Over the last year, we’ve hosted a number of discussions centered on immunity issues and how US courts deal with them.  For the most part, however, these discussions focused on individuals claiming immunity from becoming the subject of criminal or civil proceedings.  Last week, however, the 11th Circuit gave us a very different type of immunity case — the sovereign immunity a State has over its naval shipwrecks.  In 2007, Odyssey Marine Exploration, Inc. discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar.  It instituted admiralty proceedings in Florida to effectuate its claim to the sunken treasure it found there (including thousands of silver coins being transported at the behest of private Spanish interests) and the vessel’s remains. Spain, among others then intervened, claiming the vessel was the Mercedes, part of a Spanish squadron that had met the following fate:

On the morning of October 5, 1804, when the Spanish squadron was only one day’s sail from Cadiz, it was intercepted by a British squadron. Four Royal British Navyships, under the command of Commodore Graham Moore, had been sent by the British Navy Admiralty to intercept Spanish warships transporting treasure back to Spain. The Spanish frigates, having sighted the British frigates headed towards them, assumed a combat formation. A British officer was sent aboard [one of the Spanish vessels] and informed the Spanish that the British King had ordered the British Navy to detain the Spanish squadron and take it to England. The Spanish refused the British order, and what was to become known as the Battle of Cape Saint Mary soon commenced. Only a few minutes after the battle began, the Mercedes exploded. . . Except for fifty sailors, everyone aboard the Mercedes was killed . . . The remaining three Spanish frigates surrendered and were taken by the British squadron to England.  Partly as a consequence of the Battle of Cape Saint Mary, Spain declared war against Great Britain and entered into the Napoleonic Wars as an ally of France.

Based on the wreck’s identity as the Mercedes, Spain asserted sovereign immunity over the res of not only the vessel, but its cargo.  Odyssey objected as to the identity of the ship, the application of sovereign immunity to its cargo, and invoked a commercial activity exception to any immunity findings.  The District Court, however, concluded the res was the Mercedes and that it was entitled to sovereign immunity.

On appeal, the 11th Circuit affirmed the District Court decision that the vessel was the Mercedes and that Spain was entitled to a presumption of immunity under Section 1609 of the Foreign Sovereign Immunities Act:

Section 1609 of the FSIA states: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execution except as provided in sections 1610 and 1611 of this chapter.”  28 U.S.C. § 1609.  The Mercedes is Spain’s sovereign property that is within the United States.  While the Mercedes itself is not within the United States, that alone does not defeat the court’s ability to obtain jurisdiction over it.  A court may have either actual or constructive possession over the res . . . A salvor is thus able to bring a shipwreck found in international waters constructively within a court’s territorial jurisdiction by having a portion of the shipwreck within the jurisdiction.  R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943,967-69 (4th Cir. 1999) (concluding a shipwreck found in international waters can “constructively” be considered within the jurisdiction of the district court, although the district court’s sovereignty over the wreck is a “‘shared sovereignty,’ shared with other nations enforcing the same [law of all nations]”).  Odyssey has deposited parts of the Mercedes with the district court, constructively bringing the shipwreck within the court’s territorial jurisdiction.  Because this is an in rem action based on the arrest of sovereign property, § 1609 provides the Mercedes with presumptive immunity from arrest.

Odyssey did not invoke either of the statutory exceptions to Section 1609, but instead invoked the “subject to existing international agreements” language in Section 1609, arguing that the 1958 High Seas Convention’s restrictive approach to immunity should govern the case.  The Court disagreed, finding that, for Spain, “providing protection and safe passage to property of Spanish citizens was a military function of the Spanish Navy, especially in times of war or threatened war.”

All of the foregoing seems pretty sensible with respect to the Spanish vessel, but why give the cargo the same immunity if it hadn’t actually belonged to Spain?  The 11th Circuit invokes a 1902 Treaty as requiring it to do so:

In 1902, the United States and Spain signed a treaty mandating “[i]n cases of shipwreck . . . each party shall afford to the vessels of the other, whether belonging to the state or to individuals, the same assistance and protection and the same immunities which would have been granted to its own vessels in similar cases.” 1902 Treaty of Friendship and General Relations Between the United States of America and Spain, art. X, July 3, 1902, 33 Stat. 2105.  Under this treaty, the United States must afford the Mercedes, as a shipwrecked Spanish warship, the same protection it would give a shipwrecked United States military vessel.  The United States considers the cargo of a shipwrecked U.S. military vessel part of the shipwreck and gives it the same immunities as the shipwreck.  Under the [Sunken Military Craft Act], the rights, title and interest of the United States in any sunken military craft are protected absent an “express divestiture of title.”  § 1401, 118 Stat. at 2094. The definition of a “sunken military craft” includes a sunken warship or other military vessel, as well as “all or any portion of . . . the associated contents of a craft.”  § 1408(3)(C), 118 Stat. at 2098.  “Associated contents” are defined as “the equipment, cargo, and contents of a sunken military craft that are within its debris field . . . [and] the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.”  § 1408(1), 118 Stat. at 2097 (emphasis added).  Thus, under the 1902 treaty, the Mercedes and its cargo are entitled to the same immunities provided by the SMCA.

It’s an interesting opinion, both for the close statutory analysis of the FSIA, but also for giving judicial effect to the 1902 treaty (albeit, I assume, because Section 1609 requires that effect, although its possible I suppose one might alternatively see the 1902 Treaty as self-executing).  I wonder what those readers expert in sovereign immunity issues make of this case?

How could I have missed this? According the Guardian:

The principality of Liechtenstein has decided to make itself available to private clients, from $70,000 (£43,000) a night, complete with customised street signs and temporary currency…

Since then they have woken up to the marketing opportunities of their mountainous landscape. The price tag includes accommodation for 150 people, although the 35,000 inhabitants would remain. Any personal touches, such as an individual logo created out of candle wax or a customised medieval procession, come at an extra, undisclosed cost.

Upon arrival in Liechtenstein, visitors would be presented with the symbolic key to the state, followed by wine tasting at the estate of the head of state, Prince Hans-Adam II. Other options include tobogganing, fireworks and horse-drawn carriage rides through the capital Vaduz.

At first I thought: “My own nation-state for only $70 K a night? I’m in!” (Not that I have the money, but that’s sort of beside the point.) But then I looked again at the list of what you get and it comes down to a spa weekend with a bunch of friends with some monopoly money with your face on it. Where are all the aspects of sovereignty that you hear so much about?  (A carriage ride? Please. How about an airborne assault?)  It’s like being told you can rent a car but are not allowed to take any right turns and you have to drive 15 miles per hour.

In this case, I don’t think you get to do anything seriosuly fun like nationalize industries, mess with currency markets, or get all crazy at the UN. I don’t even think sabre-rattling is allowed. Actually, I don’t think Liechtenstein has any sabres.   Now if you could rent North Korea for a day….

Hat tip: io9

Professor Cecilia Marcela Bailliet of the University of Oslo has a very useful post over at IntLawGrrls on possible criminal punishment for right-wing extremist Anders Behring Breivik. Contrary to what has been reported elsewhere, according to Bailliet it is possible that Breivik could get life in prison for the death of 76 persons in last week’s shooting. Here’s an excerpt:

Detention is a punishment that can be pursued in the alternative of incarceration. It is pursued in cases involving serious crimes with a high risk of recidivism. Detention is conducted within penal system and is not subject to time limits. An order of detention shall establish the time period that normally will not extend past 15 years and cannot surpass 21 years. The minimum period of detention shall not be over 10 years. If the authorities consider the individual so dangerous that his release would pose a risk to society , the Court may extend the detention period up to 5 years at a time. There is no maximum limit for extensions.

In theory, the accused may spend the rest of his life in detention, pursuant to Court orders extending his detention 5 years at a time. Anders Behring Breivik is being charged with violating the terrorism provisions of the penal code which carry a penalty of 21 years incarceration. Furthermore, the prosecutors are considering pursuing a charge of violation of crimes against humanity which carry a maximum penalty of 30 years incarceration. This is a less plausible charge. The crime refers to actions by a State, organization connected to a state, or a paramilitary organization. It is unlikely that the Norwegian provision may be applied to an individual’s act without a relation to a larger organization.

What if he is found insane? In order to be criminally punished, the individual must be found to be sane at the time of the commission of the crime. Breivik is subject to court-appointed psychiatric evaluation to determine whether or not he is psychotic. If he is found to be considered insane at the time of the commission of the crime, he may be committed to a psychiatric institution if it is considered necessary for the protection of the society. This type of detention is not subject to time limits, but the law requires that the Court review the case regularly in order to establish whether there is a risk of recidivism.

Three stories to mention.  First, Moreno-Ocampo plans to introduce WikiLeaks cables in the trial of the six Kenyan defendants:

The cables are classic hearsay, of course, but hearsay is admissible at international trials.

Second, readers may recall that a Swiss banker, Rudolf Elmer, was imprisoned by Swiss authorities about six months ago for allegedly leaking bank secrets to WikiLeaks on two CDs.  It turns out that the CDs contained no secret information at all — but that hasn’t stopped Switzerland from continuing to detain Elmer without charges…

Or so it would seem, based on this analysis from the European Center for Law and Justice, a right-leaning public interest law firm.  A proposed new law in Poland appears to ban abortion under any circumstance, thus replacing the current law, which allows exemptions for the mother’s health and for cases of rape and incest. If, as the ECLJ argues, there is no international law right to an abortion, than I suppose the clean ban would seem more acceptable. But although I have not studied this question, I am not sure that a complete ban would ultimately survive review under the European Convention of Human Rights. But that’s just a gut feeling. Any actual experts out there should feel free to chime in.

In Serbia, not surprisingly:

Ratko Mladic, the Bosnian Serb general accused of overseeing the worst massacre in Europe since the end of World War II, has been arrested, Serbian authorities said Thursday.

Mladic is Europe’s most wanted war crimes suspect for his alleged role in the 1995 slaughter of 8,000 Bosnian Muslim men and boys in the enclave of Srebrenica, an atrocity that came to symbolize the brutality of the Balkans conflict. The war crimes tribunal in The Hague wants to try Mladic on charges of genocide.

Serbian President Boris Tadic announced Mladic’s capture at a hastily called news conference in Belgrade, the nation’s capital, and said authorities were preparing his extradition.

The arrest comes after sustained criticism of Serbia for being too lackadaisical in tracking down Mladic, including a new report by the International Criminal Tribunal for the Former Yugoslavia that reportedly castigates Belgrade’s efforts as insufficient.

[snip]

He added that Mladic was arrested on Serbian soil but did not disclose other details of the operation.

There will be questions, however, as to how Mladic managed to remain at large for so long and whether elements of Serbian security forces knew of his whereabouts without bothering to act. Some Serbian nationalists consider Mladic a hero and believe their country to be the unfair target of censure for its wartime past by international authorities. The arrest could trigger street protests.

Mladic’s arrest is interesting from a number of angles.  To begin with, it will no doubt have a significant impact on the Karadzic trial.  Prosecutors have long wanted to try Mladic and Karadzic together, although I think the Karadzic trial is too far along to make joinder a realistic possibility.  But who knows what the OTP will do.

A separate Mladic trial would also complicate the ICTY’s completion strategy, which calls for all judicial work to cease by the end of 2014.  Given how long trials involving high-value suspects take at the ICTY, there is little chance that Mladic’s trial and appeal would end by 2015.  So it looks like the Security Council will either have to keep the ICTY going longer than anticipated (which would not be the first time) or leave Mladic’s prosecution to the newly-created residual mechanism. The latter seems like an undesirable option — so my guess is that the ICTY judges and prosecutors will get to keep their jobs a bit longer.

Hat-Tip: Dov Jacobs at Spreading the Jam.

Lindseth’s claim in his new book is simple, intriguing, and surely will be seen as radical by most European law scholars: the European Union (EU) should be studied as an administrative rather than a constitutional project. Instead of reading the Lisbon Treaty as Member States’ acquiescence to a European constitutional order – one in which EU law is paramount and European Courts are empowered to strike down national legislation – Lindseth takes up Giandomenico Majone’s challenge from the early 1990s, to reconceptualize the EU as a “fourth branch of government.” But Lindseth then explores this redefined EU – most importantly its dynamic relation with its Member States – in significantly greater legal-historical depth.

In particular, Lindseth argues, the States’ reaction to the growth of EU regulatory power, a mix of acceptance and resistance, should be seen as a form of “reconciliation” or redefinition of European powers by domestic governmental and judicial bodies. European legitimacy, in his view, springs not from the Court’s purported neutrality and independence, but rather from these different moments of reconciliation between Brussels and national agencies, administrative tribunals, and constitutional courts.

The book openly rejects the powerful narrative of European constitutionalism, which has conventionally portrayed the EU as firmly set on a clear trajectory: departing from a mere intergovernmental organization, transforming itself into a supranational entity and finally achieving a more democratic constitutional union. The dominance of this view among EU scholars is self-evident: for over two decades the legal integration of Europe has triggered many interesting and different projects. Lacking Lindseth’s rich comparative and historical account of European integration, however, such projects have all been straitjacketed by a rigid constitutional narrative for Europe.

In the early 1990s, Joseph Weiler’s Transformation of Europe successfully framed the EU as a constitutional or quasi-federal union so that subsequent scholars felt constrained to make explicit or implicit references to US constitutionalism. In addition, scholars suggested that European constitutionalism was promoted silently by the European Court of Justice through the supremacy and direct-effect doctrines that ultimately were accepted, albeit not without resistance, by the Member States (Slaughter and Mattli, Alter). The academic focus was therefore fixed on Brussels, the Commission and the European court, rather than on the public and private legal orders of the Member States.

In the late 1990s, another strand of constitutionalism began addressing European governance as legitimated by its self-standing power rather than as a product of Member States’ delegation (Sabel, Simon, Gerstenberg, Cohen). In this strand, European constitutionalism was moving beyond courts and looking at new deliberative fora whose production of soft law and policy guidelines became an exemplary form of governance and a response to the failures of representative democracy. Constitutionalization became synonymous with the Europeanization of regulatory regimes going beyond the economic sphere, and increasingly encompassing social and civil rights. From a descriptive project, European constitutionalism became a normative one, insofar as academics were ambitiously attempting to solve pressing democratic and social problems.

In the post-Lisbon scenario, however, European constitutionalism has lost much of its appeal: Power and Legitimacy represents its nemesis. Scholars are reminded by Lindseth that relatively autonomous EU bodies draw legitimacy from the judicial, executive and parliamentary mechanisms set in place by each Member State. Therefore Lindseth sets a timely and important scholarly agenda calling for a more penetrating analysis of European integration, its past and its future, through a careful understanding of what ideas were received and promoted by political and legal elites and what were the unintended consequences of the integration process. In Lindseth’s view the “reconciliations” between the Member States and Europe are ongoing, complex legal and political battles fought by administrative and judicial bodies addressing the disconnect between multiple regulatory powers and the need for democratic recognition.

Let me first thank Peter and the other members of Opinio Juris for providing this space for an online discussion of my new book.  Let me also thank Ken, Francesca, and Fernanda for taking the time to offer comments.  I am really looking forward to this exchange.

As its title suggests, Power and Legitimacy grapples with what I see as the core disconnect in European integration. This has involved, on the one hand, the creation of supranational institutions with some measure of autonomous regulatory power that can penetrate deeply into national legal orders. And yet, on the other hand, despite the obvious constitutional implications of this process on the national level, European integration has been unable to achieve a democratic and constitutional legitimacy in its own right. There are certainly other bases of legitimacy for integration—as an instrument of peace, as an expression of a denationalized legality, or as a neutral producer of regulatory norms for a market-polity transcending national borders (Fritz Scharpf’s famous ‘output legitimacy’). But the institutions of integration are otherwise not generally understood by Europeans to embody or express the capacity of a new, historically cohesive political community (‘Europe’) to rule itself through institutions ‘constituted’ for that purpose. In that critical regard, the leading bodies of the Member States—executive, legislative, and judicial—have remained the political-cultural locus of self-government in the EU. This is true even as the Member States have delegated significant and often autonomous regulatory power to the European level for numerous functional and political reasons.

How has European public law come to terms with this separation of power and legitimacy? That is the central question motivating my book. The phrase ‘coming to terms’ is used here in a double sense. First, it refers to the development of a conceptual vocabulary to describe this complex reality over the last half-century. In this regard, the European Court of Justice (ECJ) and sympathetic legal commentators have played a key role as advocates of an interpretation of European law as autonomously ‘constitutional’ in its own right, separate and apart from the Member States. Second, ‘coming to terms’ also refers, more figuratively, to the less noticed process of institutional reconciliation, in which European public law at all levels has sought to deal with the conflicting demands of supranational regulatory power and continuing national legitimacy. Here the analytical focus must necessarily move beyond the ECJ, to a comprehensive and historical understanding of the EU’s legal and institutional development.

Appreciating these tensions in the process of ‘coming to terms’ may also help us deal with another disconnect in European integration. As the events of the last decade have made clear, the dominant constitutional understanding of the EU has had a great difficulty accounting for the direction of European public law. ‘Coming to terms’ with the EU’s particular form of regulatory power beyond the state has in fact required mechanisms profoundly dependent on the normative principles and legitimating structures of administrative governance as it has developed over the course of the twentieth century.

This should, in fact, not surprise us. The separation of power and legitimacy has been the identifying characteristic of administrative governance since 1945, if not before. Moreover, the delegations at the heart of administrative governance have been legitimized, in important part, through forms of oversight (though necessarily control) by national democratic and constitutional bodies vis-à-vis the burgeoning administrative apparatus. As my book seeks to show, the evolution of European public law, much less than suggesting a new, autonomous form of ‘constitutionalism beyond the state,’ in fact reflects an increasing convergence around ‘the postwar constitutional settlement of administrative governance.’ The result has been a polycentric constitutionalism in the EU, with regulatory power increasingly exercised at the supranational level but democratic and constitutional legitimacy still concentrated within national institutions.

The evolution of European public law, my book thus seeks to show, reflects a clear effort to maintain, over time, the connection between this denationalized regulatory power and national forms of constitutional democracy. This effort is very much consistent with the postwar settlement on the national level, albeit in an altered form to account for the peculiarities of integration (notably multiple ‘principals’ and regulatory norm-production outside the state). By understanding European integration as a manifestation of administrative governance, Power and Legitimacy seeks to offer a new conceptual vocabulary to ‘come to terms’—both descriptively and normatively—with the integration phenomenon in all its complexity.

The following is a guest post by Anna Dolidze, a JSD candidate at Cornell Law School. In 2007-08, Dolidze was
 an Albert Podell Global Scholar at Risk at New York University Law
 School and a Visiting Fellow at Columbia University’s Harriman Institute.  She has worked for a number of international organizations, including for Save the Children, Russian Justice Initiative, and Human Rights Watch.  Our thanks to her for the contribution!

Last week the International Court of Justice handed down the judgment on Preliminary Objections in the case of Georgia v. Russian Federation. With ten votes to six, the Court upheld the preliminary objection by Russia and declined to proceed to consider the case on merits. The judgment presents interesting material for examination from many angles. As the dissenting opinions have already been made publicly available, their close examination will give food for thought to those that study politics at the international court. The judgment is also noteworthy for its detailed treatment of Article 22 of the Convention on Elimination of All Forms of Racial Discrimination (CERD) and its history. It is also interesting to see how the Court examined the political rhetoric from both countries through the lens of international law. Those that study how military confrontation is translated into “lawfare” will also find interesting material for contemplation. One particular aspect of the judgment, with which I shall deal in this post, is how it played out in domestic politics in both countries. Russian and Georgian political actors interpreted the judgment variably. Yet, they were similar in one particular way. Government agencies of both countries announced it as victory for their country. Furthermore, a look at how domestic political players in Georgia handled the judgment confirms, once again, that judgments of international tribunals are part and parcel of Dezalay and Garth’s concept of “international strategies.” Domestic actors “use foreign capital, such as resources, degrees, contacts, legitimacy, and expertise … to build their power at home.” Georgian government and political actors interpreted the judgment with the view to maximize their own domestic political capital.

The case was launched by the application filed by Georgia on August 12, 2008. On the same day President of France Nicolas Sarkozy proposed a cease-fire in the Georgian-Ossetian zone of conflict. Georgia requested the Court to declare that Russia violated its obligations under CERD by engaging in acts and practices, contrary to Articles 2,3,4,5 and 6 of CERD. Its application mainly concerned Russia’s responsibility for actions on the territory of two secessionist republics of Georgia, Abkhazia and South Ossetia. Georgia had filed a complaint on the basis of article 22 of CERD. Article 22 provides, “[a]ny dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement”. CERD entered into force between in the parties on July 2, 1999.

Both parties have benefited from the legal representation of the prominent figures in international law, including James Crawford and Phillip Sands representing Georgia and Allain Pellet and Andreas Zimmerman representing Russia. Russia raised preliminary objections to the jurisdiction of the Court. Firstly, Russia contended that there was no dispute between the parties within the meaning of article 22. Secondly, that the procedural requirements for the recourse to article 22 have not been met…

I received this notice from my friend Gary Born and thought it worth sharing. Sounds like a wonderful opportunity for any academic interested in international arbitration. My Pepperdine colleague Tom Stipanowich was the resident scholar last semester, and he could not say enough about the experience. Here’s the formal announcement:

The International Arbitration Group at Wilmer Cutler Pickering Hale and Dorr LLP in London is pleased to announce that it is accepting indications of interest for its Scholar-in-Residence Program for the academic year 2011-2012 and the summer of 2011. Indications of interest are invited from all full-time legal academics, particularly in the fields of international arbitration and litigation, private international law, public international law, and comparative law, regardless of seniority or country of qualification.

The Scholar-in-Residence Program brings talented professors, lecturers and and other academics from all jurisdictions to our London office to collaborate with our international arbitration team on both professional matters and academic projects and to contribute generally to the intellectual life of the office. (A description of our International Arbitration Group is here. Visiting scholars are provided with an office, use of library and other research facilities, and secretarial and other support services, as well as an honorarium in appropriate cases. Specific terms and conditions, including with regard to the length of residence and weekly time commitments, are determined on a case-by-case basis in light of program participants’ experience and needs, and other academic and professional engagements. Past participants have included distinguished academics in the fields of international dispute resolution, international trade and public international law.Participants have been in residence for periods ranging from 1 month to 9 months, with time commitments ranging from a few hours per week to full-time.

Interested academics are invited to send their resume/CV to Phillipa [dot] Keast [at] wilmerhale [dot] com , together with a brief indication of preferred starting and ending dates of residence and contemplated time commitments. General inquiries regarding the Scholar-in-Residence Program, including for future years, are also invited.

It is with great concern that I hear about this because it puts Julian and his defence in a bad position. I do not like the idea that Julian may be forced into a trial in the media. And I feel especially concerned that he will be presented with the evidence in his own language for the first time when reading the newspaper. I do not know who has given these documents to the media, but the purpose can only be one thing – trying to make Julian look bad.

Lawyers for Julian Assange–December 19, 2010

We simply have a very easily understood promise. Unlike most media organizations, we don’t arbitrarily choose what to publish or not to publish based upon the political or personal whims.

Julian Assange–December 17, 2010

We make a guarantee to people that provide us with material that provided their material meets a simple criteria, that is, it has been restricted from the public record, or has been censored and is under an active suppression and it is of diplomatic, political or authorical significance, provided they get it to us we will eventually publish it.

Julian Assange–April 7, 2010

We will fight will all the tools at our disposal, technical, political, legal to make sure the material remains up and published. Any material of political importance or ethical or diplomatic or historical relevance, that is our criteria, that is suppressed we will accept. That is our line in the sand that we have consistently enforced. And previously no one have been able to enforce that. So, this is, yes part of this revolutionary ideal.

Julian Assange–April 26, 2010

The Ninth Circuit this week ruled that there was no federal policy with respect to the Armenian Genocide, thereby allowing insurance claims brought by Armenian nationals under a California statute to go forward. In Movsesian v. Victoria Versicherung AG, the Ninth Circuit distinguished Garamendi, concluding that there was no federal policy against recognizing the Armenian Genocide. Indeed, “[c]onsidering the number of expressions of federal executive and legislative support for recognition of the Armenian Genocide, and federal inaction in the face of explicit state support for such recognition, we cannot conclude that a clear, express federal policy forbids the state of California from using the term ‘Armenian Genocide’” in the statute.

The interesting wrinkle in the case is that in August 2009 the same panel came out precisely the opposite. As Michael Ramsey discusses at length here, that panel bizarrely ruled that the failure to recognize the genocide in formal legislation was a federal pronouncement sufficient to preempt state law. On petition for rehearing, that opinion was withdrawn, and now Judge Nelson has reversed herself, siding with Judge Pregerson.

I consulted on the case on behalf of Movsesian, and I have no doubt that the Ninth Circuit got this one right. In light of Medellin‘s limitation on Garamendi, it was truly astonishing to hold that inchoate federal policies were enough to preempt state laws.

In related news, as reported here, “three descendants of Armenians who lost their property in the collapse of the Ottoman Empire filed a lawsuit Wednesday against the Turkish government and two Turkish banks for restitution of more than $63 million for acreage that includes the strategic Incirlik Air Base used by the U.S. military.” Lee Boyd and Michael Bazyler are working with Vartkes Yeghiayan on behalf of the plaintiffs. The plaintiffs’ press release is here.

The timing of the complaint could not have been better. It comes just days after the Ninth Circuit’s decision in Movsesian and two weeks before the California Armenian genocide law extending the statute of limitations was set to expire.