems–rising ocean levels, melting glaciers, climate wars, pandemics–and humanizing them with concrete stories. He explains how rising ocean levels will result in forced displacement of 20 million people in Bangladesh. He explains how melting glaciers creates water storage problems that will impact millions in Bolivia and California. He explains how climate change will destabilize regions and exacerbate conflicts in places such as Darfur and the Golan Heights. He explains how warmer temperatures will create ideal conditions for a global pandemic, similar to how the Spanish flu of 1918 killed at least twice as many people as World War I. Guzman is at his best in humanizing climate change from an incomprehensible, abstract, and distant problem of Malthusian proportions, to a problem that is concrete, imminent, and understandable.

The second great benefit of the book is the way he responds to the climate change skeptics. Rather than simply dismissing them out of hand, he puts both sides on the scales of reason and makes a convincing case that the skeptics fall short. He does it in a way that is respectful and honest, admitting where the skeptics have valid points but nonetheless fail In the end to prevail in the debate. He does it in a way that you get the sense he genuinely is trying to convince good faith, reasonable people who have their doubts to get off the fence and accept the reality of climate change and the consequences of inaction.

His style of reasoned debate reminds me of the effective campaign that scientists like Albert Einstein, Bertrand Russell, Linus Pauling, Andrei Sakharov and Albert Schweitzer initiated in the 1950s to convince the public of the human costs of nuclear atmospheric testing. Those scientists could have belittled a skeptical public with arguments that spoke over their heads. Instead, they treated the public with respect and made a convincing case that concerns for national security should be balanced with concerns for the human cost of nuclear radiation. The result was a groundswell of national and international public opinion that convinced John F. Kennedy and Nikita Khrushchev at the height of the Cold War to sign a nuclear test ban treaty. In a similar fashion, books like Overheated are essential to aid a skeptical public to understand what is at stake with global warming.

If I were to fault Guzman’s book, it would be for failing to include a more fulsome explanation in the last chapter of the available policy choices. As a trained economist and international lawyer, he is particularly well-placed to discuss carbon taxes, cap and trade, the economics of alternative energy, and the true cost of fossil fuels. Unfortunately, he only devotes ten pages to the “grown-up strategies” for reducing greenhouse gas emissions. Just when the reader is convinced that the climate change problem is real and that something must be done about it, we are left thirsting for an economist and scholar of Guzman’s caliber to explain in some detail why, say, cap and trade is better than a carbon tax. At only 230 pages, there was ample room in the book to add another 20 or 30 pages summarizing the policy options and proposing his own recommendations among the available alternatives. I’d be curious for Guzman to explain why he chose not to include this additional information about the path forward.

So my recommendation is that you read the book, digest the key arguments, and add his stories to your arsenal of facts that you can marshal when you are politely debating your friends and neighbors about the truth and consequences of climate change. My guess is that by simply reading Guzman’s book you will be way ahead of your interlocutors.

Arbitrating Bangladesh Labor Rights (Part II)

by Roger Alford

As Peter noted yesterday, the recent tragedies in Bangladesh factories have resulted in a major breakthrough with the signing of the Accord on Fire and Building Safety in Bangladesh. Thus far, leading retailers such as H&M, Marks & Spencer, Tesco, Sainsbury’s, Benetton, and Calvin Klein are on board. Notably absent from the list are leading U.S. retailers such as Wal-Mart and Gap.

As noted in my previous post, I have been arguing for years that international arbitration could serve as an important procedural tool for promoting human rights in global supply chains. I applaud the commitment of these retailers to join with leading labor rights groups and enter into a binding agreement to improve working conditions in Bangladesh factories.

I do take issue with the drafting of the arbitration agreement, which clearly could have benefited from a quick review by a lawyer with international arbitration experience. Here’s the relevant language:

Any dispute between the parties to, and arising under, the terms of this Agreement shall first be presented to and decided by the SC [seven-member Steering Committee], which shall decide the dispute by majority vote of the SC within a maximum of 21 days of a petition being filed by one of the parties. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. Any arbitration award shall be enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), where applicable. The process for binding arbitration, including, but not limited to, the allocation of costs relating to any arbitration and the process for selection of the Arbitrator, shall be governed by the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006).

Note the peculiarities. There is no governing law clause, no arbitration seat, and no arbitration rules. If a party refuses to arbitrate, there will be no obvious court for the petitioner to file a motion to compel arbitration. Instead the arbitration proceedings are to be governed by the UNCITRAL Model Law on International Commercial Arbitration as a sort of free-floating “anational” governing clause. I suppose that makes the UNCITRAL Model Law the chosen arbitration rules, but I’ve never seen the Model Law function in this fashion. If that’s what the clause does, then any court where an action is brought can compel arbitration and the arbitral panel will be empowered to fill in most of the gaps, including determining the arbitration seat, the governing law, and the scope of its jurisdiction (See Articles 8, 16, 20, 28). Not ideal, but it may do the trick.

Second, the arbitration clause has a peculiar scope. Only disputes “arising under” the Agreement are subject to arbitration, apparently limiting the scope to breach of contract and excluding disputes relating to third-party injuries that relate to the agreement. The scope appears to be further limited by the fact that arbitration is an appellate function only, which may mean that the arbitral tribunal is limited to reviewing legal or factual errors of the Steering Committee.

Third, there is a question as to whether decisions of the Steering Committee are subject to enforcement pursuant to the New York Convention. It appears that only the arbitration awards rendered following an appeal of the Steering Committee decision are subject to such enforcement. This may mean that an appeal is necessary simply to create a binding mechanism for enforcing the parties’ obligations.

My hunch is that despite these errors, if a dispute arises from this agreement the parties will muddle through and find a way to make the dispute resolution clause work. Perhaps in the near term they can clarify these ambiguities when they develop the Implementation Plan mandated by the agreement.

So it’s probably not a pathological arbitration clause, but it could have benefited from a good scrubbing.

Ontario Court Dismisses Ecuadorian Enforcement Action Against Chevron

by Roger Alford

An Ontario court in Yaiguaje v. Chevron has dismissed the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada. Essentially the dismissal rests on the doctrine of the separate legal identities of parent and subsidiary corporations.

Chevron has no assets in Canada, and the subsidiaries’ assets there cannot be attached to enforce a judgment against the parent company. This is not a particularly controversial proposition. Therefore the fight over the recognition and enforcement of the dubious $19 billion Ecuadorian judgment should be resolved elsewhere.

Here’s the key language (paras. 110-111):

By way of summary, Chevron does not possess any assets in this jurisdiction at this time. The evidence also disclosed that no realistic prospect exists that Chevron will bring any assets into this jurisdiction in the foreseeable future…. The plaintiffs’ contention that the assets of Chevron Canada ‘are’ the assets of Chevron has no basis in law or fact…. Accordingly, any recognition of the Ecuadorian Judgment by this Court would have no practical effect whatsoever in light of the absence of exigible assets of the judgment debtor in this jurisdiction.

…. Chevron is on record saying: ‘We will fight until hell freezes over and then fight it out on the ice.’ While Ontario enjoys a bountiful supply of ice for part of each year, Ontario is not the place for that fight. Far from it…. The evidence disclosed that there is nothing in Ontario to fight over…. In my view, the parties should take their fight elsewhere to some jurisdiction where ultimate recognition of the Ecuadorian judgment will have a practical effect.

Chevron’s press release responding to the ruling is here. The Ecuadorian plaintiffs’ press release is here.

Arbitrating Bangladesh Labor Rights

by Roger Alford

BangladeshThis week 170 garment workers in Bangladesh died after the Rana Plaza building collapsed. A few months ago 112 garment workers in Bangladesh died after the Tazreen Fashions garment factory was destroyed by fire. Both tragedies were the result of inadequate fire and safety standards.

These tragedies could not have come at a worst time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on.

The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine-member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. As reported by the New York Times here,

The companies would bear the costs of improvements through higher prices for clothes and grants to workers who miss workdays because of renovations. The cost of the inspection program to each company would vary by the firm’s size, but it would be capped at $500,000 a year…. Labor groups say a roughly 3 percent annual increase in prices paid to the factories would be sufficient to make the needed improvements.

A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”

In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country.

I have long advocated the use of international arbitration to address human rights concerns such as core labor rights. As I argued in “Arbitrating Human Rights“:

“[O]ne can anticipate that many corporations will increasingly include core human rights and environmental standards as contractual covenants in their international agreements. These contracts will also include grievance procedures, including arbitration, as a com­mon mechanism for dispute resolution. Serious noncompliance with substantive contractual obligations will trigger invocation of the dispute resolution provisions. Thus, by contracting for human rights as a substantive obligation and contracting for arbitration as a procedural guarantee, corporations throughout the globe can establish a firm basis for the promotion of human rights within their spheres of influence.”

In order to incentivize corporations that source their garments from Bangladesh, large wholesale and institutional buyers and IP holders, such as colleges and universities who purchase garments or license trademarks, can require these corporations to sign reasonable labor agreements such as the Bangladesh Fire and Building Safety Agreement as a condition in their agreements. In other words, upstream contracts can require downstream supply chain labor rights.

Tragic events like the death of 170 and 112 garment workers—a death toll that is over ninety times greater than that of the Boston marathon bombings—should be sufficient incentive to sign MOUs like that proposed in Bangladesh to improve the working conditions of garment workers who earn just over $1 a day.

Supreme Court Agrees to Hear Another Human Rights Case

by Roger Alford

This time it is about general personal jurisdiction of a foreign parent corporation based on alleged human rights violations of one subsidiary in a foreign country and unrelated activities of another subsidiary within the forum. The question presented in Daimler Chrysler AG v. Bauman is as follows:

Daimler AG is a German public stock company that does not manufacture or sell products, own property, or employ workers in the United States. The Ninth Circuit nevertheless held that Daimler AG is subject to general personal jurisdiction in California—and can therefore be sued in the State for alleged human-rights violations committed in Argentina by an Argentine subsidiary against Argentine residents— because it has a different, indirect subsidiary that distributes Daimler AG-manufactured vehicles in California. It is undisputed that Daimler AG and its U.S. subsidiary adhere to all the legal requirements
necessary to maintain their separate corporate identities. The question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.

Scotusblog and ConflictofLaws.net have commentary.