Author Archive for
Roger Alford

Kony 2012: Symposium on Social Activism and International Law

by Roger Alford

Opinio Juris is pleased to announce an online symposium addressing social activism and international law. As our readers know, Kony 2012 was a YouTube sensation, spreading faster than any video in history. Although the details are airbrushed, the central theme of the video is about international law. The key idea of the video is that the indicted fugitive Joseph Kony should be brought to justice before the International Criminal Court to face charges of war crimes and crimes against humanity.

Millions of viewers who never thought about the International Criminal Court before are encouraged to embrace this new court and take on the cause of child soldiers. In the Internet age, a handful of tech-savvy twenty-somethings captivated the globe and generated a cause célèbre. Google Trends says it all: in a matter of days an issue that was completely off the radar became one of the world’s most-discussed topics.

For the next three days, we have gathered a variety of experts to discuss social activism and international law. Given the nature of the issue, we have invited experts across disciplines to discuss the topic. Among the topics that our experts are invited to discuss are the following:

1. How does the social media phenomenon affect the way people view international law?
2. What are the pros and cons of using social media to promote international law?
3. Does social activism effectively raise awareness and promote accountability?
4. What is the difference between activism and “slacktivism”?
5. How has Kony 2012 impacted the situation in Northern Uganda and the surrounding area?
6. How has Kony 2012 impacted our perception of child soldiers?
7. What does social media activism promise for the future of international law?

Kony 2012 has generated a tremendous amount of discussion, with a wide range of viewpoints. What is often overlooked is how this viral sensation has impacted international law. So let the debate begin!

Berman on Global Legal Pluralism

by Roger Alford

Dean Paul Schiff Berman has a new book entitled Global Legal Pluralism (Cambridge University Press 2012) that I heartily recommend to our readers. Here’s the abstract:

We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing, and we cannot expect territorial borders to solve all these problems because human activity and legal norms inevitably flow across such borders. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization.

As the abstract suggests, the great thing about the book is that Berman tries to steer a middle course between the sovereigntists and the universalists. Berman effectively argues that normative positions such as territorial sovereignty or universalism have no hope of triumphing in the hybrid world of overlapping legal regimes. Those who would embrace territorial sovereignty cannot hope for their position to prevail in a world of interdependence with permeable borders, multiple communities, and overlapping jurisdictions. By contrast, those who embrace universalism ignore the normative differences that cut across communities and thereby undermine their position.

Cosmopolitan pluralism is Berman’s solution to the “messy reality of law on the ground.” A cosmopolitan pluralist recognizes the role of all legal pronouncements as fundamentally rhetorical, and treats legitimacy not as a formal question but as statement that will or will not prove true over time. “[L]egitmacy becomes a sociological question about changes of legal consciousness,” he concludes, “and a cosmopolitan pluralist legal system seeks to keep those multiple voices in dialogue with each other to the extent possible.”

The book presents a wonderful addition to the literature on competing norms and will be a must read for anyone interested in navigating questions of legal pluralism in the age of globalization.

John Bolton: Either Support an Israeli Preemptive Strike or Accept the Reality of a Nuclear Iran

by Roger Alford

Speaking at a Federalist Society meeting yesterday at Notre Dame Law School, former Ambassador John Bolton addressed what the Obama Administration should do to curtail the threat of Iran. He offered not a single word of praise for the Obama Administration’s foreign policy and not a single word of criticism for the Bush Administration, such as its failure to prevent a nuclear North Korea. Bolton presented a grim picture of the future Middle East faced with a bellicose Iran and a feckless American President.

Bolton argued that the greatest threat to the world today is a nuclear Iran, whereas “President Obama seems to think that the greatest threat to the Middle East are a few Jewish settlements in the West Bank.” He offered no hope that sanctions would deter Iran, and declined to endorse lesser responses (such as another Stuxnet cyberattack on Iran’s nuclear facilities) short of an armed attack.

He concluded that the United States had a stark choice: either support Israel’s decision to bomb Iran or accept the reality of a nuclear Iran. Bolton left no doubt as to his preference between these “two unattractive choices.” He predicted that Israel would engage in a preemptive strike against Iran by the end of the calendar year and that since the United States “will be blamed anyway,” we should stand strong behind Israel.

As for Iran’s likely response to such a preemptive attack, Bolton conceded that Iran would strike back on Israeli territory, either directly or indirectly through Hezbollah. But that risk, he predicted, would not deter Israel, nor should it alter our support for such an attack.

The risk of a nuclear Iran was not simply that it would arm terrorists, but that it would also lead inexorably to a regional nuclear arms race, with Saudi Arabia and other countries seeking nuclear capacity in quick succession.

In response to questions as to the legitimacy of a preemptive strike, he cited historical examples of Israel’s 1981 attack on the Osiraq facility in Iraq and the 2007 attack on the Al-Kibar facility in Syria as examples of legitimate exercises of preemptive self-defense. The idea that you had to be physically attacked to engage in self-defense was anachronistic in the modern age of weapons technology. When one of my students asked where you draw the line in asserting a claim of preemptive self-defense, Bolton said he was not interested in theoretical questions. “You must establish that you are actually engaging in self-defense,” Bolton reasoned, “it cannot be mere rhetoric.” But we need not demand an actual armed attack–the limiting language used in Article 51 of the U.N. Charter–to justify a defensive attack.

So there you have it. An unequivocal endorsement by the former U.S. Ambassador to the UN supporting a preemptive strike against Iran in the near term. Bolton never endorsed a U.S. attack on Iran, nor did he detail what he meant by American support for an attack. But he clearly stated that an attack against Iran would be in the U.S. national interest.

“President Obama thinks that American strength is provocative,” he concluded. “while I think American weakness is provocative.”

Jerusalem Arbitration Center: Merchants of Peace

by Roger Alford

Last week I had the good fortune to attend a reception in Washington D.C. with various arbitration luminaries announcing the inauguration of the Jerusalem Arbitration Center.

With almost $5 billion in annual trade between Palestine and Israel, it is imperative to establish a neutral forum for resolving business disputes. JAC is established under the auspices of the International Chamber of Commerce. Zahi Khouri and Yara Asad of ICC Palestine and Oren Schachor and Baruch Mazor of ICC Israel were on hand to announce the partnership. JAC’s goal is to establish, in John Beechey’s words, “a truly neutral and independent forum.”

Catherine Rogers at Penn State has been actively involved in JAC’s creation, and she expressed to me her desire for arbitration to impact real people on the ground in conflict zones. As she put it,

“Israel is by far Palestine’s largest trading partner and, according to some estimates, Palestine is Israel’s second largest trading partner after the United States…. [W]hile politicians on both sides seem locked in an intractable battle against peace, peaceful exchanges occur every day between ordinary Palestinians and Israelis. Of course, some disputes arise out of these commercial transactions. In those disputes, Israelis have full access to the machinery of civil justice under Israeli law. Meanwhile, it can be exceedingly difficult for Palestinians to participate in the judicial proceedings in Israel, and Palestinian court judgments are generally unenforceable…. The JAC could provide a better alternative for Israeli-Palestinian exchanges.”

A video introducing JAC is available here. Kudos to all those involved in creating this new joint venture, which the ICC evocatively describes as the “merchants of peace” in the Middle East.

Quotable Quotes from the ASIL Annual Meeting

by Roger Alford

Here are some choice quotes from the ASIL annual meeting, all taken out of context for maximum effect:

The real problem with cyber-security is that Viagra is too expensive.

~ Christopher Soghoian

International arbitration is like a Jackson Pollock painting. There is order, but it takes an expert in fractal geometry to see it.

~ Stephan Schill

These missiles are incredibly cheap, only $60,000 a piece, which is why I have recommended to ASIL that they buy some with your annual dues.

~ Rosa Brooks

My favorite investment arbitration case was the one brought by a man who had his wallet stolen in a Mexican jail and demanded justice before the U.S.-Mexican Claims Commission.

~ Jennifer Thornton

For all of you in the audience who are directly involved in the Chevron-Ecuador case, please don’t attach my house.

~ Ralph Steinhardt

If I can leave you with one message it would be this: Never, ever cite geographic coordinates without a reference datum.

~ Martin Pratt

The problem with war is that it is never humane. It always involves real people. Even soldiers are people.

~ Louise Doswald-Beck

The Broken Windows Theory of Corruption

by Roger Alford

Kudos to Daniel Chow and Mike Koehler for a wonderful conference last week at Ohio State Law School addressing the FCPA at thirty-five. It’s always a risk to hold a conference that mingles hard-core practitioners with soft and fuzzy academics, but this one seemed to work. The defense and prosecution side of the FCPA bar battled it out with competing panels addressing the merits and demerits of FCPA prosecutions. Charles Duross, the DOJ attorney in charge of FCPA prosecutions, gave a spirited defense of the Obama Administration’s robust enforcement campaign, while the defense side questioned a system that is largely devoid of judicial supervision because of pervasive settlements using non-prosecution agreements (NPAs) and deferred prosecution agreements (DPAs).

Meanwhile the law professors examined various facets of the FCPA that are often ignored by the international legal academy. For example, Michael Van Alstine had a great discussion of treaty-based double jeopardy arguments, Jason Yackee discussed a bribery defense to corporate investment arbitration claims, and Julian Ku wrestled with the parallels between the ATS and the FCPA.

I presented some really fun empirical work I’ve been doing on the broken windows theory of corruption. Based on my initial findings, empirical research reveals a strong positive correlation between corruption and other public goods such as civil liberties, economic welfare, political rights, standards of living, and human development.

For example, if one examines how countries fare on the Transparency International’s Corruption Perception Index with their score on the World Economic Forum’s Global Competitiveness Index, there is a positive correlation coefficient of 0.8473. The y-axis represents Transparency International’s corruption perception index (with 10 being the best) and the x-axis represents the World Economic Forum’s global competitiveness index (with 6 being the best).

Put in plain English, the countries that do the best on twelve key pillars of productivity also do the best in terms of anti-bribery. Conversely, if a country lacks the institutions, policies and other factors necessary to be competitive globally, it will also score poorly on its perceived commitment to combat bribery.

Without making causal claims (at least for now), where one sees problems with corruption and bribery, one also sees a host of other problems, ranging from low U.N. human development scores (education, birth rates, and standards of living), poor Freedom House scores (civil liberties and political rights), low World Economic Forum scores (global competitiveness and productivity) and Polity IV regime scores (democracies vs. autocracies).

In short, there are moderate to strong positive correlations (ranging from 0.3863 to 0.8473) between corruption scores and scores on eight other leading indices that measure various public goods. As outlined in my forthcoming article in the Ohio State Law Journal, it appears that the broken windows theory of corruption has strong empirical support.

Human Rights Litigation in State Courts and Under State Law

by Roger Alford

Kudos to Chris Whytock for a wonderful conference yesterday at UC Irvine addressing the topic of human rights litigation in state courts and under state law.

The timing of the conference could not have been better, coming on the heels of the Kiobel oral argument on Tuesday, in which the principal defense of Kathleen Sullivan was that corporations should be held liable under state and foreign law, not international law. “We do not urge a rule of corporate impunity here,” she argued on Tuesday. “There can … be suits under State law or the domestic laws of [other] nations, but there may not be ATS Federal common law causes of action against corporations.”

The general (but not unanimous) consensus at the conference seemed to be that Kiobel went badly for the petitioners, and that we should anticipate a 5-4 decision favoring the corporations. If so, then what would that post-Kiobel world look like? I asked that question of Paul Hoffman, who argued for Esther Kiobel before the Supreme Court on Tuesday, and he said in such a world human rights lawyers would regroup and continue to bring cases under the ATS against corporate officers, and bring diversity or pendant state law claims against the corporations. Beth Stephens reminded the group that in the early days of the ATS plaintiffs almost always included pendant state laws claims in their complaints, and with recent setbacks they have returned to that practice, witness Doe v. Exxon.

There were many wonderful presentations, but my main take-away from the conference was that public international lawyers better become conversant in private international law. If common law state torts for wrongful death, battery, and false imprisonment are the basis for causes of action for international human rights litigation, then state choice of law rules are going to become the rage for human rights practitioners. We should all start reading the conflict of laws treatises of Patrick Borchers and Symeon Symeonides again, and start considering the constitutional and international law limits of the extraterritorial application of common law torts. Fortunately, some incredibly productive young guns like Chris Whytock, Trey Childress, and Anthony Colangelo are filling the gap.

My own presentation suggested that international human rights lawyers should pay more attention to the FSIA § 1605A terrorism cases filed against Iran, Libya, and Sudan. In these under-analyzed cases plaintiffs have been winning billions of dollars in judgments using state tort laws as the cause of action for terrorist attacks in Lebanon, Kenya, Tanzania, and Israel. Federal courts are interpreting District of Columbia choice of law rules to allow for the application of victim domiciliary tort laws to determine liability and damages. It may sound strange that the wrongful death tort laws of U.S. states are the basis for finding billions in liability for foreign terrorism, but that is what federal courts are finding in dozens of cases rendered in the past fifteen years. By virtue of FSIA § 1606, these findings are directly relevant to questions of private individual and corporate liability for international human rights violations.

Symposium articles will be published in the UC Irvine Law Review, which will surely be worth careful reflection.

Ninth Circuit Embraces Foreign Affairs Field Preemption

by Roger Alford

Yesterday the Ninth Circuit, sitting en banc, has unanimously embraced the doctrine of foreign affairs field preemption. It will surely prove to be a controversial blockbuster case for foreign affairs law, with or without Supreme Court review.

The case of Movsesian v. Munich Re addressed a California statute, section 354.4, that authorized California courts to entertain various insurance claims brought by Armenian Genocide victims arising out of policies issued or in effect between 1875 and 1923. There was no clear conflict with a federal law, but rather a longstanding reluctance on the part of the federal government to formally recognize the Armenian Genocide for fear that it would offend U.S.-Turkish relations. Thus, one anticipated that the case would rely on cases such as Crosby, Garamendi and Medellin to determine whether the state law conflicted with a federal policy.

The Ninth Circuit did not take the path of conflict preemption, choosing instead to find that foreign affairs field preemption, (also known as dormant foreign affairs preemption), controlled the question.

First, the Ninth Circuit concluded that it was not enough that the California law concerned an area of traditional state responsibility, namely regulating insurance and passing laws providing state causes of action. One must look to the real purpose of the state law, which was to “provide potential monetary relief and a friendly forum for those who suffered from certain foreign events.” Focusing on the purpose of the statute led the court to conclude that the law did not concern an area of traditional state responsibility.

Second, the Ninth Circuit concluded that the law intruded on the federal government’s exclusive power to conduct and regulate foreign affairs:

The law establishes a particular foreign policy for California–one that decries the actions of the Ottoman Empire and seeks to provide redress for ‘Armenian Genocide victim[s]‘ by subjecting foreign insurance companies to lawsuits in California….

The passage of nearly a century since the events in question has not extinguished the potential effect of section 354.4 on foreign affairs. On the contrary, Turkey expresses great concern over the issue, which continues to be a hotly contested matter of foreign policy around the world….

[S]ection 354.4 expresses a distinct point of view on a specific matter of foreign policy. Its effect on foreign affairs is not incidental; rather, section 354.4 is, at its heart, intended to send a political message on an issue of foreign affairs by providing relief and a friendly forum to a perceived class of foreign victims…. [T]he law imposes a concrete policy of redress for ‘Armenian Genocide victim[s],’ subjecting foreign insurance companies to suit in California by overriding forum-selection provisions and greatly extending the statute of limitations for a narrowly defined class of claims. Thus, section 354.4 ‘has a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems.’ Zschernig, 389 U.S. at 441. Section 354.4 therefore intrudes on the federal government’s exclusive power to conduct and regulate foreign affairs.”

Wow. I have been following this case for two years and would never have predicted that foreign affairs field preemption would control the result. The entire course of litigation appeared to be addressing questions of conflict preemption in the absence of a clear federal mandate or even an obvious federal policy with respect to the Armenian genocide.

One wonders, of course, whether the Ninth Circuit decided to embrace field preemption to avoid the problematic question of finding conflict preemption in the absence of a federal law on the matter. The broadest reading of Garamendi seemed to allow for the possibility of federal policy preemption, but Medellin arguably cut back on that position.

If field preemption governs the question of foreign affairs, one wonders why the Supreme Court bothered with its conflict preemption analysis in Crosby and Garamendi.

On the Ninth Circuit’s reading, with respect to any subject that intrudes on foreign affairs, all that matters is whether the real purpose of the state law is to respond to foreign events instead of pass laws of neutral applicability.

Of course, any number of state laws may now be preempted under foreign affairs field preemption. These might include, for example, long-arm statutes to address libel tourism, state laws regulating drug trafficking at international borders, ad hoc state tax credits to promote targeted foreign direct investment, emergency state funds for the benefit of Japanese tsunami victims, or state pension divestment rules such as those applied to address South African apartheid. In all such cases the purpose of the state law is to address specific issues arising from foreign events rather than pass neutral laws of general applicability. Therefore those laws too would be preempted under the Ninth Circuit’s expansive foreign affairs field preemption analysis.

The Choice-of-Law Conundrum for Torts in Iraq

by Roger Alford

Last week the Fifth Circuit rendered a fascinating decision in McGee v. Arkel Int’l about choice-of-law rules as applied to torts in Iraq. I’ve never seen anything quite like the Iraqi law in question, so I thought it is worth sharing for the private international law aficionados among our readers.

The Iraqi law in question, passed by the Coalition Provisional Authority, tries to avoid the application of Iraqi tort and contract law to contractors working in Iraq for the U.S. Defense Department. With respect to contracts, Section 4 of CPA Order 17 provides that:

Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts….

Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract….

With respect to torts, Section 18 of CPA 17 provides that:

[T]hird-party claims including those … for personal injury, illness or death … arising from or attributed to acts or omissions of … Contractors or any persons employed by them for activities relating to performance of their Contracts, … shall be submitted and dealt with by the Sending State whose personnel … are alleged to have caused the claimed damage, in a manner consistent with the Sending State’s laws, regulations, and procedures.

So what substantive law governs when a National Guardsman is electrocuted in Iraq while cleaning a Humvee due to faulty wiring of an electric generator maintained by a Defense Department contractor? That was the question the Fifth Circuit had to decide in McGee.

Applying Louisiana choice-of-law principles, the Fifth Circuit concluded that Iraqi substantive law applied. The wrongful conduct and resulting injury occurred in Iraq, therefore Iraqi law should apply under Louisiana choice-of-law rules. As for CPA 17, the Fifth Circuit concluded that it required application of Louisiania law, which includes Louisiana choice-of-law.

Section 18 requires claims to be ‘submitted and dealt with … in a manner consistent with the Sending State’s laws, regulations and procedures.’ Included in that law is the state’s choice-of-law principles. Consequently, if the plaintiff’s claim is ‘submitted and dealt with … in a manner consistent’ with Louisiana law, that law uses Iraqi law for the standards of conduct and safety. Section 18 restates what the law of the forum state for the current suit, Louisiana, already required. It is superfluous here.

Judge Edith Jones dissented, finding that CPA 17 was trying to guarantee the application of the Sending State’s substantive law, not its choice-of-law rules.

In my view the whole point of Section 18 is to substitute the Sending State’s substantive laws for those of Iraq. Read in the majority’s fashion, the courts and ‘processes’ of Iraqi law are excluded from handling these cases under Iraqi law, but American courts are not…. This reading of Section 18 is unnecessary. To say that the tort claims shall be handled ‘consistent with the Sending State’s laws’ need not include the Sending State’s conflict of laws reference back to Iraq. Such an interpretation preserves the evident intent to apply the domestic law of Sending States to their contractors operating in Iraq.

Anyone familiar with choice-of-law rules knows the doctrine of renvoi. Thus, when drafting a governing law clause in a contract one must be very careful to draft it in such a way that choosing the law means choosing the internal law, not choice of law which may send you right back to another jurisdiction’s substantive law.

It would seem that the Coalition Provisional Authority did not anticipate this fairly standard problem when it adopted CPA 17, with the result that Iraqi substantive law will govern the merits of tort claims involving Contractors, even though Iraqi law stipulates that such torts will be dealt with in a manner consistent with the laws, regulations, and procedures of the Sending State.

Harold Koh’s Keynote Speech at University of Virginia

by Roger Alford

Harold Koh’s keynote address today at the University of Virginia conference did a nice job surveying the legal landscape from the Legal Adviser’s perspective. He divided the conflicts into four categories: non-conflicts, soft conflicts, hard conflicts, and hardest conflicts. He then outlined specific examples in his daily docket that fall into each category. Details on the speech will be published in a forthcoming VJIL symposium issue.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1990 when he was 36) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

As for the second, anyone who has ever worked in a law firm, clerked for a judge, or represented a client should understand what Koh is saying. As a lawyer one makes credible arguments that further the interests of the client, but does not stray from one’s own sense of propriety. The voice of an academic, by contrast, is completely different. For an academic who has never tried to speak on behalf of a client—who has never sought to further a client’s interests within the bounds of acceptable argument—the distinction between advocate and academic may be an alien concept. As an academic he can bemoan the fact that the President almost always wins. As an advocate, his goal is to ensure that the President almost always wins.

As for the third, it is quite plausible that Koh’s views on certain matters may have changed over the course of thirty years. Indeed, one would hope that extensive time in senior government positions would temper one’s academic convictions. Some ideas are abandoned with age and exploration. For any serious academic, intellectual honesty should allow for the possibility of both consistency and correction. On this score, I think that we should suspend judgment until Koh returns to academic life full-time and he can either reconcile his past positions with his currents ones, or failing that, he can fully articulate why and how his views on certain critical questions may have changed in the crucible of public service.

UPDATE: Ken Anderson and Paul Rosenzweig have further thoughts on Koh’s speech here and here. I agree completely with what both say about Koh’s fiduciary duty and duty of loyalty. Ben Wittes agrees as well, but notes that Koh did not apply the same standard to lawyers in the Bush Administration.

Chevron Ecuador Dispute Heats Up

by Roger Alford

This week was a blockbuster one in the ongoing battle between Chevron and Ecuador. On Wednesday, the arbitral tribunal adjudicating Chevron’s BIT claim issued an Interim Award ordering Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron] in the Lago Agrio Case.”

The tribunal was at pains to emphasize the interim award was final and binding under Article 32 of the UNCITRAL Rules, which means that Chevron could pursue recognition and enforcement of the award in jurisdictions around the world. It could do so offensively by seeking declaratory relief in Ecuador (or elsewhere), or defensively in response to an attempt by the Ecuador plaintiffs to seek enforcement of the Ecuador judgment. Of course, the Interim Award is only binding on Ecuador and Chevron, so it is not clear what a domestic court outside Ecuador would do with an award imposing injunctive relief on Ecuador.

Meanwhile, yesterday the Second Circuit issued its long-awaited opinion in Chevron v. Naranjo. The Second Circuit’s crucial holding was that New York’s Uniform Foreign Money-Judgments Recognition Act precludes declaratory injunctive relief by a foreign judgment debtor. “There is … no legal basis for the injunction that Chevron seeks, and, on these facts, there will be no such basis until judgment-creditors affirmatively seek to enforce their judgment in a court governed by New York or similar law.”

The Second Circuit had little sympathy for Chevron’s attempt to pursue an antienforcement injunction, particularly given the comity concerns at stake.

“[W]hen a court in one country attempts to preclude the courts of every other nation from ever considering the effect of that foreign judgment, the comity concerns become far greater. In such an instance, the court risks disrespecting the legal system not only of the country in which the judgment was issued, but also those of other countries, who are inherently assumed insufficiently trustworthy to recognize what is asserted to be the extreme incapacity of the legal system from which it emanates. The court presuming to issue such an injunction sets itself up as the definitive international arbiter of the fairness and integrity of the world’s legal systems.”

But at the same time, the Second Circuit emphasized that it expressed “no views on the merits of the parties’ various charges and counter-charges regarding the Ecuadorian legal system and their adversaries’ conduct of this litigation, which may be addressed as relevant in other litigation before the district court or elsewhere.” It also avoided any decision with respect to the underlying RICO claims that Chevron has filed against the Ecuador plaintiffs and their lawyers, focusing simply on the improper procedural device that Chevron sought to employ to enjoin enforcement of the Lago Agrio judgment abroad.

Where does the case go from here? In Ecuador, Chevron has appealed to Ecuador’s highest court to review the case. No word yet as to whether Chevron will seek to have the arbitral tribunal’s Interim Award recognized and enforced in Ecuador. The arbitral tribunal is scheduled to hold hearings on February 11-12 to determine what steps Ecuador is taking to prevent enforcement of the Lago Agrio judgment.

As for the Ecuador plaintiffs’ efforts to enforce the judgment, there is no indication that Chevron will post an appeal bond, which means that the Ecuador plaintiffs are free to pursue enforcement anywhere in the world where Chevron has assets.

It appears that the Ecuador plaintiffs will not seek to have the judgment enforced within the United States. Ecuador Plaintiffs’ lawyer James Tyrrell stated yesterday that “The Ecuadorean plaintiffs are not coming to New York to enforce this judgment.” Given the locus of Chevron’s assets, it is not obvious why the plaintiffs have adopted this strategy, unless they have reason to believe that there is a high probability that the judgment would not be enforced.

There is, of course, the option of pursuing enforcement abroad. If the Invictus Memo is reliable, the Ecuador plaintiffs have identified twenty-seven nations where Chevron has substantial activities, including countries that are friendly with Ecuador, such as Colombia and Venezuela. That memo candidly states the ultimate end game strategy for the Ecuador plaintiffs:

“After approximately seventeen total years of litigation in the United States and Ecuador, the case against Chevron now enters its most critical, multi-faceted, and labor intensive…. With the ultimate goal of effecting and swift and favorable settlement, the strategy of the Plaintiffs’ Team will incorporate the following components: … managing the public relations impact of Chevron’s manipulation of the Cabrera narrative … [and] identifying jurisdictions globally that are most hospitable to an enforcement action.”

Treaties as Art

by Roger Alford

I had the good fortune yesterday to spend the afternoon at the Museum of Modern Art in New York. To my great surprise, I experienced my first encounter with treaties as art. A special exhibit on display through March 26, 2012 of the work of Sanja Iveković entitled Sweet Violence focuses on the plight of women in post-Communist political systems of Eastern Europe. As a feminist artist, most of Iveković’s work challenges the status quo, and that includes countries that refuse to adopt the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Among the installations was an arresting display of bright red leaflets thrown on the ground throughout the museum reprinting Amnesty International’s campaign to promote U.S. ratification of CEDAW.

Here’s a description of Iveković’s Report on CEDAW installation:

“The artist printed the document on red paper, mounted its cover page for wall display, and crumpled the remaining sheets into irregular balls and then scattered them around the perimeter of the gallery space. Visitors to MOMA are invited to pick up a sheet, discarded as such leaflets often are, and learn about the infringement of women’s rights.”

The leaflets strewn on the museum floor—combined with her other work on display such as Double Life and Lady Rosa of Luxembourg—are surprisingly effective at evoking a subtle disregard for women’s rights.

If you pick up one of the leaflets, you can read details on “myth vs. fact” about CEDAW.

As of April 2011, 186 countries had ratified CEDAW. The United States is one of only seven countries that have yet to ratify CEDAW, including Iran and Sudan. The United States has the dubious distinction of being the only country in the Western Hemisphere and the only industrialized democracy that has not ratified this treaty.

CEDAW: MYTH vs. FACT

MYTH #1: U.S. ratification of CEDAW would give too much power to the international community with the provisions of the Convention superseding U.S. federal and state law.

FACT: Treaties adopted in the United States are not “self-executing.” This means that legislation to implement any treaty provision would come before the House and Senate in the same way any other bill does. As with many international agreements, countries can express “reservations, understandings and declarations” in cases where there are discrepancies between the international convention or treaty and domestic law. U.S. law generally complies with the requirements of CEDAW and the Treaty is compatible with the principles of the U.S. Constitution. Where any differences do exist, the Treaty calls on states to take appropriate measures to progressively promote the principle of nondiscrimination. Such language upholds US sovereignty and grants no enforcement authority to the United Nations….

Wow! CEDAW at the MOMA. International law terms of art have become, well, art. A human rights campaign is on display at one of the great modern art museums in the world.

If you are in New York in the next two months, I recommend you visit MOMA and check out Sanja Iveković.