As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpts is when lead plaintiffs’ lawyer Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.’”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here. Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

Here is Steve Donziger’s “smoke and mirrors and bullshit” quote included in the context of a conversation between Donziger and plaintiffs’ technical experts Dave Kamp, Ann Maest, and Charlie Champ (pages 8-11 of Transcript 2):

KAMP: Yeah. But you know. And these are all possibilities, and I think that, but what we know we don’t have is the extent of the contamination, the, the ground water auditors that Anne was talking about, maybe when you were asleep.

MAEST: Uh-huh.

KAMP: and, you know, being able to characterize as well as we possibly can before we enter into, you know, a remediation strategy per se, what we know about non-water contamination the extent of the contamination. We don’t have that.

MAEST: And right now all the reports are saying it’s just at the pits and the stations and nothing has spread anywhere at all.

DONZIGER: That’s not true.

KAMP: That’s not exactly true.

DONZIGER: That’s not true. The reports are saying the ground water is contaminated because we’ve taken samples from ground water.

MAEST: That’s just right under the pits.

DONZIGER: Yeah, but, that is evidence.

MAEST: Uh-huh.

KAMP: Well you need more.

CHAMP: Well one thing I visually see.

DONZIGER: I agree.

KAMP: Right.

DONZIGER: Hold on a second, you know, this is Ecuador, okay,

MAEST: Okay.

DONZIGER: You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want. Sorry, but it’s true.

KAMP: Uh-huh.

DONZIGER: Okay. Therefore, if we take our existing evidence on groundwater contamination which admittedly is right below the source.

MAEST: Uh-huh.

DONZIGER: And wanted to extrapolate based on nothing other than our, um, theory that it is, they all, we average out to going 300 meters in a radius, depending on the—the, uh…

MAEST: Uh-huh.

DONZIGER: The what do you call it when the land goes down? The incline. You know what I mean,

MAEST: Uh-huh. The gradient.

DONZIGER: The gradient. We can do it.

KAMP: The gradient.

DONZIGER: We can do it. And we can get money for it.

MAEST: Uh-huh.

DONZIGER: And if we had no more money to do more work, we would do that. You know what I’m saying?

MAEST: Yeah.

DONZIGER: And it wouldn’t really matter that much.

MAEST: Uh-huh.

DONZIGER: Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is. We have enough, to get money, to win. How we define what the win is—is—is—we can do it, anything we want. Now granted, I’d rather have it stronger.

MAEST: Uh-huh.

DONZIGER: I want to have it stronger.

MAEST: Good.

DONZIGER: But.

MAEST: Because.

DONZIGER: We need to keep that in mind as we design this.

KAMP: We do.

CHAMP: Steven, the main thing to reminder is,

DONZIGER: Yeah.

CHAMP: This is where I agree with Anne a thousand percent, there is not enough information on that ground water.

DONZIGER: Yeah.

CHAMP: There’s not. I mean.

DONZIGER: Yeah.

MAEST: No.

CHAMP: To even approach this—

DONZIGER: You guys conspiring against me?

MAEST: No.

Chevron’s Motion Transcript 2 –

So there you have it. Anyone else besides Karen Hinton want to make the argument that this is a reference to Chevron’s evidence?

The ongoing saga regarding Chevron’s legal travails in Ecuador took an interesting twist this week. As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

For example, Plaintiff lawyer Fajardo tells the assembled group—which includes the soon-to-be court-appointed expert Richard Cabrera–that the court-appointed expert is going to “sign the report and review it. But all of us [the plaintiff lawyers and experts] … have to contribute to the report.” Toward the end of the meeting Donziger brags: “We could jack this thing up to $30 billion … in one day.” (p. 2). Fajardo says that the team must “[m]ake certain that the expert constantly coordinates with the plaintiffs’ technical and legal team” and the plaintiffs’ team must “support the [court-appointed] expert in writing the report.” (p. 8). “Our entire technical team … of experts, scientists attorneys, political scientists, … will contribute to that report—in other words—you see … the work isn’t going to be the expert’s.” (p. 9).

In clarifying what role the plaintiffs and defense counsel will have in drafting the court-appointed expert report, Fajardo confirms that it will be written “together” with the plaintiffs. The idea of Chevron having a role in drafting the court-appointed report was met with collective laughter. (p. 9). Donziger proposes the plaintiffs establish a “work committee” to present a “draft plan” for the report and then says to the soon-to-be court-appointed expert, Richard Cabrera, “and Richard, of course you really have to be comfortable with all that.” (p. 11).

The next day, in a lunch meeting with just the plaintiffs’ lawyers and plaintiffs’ experts, one expert, Charlie Kamp, said “Having the perito [Cabrera] there yesterday in retrospect … that was bizarre.” Donziger replies, “Don’t talk about it” and tells the camera crew “And that’s off the record.” (p. 12). In responding to concerns from their own experts that there was not evidence of groundwater contamination, Donziger replies, “This is all for the Court just a bunch of smoke and mirrors and bullshit.” (p. 12). That’s right, Donziger is caught on tape saying that the evidence he is gathering for inclusion in the court-appointed expert report about groundwater contamination is just smoke and mirrors and bullshit.

I would rarely advise our readers to read a court filing they don’t have to, especially during the summer recess. But this one is explosive.

I’ve argued for the past couple of years that the ICC should open a formal investigation into the situation in Colombia, because it is a non-African situation that satisfies most, if not all, of my criteria for situational gravity: (1) crimes committed with government involvement; (2) systematic criminality; (3) socially alarming crimes such as enforced disappearance and torture.  Here is a snippet from a June 2009 report by the American NGOs Coalition for the International Criminal Court (AMICC):

In response to FARC attacks, landholders and drug dealers organized in 1997 their own force to free Colombia from left-wing guerrillas: the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC). It is comprised of several right-wing paramilitary groups, wealthy landowners, drug cartels and segments of the Colombian army. Just like the force they try to combat, they allegedly use terror tactics such as massacres, selective killings and threats, mainly against human rights defenders and trade union and other social movements’ leaders, journalists and members of Government. Over the past 10 years the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers.

Apparently Judge Garzon, now consulting with the ICC, agrees with me.  He recently suggested that, in light of Colombia’s failure to bring the perpetrators of such crimes to justice, the ICC is likely to step in:

Colombia’s inability to bring cases to court was the object of the Spaniard’s criticism. “There is a lack of the political and judicial coordination and resolve necessary to begin trials,” he said. Victims had suffered too much without seeing results, he added.

The judge said that if Colombian authorities are unable to start proceedings “the ICC will have to say something – there will be claims and the court will have to say something.”

Garzon was referring to the Colombian Justice and Peace law, which allows demobilized paramilitaries to receive a reduced sentence if they make a full confession of their crimes. More immediate actions are necessary, he claimed, even if it means resorting to “partial indictments” – a mechanism which allows the suspects to be tried on crimes that come to light as their confession proceeds, rather than waiting for a full admission to be made.

The law came into force in 2005. However, despite the participation of 4,600 demobilized paramilitaries and guerrillas, only two people have been sentenced.

I tend to agree with Garzon’s assessment of the Justice and Peace Law, as do many scholars who know far more about Colombia than I.  (See, for example, this excellent article by Jennifer Easterday at Berkeley.)  To be fair, though, others believe that the ICC does not need to intervene in Colombia, because its threats to do so have encouraged the Colombian judiciary to increase its efforts to combat impunity, an effect known as “positive complementarity.”  Here is the AMICC’s assessment…

I know that will sound like a provocative question, but it’s not meant to be.  According to the Jerusalem Post, Israel justifies its interdiction of the “Freedom Flotilla” by reference to Article 67(a) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, which permits the attack of neutral merchant vessels that “are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture.”  The interdiction thus depends on the legality of the blockade of Gaza — and I am genuinely confused as to why that blockade is legal.  The Jerusalem Post says the Israeli government is arguing that “Israel was in a state of armed conflict with Gaza and therefore entitled by international law to blockade Gaza.”  But that defense ignores a critical question: what kind of armed conflict?

If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza.  (Which is not to say that the manner in which Israel is blockading Gaza is legal.  That’s a different question.)  The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war.  Article 97 of the San Remo Manual does likewise.  And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).

But what justifies a blockade in non-international armed conflict (NIAC)?  The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states.  Does the San Remo Manual justify it?  The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts.  Article 1 speaks of “the parties to an armed conflict at sea,”  which does not seem to include NIAC, unless perhaps a rebel group has a navy.  (Do any?)  Article 2 parallels the Martens Clause in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, which only applies to IAC.  Article 3 acknowledges the right of self-defense under Article 51 of the UN Charter, but — as Marko Milanovic has pointed out — that right is an exception to the prohibition on the use of force in Article 2(4), which only operates between states.  And numerous articles in the Manual refer specifically to “belligerent States” (see, for example, 10, 20, 34).

There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC.   According to the Jerusalem Post, the Israeli government is defending the blockade by citing Yoram Dinstein’s statement that “there are several instances of contemporary (post-UN Charter of the Law of the Seas) practices of blockades, e.g. in the Vietnam and in the Gulf War.”  But those were all blockades in IAC.  I can’t think of any blockades in NIAC other than Israel’s blockade of Gaza — though readers should feel free, of course, to correct me.

The seeming absence of support for blockades in NIAC is obviously important, because it is difficult to argue that Israel is involved in an IAC with Hamas.  First, it is obviously not in a traditional IAC, because Gaza is not a state.  Second, not even Israel claims that the conflict has been internationalized by the involvement of another state.  And third, although the Israeli Supreme Court held — controversially — in the Targeted Killings case that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it not currently occupying Gaza.

Israel’s defense of the blockade thus appears to create a serious dilemma for it.  Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas.  And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza.  Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas.  But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention.  (For a discussion of the difference between the humanitarian obligations imposed by belligerent occupation and by blockades, see Dapo Akande’s post at EJIL: Talk! here.)

There is, however, another possibility: that Israel’s blockade of Gaza is not a “belligerent blockade” at all, but is instead something akin to a “pacific blockade,” defined by the Dictionary of International Law as “a form of coercive measure short of war, whereby a state (or group of states) bars access to the coast of a state or part of it in order to prevent entry and exit of ships of the state under blockade.”  I say “akin to” a pacific blockade, because — as the definition indicates — such blockades assume that the blockaded entity is a state, not a non-state actor.  Even if Israel’s blockade of Gaza would analogically qualify as a pacific blockade, however, it would still be of questionable legality: pacific blockades are only legal with the approval of the Security Council, according to the Dictionary of International Law, and the Security Council has never approved the blockade of Gaza.

It seems to me, in short, that it is difficult to argue Israel has the legal right to blockade Gaza.  But let me be clear — I am not certain that I am correct. I am not an expert regarding the law of blockades.  I am not an expert regarding the law of the sea.  I am not an expert regarding the San Remo Manual.  So I am genuinely open to being convinced that my argument is wrong.

Readers?  Your thoughts?  (And be warned that I will delete nasty or irrelevant comments.  I’m trying to encourage genuine academic debate over the legality of the blockade; I have no interest, at least in this post, in debating the normative or political merits of Israel’s actions.)

UPDATE: As a number of commenters have pointed out, Lincoln’s blockade of the Confederate States of America (CSA) during the Civil War is a relevant historical precedent.  But I think that the Civil War blockade actually supports the argument I’ve made above.  As noted in the Lincoln section of the University of Virginia’s Miller Center of Public Affairs, the international community viewed the blockade as an act of war that required the CSA to be formally recognized as a belligerent, thus effectively transforming what was previously a NIAC into an IAC:

The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law… to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.

L.C. Green, one of the great IHL scholars, agrees with this analysis.  If this is still the state of the law — and I don’t know whether it is — it would be possible to argue that Israel’s conflict with Hamas is an IAC and Israel is thus entitled to blockade Gaza.

But there’s a catch — and a big one.  If the “cost” of the blockade is formally recognizing Hamas as a belligerent, maintaining the blockade would mean recognizing Hamas fighters as privileged combatants.  (Just as the armed forces of any state are privileged combatants.)  That would be fundamentally unacceptable to Israel, because Hamas fighters would then be entitled to attack Israeli combatants and would have to be treated as POWs upon capture.

Yesterday a federal court in New York granted Chevron’s request for discovery of outtakes from the 2009 documentary Crude about the multi-billion dollar litigation in Ecuador. Chevron’s request was pursuant to 28 U.S.C. 1782, which authorizes a judge in the United States to order discovery of evidence to be used in proceedings before a foreign tribunal.

As reported here, Chevron’s lawyer, Randy Mastro, argued that over 600 hours of film that was left on the editing room floor will incriminate the plaintiffs’ lawyers and show collusion between the Ecuadorian judge, the court-appointed expert, the Ecuadorian government and plaintiffs. “We’re trying to show in Ecuador that the expert report is tainted,” Mastro said. “We have the right to show how the process was manipulated by the plaintiffs’ counsel working in concert with the government…. Outtakes are an extraordinary record in which the plaintiffs’ counsel and their clients participated.”

The Court held that an investment arbitration panel is a “foreign tribunal” within the meaning of the statute. “The arbitration here at issue is not pending in an arbitral tribunal established by private parties. It is pending in a tribunal established by an international treaty, the BIT between the United States and Ecuador.” But the court seemed to suggest that even if it was a private arbitration, it could still order discovery under Section 1782. In the wake of the Supreme Court’s 2004 decision of Intel Corp. v. Advanced Micro Devices, the court noted that several circuits have “held that international arbitral bodies under UNCITRAL rules constitute ‘foreign tribunals’ for purposes of Section 1782. This Court agrees.”

Did the ICJ ruling on Uruguay and Argentina help to resolve the dispute? Sort of.  There are some pesky protestors, though, who are not exactly convinced by the ruling.

Both sides said Tuesday’s decision by the International Court of Justice in the Netherlands gave them what they need to resolve their differences, with Argentina taking heart from a part of the ruling that said Uruguay did not properly inform it about the project.

The countries vowed to work through a binational commission to protect the Rio Uruguay.

A key hurdle remains, however, with no indication of how Argentine President Cristina Fernandez will overcome it: Argentine activists are still blocking the main bridge across the river and are refusing to give up their fight.

Meanwhile, having scanned the decision some more, the most interesting part of the decision may be Judges Al-Khasawneh and Simma’s joint dissent decrying the Court’s limited factual investigation and its refusal to develop better ways to examine complex scientific evidence.

This is not surprising, although I doubt they have much a legal basis to resist enforcement.

Ecuadorean officials are rejecting an international arbitration tribunal’s ruling that it violated international law and must pay $700 million to the ChevronCorp.

President Rafael Correa’s administration is analyzing options for appeal under national and international law, Attorney General Diego Garcia said in a statement Wednesday.

“This new effort to compromise the Ecuadorean state in its firm commitment to respect the independence of its judicial system … will not succeed,” Garcia said.

This is just the first round of a potentially huge investor-state arbitration claim filed by Chevron against Ecuador. $700 million now, but up to $27 billion later. (For some background, see here and here about a federal court’s refusal to stay one of the arbitration proceedings.).

Chevron Corp (CVX.N) won a three-year-old arbitration fight against Ecuador over a commercial dispute as it battles the country separately over an environmental claim that may result in $27 billion in damages against the company.

An arbitration panel ruled on Tuesday that Ecuador’s courts violated international law by delaying rulings on commercial disputes between the U.S. oil company and Ecuador’s government, and awarded Chevron $700 million.

The arbitration panel partially resolved seven claims that Texaco, bought by Chevron in 2001, filed in Ecuador from 1991 to 1993, Chevron said. The panel found that the courts had breached a U.S.-Ecuador treaty by not ruling on the cases.

In the long-running battle between Chevron and Ecuador over environmental damage, a federal court in New York has denied Ecuador’s motion to stay arbitration of a Ecuador-U.S. BIT claim. In September 2009, Chevron filed a notice of arbitration alleging, among other things, that “Ecuador has breached … the Ecuador-United States BIT, including its obligation to afford fair and equitable treatment, … an effective means of enforcing rights, non-arbitrary treatment, [and] non-discriminatory treatment.”

In the hearing this week, counsel for plaintiffs in the underlying Ecuadorian litigation described the arbitration as “a collateral attack” on a future Ecuadorian judgment. “There is no demonstration that there’s even any prejudice to Chevron at this point,” said Jonathan Abady. “There’s no judgment that has been rendered.” The Court nonetheless denied Ecuador’s motion to stay the BIT arbitration and allowed the question of due process violations to go forward to arbitration:

The petition contains … specific grounds asserted by Chevron why a judgment rendered against it pursuant to the litigation now pending in the Ecuadorian Court would not be one rendered in accordance with due process…. I am returning only the arbitrability of the due process claim, and I am expressing no opinion with respect to any other claim or with respect to any claim for relief. Those matters are for the arbitrators. There are also significant issues that have been raised concerning the timing of proceedings before the arbitrators, specifically, whether the arbitration can commence prior to the rendering of a decision in the suit now pending, and that is one of the … many issues for the arbitration panel to determine, giving consideration to the interests of the parties in matters of timing, which seems to be a great concern.

My sense is that Chevron is bringing this action not only in an attempt to succeed on the merits of its due process claim, but also to send a signal to the Ecuadorian court that any future action that denies Chevron basic due process will be subject to international scrutiny. The Ecuadorian court now faces the unpleasant prospect of knowing that the Ecuadorian government may be on the hook financially for any improper judgment rendered against Chevron.

I also think it is quite plausible that the BIT arbitration is an opening salvo in future attempts by Chevron to challenge the enforcement of the Ecuadorian judgment in foreign courts. If a BIT arbitration panel concludes that Chevron has been denied due process, this would significantly bolster arguments that the foreign judgment should not be enforced in the United States under the Hilton v. Guyot standard. If the arbitral tribunal concludes that Chevron has been denied due process or fair and equitable treatment in the Ecuador litigation, then it will be difficult to enforce an Ecuadorian judgment in the United States consistent with the Hilton test requiring a showing of “a full and fair trial abroad … under a system of jurisprudence likely to secure an impartial administration of justice … and [that] there is nothing to show either prejudice in the court … or fraud in procuring the judgment.”

It is always unpleasant to get lectured by foreign governments about “violating international law”, but this is something U.S. government officials should be used to.  Still, it must be galling for the new U.S. administration to be lectured by Brazil’s president over U.S. non-compliance with a WTO ruling on cotton subsidies.

The United States must comply with a World Trade Organization ruling on U.S. cotton subsidies to uphold international law and order, President Luiz Inacio Lula da Silva said on Wednesday.

Brazil detailed on Monday a list of 102 U.S. goods that will be subject to import tariffs within 30 days unless both countries can reach an agreement to settle a long-standing dispute over U.S. cotton aid considered illegal by the WTO.

“Brazil is not interested in confrontation. We’re interested in respect for the decisions of the WTO. Either we respect institutions or the world will fall into disarray,” Lula said during the inauguration of a power plant in near Sao Paulo.

The U.S. is ready to make a deal, except that it has very little to deal with. After all, the U.S. Congress (with full knowledge it was violating the WTO ruling), re-authorized the subsidies at dispute here.  So the best the U.S. Trade Rep can do is promise to try to get Congress to change the law.  If I am Brazil’s President, I wouldn’t take that deal.

The transcript for the oral argument in Abbott v. Abbott is out, raising the difficult question of what constitutes a right of custody within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. The treaty grants a parent the right to have a child returned to the child’s country of habitual residence if the child has been removed in violation of that parent’s rights of custody. The case raises the difficult issue of whether the non-custodial parent who has visitation rights has “custody rights” within the meaning of the treaty by virtue of a ne exeat clause prohibiting one parent from removing the child from the country without the other’s consent.

The case arose out of Chile. A British father and American mother had a child in 1995 and together the family moved to Chile in 2002. In 2003 the couple separated and the mother was granted custody and the father visitation rights. In addressing custodial issues, the Chilean court prohibited the child’s removal from Chile by either the father or mother without their mutual consent. The mother fled to Texas and the father filed an action in Texas for return of the child, alleging that his “ne exeat” rights to prevent removal from Chile was a “right of custody” within the meaning of the Convention.

Among the more interesting issues was Scalia’s colloquy regarding comparative interpretation of the treaty provision. In keeping within his views in Olympic Airways, Scalia expressed the view that the Court should interpret the treaty in a manner consistent with the general consensus of all the signatory states, assuming one could divine such a consensus. Here is Scalia’s exchange with Karl Hays, counsel for respondent Jacquelyn Abbott (pp. 43-48):

Justice Scalia: Most courts in countries signatory of the treaty have come out the other way and agree that a ne exeat right is a right of custody, and those courts include U.K., France, Germany, I believe Canada, very few come out the way you—how many come out your way?

Mr. Hays: Actually, Your Honor, the United States and Canada do, and the analysis—

Justice Scalia: Well, wait … You’re writing our opinion for us, are you?

Mr. Hays: … There have only been seven courts of last resort that have heard this issue. There are some 81 countries that belong—

Justice Scalia: Yes, but, still, in all, I mean, they include some biggies, like the House of Lords, right? And … the purpose of a treaty is to have everybody doing the same thing, and … if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in … other countries that are signatories to the treaty.

Mr. Hays: If, in fact, there were a consensus, but … there is not a consensus in this instance….

Justices Breyer and Ginsburg then enter the fray with Justice Scalia and the three start counting countries, whether Canada or Germany or Australia should count on one side of the ledger or the other, depending on whether the language in the case was dicta or whether it was a court of last resort, etc.

Hays then concludes with the comment, “the point that we are making, however, is that, if you have one or two or even three countries that have gone one way and then you have other countries that have gone the other way, that there’s not a clear-cut overwhelming majority of the other jurisdictions that have ruled in favor of establishing ne exeat orders….” To which Scalia responds, “We will have to parse them out, obviously.”

The exchange raises a great question of country-splits in treaty interpretation. Several justices appeared willing to interpret an ambiguous treaty provision consistent with the general consensus of signatory nations. But respondent argues that there is no clear consensus and only a handful of countries out of 81 signatories have even addressed the issue.

So even assuming the Court takes the approach suggested by Justice Scalia in Olympic Airways and looks for signatory consensus, what’s the Court to do when there are few voices from abroad and those voices are not consistent? Is there still a role for comparative interpretive analysis in that context?

[This is a guest post by Professor Greg Gordon of the University of North Dakota.  Professor Gordon is the Director of the UND Center for Human Rights and Genocide Studies, an expert on international criminal law and a past guest blogger at Opinio Juris.]

Earlier this week, Spanish National Court Judge Balthazar Garzon initiated money laundering proceedings against the widow of deceased Chilean dictator Augusto Pinochet, as well as Pinochet’s former lawyer and two of his bankers. In connection with the probe, Garzon has ordered the suspects to post a $77 million bond, indicating the bond is to “cover whatever financial liabilities might arise” in his probe. The four suspects, along with Banco de Chile, have ten days to pay the bond. If they fail to pay, Garzon has threatened to seize from their bank accounts the amount of the bond, plus an extra third – a total of approximately $103 million. The order, which did not reveal where the accounts are held, is meant to extract payment to “cover whatever financial liabilities might arise” in Garzon’s probe.

Judge Garzon’s actions raise a slew of interesting legal questions, both substantive and procedural, as well as policy questions about the appropriate scope of universal jurisdiction. First, and most fundamentally, under what authority is Garzon proceeding?  Second, should money laundering be considered a “serious” violation of international law?