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Lozano v. Montoya Alvarez: The Latest Supreme Court Treaty Interpretation Case

by Duncan Hollis

I’m a bit pressed for time, but wanted to offer a brief post calling readers’ attention to a US Supreme Court case that came down today – Lozano v. Montoya Alvarez.  In it, a unanimous Court interprets the Hague Convention on the Civil Aspects of International Child Abduction to not allow equitable tolling of the requirement that a child be automatically returned to the country from which s/he was abducted in the one year period after the child is taken.  The case involved two Colombian nationals living in England in 2008 when the mother leaves with her child for France and then New York (via a shelter for victims of domestic violence).  The father was unaware where his child had been abducted to, and thus could not file for the return remedy provided for by Article 12 of the treaty.  After much searching, he located her in the United States in November 2010.  At that point, however, the near automatic-right of return for one year provided via Article 12 no longer applied and the Convention imposes a different standard – wherein courts must order the return of the child ‘unless it is demonstrated that the child is now settled in its new environment’ (emphasis added).  Lower courts found that the child had become settled and thus she remained in the United States pending the outcome of this litigation.

In its opinion, the Court interpreted Article 12 not to contain any equitable tolling possibility with respect to the one year period for the automatic right of return.  In doing so, it declined to apply the equitable tolling doctrine available for federal statutes to treaties, offering in the process some general statements on its approach to treaty interpretation:

For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas,  552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.

It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996). Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling….

I don’t see anything too dramatically different in this reasoning than the Court’s earlier pronouncements.  More interesting, perhaps, is the Court’s unwillingness to let the existence of implementing legislation via federal statute impact its interpretative analysis:

It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.

There’s more later in the opinion offering views on the negotiators’ intent as well as the object and purpose of the Hague Convention itself.  But, I’ll leave that for readers to comment on if anyone is inclined to do so.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

Discussing Argentina’s Debt Litigation and Sovereign Immunity at the Cato Institute

by Julian Ku


I had the pleasure of participating in a very interesting discussion yesterday of Argentina’s debt litigation at the Cato Institute in Washington D.C. Richard Samp offered a useful overview of this litigation, and my own talk focused on the strange (and in my view inappropriate) way that the U.S. legal system allows sovereigns to waive immunity from courts, but continues to protect them against most judgments.  Other panelists, including an economist from Moody’s, offered a very interesting set of slides explaining why Argentina’s treatment of its creditors is substantially harsher than almost all other sovereign defaulters in recent decades.I also would recommend watching the video from about the 57th minute to see Arturo Porzecanski of American University criticize the overall policies of the Kirchner government.

I think Argentina is in a bad spot right now and it is possible they will end up losing their final appeals in the U.S. Supreme Court. Indeed, it is possible the Court will not even hear their petition (although hiring former U.S. Solicitor General Paul Clement will no doubt help Argentina).  Still, I doubt the Court will rush to hear this case and if they do, any final resolution might have to wait quite a bit longer. This case has quite a ways to go.

The Dangers of Hobnobbing with Supreme Court Justices; They Might Have to Recuse Themselves in Your Cert Petition

by Julian Ku

I’ve been following Argentina’s travails in the U.S. courts with great interest, even penning an oped on the subject back in January on their standoff with sovereign debt creditors in Ghana.  Argentina and the so-called “holdout” creditors have been battling out their dispute in the federal courts of New York for years.  So it is interesting to note that Argentina is finally facing its last stand. As Washington Legal Foundation’s Rich Samp notes in his oped, Argentina is highly unlikely to win its last-ditch cert petition to block a lower court order in favor of the holdout creditors. I agree for all the reasons he lists (e,g. no federal law issues, no circuit split, etc) that the Court will not review the case, but I was particularly struck by his observation that Justice Sonya Sotomayor will almost certainly have to recuse herself from the petition. First of all, as a court of appeals judge, she heard several Argentina-debt-related cases.  And second of all, she appears to have a personal acquaintance with Argentina President Cristina Kirchner.

Separately, Justice Sotomayor may also decide to recuse herself because over the years she has met on a number of occasions with Argentina’s president, Cristina Fernández de Kirchner, and other high-ranking Argentine officials. Indeed, the Argentine government seems to have made a concerted effort to forge close relations with the Justice. It would be ironic if those efforts resulted in a decision by Justice Sotomayor to disqualify herself from hearing Argentina’s certiorari petitions.

Justice Sotomayor made an official visit to Argentina on August 27-29, 2012. According to U.S. State Department press releases, while in the country she met one-on-one with President Kirchner. The two also had a meeting when Kirchner was in Washington, D.C. in April 2010. Kirchner has taken an extremely active role in the Second Circuit litigation and has repeatedly and publicly denounced the “hold-outs” who are suing Argentina for payment on their bonds. This may provide Justice Sotomayor with an additional reason to disqualify herself from considering Argentina’s certiorari petitions.

As Rich notes, she doesn’t have to recuse herself and doesn’t have to give reasons when she does.  But I think this is a plausible (additional) reason for her to avoid sitting on this case.  In fact, given that the visit was so recent (just over one year ago), and that the litigation was already plainly heading for the Supreme Court even then, it is hard not to spot the problem here.

Venezuela Formally Withdraws from American Convention on Human Rights, Blames the U.S.

by Julian Ku

In other Latin American news, Venezuela’s withdrawal from the American Convention of Human Rights went into effect this week, drawing the condemnations of various human rights groups. The withdrawal was one of the Hugo Chavez’s last decisions as President, however, and seems to have been sparked by dissatisfaction with decisions by the Inter-American Court of Human Rights.

Venezuela’s withdrawal from the American Convention, along with its decision to withdraw from the World Bank’s ICSID system of resolving investor-state disputes last year, suggests that international judicial institutions of all types are losing a bit of ground in Latin America. Colombia has denounced its membership in the Bogota Pact, and Bolivia and Ecuador have also left ICSID.

Of course, Venezuela is a different case and it is only the third country ever to withdraw from the American Convention.  I don’t know enough about the region to opine on the reasons for Venezuela’s withdrawal, but I do find the reflexive Yankee-bashing a curious justification.

Venezuela’s president, Nicolas Maduro, reiterated Chavez’s charge that the Inter-American system was a U.S. pawn.

“[T]he U.S. is not part of the human rights system, does not acknowledge the court’s jurisdiction or the commission, but … the commission headquarters is in Washington,” President Maduro said at a news conference, according to media reports. “Almost all participants and bureaucracy that are part of the IACHR are captured by the interests of the State Department of the United States.”

My experience with the OAS and the Inter-American Commission is admittedly quite limited, but I’ve never gotten the impression that IACHR in particular was controlled by the U.S., or indeed, that the U.S. paid the IACHR any serious attention whatsoever. The only shred of truth here is that the IACHR is indeed headquartered in Washington D.C., but that can’t be enough to prove bias.  After all, the U.N. is in New York and it proves (pretty much every day) that the U.S. is powerless to get it to do anything it wants.

Medellin v. Texas Goes Abroad? Colombia Says It Will Not Abide By ICJ Ruling

by Julian Ku

I’m a little late to this, but it is worth noting that President Santos of Colombia has announced that Colombia will “not abide” by an ICJ ruling awarding certain territorial and maritime rights to Nicaragua.  Colombia is not exactly going to simply ignore the ICJ ruling, its Foreign Minister says, but it sure sounds like it is going to do exactly that.

“At no time are we disregarding the jurisdiction of the court at The Hague,” Foreign Minister María Ángela Holguín told Caracol Radio on Tuesday. “We’re not disregarding the ruling either. We’re saying that our constitution does not permit its applicability.” Santos said that it is going to sue the Pact of Bogota at the country’s Constitutional Court, and that in the meantime the government will try to secure a new treaty with Nicaragua that satisfies both countries.

I think the Colombian FM is saying that the Pact of Bogota which gave compulsory jurisdiction to the ICJ is unconstitutional under the Colombia Constitution. And, presumably, that the Colombian Constitution is supreme to the Pact of Bogata within Colombia. And therefore, Colombia won’t carry out the ICJ judgment.  It’s Medellin v. Texas all over again!

None of this analysis would explain why Colombia is not in plain violation of its obligations under the Pact of Bogata and the UN Charter’s general obligation to abide by ICJ judgments. President Santos further announced that Colombia will “subscribe in a letter of protest along with other neighboring nations [Jamaica, Costa Rica, and Panama] that I will personally deliver to the United Nations’ Secretary General.” Gee, that will show them!

I think what is really happening here is that Colombia is refusing to comply with the ICJ ruling, but it is not going to admit it is doing so.  In the meantime, Colombia will pretend that there is some litigation or appeal going on somewhere that is delaying its obligation to comply (there is none) until Nicaragua gives up and makes a deal.  Since I seriously doubt Nicaragua has enough leverage to push Colombia to comply, this strategy just might work!

The larger lesson is that we often forget just how hard it is to get countries to carry out international court rulings, even when they have voluntarily agreed to the jurisdiction of those international courts.  It is really, really, hard, and it is more surprising when countries do comply than when they don’t.

Of course, it is entirely possible I’m misreading this somehow. I don’t speak Spanish, and I don’t exactly trust Google Translate.  But a video of the President Santos address is here.  Spanish-speaking readers should feel free to add their views to the comments.

Forty Years Ago Today: Pinochet’s Coup in Chile

by Roger Alford

PinochetI have been in Santiago, Chile for the past few days keynoting an international law conference at the Pontifical Catholic University of Chile. It’s an impressive law school in one of the most beautiful cities in South America.

I was fortunate to arrive on the eve of the fortieth anniversary of the defining moment in Chilean history: Augusto Pinochet’s coup d’état on September 11, 1973. Protests are planned throughout the country to memorialize the detained and disappeared. I’m not sure what the norm is in Santiago, but this week Pinochet was very much on the minds of Chileans, with television and newspapers filled with stories on the Pinochet era. An estimated 3,200 were murdered and 38,000 tortured during his reign. I spoke at length with students and professors about their reflections on Augusto Pinochet.

Pinochet’s reputation has plummeted in the past two decades. Almost everyone I spoke with said that the Pinochet extradition trial in the United Kingdom was the turning point. At the time he was arrested in London in October 1998, the country was divided, with as many defending as condemning him. But the international condemnation that ensued in 1999 altered pubic opinion in Chile. Now the vast majority of Chileans view Pinochet as a dictator, and he has precious little support among the the younger generation. Only with the older generation is there a significant minority that defends the Pinochet era.

I raise this because I think many outsiders view the Pinochet trial as an inconclusive failure. He was never extradited to Spain. Despite numerous attempts, he was never convicted at home or abroad for his human rights violations. But the legacy of the extradition trials in Britain and criminal investigations in Chile have left a lasting impact on Pinochet’s reputation. The law students I had the privilege to interview uniformly condemned the man. The names of his victims are memorialized around the country. He was never convicted, but he stands condemned by the Chilean public.

Is Colombia Going to Just Ignore the ICJ’s Ruling on Nicaragua?

by Julian Ku

Although the government of Colombia was far from pleased when the ICJ issued a judgment last November in a long-running territorial dispute with Nicaragua, it did not go so far as to say it would simply ignore the ruling.  But Colombia’s vice president Angelino Garzon seems to be hinting in recent comments that Colombia is prepared to do just that.

“The judgement of the Court of The Hague is unenforceable in our country. It cannot apply now, in five years or ten years time,” emphasized Vice President Angelino Garzon.

“The judges in The Hague instead of helping to resolve the differences between Colombia and Nicaragua, have only exacerbated them,” added Garzon.

I get the feeling there is more to this story than this quotation reflects, but it would not be shocking if Colombia simply walked away (it has already withdrawn from the ICJ’s jurisdiction under the Bogota Treaty).  Nicaragua is not in a position to force Colombia’s compliance.  Still, it would be strange for Colombia to ignore the ruling while it is supposedly preparing to ask the ICJ to reconsider its ruling.  Maybe VP Garzon is simply going off the reservation? Developing…

Sore Loser? Colombia’s Unpersuasive Accusations Against the Chinese ICJ Judge

by Julian Ku

ABC’s Univision reports on this op-ed by former Colombian foreign secretary and former vice justice minister, which seems to accuse shadowy Chinese business interests of influencing the recent ICJ decision in Nicaragua v. Colombia.  Here is the crux of the alleged wrongdoing (or at least shady conduct):

…in November 2012, the ICJ issued a ruling that certified that most of the contended area belonged to Colombia. Nicaragua however, was awarded an area of nearly 7,500 square kilometer.

Nicaragua needed part of the awarded area to be able to build the massive inter-oceanic canal the government is envisioning, according to Sanín and Ceballos. The canal is set to be built in 10 years at an estimated cost of nearly $30 billion.

The alleged problem is that one of the judges who delivered the ICJ’s decision is Xue Hanqin, a Chinese national who apparently knew the Nicaraguan ambassador to the court from a previous work position. The Colombians argue that Xue Hanqin probably knew about the canal and should have recused herself because her government had a major interest in the ruling’s outcome. Since she didn’t there are growing suspicions that she might have been working to advance China’s economic and geopolitical agenda.

My Spanish is even vaguer than my French, but, accepting the Univision description as accurate, than this seems like a weak attempt to discredit the ICJ decision.  To be sure, it is possible that Judge Xue knew the Nicaraguan ambassador from her time as a diplomat, and it is also quite likely that she knows about the Chinese government’s interest in a Nicaraguan canal.

But none of that seems to be close to enough to require a recusal or its equivalent.  To be sure, the ICJ’s practice on recusal is pretty lax, and could use some further development.  But even if you think that the Egyptian judge should have been recused from the Israeli Wall advisory opinion, at least the accusation there was about statements made, or views held, by the individual judge.  It was not a claim that he should recuse himself because the Egyptian government opposed the Wall.

But the Colombians are essentially saying that because the Chinese government would have favored the Nicaraguan case, and had a material interest in a favorable outcome, its judge should have recused herself.  That could not be the rule, since it would require recusals all the time.  Now, if they had evidence Judge Xue held shares in a Chinese company that was building the canal, that would be something.  But there is no such accusation, as far as I can tell. (Note: Colombia did not even request her recusal).

Is Judge Xue biased? I suppose she might have been. But she would not have been much more biased than any of the other judges on the ICJ.  With 15 judges, her bias could not have been all that important in the ICJ’s unanimous opinion anyway.

Ontario Court Dismisses Ecuadorian Enforcement Action Against Chevron

by Roger Alford

An Ontario court in Yaiguaje v. Chevron has dismissed the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada. Essentially the dismissal rests on the doctrine of the separate legal identities of parent and subsidiary corporations.

Chevron has no assets in Canada, and the subsidiaries’ assets there cannot be attached to enforce a judgment against the parent company. This is not a particularly controversial proposition. Therefore the fight over the recognition and enforcement of the dubious $19 billion Ecuadorian judgment should be resolved elsewhere.

Here’s the key language (paras. 110-111):

By way of summary, Chevron does not possess any assets in this jurisdiction at this time. The evidence also disclosed that no realistic prospect exists that Chevron will bring any assets into this jurisdiction in the foreseeable future…. The plaintiffs’ contention that the assets of Chevron Canada ‘are’ the assets of Chevron has no basis in law or fact…. Accordingly, any recognition of the Ecuadorian Judgment by this Court would have no practical effect whatsoever in light of the absence of exigible assets of the judgment debtor in this jurisdiction.

…. Chevron is on record saying: ‘We will fight until hell freezes over and then fight it out on the ice.’ While Ontario enjoys a bountiful supply of ice for part of each year, Ontario is not the place for that fight. Far from it…. The evidence disclosed that there is nothing in Ontario to fight over…. In my view, the parties should take their fight elsewhere to some jurisdiction where ultimate recognition of the Ecuadorian judgment will have a practical effect.

Chevron’s press release responding to the ruling is here. The Ecuadorian plaintiffs’ press release is here.

Did the ICJ Really Call the Bolivian Application Against Chile “Impeccable”?

by Julian Ku

This report out of Prensa Latina in Havana suggests that the ICJ has expressed some sort of positive opinion on quality of Bolivia’s case against Chile.

In a press conference, [Bolivian Foreign Minister] Choquehuanca announced the International Court notified Chile on the start of the process and reasserted the Bolivian will of not affecting the bilateral relations with Chile. He also said the Court regarded the Bolivian demand as impeccable, and he expressed his trust in a favourable resolution for Bolivia.

(Emphasis added).  Now there are no doubt some translation issues here, and Prensa Latina is not exactly the most authoritative source.  But it does seem like the Bolivian Foreign Minister is suggesting that the ICJ, in its routine acceptance of an application by a member state, expressed some opinion about the nature and quality of Bolivia’s substantive case.  I am sure this is NOT the case, since the Court’s Registrar is only functioning in an administrative capacity here.  So if the Foreign Minister did in fact say what Prensa Latina reported, his statement is very misleading.  Hey, ICJ Press Office! I think you should issue a statement or something.

Bolivia’s Ridiculously Weak ICJ Case Against Chile

by Julian Ku

Last week, the government of Bolivia filed an application in the International Court of Justice against Chile arguing that Chile has breached its “obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean.”

Is it just me, or is this the weakest case ever filed at the ICJ?   I am baffled as to how there could be compulsory jurisdiction under the Bogota Treaty, whose relevant provision reads:

“…the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation”.

According to Bolivia, the legal dispute exists because “Chile denies its obligation to enter into negotiations regarding Bolivia’s fully sovereign access to the Pacific Ocean.”  Ergo, there is a dispute over whether Chile has an international obligation to negotiate and whether it has breached this obligation that it denies having.

But this is circular.  Bolivia is the one claiming there is an obligation, and the mere fact that Chile denies the existence of the obligation can’t by itself create the basis for jurisdiction.  Bolivia needs to point to some source which imposes a legal obligation  on Chile an obligation to negotiate in good faith on this issue.  The following appears to be Bolivia’s best effort to find such an obligation:

17. The Bolivian note of 1 June 1950, invoking the different declarations and commitments formulated by Chile, proposed: “for the Governments of Bolivia and Chile to formally enter into a direct negotiation to satisfy Bolivia’s fundamental need for obtaining an own and sovereign access to the Pacific Ocean, thus resolving the problem of Bolivia’s confinement, on the basis of natural conveniences and the true interests of both countries”

18. The Chilean note in response, dated 20 June 1950, states that: “( … ) my Government ( … )it is willing to formally enter into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia an own and sovereign access to the Pacific Ocean and for Chile to obtain compensations that are not of a territorial nature and that effectively take into account its interests”

Apparently, those negotiations never worked out.  But there is an even more fundamental point. The 1950 Chilean note states that the government “is willing to formally enter into a direct negotiation”.  It doesn’t say that the Chilean government obligates itself to negotiate (whatever that would mean anyway).   The same non-obligatory language is true of a 1975 statement that Chile “would be prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Linea de la Concordia” (emphasis added).  Even if there was a treaty provision that explicitly obligated the parties to negotiate in good faith, I would be skeptical.  But there isn’t even that.

Maybe I’m missing something, but this case looks like a sure loser on admissibility. It looks like it is going to be a major waste of time for the ICJ.  I admit I am not an expert on the relevant treaties here, or on this dispute, but if Bolivia’s application reflects its best arguments, then I can’t see how the ICJ could possibly allow this application to proceed.  How would they ever avoid future cases where one party asks another party to negotiate, and then complains when that party doesn’t agree to do so.  This should be a slam-dunk unanimous admissibility dismissal for the ICJ. I just hope they don’t need more than a year to figure this out. (If someone out there has a good defense of Bolivia’s case for jurisdiction, would love to hear about it.)