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Texas v. the OSCE Election Observers: The Kerfuffle About Nothing

by Julian Ku

The agonizing close presidential race in the U.S. has made everyone on edge about election day problems at the polls.  This may explain why the State of Texas has decided to pick a fight with the election observers from the Organization for Security and Cooperation in Europe (OSCE), threatening to arrest election observers who interfere with the upcoming November 6 elections.

Texas authorities have threatened to arrest international election observers, prompting a furious response from the Organization for Security and Co-operation in Europe (OSCE).

“The threat of criminal sanctions against [international] observers is unacceptable,” Janez Lenarčič, the Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), said in a statement. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”

Lawmakers from the group of 56 European and Central Asian nations have been observing U.S. elections since 2002, without incident. Their presence has become a flashpoint this year, however, as Republicans accuse Democrats of voter fraud while Democrats counter that GOP-inspired voter ID laws aim to disenfranchise minority voters.

Texas Attorney General Greg Abbott further fueled the controversy on Tuesday when he sent a letter to the OSCE warning the organization that its representatives “are not authorized by Texas law to enter a polling place” and that it “may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance.”

As the blog post at the Hill goes on to note, this is a big kerfuffle about nothing. The OSCE observers do not have any special legal status and they have already agreed to follow Texas election law (or any other state’s election law). I should note that Texas is free to do whatever they want with the OSCE monitors, and there is no federal authority that can push them to do anything in particular about the OSCE.   I am not sure why Texas has gotten all hot and bothered by this.

To be sure, Texas authorities might be confused by reports like this one from ABC, which calls the OSCE a “UN affiliate” and links their mission to calls by the NAACP on the U.N. to block voter ID rules (uh, that’s totally wrong).  But while the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) [gotta love that acronym] is here to “assess these elections for compliance with international obligations and standards for democratic elections…” This sounds ominous, until you realize that U.S. commitments to OSCE self-consciously political, and not legal.  That is part of the point of the OSCE. It is a political forum, not a formal legal one.

It is true that the OSCE (which includes very undemocratic states like Kazakstan as members) is hardly in a position to complain too aggressively about U.S. election standards. I suppose it could get ugly in a close election if the OSCE tries to influence the political fight over a recount.  But there are so many existing domestic laws that regulate elections in the U.S. (and forums for litigation) that I am doubtful that the OSCE could add much to what is already going to be a crazy election season here in the U.S.

Harold Koh: Twenty-First Century International Law Making

by Duncan Hollis

Earlier this week, Harold Koh gave a speech.  And it wasn’t about conflicts, drones, or cyberwar, topics that have dominated the attention of international lawyers in recent years.  Rather, Koh’s speech was a meditation on the processes of international law-making that confront the State Department on a daily basis.  It was, simply put, a survey of the current international legal landscape from the U.S. perspective.

Koh reviewed the formal U.S. treaty-making process, citing past victories like the New START Treaty and the Obama Administration’s continued push for Senate advice and consent to the 1982 UN Convention on the Law of the Sea and the more recent Disabilities Convention.  There was also a cogent defense of the use of congressional executive agreements, with reference to controversies over the Anti-Counterfeiting Trade Agreement (or ACTA), where frankly I find myself aligned with the federal government in not seeing what the fuss is all about (or, rather, if there’s a fuss, it’s one so fundamental as to put into doubt two centuries of Congressional pre-approval of U.S. treaty-making).

Beyond this survey of formal international lawmaking, Koh also emphasized compliance, including a nod to his prior scholarly work (and the C-175 process, on which I spent a good deal of my own time at the State Department):

In my academic work, I have described a pervasive phenomenon in international affairs that I call “transnational legal process:” that international law is primarily enforced not by coercion, but by a process of internalized compliance. Nations tend to obey international law, because their government bureaucracies adopt standard operating procedures and other internal mechanisms that foster default patterns of habitual compliance with international legal rules. When I became Legal Adviser, I found that this is even truer than I thought. For example, most people are unaware of the so-called “C-175” process, named after a 1955 State Department Circular setting out a standardized procedure for concluding international agreements. The few academics who have ever noticed that process often assume it is nothing more than a rubber stamp. But having now seen it from the inside, I can tell you that the process is exhaustive and designed to ensure that all proposed U.S. international agreements — even if concluded by a different agency — are subject to a rigorous legal and policy review by the State Department before an any agreement is negotiated and concluded. Through this process, the State Department plays the same kind of clearinghouse role with respect to international agreements that OMB plays with regard to federal regulations. The C-175 process ensures not only that we have the legal authority to conclude the agreement in question, but also that every agency’s lawyers fully understand the nature of the domestic and international legal obligations we will undertake, so that we can accurately evaluate whether the United States will be able to comply with its new international legal obligations.

 

On the subject of compliance, Koh highlighted that the Administration has not yet given up on complying with the ICJ’s Avena judgment. And in terms of customary international law (CIL), Koh reiterated the U.S. view that major parts of the Vienna Convention on the Law of Treaties and the 1982 U.N. Convention on the Law of the Sea now codify CIL.

But, Koh’s talk also went well beyond the “formal” sources of international law, exploring the range of alternatives to treaty-making.  He discussed U.S. political commitments, including cooperative arrangements with the Arab League, the Copenhagen Accords, and the recent Washington Communique on nuclear security.  Koh dubbed these instruments as “layered cooperation”:

In any given area of international cooperation, the choice between international agreements and non-legal alternatives is not binary. Instead, the legal and the non-legal understandings are layered, and operate on different levels. Take for example the Arctic Council, a group of eight Arctic States — Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States — which has emerged as an impressive example of a non-legal mechanism to facilitate sustainable development and international cooperation in the Arctic. The cooperation that takes place within the Arctic Council — generally through non-binding means — is layered on top of a legal backdrop of the Law of the Sea Convention, and the customary international law it reflects, which answer important questions about sovereign rights and jurisdiction in the Arctic. Now notice that the Council is not a formal international organization; it was not set up by an international agreement, and the majority of its work is not legally binding. But this has not detracted from — and has probably even enhanced — its success in facilitating robust international cooperation among the Arctic States at all levels, ranging from foreign ministers to bench scientists.

Koh’s speech also emphasized the increasing important role assigned in international lawmaking to non-State actors.  He ended, moreover, on a high note:

Make no mistake: this is not your grandfather’s international law, a Westphalian top-down process of treatymaking where international legal rules are negotiated at formal treaty conferences, to be handed down for domestic implementation in a top-down way. Instead, it is a classic tale of what I have long called “transnational legal process,” the dynamic interaction of private and public actors in a variety of national and international fora to generate norms and construct national and global interests. The story is neither simple nor static. Twenty-first century international lawmaking has become a swirling interactive process whereby norms get “uploaded” from one country into the international system, and then “downloaded” elsewhere into another country’s laws or even a private actor’s internal rules.

Now I am sure that Hugo Grotius had it good in his time. But believe me: there has never been a more challenging and exciting time to be an international lawyer or an international lawmaker. I have been lucky to spend my whole career steeped in this heady environment as a lawyer, scholar, advocate and public official. To be sure, there will always be challenges. But still, I find no belief more contagious than the simple, idealistic conviction, shared by so many, that even in a new millennium, it is still possible to aspire to help build a vibrant world order based on law.

For those who want to see the whole speech — check it out here — it’s worth the read.

[UPDATE:  Marty Lederman writes in with a link to a video of the speech for those interested in watching it.]

New Article on Reid v. Covert, and My Question re Extraterritoriality and the Constitution

by Kenneth Anderson

Over at Lawfare, I’ve flagged a fine new article in the Military Law Review, “The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial,” by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to jagcnet.army.mil.) The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to “camp followers.”  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law.

Let me add a comment that goes far afield of Captain Warren’s article, but one raised in my mind by the detailed discussion she offers of the “murdering wives case” in its own context and time.  (I don’t want to suggest that my discussion reflects her views in that article, so I’ve decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context – one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ – answer, yes. But, if that’s Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group – is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can’t be lethally targeted in the way that a non-citizen lawful target could be? (more…)

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy

by Roger Alford

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is some U.S. nexus, or that it does not apply to corporations, or that it does not apply without exhausting local remedies, or that it does not apply to certain types of conduct (such as aiding and abetting). But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

I say that by reading the tea leaves of the Justices’ votes that are up for grabs. Justice Kennedy asked, among other things, about whether there was a U.S. nexus in this case (page 4), about risks of reciprocal claims brought against U.S. corporations in foreign courts (page 5), about the risk of ATS litigation causing complications with foreign governments (page 10), and about the scope of the presumption against extraterritoriality (p. 37). Several Justices, including Chief Justice Roberts, asked about the possibility of vindicating one’s rights in another forum that has a closer connection to the events or the parties, including the defendant’s domiciliary forum (the United Kingdom or the Netherlands) or the place of injury (Nigeria). None of the swing Justices seemed interested in the concept of universal jurisdiction, except to preserve the Sosa paradigm that embraced piracy on the high seas as an actionable international law violation.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

As for extraterritoriality, Hoffmann’s key argument was that the presumption against extraterritoriality is overcome where the purpose of the statute requires its extraterritorial application. The presumption, he argued, “would undermine the very purposes of the statute” which is “the best evidence that we have about what it meant in the era” (page 52). He cogently cited the Bradford opinion as an historical example of what the drafters were thinking in this regard.

To be sure, there is ample Supreme Court case law to support an argument that sometimes the purpose of a statute requires its extraterritorial application. See United States v. Bowman, Blackmer v. United States, United States v. Flores, Cook v. Tait, Browder v. United States. One way to articulate this is to say that the clear intent of Congress is expressed in drafting a statute that necessarily requires extraterritorial application. Whether or not the swing Justices will interpret the ATS in this fashion is anyone’s guess.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

So I predict that the ATS as we know it will be curtailed. I don’t know exactly how it will be curtailed, but based on the oral argument today I predict that the future of foreign plaintiffs using the ATS to sue foreign corporations for conduct on foreign soil is in serious jeopardy.

ATS Kiobel Post-Argument Discussion

by Kenneth Anderson

I realize this should have gone to our announcements section, but it seems well worth flagging.  As OJ readers are probably aware, the Kiobel case is being re-argued today in the Supreme Court.  Tomorrow my law school, Washington College of Law, American University, in DC, is holding a post-argument discussion with some stellar folks – Paul Hoffman (lead counsel for plaintiffs), Katie Redford (Earthrights International), John Bellinger (former DOS Legal Adviser and Arnold & Porter partner), and Andrew Grossman (Heritage Foundation).  WCL’s own Steve Vladeck will moderate.  The event will also be live-streamed.

Tuesday, October 2, 12-1:20, lunch included, and CLE credit available.  Registration required.  The flyer with online registration information is below the fold. (more…)

Gary Bass Reviews John Witt’s ‘Lincoln’s Code’ in the NYT Sunday Book Review

by Kenneth Anderson

John Witt’s magisterial new book, Lincoln’s Code: The Laws of War in American History, appeared a few weeks ago, and Gary Bass has an enthusiastic review of it in yesterday’s New York Times Sunday Book Review.  I am only about half-way through it, but Bass’ enthusiasm is entirely justified – it is a fabulous book and one that I think merits attention world-wide.  Bass’ review-essay is also well worth the read:

Abraham Lincoln’s administration published a new fighting code for Union soldiers in 1863, which diffused far beyond American shores: to the Prussian Army in 1870, into the landmark Hague Convention in 1899, and even into the Geneva Conventions and the Nuremberg trials after World War II. Witt, a professor at Yale Law School, writes that it was Francis ­Lieber, the Lincoln team’s foremost wartime legal authority, who — trying to figure out how Union troops should treat Southern irregulars — came up with some of the defining features of soldiers that guided the Third Geneva Convention in 1949: wearing distinctive insignia identifying them as combatants; operating under a command structure; and following the laws of war.

“Lincoln’s Code” is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty, from William Tecumseh Sherman’s rampage through Georgia and South Carolina to the Indian wars. In an effort to make sense of what animates the “world’s only military superpower” today, Witt looks backward: “From the Revolution forward, the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare.”

Witt argues that Americans have been torn between “two powerful but competing ideals”: humanitarianism, which seeks to make war less awful through gentler rules; and justice, which demands victory in a righteous cause. Americans, he writes, have seen military law not just as an obstacle to effective fighting, but also “a tool for vindicating the destiny of the nation.”

Witt himself is a pragmatic type. While he admires much about the laws of armed conflict, he does so largely on the modest grounds that they can serve “as tools of practical moral judgment in moments of extreme pressure.” He is impatient both with skeptics who dismiss international law as rank hypocrisy, and with more aspirational legalists whose ideals are “so remote” from actual war-fighting that they make it “less likely . . . the laws of war will find traction in times of crisis.” He paraphrases Oliver Wendell Holmes Jr.: “The life of the laws of war has not been logic. It has been experience.”

Legislative Fixes to the Problem of Executing Terrorist Judgments Against Iran

by Roger Alford

Having followed the terrorism litigation against Iran for years, I was fascinated to read of the recent legislation—Section 502 of the Iran Threat Reduction and Syria Human Rights–that creates a legislative fix for victims of one particular group of terrorist victims but not thousands of others.

The law in question grants plaintiffs/judgment creditors in one and only one case—Peterson v. Iran—the right to attach Iranian assets held in the United States, notwithstanding any other provision of law, including sovereignty immunity laws and laws recognizing the separate corporate identities of Iranian government entities.

As reported by Basil Katz of Reuters here, the case involves a $2.65 billion damage award obtained by the victims of Beirut Marine Corps barracks in 1983. The U.S. Treasury discovered $1.75 billion in a Citibank account that was deposited by Clearstream, an entity that holds Iranian funds in Luxembourg potentially subject to attachment.

There are several interesting wrinkles to this case.

First, it certainly is not clear that the $1.75 billion held at Citibank are Iranian assets held in the United States. Clearstream is arguing precisely that. The statute gets around this problem by broadly defining what constitutes an Iranian asset held in the United States. According to the statute, such an asset is one that is:

“(A) held in the United States for a foreign securities intermediary doing business in the United States, (B) a blocked asset [defined as those involving Peterson v. Iran] … and (C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran or any agency or instrumentality of that Government, that such foreign securities intermediary or a related intermediary holds abroad.”

In other words, if a third party financial institution holds Iranian assets abroad, and also holds the equivalent amount in the United States, that money is a financial asset subject to attachment by the Peterson claimants.

Second, the statute supersedes “any other provision of law, including any provision of law relating to sovereign immunity, and preempting any inconsistent provision of State law.” Thus, the normal rules under the FSIA regarding immunity from jurisdiction or enforcement simply do not apply to the Peterson claims against Iran. The same goes for the Algiers Accords, which obligate the United States to transfer all Iranian assets held in the United States.

Nor do the normal rules apply with respect to the separate corporate identities of Iranian government entities. Clearstream’s financial assets held in Luxembourg belong to Bank Markazi (a.k.a. the Central Bank of Iran). But the statute defines “Iran” as “the Government of Iran, including the central bank or monetary authority of that Government and any agency or instrumentality of that Government.”

Third, the statute appears to privilege one group of victims to the exclusion of others. As most of our readers know, U.S. courts have awarded billions of dollars in judgments to thousands of victims of Iranian terrorism. Of all the acts of Iranian terrorism—the bus bombings in Jerusalem and suicide bombings at shopping malls in Tel Aviv, the targeted assassinations of Iranian dissidents in Paris, the victims of the Khobar Towers bombings in Saudi Arabia—why does this one group of victims deserve special statutory protection while the other victims do not?

The pragmatic answer, of course, is that counsel for the Peterson family was able to secure a legislative fix that other victims could not. That hardly appears satisfactory given the stakes involved. Frankly, there is something unseemly about a statute that so clearly privileges one set of terrorist victims at the expense of others.

The Reuters report suggests that there is an agreement between the Peterson victims and the other victims to share any judgments recovered, but it provides no details. Such a contractual solution is somewhat encouraging, but I seriously doubt that the other terrorist victims/judgment creditors will stand on an equal footing as the Peterson family based on this agreement. They, after all, have no leverage other than moral suasion.

Section 502 does state that a court must determine that “no other person possesses a constitutionally protected interest in the assets described in subsection (b) under the Fifth Amendment to the Constitution of the United States.” It’s not clear whether this refers to the Takings Clause—which seems likely—or to other clauses, such as the Due Process Clause prohibiting deprivations of life, liberty or property without due process of law. Regardless, I fail to see how the other victims of Iranian terrorism could fall within that exception.

Who knows where all this is headed. Litigation of this $1.75 billion dollar question is pending in New York. I will keep you posted.

Draft Republican Party Platform Opposes Law of the Sea Treaty

by Julian Ku

It is a draft platform, but these parts of the 2012 GOP Platform are certainly interesting. It appears to have strong language in favor of “American Exceptionalism” and American sovereignty.

Under our Constitution, treaties become the law of the land. So it is all the more important that the Congress — the senate through its ratifying power and the House through its appropriating power — shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development. Because of our concern for American sovereignty, domestic management of our fisheries, and our country’s long-term energy needs, we have deep reservations about the regulatory, legal, and tax regimes inherent in the Law of the Sea Treaty and congratulate Senate Republicans for blocking its ratification. We strongly reject the U.N. Agenda 21 as erosive of American sovereignty, and we oppose any form of U.N. Global Tax.

Unlike Josh Keating, I don’t read this platform as “black helicopter” stuff.  I think there are reasonable policy arguments against all of the above treaties, especially UNCLOS.  I do agree, though, that this might herald an important policy shift. A majority of the GOP has previously supported US ratification of UNCLOS, but it looks like UNCLOS opposition is now going to be in the GOP mainstream.  And that means that US ratification of UNCLOS looks even more unlikely.

How to Jump Start Enforcement of Anti-Bribery Laws

by Roger Alford

Since the late 1990s, thirty-nine nations have signed the OECD Anti-Bribery Convention. So far so good. But unfortunately, the treaty essentially is toothless, requiring nations to implement national laws that prohibit foreign bribery, but doing little more. Only a handful of countries are effectively enforcing their anti-bribery laws. Which ones? Well, the answer seems to be the countries where the United States has gone after their corporations.

Under the FCPA, of course, the United States has jurisdiction over foreign companies that bribe foreign officials, provided they issue shares on a U.S. stock exchange. That is a very large category of foreign corporations. The United States can also go after foreign corporations if there is some territorial nexus. The DOJ and the SEC take an expansive interpretation of territoriality, such that the payment of a bribe through a U.S. correspondent bank or the sending of an email sent through a U.S.-based email account is considered a sufficient territorial nexus to permit prosecutions of foreign companies for bribing foreign officials on foreign soil.

So precisely how does the extraterritorial application of U.S. anti-bribery laws affect the regulatory behavior of other nations? That was the question of a recent study by Sarah Kaczmarek and Abraham Newman published in International Organization. The findings are fascinating, and strongly support the idea that an FCPA prosecution will jump-start corruption enforcement in other OECD countries.

The study by Kaczmarek and Newman found “strong statistical evidence linking extraterritoriality to national policy implementation.” Thus, if the U.S. prosecuted a German or British firm under the FCPA, the enforcement behavior of the German and British authorities increased dramatically. “[T]he odds of a country enforcing its first case are twenty times greater if a country has experienced extraterritorial application of the FCPA as compared to countries that have not.”

In other words, the regulatory behavior of OECD Parties changes dramatically following an FCPA prosecution of one of its nationals. This convergence trend suggests that, as the study put it, “lead regulators from large markets may alter domestic enforcement decision making in other jurisdictions, underscoring the subtle legal authority enjoyed by bureaucracies from powerful states to influence international markets.”

American corporations have long complained of the comparative disadvantage they have vis-à-vis other corporations because of U.S. anti-bribery laws. The OECD Convention went a long way toward leveling the playing field. But if you really want a level playing field, one of the best ways to achieve it is for the United States government to go after foreign corporations under the FCPA. This will increase the likelihood that other countries will launch their first corruption case under their own domestic laws by a factor of twenty!

If our world is a global village, I guess we could say that as long as there is one sheriff in town serious about government corruption, others will join the posse.

Plaintiffs Seek to Enforce Ecuadorian Judgment Against Chevron in Canada

by Roger Alford

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron’s far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and a questionable commitment to the rule of law. The good news is that the Plaintiffs have chosen, at least for now, a highly reputable forum–the Ontario Superior Court in Canada–for adjudicating the recognition and enforcement of the judgment. Here’s a key excerpt:

11. The Judgment of the [Ecuadorian] Appellate Division is a final Judgment in Ecuador and is exigible against the assets of Chevron in whatever jurisdiction any may be found, including Canada.

12. All the facts, findings and conclusions of law stated in the Judgments and Clarifications in Ecuador are res judicata as between the parties.

13. As a consequence of the Decision of the Supreme Court of Canada in Beals v. Saldanha and subsequent jurisprudence, Chevron is estopped from challenging any fact, finding or determination of law in the Ecuadorian Decisions on the merits. Further, Chevron is restricted from challenging the Ecuadorian Decisions on the basis of fraud unless it can demonstrate that the allegations are new, not the subject or prior adjudication and were not discoverable by the exercise of due diligence.

Significantly, the plaintiffs are trying to attach the assets of Chevron Canada Ltd and Chevron Canada Financial Ltd, two wholly-owned subsidiaries of Chevron. Given that Chevron itself has few assets in Canada, the choice is somewhat curious. We know from the Invictus Memo that the Plaintiffs are seeking a jurisdiction that is “flexible” on veil-piercing, including what they call the “rare” case of “reverse veil-peircing”, holding the subsidiary liable for the parent’s judgment debt. (see p. 23). I do not know whether Canada would fall into the category of a flexible jurisdiction on reverse veil piercing.

The other key question, of course, is how Canadian law treats fraud as a defense to the enforcement of foreign judgments. As reported here, according to one Canadian scholar, Canadian courts “tend to take a somewhat narrower view of what might constitute fraud than some courts would.” I would be curious if others in the know agree or disagree.

It would appear that the Plaintiffs are confident enough in the merits of their position to avoid the mistake of filing in a court of dubious distinction, but not sufficiently confident enough to subject themselves to the jurisdiction of U.S. courts and the resulting counterclaims that would inevitably follow. As Chevron put it in a statement today, “If the plaintiffs’ lawyers believed in the integrity of their judgment, they would be seeking enforcement in the United States – where Chevron Corporation resides. In the U.S., however, the plaintiffs’ lawyers would be confronted by the fact that seven federal courts have already made findings under the crime/fraud doctrine about this scheme.”

The Statement of Claim makes no mention of the investment arbitration, nor the injunction against Ecuador to take action to prevent enforcement proceedings anywhere in the world.

A copy of the Statement of Claim is available here.

Thousands of Kids Are Obsessed Today With What Six Countries?

by Roger Alford

Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, “The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes.” But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six–and only six–representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:
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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.