Author Archive for
Roger Alford

Yoo, Cerone and Alford Debate Sovereignty in the Age of Globalization

by Roger Alford

The Liberty Forum has just posted a debate on sovereignty in the age of globalization between John Yoo, John Cerone, and yours truly. Here’s a taste of the exchange, which I encourage you to read in its entirety.

From John Yoo’s post:

Globalization has led to (1) the explosive growth in international trade; (2) the swift creation of international markets in goods and services; (3) the easy movement of capital and labor across national borders; (4) the rise of major transnational networks, such as international drug cartels, international crime-fighting regimes, and international terrorism; and (5) the global effects of industrialization on the environment and global commons.

These profound changes present challenges to the American constitutional order because they give rise to international law and institutions that demand the transfer of sovereignty in response. To limit carbon emissions, proposed follow-ons to the Kyoto accords seek to regulate energy use throughout the world. To allow for the smooth movement of capital, nations must coordinate their regulatory controls on the financial industry. These multilateral treaty regimes seek to regulate private activity under the control of independent sovereign nations. They ask states to delegate lawmaking, law enforcement, or adjudication authority to bureaucracies, such as the United Nations, the International Court of Justice, or the World Trade Organization, that operate along undemocratic lines and remain unaccountable to any nation.

These efforts at global governance create tension with American constitutional controls on state power…. Many scholars of international law argue that globalization’s demands justify abnormal powers for the federal government. Treaties on global warming or the environment, for example, should have a reach beyond the Constitution’s normal limits on the powers of Congress. International institutions like the WTO or the ICJ should enjoy the power to issue direct orders in the U.S. legal system, overcoming contrary policies at the state or even federal levels. States should have no voice in responding to globalization. Courts, as the least democratic branch, should play a primary role in incorporating global governance at home without the intervention of the elected branches of government.

These efforts aim at nothing less than the erosion of American national sovereignty….

While relatively young, the new forms and orders of global governance should sound a familiar note to students of the American administrative state. Just as innovative international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm in Wickard v. Filburn. The new international courts and entities have their counterparts in the New Deal’s commissions and independent bodies, created to remove politics from administration in favor of technical expertise. These international bodies, to remain neutral, must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. The New Deal’s stretching of constitutional doctrine sparked a confrontation between FDR and the Supreme Court, which kept to a narrower and less flexible vision of federal power and the role of administrative agencies during FDR’s first term. Similarly, in the absence of a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law.

Like nationalization, globalization will inevitably call on us to reconsider the same fundamental questions: the proper scope of the federal government’s regulatory power; the balance of authority between the President and Congress; and the appropriate role of the courts. We may only belatedly realize the consequences of economic and social transformation on constitutional doctrine. The inability of international organizations to provide legitimacy commensurate with the scope of their delegated authority—when combined with the serious strains that their delegations place on the federal government’s own legitimacy—weigh strongly in favor of enforcing the Constitution’s formal processes for exercising public power. A formalist approach would confer the greatest possible level of political and popular acceptance because any consent to international law and institutions would then occur with the full extent of the Constitution’s legitimating force. Such an approach might require rejecting some delegations, but it would at least ensure the full measure of domestic political legitimacy to support those that survive.

From John Cerone’s post:

State sovereignty is the fundamental building block of the international legal system. International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty. At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so.

Today’s international legal system is a strongly positivist, consent-based system. In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to. While states have chosen to greatly expand the scope and substance of international law, most of its rules remain in the form of broadly formulated obligations that leave the manner of their implementation in the broad discretion of states.

The US has been a proponent of the development of international law since the founding of the country, and this is reflected in its constitutional order. The Constitution of the United States was not created in a vacuum. It was well understood by the framers that they were drafting the Constitution against the backdrop of international law. They consciously chose to buy into the international legal system because it was clearly advantageous to do so. They wanted recognition as a sovereign equal, and all of the rights and protections that international law provided to states.

The international legal system of that time was a system largely oriented toward co-existence, and was one of relatively few rules. Since that time, there has been a dramatic expansion in international law, driven largely by the need for international cooperation in tackling the world’s ills and in harnessing its opportunities. The United States has played a central and powerful role in this evolution. Successive US governments have consented to be bound by literally thousands of treaties, and have supported the creation of dozens of international institutions. The US also frequently engages in treaty negotiations even in situations where it is clear that the US will not become a party to the treaty being negotiated. The robust engagement of the US in this process results from the recognition that international law and international institutions are useful in serving US interests.

From Roger Alford’s post:

While there are legitimate concerns about a nascent global administrative state, one should recognize that treaties are rarely a threat to national sovereignty. Indeed, treaties should be seen as an expression of sovereign will to protect and advance our national interests.

Treaties are optional commitments, freely entered into by political actors in order to achieve mutually-beneficial results. Like contracts, the first principle of treaties is party autonomy.

Sovereign nations negotiate the terms of a treaty and ultimately decide whether or not to join a treaty. The United States, for example, was intimately involved in the drafting of the treaty establishing the International Criminal Court, but ultimately decided not to become a member because the final text included unacceptable terms. The same could be said of dozens of other treaties….

Even after signing a treaty, sovereign nations attach reservations, understandings, and declarations (RUDs) that condition, interpret, and limit the impact of a treaty. The United States quite often will include a RUD stating that the treaty is not self-executing, or stating that the terms of a treaty are coterminous with our constitutional obligations.

When a nation does sign a treaty, its obligations are rarely permanent. Treaties frequently allow for member states to withdraw from a treaty, and almost always permit suspension of treaty obligations in the face of a breach by another member state.

All of these tools are designed to preserve sovereigns’ prerogative to protect the national interest. But it is not simply the formation and termination of treaties that are designed to protect sovereignty. The performance obligations of treaties also are drafted to protect national sovereignty.

Most human rights treaties, for example, include Optional Protocols that require a nation to affirmatively opt-in to international adjudication of domestic behavior. The same is true of the compulsory jurisdiction of the International Court of Justice. The WTO and many bilateral investment treaties have incorporated self-judging national security exceptions, essentially rendering key questions of national sovereignty non-justiciable political questions beyond the purview of international courts. The WTO also designed the dispute settlement process in a manner that anticipates the possibility that member states will rationally decide to engage in an efficient breach of their obligations….

In conclusion, we have little to fear from treaties. Treaties are hardwired to protect national sovereignty. The process of formation, performance and termination of treaties was designed to advance sovereign interests. Occasionally there are unanticipated consequences that flow from adherence to treaties, but these risks to sovereignty are manageable. Widespread adherence to treaties reflects a political calculus that the benefits of membership outweigh the costs.

Kony 2012: Social Media Activists as Norm Entrepreneurs

by Roger Alford

I generally subscribe to a constructivist theory of international relations. On many issues I do not think state interests are fixed and this fluidity allows a space for norm entrepreneurs to alter state preferences. With any successful campaign, specific actors promote ideas that catch fire and create a norm cascade reflected in consensus on the appropriate path. That consensus often is reflected in treaties, but it need not always be the case. The final stage is typically a process of norm internalization, in which an idea that once was novel reaches a tipping point and becomes the new normal.

Individual actors have always attempted to change state behavior. Sometimes they have done so from within the state, and altered state interests through incremental changes as political actors. Other times they are prophets from outside the system, calling for change. The examples one could give of such norm entrepreneurs are legion and the modes they have employed change with the seasons.

In the 19th century, Henry Dunant’s Memory of Solferino was an international sensation, leading to the establishment of the International Committee of the Red Cross, which has been one of the most instrumental forces for the development of international humanitarian law in history. In 1934 Robert Cecil promoted the Peace Ballot to rally British support for the League of Nations. The results were astounding. “Overnight, politicians of all stripes became League supporters and advocates of collective security,” wrote one historian. The photograph of Zulu Chief Albert Luthuli burning his Pass Book in response to the Sharpeville massacre of 1960 made international headlines, and for the first time in history South Africa faced overwhelming international condemnation for apartheid. Dozens of protest songs from the likes of Bob Dylan, John Lennon, and The Doors helped turn the tide of American public opinion against the Vietnam War.

The point is so obvious that it scarcely needs stating: individual actors have used all types of media throughout history to alter public perceptions and force political change.

What is different about social media activists today? Two things. First, the barriers to entry are extremely low. Anyone who can effectively communicate on a digital platform is a potential norm entrepreneur. Only those who do not have the desire or ability to effectively use new media platforms are excluded from eligibility. Second, the new media platforms can reach 2.3 billion Internet users instantaneously. Everyone who is plugged in is a potential information consumer.

It therefore should not come as a surprise that a bunch of sophisticated young activists who were completely unknown to us just one month ago were able to reach over 70 million people–approximately 3 percent of all Internet users–in less than one week. Their message and strategy were incredibly effective at reaching the masses.

Of course, there is much to criticize about the Kony 2012 video if it is viewed in isolation. But the broad sweep of their campaign is much more nuanced and detailed than one video. One should think of the Invisible Children campaign as concentric circles of outreach, with the one superficial, emotive and short video everyone knows about as the outer layer of the onion. I’m not surprised that intellectuals are criticizing the Kony 2012 video. But I’m also not surprised that it went viral.

Kony 2012 has achieved the desired result, which was to make Joseph Kony famous, or rather infamous. Whether Kony will be held accountable in an international court of law remains to be seen. In the end, that may be beside the point. The court of international public opinion has rendered its verdict.

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.