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Summit of the Americas: Is There a Place for Venezuela?

by Ricardo Arredondo

[Ricardo Arredondo is Professor of Public International Law at the University of Buenos Aires.]

1. Introduction

In recent months, Latin-American countries have been actors and witnesses of a heated debate, as tend to be those in which Venezuela participates or is the subject of the discussion. This time the issue revolves around the eventual participation of this country in the next VIII Summit of the Americas, to be held in Lima, Peru on April 13 and 14, 2018. The central question is whether Peru has the right not to allow the participation of Venezuela in the Summit or if Venezuela has the right to participate, beyond the opinion of Peru and other countries in the region. To answer this question, it is necessary to analyze first what the legal nature of the Summit of the Americas process is and then to determine whether the summit is an ordinary or extraordinary meeting of the Organization of American States (OAS) or a multilateral meeting of States, in the type of conference diplomacy, where the consent of the receiving State is required.

2. Background

The Summits of the Americas are institutionalized gatherings of the 35 Heads of State and Government of the members of the Organization of American States (OAS) where leaders discuss common policy issues, affirm shared values and commit to concerted actions at the national and regional level to address continuing and new challenges faced in the Americas.

The decision to meet periodically and define the fundamental orientations of an Agenda for the Americas gave way to the institutionalization of the Summits, since it is a mechanism that allows accumulating experiences, building a common language and designing collective, national and multilateral mandates and actions. To strengthen this new inter-American “institutionality” and, particularly, its main political forum, the Organization of American States, the parties resolved to officially designate the OAS as the “Secretariat” of the Summits of the Americas process. This brought with it an expansion of the issues and actors of this process.

In the case of the Summits of the Americas, despite the similarity between the OAS Member States and the participants in the Summit process, the OAS merely acts as a support agency to the summit system. The OAS has the responsibility to operate as a record-keeping mechanism, “the institutional memory of the Summit Process”, and to provide technical support to the Summit Implementation Review Group (SIRG).

Therefore, it is possible to conclude that the legal nature of the Summit of the Americas process responds to the traditional model of diplomacy called special missions and it is not an ordinary or extraordinary meeting of the OAS. This distinction is fundamental because it allows us to move towards the discussion of the second question.

3. Does Venezuela have the right to participate in the VIII Summit of the Americas?

When Venezuela knew that the Government of Peru withdrew the invitation to Nicolas Maduro to participate in the VIII Summit, Venezuela replied with a note confirming that its president will attend the Summit of the Americas, affirming, inter alia, that Peru, in its capacity as the host State of the Summit, is only entitled to extend the courtesy of invitation to the dignitaries, organize the meeting and provide, in its capacity as host country, the logistical, security and safeguarding facilities for the participants, as well as guarantee the respective immunities and privileges and lead the negotiations, in its capacity as Chairman of the Review Group of the Implementation of Summits (SIRG). As a basis for its position, it cited the headquarters agreement between Peru and OAS of July 20, 2017. Venezuela also sustains that “the power to decide on the participation of a member state and founder in the meetings of the Summit of the Americas … is not attributed in any way to the Republic of Peru, or to any other State”. However, as we will see below, this is not the case.

Summit diplomacy is governed, in a supplementary manner, by the special missions rules, established in the Convention on Special Missions (CSM) (signed on 12/8/1969, entry into force on 6/21/1985). In effect, the CSM norms have a dispositive character, i.e, they will be applied to the extent that the States have not agreed to the contrary through customary law or through an agreement. A “special mission” is s a temporary mission, representing the State, which is sent by one State to another one with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task (Article 1, a]).

In accordance with the traditional principles governing diplomatic relations, the sending of a mission requires the consent of the receiving State (in this case, Peru), which can be obtained through diplomatic channels or by “another agreed or mutually acceptable channel” (Article 2). This sending does not necessarily include bilateralism. The mission can be sent to two or more States, two or more States can send a common mission or missions to a third State (arts. 4 to 6).

The receiving State retains certain capacities that are reminiscent of those conferred on the diplomatic mission. Thus, it can refuse to accept a special mission “of a size that is not considered by it to be reasonable, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission; likewise, it may refuse to accept any person as a member without expressing the reasons for its decision (art. 8). Similarly, and at any time, it may inform the sending State that any representative of the State or member of the diplomatic staff is persona non grata or that any other member of the staff of the mission is not acceptable, with the consequent obligation of the sending State to proceed to its withdrawal and termination of its functions. Otherwise, the receiving State may refuse to continue recognizing it as a member of the mission in question (art. 12, sections 1 and 2).

In the case sub examine, neither the headquarters agreement between Peru and the OAS, nor any other norm of the hemispheric system contain specific provisions referring to this type of situation. However, Peru has indicated that the Declaration of Quebec contains a clause that provides that:

“We acknowledge that the values and practices of democracy are fundamental to the advancement of all our objectives. The maintenance and strengthening of the rule of law and strict respect for the democratic system are, at the same time, a goal and a shared commitment and are an essential condition of our presence at this and future Summits. Consequently, any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state’s government in the Summit of the Americas process. Having due regard for existing hemispheric, regional and sub-regional mechanisms, we agree to conduct consultations in the event of a disruption of the democratic system of a country that participates in the Summit process”.

Declarations adopted in the Summit of the Americas process do not have the nature of norms of international law in the strict sense, although, according to Sanahuja, they would fall within the scope of the so-called soft law, without direct legal effects but with visible influence on policies and domestic legislation. By reflecting aspirational goals, more than legal obligations, they have less effectiveness, but in return it is possible their acceptance by the States. The non-binding nature of these norms, however, does not make them irrelevant and in fact they have discernible and significant effects both at institutional and material levels. Furthermore, Mangas Martín recalls that if respect for democracy and human rights were a “democratic basis for cooperation”, a further step could be taken to transform it into a provision essential to the accomplishment of the object or purpose of the treaty that could open a way to invoke art. 60 of the Vienna Convention on the Law of Treaties, that is, to invoke the violation of human rights and democracy as a cause of termination or suspension of the treaty.

Venezuela further argues that, under Article VII of the Headquarters Agreement between Peru and the OAS of July 20, 2017, the Government of Peru has agreed to grant and recognize the OAS and its organs, the delegations of the OAS member states … the privileges and immunities necessary for the independent performance of their functions during the SIRG and Eighth Summit meetings, therefore, Peru could not oppose to the participation of a delegation from Venezuela. However, this is not the case, from a simple logical sequence it can be inferred that privileges and immunities can only be recognized to those participants who have obtained the consent of the receiving State to attend the summit. Consequently, if a State is not granted that consent, it cannot enjoy any privileges and immunities.

4. Conclusions

In summary, Peru, as receiving State, is fully entitled not to invite or consent to the presence of a delegation from Venezuela to the Summit of the Americas, either by the traditional rules that regulate this type of missions or through the mechanism envisaged in the Quebec Declaration mentioned above. Article VII of the Headquarters Agreement between Peru and the OAS of July 20, 2017, does not contradict these general principles.

Hence, the Minister of Foreign Affairs of Peru, Cayetana Aljovín, said that her country, as the host State of the continental meeting, has the faculty, under international law, to invite and cancel the invitation extended to a Head of State or Government; and, if this official is responsible of an alteration or interruption of the democratic order in a state of the Hemisphere, Peru can do it under the Declaration of Quebec. This last position was also expressly supported by the so-called Lima Group in point 6 of its Declaration of January 23, 2018.

For reasons above mentioned, the note from the Government of Venezuela confirming that its president Nicolás Maduro will attend the Summit of the Americas, even though the invitation was withdrawn, is without foundation. Under the present circumstances in this country, there is no place for Venezuela at this Summit of the Americas.

Symposium: Transplanting International Courts–An Andean Tribunal Judge’s Perspective

by Luis Diez Canseco Nunez

[Luis Diez Canseco Nùñez served as a judge and then President of the Andean Tribunal of Justice, ending his tenure in 2017.]

Alter and Helfer’s book Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice constitutes an important contribution to the study of the international dispute settlement system. It honors me, as a former Judge and President of ATJ, that two prestigious researchers have devoted their time to evaluate our court and its work. I want to highlight my absolute agreement with their analysis and conclusions and offer sincere congratulations!

But there are things that an academic book, no matter how laudatory, cannot capture. I will use my contribution to highlight some missing elements, including some new developments that from the perspective of a judge are significant.

Being an international judge is a certainly an honor, but also a challenge. Representatives of governments often erroneously assume that our position on a case should be aligned with that of our respective countries. This misperception has its origins in two factors. Firstly, the structure of the Andean Tribunal, which includes one judge for each Member Country. Secondly, some judges have backgrounds as diplomats, senior government officials, and even connections that make them close to a government.

Before my election, several colleagues asked me why I wanted to become a Judge at the ATJ. They suggested that the appointment was for people either aspiring for an international legal career or seeking a golden retreat into retirement. Others suggested that it was not worth joining an entity that was in the course of disappearing and in perpetual crisis (for the reasons that Alter and Helfer discuss in their book, namely the disagreement among member states over the direction of economic and trade policy). Indeed, I later participated in several meetings in which government representatives spoke out loud about the need to restructure the Andean conflict resolution system, conversations in which some officials actually suggested abolishing the ATJ and instead recreating the panel system used by the WTO. Those who questioned why I would want to be an ATJ judge also noted what Alter and Helfer discuss: the ATJ is a cut in paste institution that merely replicates previous decisions, particularly with respect to intellectual property. The job would therefore, they suggested, lack creativity.

These comments were precisely the reason why I decided to advance my candidacy, and if elected, to try to make a difference. It was a sort of new challenge in my life. I wanted the ATJ to be more externally engaged, yet to also issue judgments as quick as possible. Moreover, I wanted the decisions to be more precise and friendly to those who read them, and I wanted to promote more scrutiny and awareness. Working within, first as a judge and then as President of the Tribunal, I crafted solutions for some procedural issues such as tied votes and allowing access to administrative bodies of Member Countries to request for Preliminary Rulings. A number of these changes are mentioned by Alter and Helfer, who express surprise that reforms and expansion of the caseload and jurisdiction came despite crises in the Andean Community. The answer is simple: innovative judges may be focused on the institution in which they work, rather than the larger never ending political crisis that surrounds the institution.

For judges, procedural changes are significant. I want to briefly discuss two changes that from the perspective of the judge are important in adjudication politics. Both of these receive scant attention in an analysis as comprehensive and encompassing as that of Transplanting International Courts.

Dissenting opinions

For many lawyers, dissenting opinions are common practice. But this wasn’t the case for the ATJ. By contrast, Andean judges believed that the lack of dissenting opinions or, alternatively, the lack of knowledge about judicial disagreements, helped the Tribunal send a message that was consolidated and strong.

ATJ decisions had traditionally been written by a single judge and discussed and signed by all, even though dissent existed in the form of unacknowledged votes against the ruling. This format hid the many points of dissent we would debate in deliberations, and thus I believed that the formality of unanimous rulings limited scrutiny, debate and feedback. As a prelude to creating dissenting opinions, we needed to take a number of interim actions. First, we needed to restructure the format of the decision, highlighting the matters under controversy. Second, we had to make public who was the Judge responsible for drafting the decision. Third, we had to decide to list the judges who voted in favor and if it was the case, to indicate who disagreed. Fourth, we needed to allow the disagreeing judge to publish is dissenting vote and the bases of their disagreement. Finally, we needed to allow the parties to access the dissenting decision. This sort of step-by-step detail–each of which is significant– is, quite understandably, lost in the type of analysis Alter and Helfer undertake.

During my tenure, we discussed the possibility of publishing dissenting opinions as an annex to the judgement of the majority; but the rules of the Court didn´t allowed for this. Very recently, by Agreement 09/2017 published on 29 November 2017 in the Official Gazette of the Andean Community, the ATJ agreed to issue an Information note which indicates that, once the final decision has been published, persons concerned may request access to dissenting opinions. This is still far from public dissenting opinions, as one finds in the ICJ. I provide this detail so that observers can see the many steps needed for change.

Oral Hearings

A second change that is important for judges is the decision to allow Oral Hearings for Preliminary Rulings cases. The Andean regulations expressly refer to the possibility of oral hearings in the framework of the Omission, Nullification and Noncompliance procedures; but rule of procedure is silent with respect to Preliminary Rulings, neither authorizing nor prohibiting oral hearings.

In my opinion, in cases having particular complexity, impact or novelty, an open oral phase or the possibility of affected actors to summit briefs to the ATJ, will help to ensure that the ATJ can entertain new points of view that might not have occurred to them. In this perspective, it is important to recall that the law and the circumstances surrounding particular cases are in a constant evolution. The law can´t be petrify.

Recently, by Agreement 08/2017 published in the Official Gazette of the Andean Community, the ATJ adopted a Regulation that normalizes various aspects regarding the nature of the Preliminary Rulings, which has codified a number of the internal procedural changes implemented during the last years. These changes are partly responsible for the expanded the number of Preliminary Rulings, something that Alter and Helfer observe but do not explain.

Article 9 of this new agreement refers to ‘reports written or oral.’ This small change opens the door for convening oral hearings in exceptional Preliminary Ruling cases. While this change is significant, the new language fails to incorporate the possibility for the parties in the process, who will be directly affected by the decision, to provide their points of view and be questioned by the judges. One thus sees the slow hand of reform at work!

These subtle changes, which may be imperceptible to those outside of the Tribunal, are important to the process of building the Tribunal’s reputation for sound judicial decision-making. While I understand why Alter and Helfer do not investigate these types of changes, a more judge-centric perspective might bring to light a different set of factors that shape the law and politics of the Andean Tribunal of Justice.

Symposium: Alter and Helfer’s Liberal Theory of International Courts–Interlocutors, Context, Backlash

by Mark Pollack

[Mark Pollack is Professor of Political Science and Law, Director of Global Studies, and Jean Monnet Chair at Temple University in Philadelphia.]

Reading Karen Alter and Larry Helfer’s Transplanting International Courts took me back, involuntarily, to graduate school, and more specifically to a moment of (in retrospect) misplaced outrage during my first-year International Relations Field Seminar. The professor in that seminar, Robert Keohane, was telling the assembled first-year students that, when it came time to write our dissertations, we should not select our cases for their inherent interest or normative importance. Instead, scholars should select cases for the “leverage” they provide in producing generalizable findings about international politics. As a student who had just fallen hard for the then-resurgent European Union, I insisted on the value of studying such a grand experiment, even if it was sui generis, since it affected the lives of 300 million European citizens. Real-world significance, I argued, beat analytic leverage as a criterion for case selection, any day.

Alter and Helfer’s study of the Andean Tribunal of Justice (ATJ) demonstrates clearly why I was wrong, and Keohane right, about case selection. To be sure, both Alter and Helfer made the same initial choice in their careers that I did, studying powerful European courts that issued thousands of decisions and meaningfully impacted the lives of millions of European citizens. In their new book, however, Alter and Helfer pivot to the ATJ, a rather specialized international court (IC) that serves a small community of four developing states, issues more than 90 percent of its rulings in the narrow area of intellectual property (IP) law, and whose judges have produce a jurisprudence that is, by the authors’ own characterization, restrained, formalist, and deferential to the views of the Andean Pact’s member governments (15).

And yet, Alter and Helfer, by focusing on the ATJ, do indeed gain leverage on a wide variety of important questions about international courts, including and especially the question of how legal transplants – in this case, one of the eleven regional courts modeled on the European Court of Justice (ECJ) – operate in practice. Taken together, they argue, the ECJ and ATJ represent a natural experiment, with similarly (though not identically) structured courts placed in very different political contexts, allowing the authors to assess the impact of contextual factors on their operation. Beyond the comparison with Europe, moreover, Alter and Helfer argue that, if we want to understand the workings of ICs outside the rule-of-law hothouse of Europe, we could do far worse than to study the ATJ, which has taken root in a challenging political and legal context that is characteristic of many of the ECJ’s copies around the world. The rewards of reading Alter and Helfer’s book, therefore, come not from learning about an esoteric island of IP law, but precisely from gaining leverage from the ECJ-ATJ comparison and drawing inferences about how ICs operate in challenging climates.

In Isaiah Berlin’s canonical distinction between foxes (who know many things) and hedgehogs (who know one big thing), Alter and Helfer are foxes, and their study of the ATJ yields insights into a wide variety of questions. Nevertheless, there is a theoretical core to Transplanting International Courts, which I would describe as a liberal, contextual approach to ICs. This approach locates courts in their international and especially domestic contexts, and explores how ICs interact, not only with state governments (which Alter and Helfer believe have been overemphasized in previous scholarship), but also and especially with other supranational and domestic actors. Given the wide range of topics they address, any review of their book must be selective, and I select just three themes – interlocutors, context, and backlash – as the core value-added contributions of the volume over existing scholarship, including Alter’s and Helfer’s previous work.

Interlocutors – If You Can Find Them

Perhaps the central focus of the liberal approach to international courts, which informs Helfer and Slaughter’s 1997 article on supranational adjudication, Alter’s 2001 book on the ECJ, and her 2014 book The New Terrain of International Law, is the relationships than an IC cultivates with its various supranational and subnational interlocutors, including regional secretariats, national courts, government agencies, individual litigants, and jurist advocacy networks. These “compliance partners,” it is argued, are fundamental to the success of any IC, and Transplanting International Courts continues this focus on interlocutors as the sine qua non of effective international adjudication. Strikingly, however, Alter and Helfer find that the usual-suspect interlocutors, namely national courts, were and are resistant to sending preliminary references to the ATJ, perceiving the Tribunal as a potential threat to their own position. In this context, the ATJ has fallen back on de facto partnerships with other interlocutors, including and especially national IP agencies, which the Tribunal strategically allowed to submit preliminary references. To the extent that the ATJ has succeeded in creating and sustaining an island of effective supranational IP jurisdiction, Alter and Helfer argue, that success can be attributed largely to the interlocutors who have activated and supported the Tribunal.

Context: Facilitating or Frustrating

Alter and Helfer’s liberal analysis, however, extends beyond their focus on courts’ ties to domestic interlocutors. Also present in Transplanting International Courts is a keen awareness of how differences in political and legal context can fundamentally shape the effectiveness of any IC. The importance of context is particularly salient in Chapter 8 of the book, “Nature or Nurture,” which argues that the differences between the activist, teleological jurisprudence of the ECJ and the more restrained and deferential decisions of the ATJ can be explained by the more propitious legal and political context of the EU, which “nurtured” the ECJ in a way that was at best loosely approximated for the ATJ in the issue-area of IP law. Indeed, Alter and Helfer concede in their conclusion that the success of the ATJ is only partial, and that a difficult context can frustrate even the choreographed actions of a strategic court. The “glass-half-full” account of the ATJ, they write, focuses on how the Tribunal secured a “toehold” in a narrow issue area (IP law) and with one set of interlocutors (domestic IP agencies), creating an island of effective international adjudication (264). “The glass-half-empty counterpoint,” by contrast, “is reflected in the ATJ’s inability to mobilize a jurist advocacy movement… and in the limited impacts the Tribunal has had on Andean law beyond the field of IP” (264).

Stepping back from the specifics of the ATJ case, Alter and Helfer, in a remarkable passage at the end of the book, depart from much of their earlier optimism about the generalizability of the European experience to other regions:

If the ATJ is the most successful example of an international court in a developing country context, the significant limits of its success should instill a sense of caution in those who hope that such courts will transform the legal and political landscape. The most that an international court can do, we argue, is to help states individually and collectively adhere to legal rules they have imposed upon themselves. (282)

In this context of reduced expectations, the famously formalist and deferential jurisprudence of the ATJ appears not as a failure of nerve, but as a “politically astute” effort to bring along reluctant interlocutors while avoiding triggering a backlash from national governments (273).

This claim is as debatable as it is fascinating. In their contributions to this forum, Alexandra Huneeus and James Gathii identify other regional courts operating in developing country contexts – the Inter-American Court of Human Rights, and the ECOWAS Court, respectively – that have engaged in activist, expansive, law-making jurisprudence, imposing human rights obligations on member states that clearly did not anticipate or welcome them. Implicit in Alter and Helfer’s endorsement of the more deferential ATJ approach, I would argue, is a view that it is preferable for an IC to proceed cautiously, securing buy-in from key interlocutors, rather than adopt a more expansive jurisprudence that boldly establishes new legal principles at the risk of both noncompliance and member-state backlash.

Backlash: Recontracting is Real

This raises a third and final point about Alter and Helfer’s book, namely their newfound appreciation of the threat of member-state backlash against ICs. In Chapter 10 of the book, Helfer concedes that he and Slaughter did not, in 1997, envision the prospect of member governments rising up to attack the courts they had created (278). For her part, Alter had written as early as 2000 about the prospect of backlash against the ECJ from national courts, but as late as 2008 she insisted upon the “irrelevance of recontracting politics” by governments against ICs (48). In Transplanting International Courts, by contrast, both authors confront the new reality of member-state backlash. The past decade, they write, has witnessed a “slew of … deliberate and strategic challenges by political leaders to the formal powers and de facto authority of the courts and the judges who penned the offending decisions” (278). Even the largely deferential ATJ, they write, has prompted several defiant acts of noncompliance, and backlashes against other international courts have been far more dramatic.

Backlash is a minor theme in Transplanting International Courts, but takes center stage in Alter and Helfer’s research with James Gathii on backlash against three African regional courts, which combines the authors’ newfound focus on backlash with their longstanding liberal focus on supranational and subnational interlocutors. Each of Alter, Gathii and Helfer’s meticulously researched case studies begins with one or more dissatisfied member states attempting to use “extra-legal” pressure to short-circuit formal institutional protections so as to remove judges from office, reduce a court’s jurisdiction, or shut down the court entirely. In the face of these attacks, however, Alter, Gathii and Helfer offer a surprisingly “glass-half-full” narrative, in which backlash efforts are at least partially “derailed” by secretariats, civil-society groups, and sub-regional parliaments who “delay or thwart extra-legal strategies, buying time and creating opportunities for court supporters to mobilize” (295). In the case of the South African Development Community Tribunal, they concede, Zimbabwe’s backlash campaign was fully successful, resulting in the indefinite suspension of the Tribunal. The authors depict the other two cases, however, as more hopeful, demonstrating how the Kenyan campaign against the East African Court of Justice (EACJ), as well as Gambia’s efforts to discipline the ECOWAS Court, were blunted to some extent by supranational and subnational supporters.

There is, however, a strong case to be made for a more pessimistic interpretation of these events. Such an account would highlight the ability of dissatisfied member states to circumvent formal protections of international judicial independence, succeeding to varying extents in intimidating, constraining, and even eliminating ICs. Even the nominally mixed cases of the EACJ and ECOWAS are chilling, since the former saw its jurisdiction reduced and its rulings made appealable to a new and conservative appellate body, while the latter has been sent a strong signal of the limits of its independence. Just as importantly, the use of such strong-arm tactics against international courts is not restricted to the developing world, as we have seen in the Trump Administration’s hostage-taking approach to the WTO Appellate Body, which takes a page from Mugabe’s court-curbing playbook.

Ultimately, as with Alter and Helfer’s analysis of the ATJ, these events can be seen from a glass-half-empty or a glass-half-full perspective. The glass-half-empty perspective suggests that international courts are more vulnerable to member-state pressure than many of us had expected, and that we must avoid complacency about the very real prospect that states will continue to intimidate international courts, reduce their jurisdiction, and suspend or eliminate them in response to unwelcome decisions. The glass-half-full approach, by contrast, focuses on the more hopeful possibility that strategic international courts may make common cause with supranational and subnational actors who can not only nurture those courts in their infancy but also defend them when times get tough. Whether these efforts will suffice to protect international courts’ independence, jurisdiction, and existence in an age of backlash, however, remains to be seen.

Symposium: On International Courts in Developing Regions

by Alexandra Huneeus

[Alexandra Huneeus is a Professor of Law at the University of Wisconsin Law School.]

Perhaps the most powerful lesson of Transplanting International Courts is to beware our own parochialism. After all, the only thing new about the Andean Court of Justice (ATJ) when Karen Alter and Laurence Helfer first noticed it was that US-based scholars had begun to take note. The ATJ was created in 1984 and has had an active docket for decades. Its lack of visibility is due, in part, to its survival strategy: Alter and Helfer show that the ATJ does not strive to shine through activist rulings; rather, it is a quiescent court that competently applies the letter of the law case by case, particularly in the realm of intellectual property. But its low visibility is surely also due to a certain scholarly myopia towards things not from Europe or the United States, things not in English, things from poorer countries. As Helfer confesses, the ATJ was an active court when he co-authored his groundbreaking article on the effectiveness of international adjudication in 1997, but neither he nor his co-author, Anne-Marie Slaughter, were aware of its existence, “let alone that the tribunal had decided any cases” (p. 261).

Transplanting International Courts rights the record, placing the ATJ in its proper place in the pantheon of international courts. Because it sits in a restive corner of Latin America, and has done so for over 30 years, the ATJ proves that international courts can survive under dramatically different conditions than those found in Western Europe. The case serves as a test of many theories about court power developed in the context of Western Europe, theories which Alter and Helfer convincingly argue must now be narrowed or recast. For example, the European Court of Justice is unique not because of its relationship to national courts, as argued by Alter in her first book, but rather, she now writes, due to the ideologically driven jurist advocacy movement that championed European integration in the ECJ’s early years (Chapter 9). It is fascinating to watch these two scholars who have played a seminal role in founding the field of international courts revise their earlier theories in light of the ATJ’s unexpected existence and their rich data documenting its success. The result is a powerful contribution to the literature on international courts.

Although Alter and Helfer celebrate the ATJ as the third most active international court in the world and the most successful transplant of the European Court of Justice (ECJ), the book closes with a sober vision of the role of courts in the developing world: “The most that an international court can do, we argue, is to help states individually and collectively adhere to legal rules that they have imposed upon themselves (p. 282).” It is actually somewhat rare and very welcome to see judicial politics scholars embrace the judicial role of simply applying the law to a case. But this conclusion strikes me as too broad for two reasons.

First, there is another European-style judicial transplant in the region that has also been adjudicating cases for roughly the same thirty years, which has grown to have significant influence in at least two ATJ states (Colombia and Peru), all the while adopting a strategy and role almost diametrically opposed to those of the ATJ — the Inter-American Court of Human Rights, created by the Organization of American States in 1979 and having jurisdiction over 20 Latin American and Caribbean states.

Where the ATJ’s many cases each year are mostly “narrow, repetitive questions of IP law,” the Inter-American Court deals in a few, highly symbolic cases in which states are accused of human rights violations, and often of mass atrocities. Where the ATJ issues narrow rule-bound rulings, the Inter-American Court makes the most of its small docket by issuing expansive, innovative judgments. Where the ATJ declines to follow the European jurisprudence because it is too bold, the Inter-American Court declines to follow the European Court of Human Right’s jurisprudence because it is too timid. And where the ATJ enjoys a high judgment compliance rate, the Inter-American Court issues judgments with long lists of ambitious reparatory orders which all but ensure partial compliance at best (ordering states, for example, to amend their constitutions, reform their judicial system, or educate their police forces on CEDAW). Not surprisingly, the Inter-American Court’s high-profile strategy has costs: several states have withdrawn from the underlying treaty or otherwise tried to escape the Court’s authority. And yet the Court has survived, its judgments have real, measurable impact, and it has come to be viewed as a court of last resort on rights issues in many states.

In other words, the Inter-American Court seems to occupy a very different role than that which Alter and Helfer suggest is the only role available to courts in the developing world. It is true that the Inter-American Court at times helps states adhere to specific legal rules that they have imposed upon themselves. But the law can be indeterminate, and the Inter-American Court also has the role of giving content to, and at times providing a new understanding of, certain provisions of the American Convention on Human Rights. Put differently, the Inter-American Court provides a site in which the states and civil society can struggle over and articulate (and re-articulate) shared standards of moral achievement, understood as fundamental rights, in dialogue with national rights litigation. One might also note that the Inter-American Court had an additional role earlier in its trajectory, when its focus was responding to the atrocity crimes of the military dictatorships of the 1970s and 1980s: to build on the work of the Inter-American Commission in accompanying the victims of state repression and bringing their claims to public light.

Some of this may be changing. As the Inter-American Court further develops its ties to constitutional courts and lawyers in the region, it is likely to become a bit more constrained and legalistic. And as Alter and Helfer show in their excellent new chapters on the ATJ’s more recent struggles, the politics of the Andean states can at times thrust the ATJ into the political limelight despite itself. But the differences between the two courts’ trajectories thus far suggest that, even within a single region of the developing world, there may be different paths to success, and different kinds of success, for international courts.

The second aspect of Alter and Helfer’s conclusion that merits further thought is its emphasis on the development/developing divide. Juxtaposing the two pairs of courts — the ECJ/ECHR on the one hand, and the ATJ/Inter-American Court on the other – it is interesting to note that the variation in style and strategy does not seem to map onto the courts’ legal subject area (commerce versus human rights), but neither does it map onto a developing/developed state divide. It would be interesting to see Alter and Helfer explain with more specificity what, exactly, the developing/developed state distinction means and why it matters. The point is not only that developing states are active users of the World Trade Organization adjudication mechanism and of the International Court of Justice. It is also that we are in a time when the features once thought to distinguish Latin American states – including inequality and populist presidencies — are spreading to the Northwest quadrant of the world, and so the developing/developed state divide must be reconsidered. Critical development studies argue that variation on the measures thought to distinguish developing from developed states can be more significant within a single state than among states. Knowledge of and adherence to the rule of law, for example, varies by subnational sectors, an insight that resonates with Alter and Helfer’s discovery of an IP “island of effective adjudication.”

Looking forward, this book is brimming with insights that merit further study by international courts scholars (including, for example, empirical study of whether the Inter-American System has ever had a jurist advocacy network (p.260)). It seems equally if not more important, however, to put Transplanting International Courts into conversation with those who study comparative politics. Alter and Helfer’s finding that “ATJ rulings helped to inculcate rule-law values in the domestic IP agencies” (p.276), and even helped curb corrupt practices, seems particularly salient in the wake of the Odebrecht scandal (which has affected Colombia, Ecuador and Peru in particular). Their theories about the construction of a stable, rule-following realm in the heart of a volatile region should be read by the broad audience of scholars and policy-makers interested in rule of law and democracy in Latin America and beyond.

Introduction to Symposium on Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice

by Karen Alter and Larry Helfer

[Karen J. Alter is a Professor of Political Science and Law at Northwestern University and a Permanent Visiting Professor at iCourtsLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Permanent Visiting Professor at iCourts.]

This Opinio Juris blog engages our findings about the Andean Tribunal of Justice, published in our book Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017). Our book is a deep exploration of a fairly obscure international court, which is illuminating because of the Andean Tribunal’s relative success and longevity despite the many challenges presented by the unstable political context in which it operates. We draw on the Andean experience to reflect on what we thought we knew about how international courts become effective and influential legal and political actors.

In 1979, Andean political leaders added an international court—the Andean Tribunal of Justice (ATJ or Tribunal)—to their struggling regional integration project to help improve respect for Andean legal rules. They turned for inspiration to the highly successful European Court of Justice (ECJ), copying that court’s design features and legal doctrines. Transplanting International Courts investigates the results of this decision, providing a deep, systematic study of the most active and successful of eleven regional courts modeled on the ECJ.

Our book investigates the ATJ’s evolution and impact using a wide range of empirical evidence. We coded every preliminary ruling from the Tribunal’s founding through 2014, reviewed noncompliance cases, analyzed the ATJ’s legal doctrines, interviewed more than forty stakeholders during five trips to the region, traced the professional backgrounds of Andean legal entrepreneurs, investigated legal networks, used process tracing to isolate the influence of key ATJ decisions, and compared the development of the ATJ and ECJ over a quarter century to understand how contextual factors shape judicial decision-making.

One of the book’s central findings is that the ATJ is effective by any plausible definition of the term, but primarily within the domain of intellectual property (IP) law—what we refer to as an “island of effective international adjudication.” The overwhelming majority of the ATJ preliminary rulings—more than 90%—relate to trademarks, patents, and other forms of IP. These rulings have shaped decision-making by domestic agencies, national judges, and private litigants. The Tribunal’s noncompliance judgments have also induced national governments to reverse domestic laws and policies that violate Andean IP rules.

The ATJ’s influence is more limited outside of the IP island, but when compared to other ECJ transplants, Andean judges have made a significant mark. The ATJ is the only ECJ transplant where all four types of legal procedures—preliminary ruling, noncompliance, omission, and nullification—have been utilized. By the end of 2014, the Tribunal had issued 114 preliminary rulings on regional legislation regulating tariffs, customs valuations, taxes, insurance, and agriculture; the Andean Secretariat and private litigants regularly raise noncompliance complaints concerning these and other non-IP issues; and states and private actors challenge the actions and omissions of Andean officials.

Unlike the ECJ, however, the ATJ is not an expansionist judicial lawmaker. The Tribunal lets the member states set the pace and scope of Andean integration and allows for the coexistence of national legislation and supranational authority, yet it does not shy away from condemning clear violations of Andean rules. This circumspect and formalist approach has enabled the ATJ to retain its fidelity to Andean law while building relationships with national administrative agencies, courts, and lawyers. But this approach also means that, unlike in Europe, Community law is not an engine of regional integration.

Transplanting International Courts updates and consolidates our decade-long study of the ATJ and the Andean legal system, allowing us to focus on the recent period of political turmoil in the Andes, as leftist-populist leaders in Venezuela, Bolivia, and Ecuador entrenched their power and challenged the Andean Community’s liberal free trade policies. Two of the book’s chapters investigate how the ATJ has dealt with fraught political controversies that divide the priorities and objectives of the member countries. Chapter 6, The Judicialization of Andean Politics: Cigarettes, Alcohol and Economic Hard Times, traces state and private litigation across multiple Andean legal procedures to reveal how the ATJ navigates these contentious cases and responds to the reality of its real but limited power. Chapter 7, The Authority of the Andean Tribunal of Justice in a Time of Regional Political Crisis, explains how, despite major regional turbulence—a term used by Ernst Haas to explain where European integration tends to falter—the ATJ’s caseload doubled, its IP rule of law island remained resilient, the Tribunal expanded its legal doctrines, and Ecuador’s populist President Correa modified his protectionist trade and monetary policies in response to ATJ litigation (while also working to subsume the Andean Community within a less legalized continent-wide integration regime (UNASUR)). These two chapters offer lessons for other international judges who seek to build a rule of law within inhospitable political environments.

Our in-depth exploration of the law and politics of the Andean legal system also provides an opportunity to revisit our earlier scholarship investigating the ECJ and the European Court of Human Rights. Chapter 9 expands upon Karen Alter’s previous work demonstrating that the ECJ benefitted in underappreciated ways from the support of jurist advocacy movements—movements that are absent or poorly organized in the Andes and elsewhere in the world. The book’s conclusion revisits Toward a Theory of Effective Supranational Adjudication, the influential 1997 article by Larry Helfer and Anne-Marie Slaughter, to consider the limited influence of international judges when backlash remains an endemic concern.

The longevity of the Andean Tribunal of Justice, despite the many challenges it has faced, offers useful guidance for other international courts in developing-country contexts. Moreover, given that the Andean Community and its institutions have weathered member state withdrawals, threats of exit, major economic and political crises, and the retrenchment of foundational laws and policies, the Andean experience also offers timely and important lessons for the challenges that Europe’s older and more established supranational institutions now confront.

We have invited four eminent scholars and jurists to comment on our book and its findings.

  • Alexandra Huneeus, Professor of Law at the University of Wisconsin, Madison, has written extensively on the influence of regional and international courts within Latin America. Reflecting on the role of the Inter-American Court of Justice, which operates in the same region as the ATJ, Huneeus reconsiders on our metrics for international court success and influence.
  • James Gathii, the Wing-Tat Lee Chair in International Law at Loyola University Chicago School of Law, is an expert on international economic law and on regional courts in Africa. Drawing on insights discussed TWAIL scholarship, Gathii also asks readers to think about the metrics for assessing international court success. Gathii brings into the conversation rulings by the East African Court of Justice, another international court operating in a developing country context. Gathii argues that scholars should not import Eurocentric assumptions, and thereby assume that mimicking European courts and achieving compliance are the measures of IC effectiveness or success.
  • Mark Pollack, Professor of Political Science and Law and Jean Monnet Chair at Temple University, is an expert on European legal and political integration. Pollack reflects on the political science project of studying international courts, and in particular our “liberal” approach to conceptualizing international court influence. Pollack extracts, yet questions, three generalizable lessons that one can make based on our examination of the ATJ.
  • Luis José Diez Canseco Núñez served as a judge on the Andean Tribunal from 2014-2017, and he features in our analysis of the role of jurist advocacy movements. He engages our work as a practitioner, discussing how the ATJ looks from his perspective.

We thank our contributors, whose prodding pushes all of us to move beyond current modes of conceptualizing and assessing the influence of international courts operating around the world. We learned a lot, and expect that opinio juris readers will as well, from the thoughtful reflections of our esteemed colleagues, who are complementary yet also quite critical of the approach and arguments we advance in this book. For us, this project was a way to move beyond our Eurocentrism. Huneeus, Gathii, Pollack and Núñez remind us that, given how Eurocentric the predominant theories are, we all have a way to go.

Congratulations to Duncan Hollis on His Election to the Inter-American Juridical Committee

by Chris Borgen

We at Opinio Juris are very proud that our colleague Duncan Hollis of Temple University Law School was elected on June 15 by the General Assembly of the Organization of American States to the Inter-American Juridical Committee, which

…serves the Organization as an advisory body on juridical matters of an international nature and promotes the progressive development and the codification of international law.

It also studies juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.

No two members of the Committee may be from the same state and Duncan’s term will start in January 2017, at the end of David Stewart’s three years of service. Duncan is one of three new members of the Committee.

With his wide-ranging expertise on topics ranging from the law of treaties to the challenges that new technologies pose to International Humanitarian Law, Duncan will be a great addition to the Committee.  Congratulations!

Venezuela’s Crisis Tests the OAS’ Legal Commitment to Defending Democracy

by Julian Ku

Foreign Policy has a great report from Michael Shifter on the ongoing diplomatic battle within the members of the Organization of American States over how to respond to Venezuela’s ongoing political and economic crisis.  According to Shifter, the OAS Secretary General Luis Almagro is pushing hard to get the OAS membership to invoke Article 20 of the OAS Democratic Charter at the upcoming June 23 special session.  Under Article 20, the Secretary General may ask the Permanent Council of the OAS to “collectively assess” as situation where there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.”   The Permanent Council can then undertake “necessary diplomatic initiatives, including good offices, to foster the restoration of democracy.”

The OAS Secretary-General has already issued a long 114 page report explaining why he believes (starting on p. 35) that there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order” of Venezuela.  I haven’t been following the Venezuela situation closely, but this report certainly lays out a strong case.  Even more importantly in my view, it offers a good explanation of why members of the OAS have (via the Democratic Charter) a strong international legal obligation to democratic governance.

The penalties for breaching this obligation aren’t all that onerous.  Under Article 21, the OAS, via a special session, can suspend Venezuela from the OAS. I am not sure how likely this is to happen, given that Article 21 has a 2/3 majority requirement.

Still, I find this whole episode a fascinating example of how an international organization can become the key vehicle for influencing the domestic governance of one of its member states.  Key states are concerned about the crisis in Venezuela, and it looks like the OAS will be the chosen vehicle of (very soft diplomatic) intervention.

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

ICJ Rules (14-2) It Has Jurisdiction to Hear Bolivia’s Claim Against Chile

by Julian Ku

So the ICJ ruled today (14-2) that the Court does have jurisdiction to hear Bolivia’s claim that Chile has violated its legal obligation to negotiate “sovereign access to the sea” despite a 1904 Treaty that had settled the borders between the two countries.  I have been super-critical of Bolivia’s claim, going so far as to suggest there was a slam-dunk case against admissibility and jurisdiction since the basis of jurisdiction, the Bogotá Treaty, excludes cases where dispute has been settled by “arrangement” between the parties.  I suggested on Tuesday that perhaps the Court would take the case after all, despite the weaknesses of Bolivia’s case, and I received some tough criticism from commenters suggesting Bolivia has a very strong case for jurisdiction.

I still think Bolivia (and the commenters) are wrong, but obviously 14 judges of the ICJ disagree with me.  I’ve said my piece, so I won’t beat a dead horse (for too much longer).  I will only excerpt below Professor Harold Koh’s pithy explanation (from his oral presentation) as to why granting jurisdiction here is going to lead to lots of bad consequences.

10. Under Bolivia’s novel theory, by clever pleading, applicants could manufacture jurisdiction in this Court regarding previously settled matters. And this Court can expect to hear many more preliminary objection sessions like the one yesterday, replete with snippets of speeches, ministerial statements, and diplomatic exchanges as reasons to avoid the jurisdictional bar of Article VI. Notwithstanding Mr. Akhavan’s effort to underplay, Bolivia’s theory would doubtless encourage unilateral attempts to re-litigate the continent’s history and borders. The careful limits established by the Pact of Bogotá would become increasingly meaningless.

11. Mr. President, Members of the Court, the stakes here are larger than the interests of just these two Parties. The two treaties relevant to jurisdiction are part of a larger treaty network that binds Bolivia and Chile. The Pact of Bogotá succeeded in barring existing territorial settlements and other settlement matters from being reopened at the sole initiative of one State. But as Sir Daniel recounted, during the nineteenth and twentieth centuries, at least 12 separate treaties Bolivia settled disputed boundaries not just with Chile, but also with all four of its other neighbours106. May Bolivia now come before this Court to seek an order directing renegotiation of all of those other borders as well? And even if Bolivia did not, could those other regional partners also come to the Court seeking an order directing renegotiation of their borders?

U.S. Appeals Court Holds that “Domestic Takings” Can Violate International Law

by Julian Ku

As I continue to avoid grading my exams, I ran across this interesting recent case (Helmerich & Payne v. Venezuela) from the U.S. Court of Appeals for the D.C. Circuit which considered whether Venezuela’s expropriation of a Venezuelan subsidiary of a U.S. corporation is a “taking in violation of international law” under Section 1605(a)(3) of the U.S. Foreign Sovereign Immunities Act. Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Ven

Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Venezuela argued that it is immune under the U.S. Foreign Sovereign Immunities Act because, among other reasons, its expropriation fo the subsidiary is not a “taking in violation of international law” for the purposes of the FSIA.  The FSIA does contain an exception for such claims in the so-called “Hickenlooper Amendment” to the FSIA enacted in the wake of the well-known Sabbatino case from the early 1960s.

What I find fascinating is the Court’s rejection of Venezuela’s argument that as a “domestic takings”, its expropriation of a Venezuelan company cannot violate international law, even if (as in this case) the sole shareholder of that Venezuelan company was a U.S. national and that there is plenty of evidence of anti-U.S. animus motivating the expropriation.      This is indeed a difficult question, and I am struck that the D.C. Circuit held that such a taking “could” violate international law but it relied solely on other U.S. court precedents (the 1962 Second Circuit decision in Sabbatino) and Section 712 of the Restatement of U.S. Foreign Relations Law.  This is pretty thin precedent, as the dissenting judge in this case points out.  I am not ordinarily one to yell for citation of international and foreign sources, but given the clear language of the FSIA (a “taking in violation of international law”), it is odd that no international or foreign sources were consulted.

In any event, I am curious whether any of our readers could help out by pointing to other precedents on the question of “domestic takings” under international law.  I have a feeling the DC Circuit reached the right conclusion here, but I am troubled by the lack of authority for its holding.

 

Does President Obama Need Congress to Lift the Embargo on Cuba? Yes.

by Julian Ku

It looks like a big showdown is brewing between the President and Congress over Cuba policy (Here comes 2016 presidential candidate Rubio!).  Some legal commentators have argued, however, that President Obama already has the legal authority to lift all or most of the Cuba embargo without any further action by Congress.  Robert Muse, a lawyer whose practice is all about Cuba sanctions law, has stated that the President has very broad discretion to lift most of the restrictions on trade with Cuba without further congressional action. Is he right?

I am not Cuba sanctions law expert, so it is possible I am missing something.  Since the bulk of the Cuba sanctions are found in regulations issued by the Treasury Department’s Office of Foreign Assets Control pursuant to the Trading with the Enemy Act, it would seem like President Obama could indeed lift those sanctions by simply withdrawing those regulations.  The TWEA has never been read to require sanctions, and President Carter lifted similar sanctions on China without Congress in 1979.

On the other hand, Congress has also enacted two Cuba-specific statutes: the Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091 (“Helms Burton). The latter appears to codify” the OFAC regulations on Cuba that were initially issued under the TWEA. See Section 102(h) (“Codification of Economic Embargo.– The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of this Act.”).  Section 204 in turn “authorizes” the President to lift sanctions only after submitting a determination to Congress that a transitional government in Cuba exists and that the lifting of sanctions will contribute “to the stable foundation for democratic government.” There is also the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211, which imposes further limitations on financial transactions with Cuba and allows no Presidential waiver.

It is worth noting that President Clinton expressed some reservations about the impact of Section 102(h) when he signed the Helms-Burton Act, stating that it”could be read to impose overly rigid constraints on the implementation of our foreign policy.” But Clinton didn’t suggest imposing conditions on when the President could lift sanctions actually violated the Constitution.  Since I assume Congress is the source of the authority to impose sanctions in the first place, it seems reasonable that Congress could impose conditions on when those sanctions can be lifted.  Any argument that those conditions themselves are unconstitutional would be a remarkably aggressive legal argument.

So I don’t think the calls from some quarters for a unilateral lifting of the embargo on Cuba is supportable as a legal matter.  In fact, there are good reasons to doubt the legality of the loosening of sanctions already announced by OFAC.  In any event, there will be lots of legal skirmishing over the next few months on this front. It will be interesting to see if President Obama ever pulls out the “presidentialist” card and tries to argue some of these sanctions laws violate his constitutional authority.  I would doubt it, but then again I never thought he would engage in a separate war in Iraq and Syria with ISIS and change US immigration law without Congress either.

 

The ICC, Continuing Crimes, and Lago Agrio

by Kevin Jon Heller

Lawyers for the Lago Agrio plaintiffs have filed a communication with the ICC asking the OTP to investigate Chevron officials for alleged crimes against humanity in connection with the company’s “rainforest Chernobyl” in Ecuador. Ecuador ratified the Rome Statute in 2002.

Regular readers know my sympathies — both ethical and legal — lie squarely with the Lago Agrio plaintiffs. The only thing more unconscionable than Chevron’s destruction of the rainforest in Ecuador is its willingness to lie and manufacture evidence in order to avoid paying for its destruction. In a world with better criminal laws, I have no doubt that the CEO of Chevron and everyone else involved in the company’s misdeeds would be serving long prison sentences somewhere.

But we do not live in a world with better laws, and unfortunately the Lago Agrio plaintiffs’ communication faces a steep uphill battle. To begin with, the communication is not quite sure what Chevron has done that qualifies as a crime against humanity. It oscillates — very confusingly — between failing to pay the damages award in Ecuador (p. 19), attempting to cover up the extent of the pollution in Ecuador (p. 23), engaging in unsavoury litigation practices (p. 25), maintaining the polluted conditions (p. 36), and causing the pollution in the first place (p. 36). Those are, of course, very different arguments.

One thing is clear: the ICC could not prosecute Chevron’s deliberate dumping of more than 18 billion gallons of toxic waste-water into the Lago Agrio region, because that dumping occurred long before 1 July 2002, when the Rome Statue entered into force. That’s too bad, because I think a strong case can be made that intentional pollution of an area occupied by civilians could, in the right circumstances, qualify as a number of crimes against humanity — from forcible transfer to persecution to “other inhumane acts.” As the plaintiffs rightly note (p. 27), an “attack on a civilian population” does not have to involve physical violence.

That said, the communication seems to suggest that the plaintiffs view the contamination as some kind of continuing crime. It claims (p. 40), for example, that the potential crimes against humanity involved in the dumping “continue even today.” The idea seems to be that those crimes will continue until Chevron remediates the pollution — similar to the idea, promoted by various scholars, that Israel’s illegal transfer of its civilians into the West Bank will qualify as a crime against humanity until such time as the settlements are disbanded or that enforced disappearances continue until the responsible government identifies the fate of the victims. It is an open question whether the ICC will even recognise continuing crimes, as the ICTR has. I’m skeptical, given the drafters of the Rome Statute’s quite deliberate decision not to give the ICC retroactive jurisdiction. Few Latin American governments would have ratified the Rome Statute if they knew that their actions during the Dirty War would be open to judicial scrutiny.

But let’s assume the ICC will recognise continuing crimes. Would that mean the Lago Agrio plaintiffs have a case? It’s an interesting question. As noted above, it’s possible that Chevron’s deliberate pollution of the Lago Agrio region qualified as the crime against humanity of forcible transfer; “forcible” doesn’t require physical force and the defendant(s) do not have to intend to drive people fro where they are lawfully entitled to be. (They simply have to be virtually certain that will be the result.) So there is at least an argument that Chevron is responsible for forcible transfer until it cleans up the region to the point where displaced residents can return to their homes. But I can’t see the ICC accepting that argument, if only because of the potential implications — there are probably dozens of situations in member-states in which pollution predictably drove people from their homes and continues to prevent their return. That’s the problem with “continuing crimes”: they simply throw open the courthouse door in a manner the drafters of the Rome Statute were unlikely to have intended.

But that is not the only problem with the communication. Even if the ICC recognised continuing crimes, it is not clear how the current crop of Chevron officials could be held responsible for the (continuing) forcible transfer of people from Lago Agrio. Aiding and abetting would seem to be the most likely mode of participation, given that those officials presumably had nothing to do with the dumping of the waste (which was done by Texaco, which Chevron later acquired). Not paying the judgment and litigation misconduct, though reprehensible, would hardly qualify as aiding and abetting the forcible transfer. (I suppose one could argue paying the plaintiffs would make it easier for them to return home, but I can’t see the ICC convicting someone on such an attenuated basis.) The only real argument would be that Chevron’s current officials are aiding and abetting the continuing forcible transfer by failing to remediate the environmental damage in Lago Agrio. That is not a nonsensical idea, but it seems unlikely to succeed. Art. 25(3)(c) aiding and abetting would almost certainly be off the table, because it would require the Chevron officials to subjectively intend for people in Lago Agrio not to be able to return to their homes. No matter what you think of Chevron — and I obviously think precious little — that would be nearly impossible to prove. More likely is Art. 25(3)(d)’s version of aiding and abetting, contributing to a group crime, which would “only” require the OTP to prove that Chevron officials contributed to the forcible transfer by impeding remediation despite knowing that Chevron intended for the displacement to continue. Again, no matter what you think of Chevron’s remediation efforts (much of which was fraudulent), that’s a stretch. Not impossible, to be sure. But a stretch.

In short, unless the ICC is willing to recognise continuing crimes and adopt a very capacious understanding of aiding and abetting, it is difficult to see the OTP opening an investigation into the Lago Agrio situation. All of the other crimes against humanity identified by the Lago Agrio plaintiffs — murder, persecution, other inhumane acts — clearly took place, if they took place at all, long before 1 July 2002. And the current Chevron officials can hardly be held accountable for them.