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

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

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

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

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

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

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

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

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

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

Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

I have to admit I am a bit surprised that President Yanai did not appoint any arbitrators from East Asia or Southeast Asia. As it turns out, the Annex VII tribunal will have four Europeans, three of whom are currently serving as judges on ITLOS.  Chris Pinto of Sri Lanka will be the only member of the tribunal from Asia (broadly defined).  I would have appointed a Chinese national and a Philippines national, which would be in keeping with the tradition of many other interstate arbitrations.

It turns out that I had the opportunity to meet Philippines Solicitor General Jardeleza, who is spearheading the Philippines arbitration team, just yesterday at an event sponsored by the U.S.-Asia Law Institute at New York University.  I got some great insights in to the strategy behind the Philippines’ decision to pursue arbitration, which I hope to share in a later post.  But for now we can say that the arbitration is going to happen, for sure.

If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

(Emphasis Added).  So the tribunal has a legal duty to consider the jurisdictional issue seriously and to ensure that the Philippines’ claim is well-founded.  No “default” judgments can be issued here (Nor would that be in the interest of the Philippines anyway).

Longtime readers know that I have often criticized (unfairly in many readers’ eyes) the snail’s pace of dispute resolution before the International Court of Justice.  I respect the ICJ as an institution, but I have never thought it has lived up to its potential as the “principal judicial organ” of the United Nations.  On the other hand, I will give credit where credit is due.  Unlike the U.S. Supreme Court, which is still battling over whether audio recordings of its oral arguments can be distributed live, the International Court of Justice has done a nice job putting video of its oral hearings online.  Like the International Tribunal for the Law of the Sea, the ICJ is not shy about putting videos online for the world to see and gape over.

Now, like the U.S. Supreme Court oral arguments, these arguments are not exactly the stuff of thrilling drama.  I admit I did not make it through the entire six hours of video on the recent Cambodia-Thailand Temple of Preah Vrear case (I made it through about six minutes, to be honest).  But it helps everyone who studies or practices before the ICJ, or simply wants to understand the ICJ, to be able to see the various submissions, the different orders, and the oral arguments, and the final judgment online.

Indeed, the ICJ arguments (video here) in the Temple of Preah Vrear case is getting pretty good play in Thailand, if these articles in the English language Thai paper The National are any indication (all of the top articles at this hour are about the ICJ hearing).  Indeed, one of the Thai government’s attorneys, Alina Miron, an associate of Thai counsel Alain Pellet, has become a social media celebrity in Thailand due solely to her performance during the oral argument.  It was the quality of the arguments, to be sure, but I have a feeling the fact that her personal appearance may have also made her a star.

Obviously, turning our attorneys or justices into celebrities is not important, but even so, the US Supreme Court could take a lesson from the ICJ here.  Sure, it may be impressive to shroud your processes and arguments in obscurity to make it seem more mysterious, but I don’t think it serves the long term interests of the institution.  Let the cameras in!

Professor David Kaye has a thoughtful essay in the latest issue of Foreign Affairs analyzing the growing level of cooperation between the U.S. and the ICC.   He correctly notes that the U.S. is not only no longer actively hostile, but it has taken various steps in recent years to actively support the work of the ICC (most notably in Uganda against the LRA).

We’ve already discussed the relationship between U.S. conservatives and the ICC here, and I suspect the future of US-ICC cooperation will depend on the views of U.S. conservatives who can still muster 40 plus votes in the Senate (and may get more soon).  As Kaye notes, there is no prospect of U.S. ratification of the ICC Rome Statute now or in the foreseeable future. And the Palestine investigation that Kevin mentions below is going to return the ICC to the U.S. Congress’ attention in the context of Israeli relations, which is the absolute worst context for the ICC.

I would say the ICC’s only hope of US ratification one day lies in a slow cultural change. Perhaps this new NBC drama “Crossing Lines”  will help.  Then again, since it seems to propose that the ICC will operate with a shadowy investigative team of former cops, I wonder if this might backfire…

[Apologies for all the random short posts, I think what make blogging interesting, sometimes, is that one can think out loud online.  Dangerous, I know, but fun too!]

Here is one quick take:  As Deborah noted below, the Supreme Court voted 9-0 that the Kiobel plaintiffs should be dismissed because their claims against a foreign corporation for actions in a foreign jurisdiction did not belong within the jurisdictional ambit of the ATS.

Five justices (including the sometimes squishy Justice Kennedy) voted to apply the presumption against extraterritoriality, an interpretive rule, to the ATS.  Although the language is a little mushy here and there, the court’s opinion makes very clear that the rule announced in Morrison v. National Australia Bank applies to the ATS.  In Morrison, the Court held that there is a broad presumption that congressional statutes are not meant to regulate extraterritorial activity unless there is a clear statement in the statutory text.  This presumption cannot be overcome simply because there is some minimal connection to the U.S, like being listed on the U.S. stock exchange or even doing business here.  The exact contours of this rule are a little fuzzy, for instance, it is somewhat uncertain what the rule would be if the defendant was a U.S. corporation, but it seems clear to me that most of the corporate ATS defendants will win dismissals from their ATS lawsuits after this decision.  Almost all of them are being sued for foreign conduct, and often through actions of foreign subsidiaries, and rarely with any action by the corporate actors based in the U.S.

It is also worth noting that the four justices who did not join the opinion, nevertheless would have voted to dismiss the case against Shell anyway because of the lack of a territorial nexus or connection to the national interest of the U.S. While the concurrers would have included preventing the U.S. from being a safe harbor for war criminals within the U.S. national interest, they would not have found that punishing corporations for their complicity with war crimes and torture abroad was enough to satisfy their test.

So this means that the ATS wars over corporate liability are almost over. I say almost because under the majority opinion, U.S. corporations might still be sued for domestic conduct and, perhaps, for foreign conduct if that conduct was also deeply connected with domestic acts.  This seems unlikely in most ATS cases, and it is worth noting that the severity of the crime that the corporation was alleged to have committed does not change the analysis, even under the Breyer concurrence.  A theory that the ATS can be justified in universal civil jurisdiction cases has been rejected, 9-0.

Bottom line: Corporate general counsels!  Rest easy, your long, transnational ATS nightmare is over!

Interestingly, the four liberal justices would have also dismissed the Kiobel plaintiffs on a different theory: that this case (involving actions by a foreign corporation against foreign plaintiffs in a foreign sovereign’s territory) does not “substantially or adversely affect an important American national interest…”  In other words, Justice Breyer seems to want to graft the “protective” principle of prescriptive jurisdiction onto the ATS, rather than the universality principle that I would have expected.  Here is a summary of Justice Breyer’s proposed reading of the ATS.

… I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.

It is worth noting that Justice Kennedy offered a very short concurrence. Here is the complete text of his concurrence, which should hearten ATS supporters that there is some room for future extraterritorial ATS cases (a very small room, I guess).

The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

Here is the bottom line of the Roberts’ opinion, which makes it sound like this whole ATS thing is really a simple application of Morrison v. National Australia Bank.

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

It also makes clear that “mere corporate presence” would not be enough to trigger US territorial jurisdiction under the ATS.  I sense a new litigation front opening up.

(UPDATE: Whoops, Ken beat me to the punch. Still, look here for more comments soon.) Here is the opinion. I am just going through it now, but it looks like the ATS is going to be severely restricted on territoriality grounds for the near future.  More from all of us later on today.

The Asahi Shimbun is running a couple of interesting features on the International Court of Justice and Japan’s relationship with it.  One essay features interviews with Japan’s current and former members of the ICJ: President Owada and former vice-president Oda.  The other explores what might happen if Japan were to somehow send its disputes with China and Korea to the ICJ.

“Since we are already facing such an explosive situation, it would probably be good for Japan to take action and suggest that China file a claim–and then respond in court,” said Yoshio Otani, 73, an honorary professor at Hitotsubashi University.

To date, however, the Chinese side has made no move to file a claim unilaterally.

“The stances of both countries with regard to the Diaoyu (Senkaku) Islands are too far apart to be able to bring the problem to a third party, including to the ICJ, for resolution,” said Xinjun Zhang, 45, an associate professor at Tsinghua University in Beijing. “The issue of territory, even domestically, is intertwined with ethnic pride. It is a very sensitive matter. Currently, it would be better to think about how to manage the issue rather than try to resolve it.”

I am not sure I agree with Prof. Zhang that the stances of the two countries are “too far apart” to go to a third party, since that is kind of always the case in these kinds of disputes.  But I do agree that it is hard to imagine the China-Japan dispute going to the ICJ.

Having said that, it might be smart politics for Japan to announce its willingness to take the Diaoyutai/Senkaku disputes to the ICJ, and put the onus on China to reject the offer. Japan is already becoming ICJ-savvy in the upcoming Australia Whaling case (hearing finally scheduled for June), they might feel like the ICJ is a good forum for them.   In our panel last week at ASIL, Stephanie Kleine-Ahlbrandt suggested that that Japan had already privately made such an offer, and had been turned down.  I wonder if it is now time for Japan to go public with this offer.  Then again, maybe it should sit still and wait and see how the Philippines arbitration turns out, since China has not so suffered any serious damage from their non-response to that claim.

The International Tribunal of the Law of the Sea has received a request for an advisory opinion from the Sub Regional Fisheries Commission located in Senegal. The Commission is a treaty based organization founded in 1985, which has seven member states (Senegal, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, and Sierra Leone). Some background information on the Commission is available here.

The Commission’s request asks four questions:

1. What are the obligations of the flag State in cases where illegal, unreported, and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States?

2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?

3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?

4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and sticks of common interest, especially the small pelagic species and tuna?

If ITLOS’s approach to this advisory opinion is similar to its Advisory Opinion on the Seabed, we can expect a creative and expansive response.  There, ITLOS affirmed the due diligence principle (which the ICJ recognized in the Pulp Mills case), and gave it content by linking it to the obligations of states.  ITLOS therefore has a trackrecord of “making waves” with regards to linkages between the law of responsibility and the Law of the Sea.

Nonetheless, at present, there is not much information generally available about the background of this request other than general difficulty with IUU fishing in the region.   Has the commission brought this case to try to gain leverage with distant water fishing nations?  Is this ultimately a dispute with the EU?   Some relevant conversations about the law of the sea and responsibility are taking place at the Food and Agriculture Organization that might provide useful background information.  See in particular the draft guidelines on Flag State performance that address questions of flag state responsibility for IUU fishing.

And we at Opinio Juris hope to contribute to this conversation by way of a symposium later this spring on the intersection between the law of the sea and principles of state responsibility.

[Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International Law and Ingo Venzke is a Senior Research Fellow and Lecturer at the Amsterdam Center for International Law, University of Amsterdam.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

We are truly grateful to Andreas Føllesdal and Ruti Teitel for their perceptive comments on our article, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. Their insights will surely inform our continuous work on the multi-functionality, public authority, and democratic legitimacy of international courts and tribunals (ICTs). In this reply, we will focus on three main points to which both commentators draw attention: our understanding of functions; why ICTs require democratic legitimacy; and, finally, whose interests matter for a normative assessment.

Functional Analysis

Both commentators challenge us to clarify what we want to achieve with our functional analysis and, at the same time, suggest nuances to the four functions we do identify. Andreas Føllesdal specifically prompts us to choose – do we want to explain why ICTs exist, or do we see functions as legitimating the practice of ICTs? If either one or the other was our ambition we would indeed fall short of giving a convincing answer. But our functional analysis stands in a sociological tradition and aims at a better understanding of the phenomenon (cf., M. Madsen, ‘Sociological Approaches to International Courts’, in K. Alter, C. Romano, and Y. Shany (eds.), The Oxford Handbook of International Adjudication, 2013). We are not (neo-) functionalists, and neither develop an explanation of institutional developments nor a functional justification. Especially the latter point merits emphasis; a functional analysis does not — it cannot — justify the phenomenon it tries to understand (N. Luhmann, Legitimation durch Verfahren, 1983). But it might still be seen as potentially apologetic to frame a certain social consequence of an institution’s characteristic activity as a function. Because of this looming hazard, we keep the straightforward normative questions in sight. In fact, our functional analysis serves as a precursor for discussing the democratic legitimation of an ICT’s exercise of public authority. It aims at a better understanding of the phenomenon to sharpen normative questions.

Against the backdrop of an orthodox understanding of ICTs, which sees ICTs in the function of dispute settlement alone, we identify three more main functions: (1) the stabilization of normative expectations, (2) law-making, and, (3) the control as well as legitimation of public authority exercised by other actors. Ruti Teitel argues that ICTs pursue a further function — and find a more promising source of legitimacy than we are ready to acknowledge — in the development and protection of specific substantive values at the international level. Furthermore, she submits that ICTs step in and serve the values in domestic settings when national authorities have broken down. While it concerns the postulation of another function, it is true that this dimension of ICTs’ activity, especially of international criminal tribunals, is only weakly reflected in our summary analysis that draws together different ICTs on a high level of abstraction.

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