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Trade, Economics and Environment

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.

Guest Post: A CISG Question

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law.]

The U.N. Convention on Contracts for the International Sale of Goods (CISG) sets forth substantive rules of contract law to govern contracts for the sale of goods between parties who have their places of business in different CISG countries. See Art. 1. The United States is one of 83 countries that have joined the CISG. According to figures from the Census Bureau, U.S. trade in goods with CISG countries exceeded $2.4 trillion in 2013, which means a lot of contracts to which the CISG potentially applies. (I have written about the need for American contracts students to have some exposure to the CISG here.) It is possible for contractual parties to exclude application of the CISG (see Art. 6), but they must do so expressly. A choice of law clause stating that the contract is governed by “the laws of California,” for example, would not be sufficient. See, e.g., Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142, 1149-50 (N.D. Cal. 2001).

The CISG entered into force with respect to Brazil on April 1, 2014. But treaties do not become effective as domestic law in Brazil until approved by executive decree, which did not happen until October 16, 2014. See Decree No. 8.327. Trade in goods between the United States and Brazil averages $6 billion a month, so a lot of contracts for the sale of goods between Brazilian companies and U.S. companies were presumably entered between April 1 and October 16.

What law governs those contracts (or more precisely, those that did not effectively exclude application of the CISG)? It may well depend on the forum in which suit is brought. My guess is that a Brazilian court would not apply the CISG to these contracts because it was not effective as a matter of Brazilian law. But I expect that a U.S. court would apply the CISG to these contracts because the treaty was in force between Brazil and the United States as a matter of international law and binding on U.S. courts under the Supremacy Clause of the U.S. Constitution. If the parties have chosen arbitration, the answer should turn on the parties’ (presumed) intent, but that may be hard to fathom in a case like this. In any event, this situation presents a good example of the need for countries to make sure that treaties to which they are bound internationally are properly implemented in their domestic laws.

Guest Post: Recent Reforms for More Orderly Sovereign Debt Restructurings at the IMF

by Yanying Li

[Yanying Li is a Ph.D researcher at Leiden University, the Netherlands, and a visiting research fellow at the University of Cambridge]

Recent reforms for more orderly sovereign debt restructurings have been prompted by the so-called “trial of the century” in sovereign debt restructuring— NML Capital Ltd. v. Republic of Argentina. In short, various court decisions in New York found Argentina in breach of the pari passu clause in its defaulted bonds, and prohibited Argentina from making payments to those creditors who accepted the bond exchange offer unless other creditors who rejected the exchange offer (i.e. holdout creditors), including plaintiffs in this case, were paid the same percentage of the amount due to them. The pari passu clause in question provides that the debtor’s payment obligation under that particular bond series shall rank equally with all other existing and future unsubordinated and unsecured external indebtedness. Given that Julian has already addressed the latest development in this case, my little contribution here will only focus on the issues of legal reform in the context of sovereign debt restructuring.

As discussed in my earlier post, on September 9, 2014, the United Nations General Assembly adopted a resolution entitled “Towards the establishment of a multilateral legal framework for sovereign debt restructuring processes”. The modalities for the intergovernmental negotiations and the adoption of the text of the multilateral legal framework will be discussed at the General Assembly’s 69th session plenary meeting on November 14, 2014. In the meantime, the directors and staff at the International Monetary Fund did not just sit back and relax. As noted in Press Release No.14/459dated October 6, the IMF’s Executive Board approved the staff paper on “Strengthening the Contractual Framework to Address Collective Action Problems in Sovereign Debt Restructuring”. The staff paper suggests a few contractual reforms designed to tackle collective action problems so as to achieve orderly sovereign debt restructurings. These reforms include potential changes to international sovereign bond contracts, namely the pari passu clause and the collective action clause (“CAC”).

(more…)

Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.

 

The Allure of Sovereigntism: U.S. Progressives and Libertarians Unite to Oppose Investor-State Arbitration

by Julian Ku

For decades, investor-state arbitration has enjoyed broad support in the U.S. (among those elites who know and care about such things).  While there has been some backlash against investor-state in developed countries such as Australia arising out of controversial cases brought against it, the U.S. has remained pretty solidly in favor of it.  But there are signs that the opposition to investor-state arbitration has sprouted among U.S. elites more influential than more traditional critics like Ralph Nader and Pat Buchanan.  And, interestingly, voices from both sides of the ideological spectrum are invoking “sovereigntist” arguments to bolster their positions.

First, Harold Meyerson of the Washington Post started the ball rolling with this post calling on center-left and progressives to oppose the inclusion of investor-state dispute settlement (or ISDS) in the proposed Transatlantic Free Trade Agreement.  Predictably, he derides ISDS as pro-corporate giveaways.  But he also rings the sovereigntist bell in favor of  protecting the jurisdiction of domestic courts against extra-jurisdictional tribunals (e.g. international arbitral tribunals).

What is more surprising is that Daniel Ikenson of the influential libertarian (“liberal” for you Europeans out there) thinktank the Cato Institute has joined the fray with a manifesto for why libertarians should also oppose ISDS (at least in trade agreements).  Some of his arguments are tactical (they undermine political support for trade agreements and aren’t all that helpful anyway), but some are also sovereigntist as well.

Though I firmly believe the U.S. economy is racked with superfluous and otherwise unnecessary regulations, I do believe that a successful foreign challenge of U.S. laws, regulations, or actions in a third-party arbitration tribunal (none has occurred, yet) would subvert accountability, democracy, and the rule of law.” 

It is certainly unusual to hear a libertarian analyst decry a legal mechanism that would give businesses a new avenue to challenge unfair laws and regulations.  But the sovereigntist bell is alluring.  Because Ikenson’s position seems to go somewhat against his policy preferences, I find Ikenson’s opposition to ISDS a little more compelling than Meyerson’s.

It is worth noting that some of the same arguments against investor-state can also be raised against other proposed forms of international adjudication (e.g. the International Climate Change Court, the International Anti-Corruption Court, international human rights courts, etc).  Similar arguments, in fact, are being used by the Conservative Party in the UK to withdraw or limit the role of the European Court of Human Rights over UK law.   I wonder whether progressives like Meyerson will be so excited about protecting domestic laws and courts from international oversight in those situations.  I somehow doubt it.

Guest Post: U.N. to negotiate a multilateral legal framework for sovereign debt restructuring

by Yanying Li

[Yanying Li is a Ph.D researcher on a legal framework for State insolvency at Leiden University, the Netherlands.]

Following Julian’s post of Argentina’s attempt to sue the United States in the International Court of Justice, I write to share with you the latest (exciting) development in the world of sovereign debt restructuring!

On September 9, 2014, the United Nations General Assembly adopted a resolution entitled “Towards the establishment of a multilateral legal framework for sovereign debt restructuring processes” (document A/68/L.57/Rev.1), with 124 votes in favour, 11 votes against (including the United States) and 41 abstentions. The draft resolution was prepared by Bolivia on behalf of the Group of 77 and China. The last two paragraphs of the resolution provide as follows:

5. Decides to elaborate and adopt through a process of intergovernmental negotiations, as a matter of priority during its sixty-ninth session, a multilateral legal framework for sovereign debt restructuring processes with a view, inter alia, to increasing the efficiency, stability and predictability of the international financial system and achieving sustained, inclusive and equitable economic growth and sustainable development, in accordance with national circumstances and priorities;

6. Also decides to define the modalities for the intergovernmental negotiations and the adoption of the text of the multilateral legal framework at the main part of its sixty-ninth session, before the end of 2014.

According to the General Assembly’s press release, the U.S. delegate stressed at the meeting “that she could not support a statutory mechanism for sovereign debt restructuring as such a mechanism was likely to create economic uncertainty.”  Moreover, she expressed the view that “[i]n the past, market-oriented approaches had been preferred and work was ongoing in the International Monetary Fund (IMF) and elsewhere.” In response to that, the Minister for Foreign Affairs of Argentina stated that “[s]overeign debt held development back and the establishment of a better system could improve global economic security.” The Minister continued that “[t]he clear majority agreed it was time to establish a legal framework for restructuring that respected creditors while allowing debtors to emerge from debt safely. The profits currently made by vulture funds were scandalous and were funnelled into campaigning and lobbying to prevent changes to the situation.”

Needless to say, this is a big step forward in terms of the development of international law on sovereign debt restructuring. (more…)

Matrix Chambers Is Hiring!

by Kevin Jon Heller

My friends at Matrix Chambers have asked me to post the following job announcement, for established practitioners in international law:

Founded in 2000 to meet the complex challenges of law in the 21st century, Matrix Chambers has 70 members and 7 associate members supported by a dynamic and modern staff team. We have offices in London and Geneva.

Individual members of Matrix Chambers have experience and expertise in a wide range of international law areas including maritime, humanitarian, environmental, boundary disputes, oil and gas disputes, investment treaty disputes, and disputes between States. Members of Chambers attract an increasing amount of private international law work in addition to the public international law cases for which they are renowned for, along with a commitment to developing non-litigation work, including advisory work on Corporate Social Responsibility, investigatory work, and international mediation.

Members act for a full range of clients including individuals, companies, NGO’s, and States. They appear before the major international courts and tribunals, including the International Court of Justice, the International Tribunal for the Law of the Sea, the WTO dispute settlement bodies, and international criminal courts and tribunals, as well as before domestic courts where issues of international law arise. Members also act in ICSID, PCA and other arbitrations. Members are ranked highly in international law in all the major legal directories.

In accordance with its policy of controlled growth, and given the heavy workload of the team, Matrix wishes to recruit additional members to complement the core International Law team. Matrix invites applications from experienced barristers, lawyers, and academics who have an established and exceptional international law practice, either here in England and Wales, or in other jurisdictions.

The successful candidates will need to demonstrate that they are outstanding International Law practitioners with a strong reputation in the international arena, who support the Core Values of Matrix. You can request an application pack by e-mailing recruitment [at] matrixlaw [dot] co [dot] uk or call +44 (0)20 7404 3447.  The deadline for receipt of applications is Friday 12th September 2014.

Any potential applicants who wish to discuss their application may contact Practice Manager Paul Venables (paulvenables [at] matrixlaw [dot] co [dot] uk) or the International Law group coordinator Professor Zachary Douglas (zacharydouglas [at] matrixlaw [dot] co [dot] uk). All applications will be treated in the strictest confidence.

This is an amazing opportunity for the right candidate. Matrix is obviously one of the UK’s best barrister sets, with a particularly strong international-law group — Prof. James Crawford, Philippe Sands QC, Raza Husain QC, Cherie Booth QC, Ben Emmerson QC, Michelle Butler, and many others.

Note that the deadline for applying is coming up soon — a week from today, September 12. You can download the application pack here.

Rolling Stone on Chevron’s Dirty Tricks in the Lago Agrio Case

by Kevin Jon Heller

It’s been a while since I’ve blogged about Chevron’s “Rainforest Chernobyl” — the company’s deliberate dumping of more than 18 billion gallons of toxic waste-water into Ecuador’s Lago Agrio region. But I want to call readers’ attention to a blockbuster new article in Rolling Stone that details the wide variety of dirty tricks Chevron has used to avoid paying the multi-billion-dollar judgment against it in Ecuador. (The plaintiffs filed the suit in the US. Chevron demanded that it be moved to Ecuador, where it expected a friendly government to ensure it would win.) Here is my favorite snippet, discussing the $2 million Chevron paid one of its contractors to create fake laboratories the company could use to “test” Lago Agrio field samples:

We don’t know everything about the soil-and-water testing phase of the trial. But we do have hours of recorded conversations between Santiago Escobar, an Ecuadorean living in Toronto, and a Chevron contractor named Diego Borja.

Borja was already part of the Chevron extended family when the company hired him to transport coolers containing the company’s field samples to supposedly independent labs. His uncle, a 30-year Chevron employee, owned the building housing Chevron’s Ecuadorean legal staff. As he carried out his work, Borja collected more than one kind of dirt. In recorded calls to Escobar in 2009, Borja explained how Chevron’s Miami office helped him set up front companies posing as independent laboratories. (Among his Miami bosses was Reis Veiga, one of the lawyers indicted for corruption in the 1997 Texaco remediation settlement with the Ecuadorean government.)

Borja contacted Escobar because he thought his information might be valuable to the other side. “Crime does pay,” he told Escobar. In the calls, Borja suggests Chevron feared exposure and prosecution under the Foreign Corrupt Practices Act. “If [a U.S.] judge finds out that the company did cooked things, he’ll say, ‘Tomorrow we better close them down,’ you get it?” He boasted of possessing correspondence “that talks about things you can’t even imagine … things that can make the Amazons [plaintiffs] win this just like that.” In awe of Chevron’s power, Borja said the company has “all the tools in the world to go after everyone. Because these guys, once the trial is over, they’ll go after everyone who was saying things about it.” Still, the benefits of working with them were great. “Once you’re a partner of the guys,” he told Escobar, “you’ve got it made. It’s a brass ring this big, brother.”

Borja’s brass ring was ultimately worth over $2 million. Sometime around 2010, he was naturalized at Chevron’s expense and moved into a $6,000-a-month gated community near Chevron’s headquarters in San Ramon, California. Why the company finds his loyalty worth so much is hard to say, because Judge Kaplan blocked further discovery. When asked if Borja is still being paid by the company, Chevron spokesman Morgan Crinklaw said, “Not as far as I know.”

“Kaplan gave Chevron unlimited access to our files,” says Donziger, “but allowed them to maintain a complete iron curtain of privilege over everything related to the misconduct of non-attorneys like Borja and its network of espionage operatives.”

I’m skeptical the Lago Agrio plaintiffs will ever receive the justice they deserve — particularly in a US courtroom. But at least articles like this one help illuminate the lengths to which multinationals like Chevron will go to avoid being held responsible for their actions.

Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

by Julian Ku

The New York Times is running a big report today on the U.S. plan to sign a “sweeping” climate change agreement without having to go to Congress for approval or ratification.  Instead of a typical treaty requiring ratification by the Senate, the U.S. has a different more creative strategy.

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Jack Goldsmith is already out with a typically smart analysis of this approach, and he concludes the new agreement is intended to sound like a big deal, but will be unlikely to commit the U.S. to do anything meaningful.  I think that is probably right, although I can’t really tell based on the incomplete details in this NYT article.  I think there might be a little bit of domestic legal effect, and may also create an important precedent on what the President can do to bind the US on the international level.

Surely, the President can sign a political agreement that pledges voluntary cuts and to channel money to poorer countries. Such an agreement would have no domestic legal effect until Congress acted to implement the legislation.   But can the President bind the U.S. under international law, even if it has no domestic legal effect?

The President can, in limited circumstances, bind the US under international law via a sole executive agreement.  It has done so especially in the areas of post-conflict settlements such as the famous Algiers Accords that released US hostages and also sent seized Iranian and US assets to an international arbitration tribunal.  US courts have given those agreements limited domestic effect.  But the line between what the President can do via a sole executive agreement and what he must do via a treaty is not completely clear (although there is a line!).  Maybe the President is claiming some delegated authority from the original 1992 Framework Convention, which might bolster his ability to bind the U.S. internationally. I don’t see any obvious basis in that treaty for this delegation, but I suppose experts on the Framework Convention might come up with something.

So I think the President might be able to sign the US up to a binding international agreement on climate change, but it would be pretty unprecedented and its legal effect uncertain.  Such an agreement would be unlikely to have domestic legal effect on its own, but the President could cite the agreement as the basis for executive orders he is already implementing on climate change.  I don’t think it would carry the policy much farther than he is already doing under creative interpretations of the Clean Air Act, but it might provide just a little bit more support for his domestic orders.

I think it will be important to look at the details of the proposed agreement, and to ask the US administration to explain its legal authority for the new agreement.  Will it be the 1992 Framework Convention?  Or is it going to be just the President’s general Article II executive power?  If the latter, this may be an important precedent for future sole executive agreements under the US Constitution.  In any event, President Obama is certainly exploring the outer limits of his Article II powers.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

Milestone: The EU Signs Association Agreements with Ukraine, Moldova, and Georgia

by Chris Borgen

On Friday, Ukraine, Moldova, and Georgia signed the Association Agreements with the European Union that have been at the center of so much controversy among Russia, the EU, and these states. Preventing Ukraine, Moldova and Georgia from signing these agreements had become an important foreign policy goal for Moscow (see, for example: 1, 2, 3) after significant pressure, and perhaps some incentives, from Moscow, former Ukrainian President Yanukovich’s decided at the last minute not to sign the agreement at the EU’s summit in Vilnius in November precipitated the demonstrations that began in Kiev. Those were followed by Yanukovich fleeing, Russia’s intervention in and annexation of Crimea, and the ongoing tensions over the future of Ukraine. Moldova and Georgia have also faced threats of economic and/or energy embargoes as well as the ongoing Russia-backed separatist issues in Transnistria, South Ossetia, and Abkhazia.

After the diplomatic disputes and the pipeline politics, the secessionist movements and Russian military incursions, Maidan Square and Crimean annexation, the signing of these treaties are a significant milestone, and hopefully a turning point. Ukraine, Moldova, and Georgia are committing themselves to a path of greater economic and normative integration with the EU. The EU is committing itself to allowing market access to the EU; more generally, the EU will likely become increasingly involved the in the internal policies of these countries, although they are not member states.

What is clear is that this is a significant moment, President Poroshenko of Ukraine called it the most important moment for his country since the dissolution of the Soviet Union. What is not yet clear is how relations with Russia will evolve from this point. Here are some issues to consider… (more…)

Andreas Lowenfeld: A Life Illuminating the Path

by Chris Borgen

lowenfeld

photo: NYU Law School

I am sad to mark the passing of one of the giants of international law, and one of my teachers, Professor Andreas Lowenfeld of NYU Law School. His career was exemplary; Andy operated at the highest levels of practice and academia. In an era when so many scholars and practitioners become hyper-focused on one or two specific areas, Andy not only had incredible depth and precision, but also brought the panoramic view and sweeping vision of an earlier generation of international lawyers. Though perhaps best known for his work in international litigation and arbitration, that description does not capture his career. Consider this excerpt from his New York Times obituary:

Professor Lowenfeld was a towering figure in the fields of public international law, trade and economic law, private international law, and international arbitration. He served on the NYU Law faculty for 47 years, influencing generations of lawyers, and continued to teach International Litigation and Arbitration and International Monetary System among other courses until as recently as Spring 2013. Professor Lowenfeld wrote more than 18 books and authoritative legal treatises and over 115 law review articles and argued before the United States Supreme Court, the Iran-U.S. Claims Tribunal, and the International Court of Justice in the Hague. He made landmark contributions to legal scholarship and practice on issues as varied as extraterritorial jurisdiction, international arbitration, international monetary transactions, trans-border child abduction, international monetary law, investor-state dispute settlement, economic sanctions, enforcement of foreign judgments, aviation law, sovereign immunity, international trade, and civil procedure. His most recent work was a comprehensive treatise on International Economic Law. An avid supporter of the interaction between academics and practitioners, he was frequently an arbitrator in international disputes, public and private. He served as a Reporter on two major projects of the American Law Institute and was a lecturer twice at the Hague Academy, first in 1979 and later in 1994. In the 1994 lectures, he proposed criteria for a global community free of strict legal rules and based instead upon what he termed “reasonableness, not certainty.” One of the hallmarks of his work was his commitment to eliminating what he viewed as an unnecessary divide between public and private international law. In 2007, he was awarded the Manley O. Hudson Medal of the American Society of International Law for his lifelong achievements in the field of international law.

(Read the rest of the obituary here. See also this tribute from 2009.)

And that doesn’t even cover his years in the State Department’s Office of the Legal Adviser during the Kennedy and Johnson Administrations where:

[h]e provided strategic counsel to those presidents during the Cuban Missile Crisis; the Nuclear Test Ban Treaty; the so-called “Chicken War,” in which the U.S. and the European Common Market sparred over poultry tariffs; and the U.S. invasion of the Dominican Republic.

Andy Lowenfeld’s scholarship and his career argued against the “unnecessary divide of public and private international law,” setting the stage (along with Philip Jessup) for the current focus on  complex regulation, transnational law, and dispute resolution. He taught us how public and private international law interact in an interconnected system and, by his example, he showed us how diverse aspects of the international legal profession could be integrated into a coherent career.

I have the great fortune of having been one of Andy’s students. My second year at NYU, I took the general course in international law, which was then team-taught by Andy Lowenfeld and Theodor Meron. Learning international law from “Ted and Andy” as we affectionately referred to them (behind their backs, that is) was everything you would expect from such lawyers: a lively dialogue interweaving law, history, politics, and economics.  I was also Andy’ s student in what was perhaps his signature course, his International Litigation and Arbitration seminar. Here he paired each JD student with a foreign LL.M. to brief and argue an issue in a case, before a bench made up of 3 of our classmates. It was a wonderful bit of experiential learning that has stayed with me and taught me as much about how to be a good teacher as to how to be a good litigator.

In the years since I graduated from law school, Andy Lowenfeld remained generous with his time and wise counsel. I may have become a professor, but he never stopped being my teacher.

But perhaps my favorite memory of Andy was from when I was the Director of Research and Outreach at the ASIL. Andy was a panelist on an international arbitration panel we organized for a Fifth Circuit judicial conference in San Antonio. After the panel, he told me we should go visit the Alamo. So, one hot summer afternoon we toured the Alamo together; I will always remember his enthusiasm in examining the exhibits, especially anything having to do with the deeds, land grants, and international agreements concerning the disposition of territory. He interspersed our conversation about the history of the U.S.-Mexico border with reminiscences from the State Department, career advice, some thoughts on scholarly projects I was considering, and anecdotes from his incredible career. At one point there was a boy, who was maybe seven years old, standing near us and holding a large faux-parchment facsimile of a document, probably recently acquired from the gift shop.  Andy started questioning the boy about the topic of the text on his souvenir, whether or not the reproduction was accurate, and so on. (The boy stared, then shrugged; Andy walked on.) It made me smile watching Andy attempting a Socratic dialogue with a first grader. Even while walking around the Alamo, Andy Lowenfeld was first and foremost an educator and a mentor.

I want to close with a few of Andy’s own words, taken from his magisterial International Economic Law (Oxford, 2d. ed 2008). In the preface, he argues against the skeptics and describes (with perhaps a wink to Louis Henkin) a realistic appreciation of international economic law:

This book is not founded on a claim that all states and all economic enterprises behave at all times according to all the rules, nor that the rules are clear and universally agreed at all levels. But one would not say that there is no criminal law because crimes continue to be committed and are not always punished, or that there is no family law because marriages break up, husbands beat their wives, and children are abused. In fact international conventions, collaborative arrangements, roughly uniform national laws, and customary laws apply to much of the international economy; while there is no global sheriff, and the system of remedies does not reach as far as the system of rules, there are a surprising number of consequences of deviant behavior, and a growing number of fora for resolving disputes among states and between states and private participants in the international economy.

Almost 1,000 pages later, the closing passage puts more than his treatise into perspective: :

It is evident that this book has made more use of narrative and illustration, and less of flat normative statements than might have been expected from a treatise. This approach reflects my belief that the answers cannot be understood without the question, and that abstract statements cannot be comprehended without awareness of the underlying facts and continuing controversies.

This is not to deny the normative character of international economic law. But international economic law—like all law but perhaps more so—is a process. Any attempt to define the law as of a given moment cannot help but distort. The process continues, and the hope is that this book has illuminated the path.

[Emphasis added.]

It has. And so has Andreas Lowenfeld’s life.