Armenian-American groups are up in arms over the U.S. government’s decision to file an amicus brief against a California law allowing claims against insurance companies by “Armenian genocide victims.”  But they shouldn’t be. The law really involves an ongoing constitutional powers debate between the states and the federal government over foreign affairs, and the U.S. government is siding (not surprisingly) with its own powers.  What is more interesting about this case, in the wake of Kiobel, is how human rights groups will increasingly support state autonomy in foreign affairs (to allow human rights lawsuits) and how business and conservative groups will likely oppose it.

The California law had been struck down by a unanimous Ninth Circuit en banc panel on the grounds that it was preempted by federal government policies and constitutional powers over foreign affairs. The law extended a statute of limitations on insurance claims against insurance companies that do business in California for residents or non-residents who are found to be “Armenian genocide victims.”  Both the district court and the initial appellate court panel had found at least some parts of the law could survive a federal preemption challenge (as Roger described here), so the unanimous en banc panel decision was quite surprising.

The Solicitor General’s brief focuses mostly on the “field preemption” theory developed most recently in the U.S. Supreme Court’s decision in American Ins Association v. Garamendi. Field preemption describes a conflict between a state’s actions and the federal government’s “field”, such as foreign affairs.  Conflict preemption focuses on the idea that the federal government has made an express legal determination with which the state law conflicts (e.g. through a statute or treaty, or maybe an “executive foreign policy”). Where the federal government’s policy on the Armenian genocide is a fairly complex muddle, I don’t think there is much of a case for conflict preemption.

Here’s the text of the agreement described in reports in the NY Times and elsewhere today. It’s the most significant institutional response to the massive loss of life (now above a thousand dead) in the April Bangladesh factory collapse.

This may be a signal episode in the continuing evolution of global corporate regulation. Formally styled as the “Accord on Fire and Building Safety in Bangladesh,” the agreement is being executed by trade unions and corporations. It establishes a standing Steering Committee (three seats for unions and corporations each, one for a designee of the International Labour Organization) to police the agreement, which requires companies to undertake the inspection of Bangladesh supplier facilities and remediation as necessary. It also sets up a worker complaint mechanism, with binding arbitration under the New York Convention. NGOs appear to have some participatory standing as “witnesses” to the agreement.

H&M, Tesco, C&A, and Calvin Klein, among others, are on board. There is a midnight May 15 deadline – countdown and latest developments can be found at the UNI Global Union site. There has to be a lot of pressure on the big apparel manufacturers to sign on.

The template: a legal agreement between non-state parties facilitated and nominally hosted by an international organization. No governments involved, at least not as parties to the agreement. If it works, look for more of the same in other contexts. The ILO ‘s profile will surely rise in the face of this episode and the growing global awareness of worker rights issues.

I am delighted to announce that Tim Meyer and I will be co-chairing the 2013 ASIL Research forum.   I hope many of our readers will send in abstracts for this terrific conference.  The deadline for proposals is June 14.  Here is the call:

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting at the New York University School of Law on November 1-3, 2013.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress by Society members. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Interested participants should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication).  Authors may only submit one proposal, although an author may be listed as a non-primary co-author on multiple proposals.  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Member proposals should be submitted by Friday, June 14. Please click HERE to get started.

Proposals should include 1) the name, institutional affiliation, professional position, and contact information for the author(s), and 2) an abstract.  Review of the abstracts will be blind, and therefore abstracts should not include any identifying information about the author.  Abstracts containing identifying information will not be reviewed.   The Research Forum Committee will announce selections by July 25.

The Research Forum Committee will organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers. All authors will be required to submit a draft paper 4 weeks before the Research Forum as a condition for participation.  Failure to submit a draft paper may result in disqualification.   Drafts will be posted on the Research Forum website.

An article in China’s leading state-run paper, the People’s Daily, suggesting that the time may be ripe to reopen the question of Japanese sovereignty over Okinawa has already sparked sharp reactions.  The WSJ’s blog on China picked up the story, as did this Business Insider post, headlined: “China Now Says It May Own Okinawa, Too.” Other even more lurid headlines: “China Demands Japan Cede Sovereignty Over U.S. Military Base Okinawa.” have popped up all over the internet.  As there is a massive U.S. military presence on Okinawa, this issue will likely draw more attention here in the States.  The idea had already been mooted last July, as this article notes. The Chinese foreign ministry has already been asked about this, and failed to clarify matters much, leading to more heated reactions in Japan.

I think all of this might be a bit of an overreaction (perhaps an overreaction that the Chinese actually were hoping for).

The argument about Okinawa was raised as part of the larger argument about the sovereignty over the much disputed Senkaku/Diaoyu Islands in the East China Sea.  Okinawa, also known as the largest of the Ryukyu Islands, was historically treated as a vassal kingdom by both China and Japan.  Its status, like that of the nearby Diaoyu Islands, was never entirely settled during much of the nineteenth century.

The Okinawa discussion was part of the article’s attempt to rebut the Japanese claim that the Diaoyu/Senkaku islands were historically part of the Okinawa/Ryukyu kingdom, and since Okinawa is now part of Japan, the Diaoyu/Senkaku are as well.  The article’s position is that the Diaoyu/Senkakus were always considered part of Taiwan, and hence part of China.

To fully push back on the Okinawa point, the article raises questions about the Japanese claim to Okinawa.  This is not exactly new, since Okinawan independence activists have raised the same arguments. I think Okinawa is today similar to Puerto Rico, and it is largely a self-determination question rather than a historical title question.

But what makes everyone nervous, however, is the idea that Okinawa’s previous status as a vassal state to the Chinese Empire gives China some sovereignty claims to Okinawa as well. This idea is deeply troubling, since at various times Korea, Vietnam, and other states have arguably had that relationship with China.  It has little basis in contemporary international law, as far as I can tell.  So I think this idea needs to be firmly rejected, and I have little doubt that countries like Korea, Vietnam, etc. are going reject it.

But the article is not really focused on establishing the vassal state theory of sovereignty (Now that would be quite an article). Most of the article is about the Diaoyu/Senkakus.  The Okinawa argument is only meant to further weaken Japan’s arguments for sovereignty over the Diaoyu/Senkakus.  If Japanese sovereignty over Okinawa is uncertain or at least less than perfect, than its claim to the Diaoyu/Senkakus is weakened as well.  But the article doesn’t flesh out, nor does it need to, actually establish China’s own claim to Okinawa in order to question Japan’s claim.

I don’t think the Chinese government will be making any moves on Okinawa any time soon. But it is useful for the Chinese to float such ideas, so that they can gracefully back down and “settle” for the Diaoyu/Senkakus one day.  A dangerous game to play, unfortunately, and one that may backfire if it continues to foster anti-Chinese Japanese nationalism.

Former State Department Legal Adviser Harold Koh spoke yesterday at the Oxford Union. His speech, “How to End the Forever War?” (link to .pdf) is a reflection on the Obama Administration’s  foreign policy, in particular in regards to the rule of law.  It is also a talk set to contrast the Obama Administration’s approach to international law and foreign policy from the Bush Administration’s. He opens in this way:

Now that I have returned to the academy, I tend to hear three common misperceptions from friends on both the left and the right: first, that what some call the Global War on Terror has become a perpetual state of affairs; second, that “the Obama approach to that conflict has become just like the Bush approach;” and third, that we have no available strategy to bring this conflict to an end in the near future. Tonight, let me reject all three propositions.

Let me ask what the real question is that faces us, suggest the right approach to addressing it, and outline three elements of an answer. In a nutshell, our question should be: “How to End the Forever War?” Our Approach should be what I would call: “Translate, not Black Hole.” And our three-part answer should be: “(1) Disengage from Afghanistan, (2) Close Guantanamo, and (3) Discipline Drones.”

This speech is a sort of book-end with former Department of Defense General Counsel Jeh Johnson’s recent speech (also at the Oxford Union) that mentioned there will come a time when we transition from looking at this as an armed conflict against an organized enemy to a counter-terrorism effort against individuals. Koh’s speech extends this theme, giving his perspectives on how to get to that tipping point. Well worth the read.

[Jordan Wells is a third-year law student at New York University School of Law.]

The discussion up to this point naturally has centered on the “touch and concern” language of the majority opinion and what that opinion and the concurrences mean for ATS cases involving law of nations violations that occur abroad.  Relatively little analysis has focused on the original questions on which the Supreme Court granted certiorari—namely, whether corporations are immune from suit under the ATS and whether that immunity is an issue of subject matter jurisdiction or an inquiry going to the merits.  Remember, the Second Circuit dismissed the case sua sponte based on these two premises.  In contrast, the D.C., Seventh, Ninth, and Eleventh Circuits have rejected corporate immunity under the ATS.

While many commentators quickly observed that the Court did not explicitly rule on corporate liability, the majority opinion at least tacitly assumes the existence of corporate liability.  As specific evidence of the Court’s recognition of corporate liability, some have pointed to one of the majority opinion’s concluding lines:  “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”  This sentence was quoted with approval in Justice Breyer’s concurrence.  The statement that a corporation’s mere presence does not suffice suggests that the inverse proposition is also likely to be true:  A corporation that is more than merely present in the United States – say, one that is domiciled in the United States or one that authorizes or ratifies a law-of-nations violation – could present a different case.  It would be pointless to draw this distinction unless, under some circumstances, the ATS countenanced corporate liability.

Whatever one’s take on corporate liability following Kiobel, I want to suggest that it probably is not an issue of subject matter jurisdiction (SMJ).  Although the Second Circuit’s dismissal was for lack of SMJ, and although the Supreme Court “affirmed” the judgment of the Second Circuit, it explicitly did so on other grounds. If those other grounds were non-jurisdictional, instead going to the merits, then the Court necessarily found SMJ.  See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83.  The question thus is whether the Supreme Court’s affirmance constituted a dismissal for lack of SMJ, or instead was a dismissal on the merits.

Contextual clues in the Chief Justice’s opinion—in particular, the application of the presumption against extraterritoriality (PAE)—indicate that the Court went beyond the issue of SMJ and reached aspects of the merits.  The Court concluded that “[o]n these facts,” the PAE barred relief in this case.  There are certain limited circumstances in which a federal court may dismiss on the basis of threshold issues before ascertaining its SMJ, see, e.g., Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (dismissal on ground of forum non conveniens), Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) (dismissal on grounds of personal jurisdiction), but the Supreme Court generally has treated the application of the PAE as going to the merits.  See, e.g., Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (“[T]o ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question.”); c.f. Burks v. Lasker, 441 U.S. 471, 476 (1979) (“[W]hether a cause of action exists is not a question of jurisdiction.”).  The Kiobel majority opinion does not depart from this understanding of the presumption’s application. See slip. op. at 5 (citing Morrison for proposition that “question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction”).  The Court therefore appears to have dismissed the case on the merits, not for lack of SMJ.[1]

The fact that the ATS is “strictly jurisdictional” appears not to transform application of the PAE into a jurisdictional inquiry.  Although the Court does not use…

When I was writing my book on citizenship several years ago, I wanted to take on what I thought was a standard trope of American political discourse: “the rights and obligations of citizenship.” Though it hardly seemed like an alien phrase, I had trouble finding good examples of its use by major political leaders.

I won’t have that problem any more.

President Obama is now turning to “citizenship” almost like a drum beat. He played a citizenship theme in his Convention acceptance speech in September, his second inaugural inaugural address in January, and the State of the Union in February. He returned to citizenship in perhaps the biggest way yet in his commencement speech at Ohio State this past Sunday. The speech highlighted all the great things that graduates would go forth and do (work for the Peace Corps, start companies, “otherwise realize your vision”):

There is a word for this. It’s citizenship. And we don’t always talk about this idea much these days — citizenship — let alone celebrate it. Sometimes, we see it as a virtue from another time, a distant past, one that’s slipping from a society that celebrates individual ambition above all else; a society awash in instant technology that empowers us to leverage our skills and talents like never before, but just as easily allows us to retreat from the world  And the result is that we sometimes forget the larger bonds we share as one American family.

With citizenship as the rallying call, he exhorted the graduates to educate more children, build better roads, work to confront climate change, protect kids from gun violence, etc. “[T]hat’s what citizenship is. It’s at the heart of our founding — that as Americans, we are blessed with God-given talents and inalienable rights, but with those rights come responsibilities — to ourselves, and to one another, and to future generations.”

Am I the only one picking up on the theme? Obama makes clear that he intends more than a throwaway use of the term:

I’ve been thinking a lot lately about how we can keep this idea of citizenship in its fullest sense alive at the national level — not just on Election Day, not just in times of tragedy, but all the days in between. And perhaps because I spend a lot of time in Washington, I’m obsessed with this issue because that sense of citizenship is so sorely needed there.

Sounds pretty personal. But I have yet to see even an op-ed piece which lands on citizenship as an emerging focal point for this Adminsitration.

Maybe that’s because he doesn’t have a lot to work with. Certainly not in Washington. But maybe not even with youngsters on college campuses. At least 10% of students at OSU Obama addressed yesterday aren’t citizens at all, or at least not American citizens. His invocation (for example) of “a deep devotion to this country that we love” couldn’t really work for them. The orientation starts to seem a little anachronistic to the extent that an audience consisting solely of Americans alone is an increasingly rare phenomenon. The group is no longer clearly bounded. For that and other reasons, what might in some other time have worked as “The New Citizenship” is unlikely to fly today.

Another extraordinary rendition case has been launched in the European Court of Human Rights (ECHR) that will be relevant to those following Guantanamo detainees:  Abu Zubaydah v Poland involves the CIA’s black sites. The filings are available here.  A press release by Interrights, co-counsel (with Joseph Margulies and the Polish firm Jankowski & Co.) describes the significance of the case as follows:

The case is of interest because the complaint alleges that, through both its acts as well as omissions – including by agreeing to house the secret detention centre, turning a blind eye to normal protections and oversight, and otherwise participating in and facilitating the extraordinary rendition of Abu Zubaydah into and out of Poland – the Polish authorities are responsible for multiple violations of Abu Zubaydah’s rights.

Ted Cruz is running for president, and an election-addled media is training its sights on his nascent candidacy in the absence of many alternatives this early in the cycle.

His birth outside the United States is inevitably raising the eligibility question. Cruz was born in Calgary to a US-citizen mother and a non-citizen father. Under section 301(g) of the Nationality Act, his mother had satisfied the requisite residency period for citizenship to descend by parentage. Ted Cruz was a citizen at birth.

That pretty clears works to satisfy the requirement that the President be a “natural born” citizen. Some argue that “natural born” means born within the territory of the United States – ie, a citizen under the Fourteenth Amendment. But John McCain’s candidacy put that line to rest, since Canal Zone-born McCain had citizenship only by statute (it’s not even clear that he had it at birth, as Jack Chin nicely argued here). Nobody seriously asserted his ineligibility. George Romney’s 1968 run supplies a less well-developed precedent, Romney having been born in Mexico to US-citizen parents.

That doesn’t mean we won’t get some birthers coming out of the woodwork, though they’ll probably be of the left-wing, tongue-in-cheek variety (see 4:30 in this Jon Stewart takedown, for example). Tea Party chickens may come home to roost as their claims of Obama’s ineligibility (including by virtue of his non-citizen father, not just his imaginary birth in Kenya) are turned back against them. But it would be too against-type for Democrats to press the line aggressively vis-a-vis Cruz (who, by the way, probably counts as a Canadian citizen as well as an American one).

That doesn’t mean we won’t get closer cases in the future (say, involving an adopted foreign-born child) or a strong candidate who was naturalized and thus not “natural born” under any possible interpretation. As post-globalization generations mature, better just to get rid of the requirement altogether.

The Permanent Court of Arbitration (PCA) recently released its 2012 annual report, which documents its remarkable institutional transformation. Established in 1899, the PCA is an intergovernmental organization based in the Peace Palace in The Hague.  Although it has a long and interesting history, including housing the Iran – U.S. Claims Tribunal for a number of years, over the last 12 years the PCA has seen its workload and subject matter scope increase exponentially.  As Secretary General of the PCA, Hugo Siblesz, noted in a speech in February:

“As of this moment, the PCA is acting to administer 71 pending cases, including 5 inter-State arbitrations, 48 arbitrations under bilateral or multilateral investment treaties, and 18 arbitrations in contract disputes involving States, State entities, or international organizations. In total, 152 arbitrations have been brought to the PCA in the past 12 years, in comparison with only 34 cases administered in the first one hundred years of the organization. In inter-State arbitration, the PCA has recently seen more activity than at any other point in its history – including the flush of arbitrations brought to the PCA in its early days before the First World War. And in disputes between States and private parties, the PCA has now handled more arbitrations under the UNCITRAL Rules than any other institution, developing in the process a singular experience in the application of those Rules.”

There was an extremely interesting panel on the PCA organized by ASIL in February, focusing on the PCA’s reinvention.  The PCA is an active and multi-faceted institution that acts as a registry and/or appointing authority in a range of international law issues, including public international law disputes, investor-state arbitrations, commercial contract disputes, law of the sea arbitrations under Annex VII of UNCLOS, and energy charter treaty disputes.  It has even administered an arbitration between a State and an armed movement within its territory (namely the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army in 2008 – 9).

One institutional feature of note is that PCA offers a development assistance fund for states that require financial aid for use of PCA’s services.  Member states donate to the fund, and the 2012 report  notes 8 states – 5 from Africa, 2 from Asia and 1 from Latin America have received assistance thus far.  In addition, the PCA has just adopted new procedural rules for disputes involving at least one State, state-controlled entity, or international organization.    An interesting addition here is Article 34(7) which requires states to report on execution of the award, in an attempt to improve compliance.

Amb. Siblesz noted that dispute resolution in international matters is on the upswing generally, which is a trend to note in terms of the field generally.  Nonetheless, one aspect of the PCA’s comparative success in attracting cases appears to be its ability to provide high quality, quick, and confidential services, in a range of international law matters.  Thus in terms of lessons to be learned, generality rather than speciality appears to be aiding the PCA in its competitive bid.  Its general successes are also leading some to speculate whether it could assist the UN on a more permanent basis with regards to mediation and arbitration of international matters.  Thus, for example, might the PCA be used by the UN as a go-to institution for international dispute resolution generally, perhaps supplementing or even replacing in certain cases, the usual system of special envoys and representatives?

It’s the 1949 Geneva Convention on Road Traffic (text at p. 3 of pdf; here’s the UN treaty collection history, signatories, reservations, etc.; here is the Wikisource text of the treaty, which on quick read is accurate) which seeks to promote road safety by establishing uniform rules across borders.  This includes provisions for an international driving permit as well as for cross border recognition of foreign drivers licenses (Florida got itself into problems earlier in 2013 when it issued new regulations requiring foreign drivers, including Canadians, to hold a valid international driving permit; it quickly reversed course). There are later treaties, particularly the 1968 Vienna Convention on Road Traffic, which replaces the 1949 Geneva Convention for contracting states, but it has only 70 ratifications, and the US is not among them, though it is party to the 1949 agreement.

The 1949 Geneva Convention on Road Traffic as well as later agreements on automobiles, licensing, road rules, etc., are probably going to come under greater scrutiny in the next few years on account of the rise of autonomous, self-driving vehicles – the famous Google cars.  As Bryant Walker Smith of Stanford’s Center for Internet and Society notes in a report last November, “Automated Vehicles Are Probably Legal in the United States,” the 1949 convention provides, at Article 8, that every vehicle have a driver who is “at all times … able to control” it.  Smith says in the report that this requirement is likely satisfied if a human is “on the loop” – i.e., able to intervene in the automated vehicle’s operation.  That will likely work as a solution for some period, but the real value of autonomous cars is supposed to eventually be, not when they have a driver ready, alert, and able to take the wheel from the computer, but instead when they are transporting people who can’t or shouldn’t drive: the elderly and infirm, children, and … inebriated undergraduates.

Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides.  I want to raise something external to Kiobel and the ATS as “law” – the distinction between international law and what (in various postings here and there) I’ve referred to as the “law of the hegemon.”

One way of looking at the ATS, including the body of cases built up over the years, is that it is “international law.”  Of course that’s not literally true; it is a domestic statute that refers to international law as the basis of some form of liability; violations of treaties or the law of nations.  But in a broader sense – the sense in which its supporters have long seen it – the ATS offers a domestic law vehicle by which to work out, interpret, express and, perhaps most important, make effective the requirements of international law.

This is surely the sense that, for example, Judge Jack Weinstein had when he opened the ATS hearing in the Agent Orange case ten years ago – this court sits, he said, in some fashion as an international court.  Sitting in the courtroom, it was entirely plain that he both took seriously and took real pleasure in seeing this District Court as sitting in judgment on the same types of crimes as raised at Nuremberg. There are several practical problems for this broader view, of course – how to figure out the relationship between the domestic law piece of the statute and the international law piece, for one.

Another, however, is that if this is supposed to be the working out in some broad sense of “international law” in American courts and using the tools available to American law, how does one keep the link between international law and its sources, processes, standards of interpretation, etc., as they exist in the international arena – and the application of this in an American law setting that has its own sources of authority, standards of interpretation, etc.  It’s fine to say that the ATS is the working out of international law in US courts, but international law is made in the international framework and evolves according to things that are different from and quite alien to the American legal system.  A telling example of the problem is found simply in the status of US court cases interpreting the ATS and, in the process, interpreting features of international law in ways that bear little relationship to how the international community might do it, now or in the future.  Yet in an American domestic law system, those distinctively US cases have greater authority than the international authorities.

One can say that this is precisely the problem of the American court system in dealing with human rights cases; it ought to recognize the international law sources and authorities as such, rather than privileging its own processes.  But this is hard, given that plaintiffs want simultaneously to reach to the special features of the US litigation system to achieve their aims; those special features of the US litigation system include many things, such as civil liability, corporate liability, etc., that don’t obviously exist in the international system.  It isn’t likely that one can pick and choose in the most favorable way – whether one is the plaintiff or the defendant – and if you go with the American system, you take its doctrine of sources, methods of interpretation, and much else besides, even as it applies to international law questions.  But those don’t match up very well with how the “international” actors in international law see those fundamental questions.  The questions are not substantive or procedural in the usual sense – they are, rather, the fundamental doctrines of authority, precedent, methods of interpretation.

A better way of seeing the law of the ATS, it has long seemed to me, is to treat it not as a particular state’s working out of international law in its courts, but rather a quite different category.  It seems to me best understood as the hegemonic power working out the law of the hegemon in ways that are intended to be somewhat parallel to “international law” on these issues.  There is a shared impulse rooted in morality, but what the hegemon does is within the terms of its own legal system.  It depends in large part upon the extent to which the hegemonic power is willing to allow the capital of its power to be exercised roughly to these ends – and the extent to which other important actors are willing to go along as a sort of rough way of getting international law actually enforced. (more…)