As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53Initiation of an investigation1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

…

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position…

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.

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.

And remarkably enough, it has nothing to do with Assange himself. On the contrary:

The top Swedish prosecutor pursuing sexual assault charges against Julian Assange has abruptly left the case and one of Mr Assange’s accusers has sacked her lawyer.

The turmoil in the Swedish Prosecution Authority’s effort to extradite Mr Assange comes as another leading Swedish judge prepares to deliver an unprecedented public lecture in Australia next week on the WikiLeaks publisher’s case.

The Swedish Prosecution Authority want to extradite Mr Assange to have him questioned in Stockholm in relation to sexual assault allegations by two women.

Fairfax Media has obtained Swedish court documents that reveal high-profile Swedish prosecutor Marianne Nye has unexpectedly left the handling Mr Assange’s case, effective from Wednesday, and has been replaced by a more junior prosecutor, Ingrid Isgren. The reasons for the change have not yet been disclosed.

One of Mr Assange’s two accusers, political activist Anna Ardin, also applied to the Swedish courts on February 28 to replace her controversial lawyer Claes Borgstrom. Ms Ardin complained that she found Mr Borgstrom spent much more time talking to the media than to her, referred her inquiries to his secretary or assistant, and that she had lost faith in him as her legal representative.

As well as pursuing the prosecution of Mr Assange, Mr Borgstrom has been heavily criticised for his handling of another high-profile case involving an alleged mass murderer, with one prominent Swedish commentator describing him as doing “the worst defence counsel job in modern Swedish history”.

Ms Ardin’s engagement of a new lawyer, Elisabeth Massi Fritz, has now been approved.

News of changes in the Swedish prosecution of Mr Assange comes shortly before Swedish Supreme Court judge Stefan Lindskog delivers a keynote lecture on “the Assange affair, and freedom of speech, from the Swedish perspective” at the University of Adelaide next Wednesday.

[snip]

Justice Lindskog is chairman of the Supreme Court of Sweden, the country’s highest court of appeal. In announcing his forthcoming lecture, Adelaide University observed that “as one of Sweden’s most eminent jurists, he is uniquely able to provide an authoritative view of the Assange affair”.

In an article in today’s Australian Financial Review the judge observes that he finds it “amusing how the Assange case offers possibilities of sharp turns when it comes to topics to be discussed. From, on the one hand, whether lies about condoms can result in a sexual crime to, on the other, the question of if telling the truth, by publishing classified information, can amount to a crime permitting extradition to the state that claims being harmed.”

Greg Barns, a barrister spokesman for the Australian Lawyers Alliance, said it was a fundamental legal principle that judges do not speak publicly on matters that are likely to come before the courts or are yet to be decided.

“That a Swedish supreme court judge thinks this is acceptable tends to confirm the fears people have about the impartiality and robustness of the Swedish judicial system. It gives great currency to the belief that Mr Assange’s case in Sweden has been heavily politicised.

As I said, chaos. It will be interesting to see what the Swedish judge has to say in Adelaide. If I weren’t currently in the US for the ASIL conference, I would have made the trip to see him speak…

Stewart Baker over at Volokh has a couple of interesting posts here and here on the new cybersecurity legislation that bars federal government purchases of IT equipment “produced, manufactured or assembled” by entities “owned, directed, or subsidized by the People’s Republic of China” unless the head of the purchasing agency consults with the FBI and determines that the purchase is “in the national interest of the United States. Here’s the key language:

Sec. 516. (a) None of the funds appropriated or otherwise made available under this Act may be used by the Departments of Commerce and Justice, the National Aeronautics and Space Administration, or the National Science Foundation to acquire an information technology system unless the head of the entity involved, in consultation with the Federal Bureau of Investigation or other appropriate Federal entity, has made an assessment of any associated risk of cyber-espionage or sabotage associated with the acquisition of such system, including any risk associated with such system being produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China.

(b) None of the funds appropriated or otherwise made available under this Act may be used to acquire an information technology system described in an assessment required by subsection (a) and produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China unless the head of the assessing entity described in subsection (a) determines, and reports that determination to the Committees on Appropriations of the House of Representatives and the Senate, that the acquisition of such system is in the national interest of the United States.

Baker raises the issue of whether such legislation would fall under the security exception in the WTO procurement agreement. Baker expressed concern that “the US Trade Representative’s office had negotiated a strikingly weak security exemption for the WTO procurement code…. The US can make a good case that attacks on the Commerce Department or the Justice Department information systems threaten national security, but it’s hard to argue that the IT systems those departments buy are themselves indispensable for national security.” But he ignores the critical point of the security exception, which is that the provision is self-judging. It doesn’t matter if, objectively speaking, the IT systems are indispensable for security. What matters is whether the United States considers such restrictions to be necessary for its essential security interests.

I have written extensively about the WTO security exception, and the bottom line is that despite numerous security crises that have come before the GATT/WTO–the Marshall Plan, the Falkland War, the Reagan Doctrine, the War in Yugoslavia, the secondary boycott against Cuba, the Arab League Boycott against Israel–there has never been a case actually adjudicating the security exception. The reason is that Member States’s recognize that national security questions are self-judging. Each Member State decides for itself whether action is necessary for its essential security interests.

Article XXI of GATT 1947 and Article XXIII of the Government Procurement Agreement both have such language. Baker focuses on the language in Article XXIII requiring that the procurement be “indispensable for national security or for national defence purposes.” But the operative language is that “[n]othing in this Agreement shall be construed to prevent any Party from taking any action … which it considers necessary for the protection of its essential security interests relating to … procurement indispensable for national security or for national defence purposes.” Unlike the general exceptions, the security exceptions in GATT 1947 and the Procurement Agreement are self-judging, analogous to the political question doctrine in U.S. constitutional law. If the United States makes a determination that Section 516 is necessary for its essential security interests, at least with respect to WTO compliance, that is the end of the matter.

Of course, it may seem counterintuitive that a self-judging exception could be embedded into the WTO agreements, a subject that I discuss in some detail in the article. Wouldn’t such a self-judging exception swallow the rule? For a variety of reasons, the answer is a resounding no. International trade law, viewed by many as the most intrusive branch of international law, has preserved one enclave of complete national sovereignty without undermining the efficacy of the WTO.

It’s always exciting when the media pays attention to expert reports on international law. Unfortunately, the media all too often gets international law wrong — and recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare is no exception. There has been a spate of articles in the past couple of days that breathlessly claim the Tallinn Manual permits the use of lethal force against hackers. The Huffington Post’s article is entitled “Report for NATO Justifies Killing of Hackers in a Cyberwar.” According to the Verge, “Killing Hackers is Justified in Cyber Warfare, Says NATO-Commissioned Report.”  And Silicon Angle claims that “Hacktivists Can Be Killed Under Rules of CyberWarfare.”

Does the Tallinn Manual permit a hacker to be killed? Yes, in extraordinary circumstances. But the articles mentioned above each fail to mention that the Manual imposes very significant limits on the use of lethal force against individuals involved in cyber-warfare — and that all of those limits are based on, and reflect, the traditional rules of international humanitarian law (IHL). There is nothing particularly troubling in the Manual, and I say that as someone who is profoundly sympathetic to hacking collectives like Anonymous. Indeed, properly understood, it almost inconceivable that the Manual would permit a state to use lethal force against Anonymous or a similar collective — no matter how dangerous (in the view of a state) their hacking might be.

To begin with, the Tallinn Manual deserves credit for not conflating the jus ad bellum and the jus in bello…

“Three years ago I could never have dreamed that we would be selling our tomatoes directly to the restaurants in Manila,” said Johnny Rola. Just a few years ago the poor farmers in this mountain village in northern Philippines had little hope. They would grow a few staple crops and sell it at the local farmers market. They were at the whim of the spot market prices set by the local wholesalers at the village below the mountain, and were struggling to survive.

Three years ago they were approached by a local microfinance institution, Gulf Bank in Lingayen, about the possibility of selling their produce directly to the Jollibee restaurant chain in Manila, a major food outlet in the Philippines. The major banks won’t lend to the local farmers who have no credit history, collateral, or crop insurance. But microfinance institutions are now filling the gap. In partnership with the National Livelihood Development Corporation, a Philippine government entity, many farmers today have access to microcredit. For someone like Johnny Rola, this development is a godsend. “I’ve been a farmer for thirty years,” said Rola, “and the past three years have been the best years of my life.”

In 2011 Rola joined with forty other local farmers to establish the Sitio Mapita High Value Crop Growers Association as a farming collective. Gulf Bank now loans Sitio Mapita money to buy seeds and fertilizer, and the farmers sell their produce directly to Jollibee restaurants. At harvest time, the farmers deliver the produce to the restaurant chain at a guaranteed price, and Jollibee repays the Gulf Bank microloan and deposits the profits to Sitio Mapita’s savings account.

Together with Catholic Relief Services, Gulf Bank is training the farmers of Sitio Mapita how to transform themselves from poor farmers to budding entrepreneurs. These indigenous farmers have no electricity and no running water. To communicate with the outside world they walk thirty minutes up the mountain to get cell phone reception. So I was amazed when I arrived at the village meeting hall to find spreadsheets with handwritten monthly commodities prices, balance sheets, revenue projections, and production targets posted on the walls on large brown sheets of paper. These farmers have a business plan and big dreams.

“At sunset we used to go to sleep,” said Margarita Rola. “Now we are planning for the future.” They plan to use their profits to improve their lives in ways we take for granted. They dream of electricity, better irrigation, refrigerated trucks, even a high school for their children, who today must choose between becoming farmers after sixth grade or, for the lucky ones, boarding at a high school in a nearby town.

I’m in the Philippines as part of Notre Dame’s award-winning business school class entitled, Business on the Front Lines. The class has around thirty business, law, and peace studies students who focus for a semester on four specific case studies of social entrepreneurship. After weeks of study, the students travel during spring break to the countries and do field analysis. I’m here with six students, and there are three other teams right now in Nicaragua, Rwanda, and Sierra Leone. You can read about their exploits here. We work with Catholic Relief Services, which is one of the largest relief agencies in the world. The goal is not simply education. We are conducting due diligence to recommend how millions in venture philanthropy can best be utilized.

As we toured the farms, one could feel the pride these farmers felt at what they had accomplished in just three years. Graduate students from the United States were coming to study what these poor farmers were doing to see if their business model might be replicated elsewhere.

The success of farming collectives like Sitio Mapita has garnered attention around the Philippines. Other farmers want in on the action, relishing the idea of microfinance providing a way to reach institutional buyers. Major corporations are taking notice too. Next month Sitio Mapita will contract with Rocky Mountain Coffee to begin growing coffee for sale throughout the Philippines. Coffee has a four-year growing cycle and the start-up costs are large by their standards, so it is a major development in their lives.

The proudest moment of Johnny Rola’s life was when he went to Manila last year and spoke to an audience of one hundred bankers, farmers, and politicians. “I even shook hands with a senator,” he beamed. When I asked him if he went to a Jollibee restaurant in Manila to try one of the hamburgers with his tomatoes in it, he said with a big grin, “Yes! It was quite good.”

I have been remiss in not pointing interested readers to Anna Gelpern’s terrific posts on the ongoing NML v. Argentina sovereign debt litigation that is going on here in New York.   I want to highlight in particular her incredibly useful and interesting account of the scene last week when the U.S. Court of Appeals for the Second Circuit heard arguments challenging a lower federal court’s order that Argentina has an obligation to pay its holdout creditors at the same time it pays its restructured creditors via a “pari passu” clause in its sovereign debt contracts.  The bottom line: Gelpern seems to predict the US court will order Argentina to pay its holdout creditors, but probably not the full amount they are seeking.  And she doubts Argentina will pay up anyway.

Indeed, from an international law perspective, this last point is the most fascinating part of the argument. The lawyer for Argentina made clear to the court that Argentina would not comply with the court’s order to pay the holdouts. Period. Here is Gelpern’s description:

Big Bonus Feature: Sovereign Prerogative. One of the bigger bombshells of the day came from Argentina in the form of the statement that it would default on everyone unless the Court adopted something like its payment formula. The fact that the statement was made with the Vice President and the Economy Minister sitting in the room made it feel like an even bigger deal. Jonathan Blackman’s contention was that sovereigns do not and cannot — and Argentina will not —  ”voluntarily obey” foreign judgments against their own domestic law and public policy. Argentina’s submission to U.S. jurisdiction was made subject to the understanding that under FSIA, some judgments could go unenforced, and them’s the ropes. Since NML was effectively (though not technically) trying to enforce a judgment, it was out of luck. Blackman’s hypothetical of an Iranian court order against the U.S. government seemed like a high-risk move under the circumstances. The threat of default prompted Ted Olson for NML to say that Argentina promised this extreme course ”to force this Court to back down … The Court cannot give into that!” ….

It is (to say the least) extraordinary when a party to a dispute makes the argument that it will simply not comply with an order of the court that has jurisdiction over it.  As a matter of litigation strategy, it is simply bad tactics since it usually enrages the judges.

From an international law perspective, it should be clear that Argentina’s action, although defensible, is not in any way justified by international law, although it is not prohibited by international law either.  What strikes me about the statement is that it is really quite “sovereigntist” and based on a realist, hard-nosed approach to international law and contracts.

As I discussed in an earlier post, Argentina has waived almost all of its sovereign immunity defenses when it issued the bonds, and agreed to New York law:

To the extent the Republic [of Argentina] or any of its revenues, assets or properties shall be entitled … to any immunity from suit, … from attachment prior to judgment, … from execution of a judgment or from any other legal or judicial process or remedy, … the Republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction…

So Argentina agreed to give up its immunity defenses under international law and submit to the US courts.

If I understand Argentina, it is now saying to the US court: You try to enforce this order on us, and we walk away. We won’t pay anyone, including the other restructured creditors. Your only remedy is to try to attach our non-commercial assets, which you can’t do under US law. Ironically, if US law permitted such attachments, Argentina’s waiver would plainly subject it to such attachments.

I think this strategy could work for Argentina, although they deserve plenty of additional reputational damage for this move.  They sold bonds in the US, waived their international law defenses, and raised billions of dollars.  Arguably, they also agreed by contract to pay all creditors via its pari passu clause.

Now they are taking advantage of a quirk in US law to escape their obligations.  They are even playing the “sovereignty” card, by pointing to their own domestic law as a basis for their refusal to pay.  And respect for their sovereignty is probably why they get away with this move, as slimy as it seems to do so in this case.  Maybe that’s the right result, but I wouldn’t want to celebrate it in any way.

My previous posts (see here for the most recent) have explained why Judge Kozinski’s opinion in the Sea Shepherd case wrongly considers a political end to be a private end. In this post I want to highlight what is ironic — though not technically incorrect — about Judge Kozinski’s conclusion that Sea Shepherd committed an act of piracy on “the high seas.” That is an essential element of piracy; UNCLOS art. 101, for example, defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed… on the high seas, against another ship.” The high seas, in turn, are defined by art. 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an  archipelagic State.”

The Japanese whaling that Sea Shepherd resisted took place near Antarctica in the Australian Whale Sanctuary (AWS), which was established by John Howard’s conservative Australian government in 1999. Here is a map of the AWS:

Did Sea Shepherd’s acts take place on the “high seas”? Not according to Australia and a number of other states. Australia has long claimed sovereignty over what it calls the Australian Antarctic Territory (AAT), the white part of Antarctica on the map, and it has also consistently claimed sovereignty over the waters adjacent to the AAT, the blue section of the map that stretches around the AAT. Those waters, which are part of Australia’s Exclusive Economic Zone (EEZ), include the AWS. A good history of Australia’s claim can be found in this law-review article by David Leary; here is the Australian government’s own statement about the AWS…

Eugene Kontorovich has responded at Volokh Conspiracy to my previous post about politically-motivated acts of violence on the high seas. I invite interested readers to examine for themselves the various documents Eugene and I discuss; in this final post I simply want to correct a fundamental error on Eugene’s part concerning the Harvard Draft Convention on Piracy — an error that goes to the very heart of our debate. Both of our arguments depend on the Draft Convention and its commentary, because — as Eugene points out — the ILC Commentary to the Law of the Sea Treaty specifically notes that the Commission “in general” agreed with the Draft Convention. The proper interpretation of the Draft Convention, therefore, is of critical importance to the proper interpretation of the Law of the Sea Treaty.

Here is what Eugene says about whether “private ends” include acts of violence on the high seas that are politically motivated:

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.

Eugene’s claim about Articles 3 and 16 (his reference to Article 14 must be a typo) is extremely misleading. It is true that the language on which I rely does not come from Article 3, which defines piracy under international law — the kind of piracy to which universal jurisdiction applies under Article 2 of the Draft Convention, and the kind of piracy that is governed by the substantive provisions in Articles 3-15 of the Draft Convention. But I quote the commentary to Article 16 instead of to Article 3 for a very specific reason: because Article 16 deals with acts that do not qualify as acts of piracy under international law and are thus excluded from universal jurisdiction and the substantive provisions of the Draft Convention.  Here is the text of Article 16 (emphasis mine)…