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Guest Post: Argentina v. NML Capital – Does the Foreign Sovereign Immunities Act Mean More Than It Says?

by Michael Ramsey

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project, for which he was compensated.]

The Supreme Court considered on Monday whether a U.S. court can order disclosure of Argentina’s worldwide assets.  Perhaps surprisingly, the answer should be yes.

The underlying facts of Republic of Argentina v. NML Capital are straightforward.  Argentina issued bonds, which were bought by private investors including NML, and then defaulted.  In the bond contracts, Argentina waived its sovereign immunity and consented to jurisdiction in New York.  After the default, NML sued Argentina in New York, as the bond contracts contemplated.

The Foreign Sovereign Immunities Act (FSIA) says that foreign governments can be sued in the U.S. only in circumstances listed in the statute.  One of those circumstances is when the sovereign waives its immunity by contract.  So there’s no question that NML could sue Argentina.

The question, rather, is what NML could do once it won (as it did) and Argentina still refused to pay (as it did).  The FSIA also says that creditors cannot execute on (seize) foreign sovereign assets in the United States to satisfy a judgment unless the assets are being used in a commercial capacity.  NML asked the trial court to order two New York banks that handle Argentina’s finances to disclose what they knew about Argentina’s assets (commercial or otherwise).  Argentina, supported by the U.S. executive branch, claims this violates the “spirit” of the FSIA.

It doesn’t.  The FSIA (Section 1609) specifically protects non-commercial sovereign assets only against “arrest attachment and execution.”  It does not say assets are immune from disclosure.  There’s a good reason it doesn’t: to figure out which assets are used for commercial purposes, and thus subject to execution, first one needs to know what assets exist.  It obviously won’t do to have Argentina – or Argentina’s bankers – make an unreviewable judgment as to which assets are commercial and not disclose the others.  And in other respects, the FSIA (Section 1606) says, a non-immune sovereign shall (subject to exceptions not relevant here) “be liable in the same manner and to the same extent as a private individual under like circumstances.”

Thus, as a number of Justices appeared to recognize at oral argument, the key law isn’t the FSIA but Rule 69 of the Federal Rules of Civil Procedure, which govern ordinary litigation in federal court.  Rule 69 allows a federal court to order discovery in support of execution, which is what the trial judge did here.  The rule doesn’t have any limits on the type of property or the geographic limits – rather, its leaves the matter to the discretion of the court.  In private litigation, courts acting under Rule 69 routinely require disclosure of assets outside the jurisdiction or arguably not subject to execution.

At oral argument, some Justices seemed troubled that Argentina (or other sovereigns) might have to disclose the location of sensitive diplomatic or military assets.  It’s a fair concern, but no reason to make the FSIA say something it clearly does not.  First, district courts are adept at balancing all sorts of competing interests that arise in discovery disputes and in allowing only discovery appropriate under the circumstances; Rule 69 gives them plenty of discretion to do so.  Second, the only disclosures the trial court required here are of financial transactions (and the order isn’t even directed to Argentina, but rather to third-party banks); no one is asking Argentina to disclose the location of, for example, specific military assets.  And third, presumably disclosures could be made confidentially to the court as needed for particular assets.

Moreover, NML claims that Argentina has shown its willingness to abuse institutions like the Bank of International Settlements to shield its assets from creditor judgments.  That’s what NML’s attorney Ted Olson was speaking of when he said at one point during Monday’s proceeding that Argentina could slap an air-force label on a commercial airplane in order to shield that asset.  He wasn’t talking about NML attaching non-executable assets, he was simply pointing out the danger of creating loopholes in the discovery process that would allow Argentina to deny discovery on assets that creditors would be entitled to.

This goes to the heart of why NML has a need for the disclosures.  Argentina has openly refused to pay the judgment against it.  NML is entitled to execute on Argentina’s commercial assets in the United States, and may be able to execute on some non-commercial assets elsewhere (in jurisdictions that lack the U.S.’s commercial limit).  To do so, it needs to know what assets exist, and it cannot rely on Argentina’s self-reporting of which assets are commercial.

Ultimately the rule of law, especially in international transactions, depends on courts holding parties to their promises and providing a way to enforce judgments.  If Argentina didn’t want to be subject to U.S. court enforcement, then it should not have waived its immunity and consented to jurisdiction (but, of course, then it would have had much more difficulty selling its bonds).  Argentina could still avoid unwanted disclosures by doing what it is supposed to do anyway: pay the entirely valid judgment against it.

The rule of law also depends on courts reading statutes to mean what they say, and not more than they say.  Argentina is asking the Court to find an immunity in the FSIA that simply isn’t there.  Argentina’s protection instead comes from Rule 69 – but it’s a protection that rests largely with the lower court, which knows the case better and is better able to balance competing equities on an on-going basis than the Supreme Court.  It may be helpful for the Court to ask district courts to use careful discretion in managing disclosure requests directed at a foreign sovereign under Rule 69. For instance, the Justices could recommend that district court judges ask the sovereign to create a privilege log (or a similar mechanism) for those assets, such as military property, that are extra-sensitive. This would balance the interests of the sovereign and the creditors. But creating a blanket protection against disclosure of assets under the FSIA is contrary to both the statute and the needs of the international rule of law.

The Case That Won’t Die: U.S. Court Revives South Africa Apartheid Alien Tort Statute Lawsuit

by Julian Ku

So maybe the use of the Alien Tort Statute against corporations for overseas activities isn’t fully dead. Yesterday, the U.S. District Court for the Southern District of New York has revived In re South Africa Apartheid Litigation, a twelve-year-old litigation that just won’t die. A copy of the opinion can be found here.

Most of the opinion deals with whether a corporation may be sued under the Alien Tort Statute, an issue most thought was settled within the Second Circuit (the federal appeals circuit that includes New York). As a lower court within that circuit, the district court should have been bound to follow that court’s 2010 opinion Kiobel v. Royal Dutch Shell, which held that corporations cannot be sued under the ATS.  The lower court judge, Shira Scheindlin, decided that since the Supreme Court had ended up dismissing the Kiobel plaintiffs on other grounds (e.g. extraterritoriality), the Court had sub silentio reversed the original Kiobel decision’s ruling on corporate liability.  That is quite a stretch, and appears based almost solely on the Supreme Court’s reference to “mere corporate presence” as being insufficient to overcome the statutory presumption against extraterritoriality.  This language, and the Supreme Court’s decision not to otherwise mention the corporate liability issue, was enough for Judge Scheindlin to revisit the corporate liability issue.  I don’t really buy this sub silentio interpretation of Kiobel, but to give credit where credit is due, this argument was previewed in our Kiobel insta-symposium by Jordan Wells, a third year law student.  Let’s just say Judge Scheindlin really went out of her way to re-open this question.  

My views on the corporate liability issue haven’t changed since I published my full length attack on it back in 2010.  In my view, the Supreme Court’s decision in Mohamad v. Palestinian Authority, finding that the Torture Victim Protection Act does not allow torture claims against corporate defendants, provides an unappreciated boost to the policy rationale for limiting these kinds of lawsuits to natural persons.  But other circuits, and apparently Judge Scheindlin, refuse to agree with me (I know, I know, it’s hard to believe, but it’s true).

Putting aside the corporate liability issue, it is perhaps more surprising that Judge Scheindlin did not simply dismiss all of the defendants on Kiobel extraterritoriality grounds.  The Second Circuit appeals panel in this case held that all of the defendants (U.S. and foreign) should be dismissed because all of the alleged relevant conduct occurred in South Africa.  The U.S. corporate defendants (Ford and IBM) did not overcome the Kiobel presumption because the complaints only allege vicarious liability as parent corporations to their South African subsidiaries.   Yet Judge Scheindlin only dismissed the foreign defendants and will allow the plaintiffs to re-file their complaints against the US defendants to overcome the new Kiobel extraterritoriality presumption.  This means that she is willing to explore in greater detail the Kiobel requirement that plaintiffs’ claims “touch and concern” the territory of the U.S. with sufficient force to displace the presumption against extraterritoriality.  Will knowledge by the US parent of the subsidiaries’ activities in South Africa be enough? Will receiving profits from the subsidiaries be enough? I assume that is the best the plaintiffs will be able to plead is knowledge by the U.S. parent.

I assume this is going back to the appeals panel in this case, and we should expect some rather testy reactions. Judge Jose Cabranes (the author of the appeals court panel decision) and Judge Scheindlin have recently tangled over a local NY case against aggressive police tactics resulting in the controversial removal of Judge Scheindlin from that case (Judge Cabranes was one of three judges involved in that removal order).  This latest Scheindlin order seems a double-insult at Judge Cabranes.  It “reverses” his earlier Kiobel decision on corporate liability (from a lower court no less!), and then it ignores his subsequent opinion holding that all defendants should be dismissed via a motion for judgment on the pleadings.   A little tension brewing at 40 Foley Square, perhaps?

Guest Post: Law Of The Sea Tribunal Implies A Principle Of Reasonableness In UNCLOS Article 73

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law and of Marine and Environmental Affairs at the University of Washington.]

On April 14, 2014, the International Tribunal for the Law of the Sea (ITLOS) issued its ruling in the M/V Virginia G case (Panama/Guinea-Bissau), Case No. 19.  The dispute arose out of  Guinea-Bissau’s 2009 arrest of the Panama-flag coastal tanker M/V Virginia G after it was detected bunkering (i.e., delivering fuel to) several Mauritanian-flag vessels fishing in the Guinea-Bissau exclusive economic zone (EEZ) without having obtained a bunkering permit.  The case presented a number of issues, including whether the 1982 UN Convention on the Law of the Sea (UNCLOS), to which both states are party, grants a coastal state competency to control bunkering activities by foreign vessels in its EEZ.

After disposing of objections raised over jurisdiction and admissibility (notwithstanding the parties’ special agreement transferring the case to ITLOS), the decision adds a substantial gloss to several articles of the UNCLOS, particularly with respect to Article 73 on enforcement of coastal state laws regarding the conservation and management of living resources in the EEZ. Among other things, Panama alleged that Guinea-Bissau violated each of the four operative paragraphs of Article 73 in its boarding, arrest and confiscation of the Virginia G and by seizing and withholding the passports of its crew for more than 4 months. The tribunal’s holding can be summarized as follows:  (more…)

Using Investment Arbitration to Enforce WTO Commitments

by Roger Alford

plainpackagingI would like to continue the theme of the emerging convergence of investment arbitration and international trade. In my previous posts (discussed here and here) I discussed the prospect of using trade remedies to enforce investment arbitration awards. Another key example of convergence addresses the emerging trend of relying on investment arbitration to enforce international trade rights. As discussed in my recent article, despite the assumption that international trade disputes must be resolved before the WTO DSB, the existence of broad umbrella clauses in BITs present a promising vehicle for enforcing investment commitments in trade agreements.

Of course, the scope of umbrella clauses is dependent on the language in particular BITs, which varies widely from one treaty to the next. Accordingly, there is no uniform understanding as to the meaning of umbrella clauses. Narrow umbrella clauses are unlikely vehicles for vindicating international trade rights. A treaty commitment such as that addressed in SGS v. Philippines to observe any obligation a Contracting State “has assumed with regard to specific investments” is unlikely to encompass legislative measures or treaty commitments. By contrast, broad umbrella clauses are better candidates for vindicating trade rights, such as the BIT clause at issue in Noble Ventures, Inc. v. Romania, which committed Romania to “observe any obligation it may have entered into with regard to investments.”

ICSID tribunals have interpreted broad umbrella clauses to give investors treaty rights with respect to unilateral undertakings of the State embodied in municipal law. In CMS Gas Transmission Co. v. Argentina, the tribunal concluded that utility tariffs designed to attract foreign investment were “legal … obligations pertinent to the investment.” In LGE v. Argentina, the tribunal concluded that abrogation of guarantees made to investors in a statutory framework gave rise to liability under the umbrella clause. In Enron v. Argentina, another tribunal concluded that the umbrella clause referred to “any obligations regardless of their nature.” This included not only contractual obligations, but also “obligations assumed through law or regulation” that are “with regard to investments.” In Sempra Energy International v. Argentina, a tribunal found that major legal and regulatory changes introduced by the State as part of its public function constituted treaty violations under the umbrella clause. Finally, in SGS v. Paraguay, a tribunal interpreted a broad umbrella clause as creating “an obligation for the State to constantly guarantee observance of its commitments entered into with respect to investments of investors of the other party. The obligation has no limitations on its face—it apparently applies to all such commitments, whether established by contract or by law, unilaterally or bilaterally.”

Note that these sweeping pronouncements do not require that a State’s commitment reference a specific investment or contract. As long as legislative or executive measures relate to the promotion or regulation of investments, they constitute unilateral undertakings covered by a broad umbrella clause. Such ICSID jurisprudence has led María Cristina Gritón Salias to conclude in this book that “tribunals overwhelmingly accept the application of umbrella clauses to obligations assumed unilaterally by host States,” whether those undertakings are “made through legislation or otherwise.” Likewise, Darius Chan has opined here that “the current tide of jurisprudence concerning umbrella clauses is in favor of such clauses encompassing host State commitments of all kinds.”

Assuming such interpretations are correct—which is by no means clear—this has significant implications for the WTO. If trade obligations are subject to investment arbitration, it would authorize private parties to initiate trade cases. Private rights of action through investment arbitration would supplement the diplomatic espousal of claims before the WTO.

This is precisely what one foreign investor has argued with respect to alleged WTO violations as a result of Australia’s plain-packaging laws. On November 21, 2011, Philip Morris Asia Ltd. filed an investment arbitration claim against Australia pursuant to the Hong Kong-Australia Bilateral Investment Treaty. The central contention of Philip Morris is that Australia’s plain packaging legislation violated various international obligations. Among the claims it filed is one under the broad “umbrella clause” in the BIT, which provides that “[e]ach Contracting Party shall observe any obligation it may have entered into with regard to investments of investors of the other Contracting Party.” According to the Notice of Arbitration:

This [umbrella clause] obligation is broader than specific obligations … made by the host State to investors…. It also encompasses other international obligations binding on the host State that affect the way in which property is treated in Australia…. [T]he relevant obligations are those enshrined in TRIPS, the Paris Convention, and TBT. [Claimant] as an owner of the investments is entitled to expect Australia to comply with its obligations pursuant to those treaties. By adopting and implementing plain packaging legislation, Australia has failed to observe and abide by those obligations.”

In response, Australia argued that:

The meaning and scope of such provisions is a matter of great controversy. However it is clear in the instant case that … the “umbrella clause” in Article 2(2) cannot be understood as encompassing general obligations in multilateral treaties…. Rather … the “umbrella clause” … only covers commitments that a host State has entered into with respect to specific investments…. [T]he obligations under the multilateral treaties … are not “obligations” which have been entered into with regard to investments of investors” of Hong Kong, but are rather obligations that operate on the inter-State level, with their own particular inter-State dispute resolution procedures.

It is too early to assess the likely success of such claims, but if the recent “umbrella clause” jurisprudence is accurate the claims are at least colorable.

This potential convergence of trade and arbitration has profound implications for the resolution of WTO violations. An arbitration panel liberally construing a broad umbrella clause could transform how WTO obligations are adjudicated. Exactly how would the adjudication of WTO obligations through investment arbitration alter the landscape? Here are a few thoughts.

First, umbrella clauses in BITs could create a private right of action for resolving WTO disputes. Investment arbitration circumvents the traditional barriers to initiating a WTO dispute. Diplomatic espousal is no longer a reliable check on the pursuit of unmeritorious claims. Through umbrella clauses foreign investors could seek recourse for violations of investment obligations that form part of WTO disciplines.

Second, with WTO dispute settlement the Member States control all decisions with respect to adjudication and resolution of the dispute. Investors may prefer an alternative dispute settlement process that places such decisions within their control. The incentives to settle an investment dispute depend on satisfying investors concerns rather than satisfying the disputing Member States’ concerns.

Third, with limited exceptions, the WTO prohibits unilateral trade remedies. Article 23 of the DSU provides that Member States “shall not make a determination to the effect that a violation has occurred … except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding.” Investment arbitration is not a unilateral remedy imposed in response to a WTO violation, but neither is it WTO dispute settlement. Investment arbitration may provide a vehicle for compensating or attenuating the harm caused to investors without offending the WTO restrictions on unilateral trade remedies.

Fourth, WTO remedies are prospective, while investment arbitration remedies may be retroactive. The goal of the WTO adjudication is to bring Member States into conformity with their trade obligations. The goal of investment arbitration is, consistent with traditional understandings of state responsibility, to “wipe-out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”

Fifth, under the WTO dispute settlement process, any losses an investor suffers as a result of a Member State’s WTO violation are not compensable. WTO remedies contemplate compensation directly to a Member State or, failing that, the suspension of concessions paid directly to the Member State in the form of increased duties. With investment arbitration, international law violations result in monetary compensation due directly to the investor.

Thus, liberal interpretations of broad umbrella clauses that encompass investment commitments in WTO undertakings may prove to be an attractive avenue for future investment arbitration.

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants – Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

The Not Very Persuasive International Law Arguments in Favor of the Iran Visa Denial

by Julian Ku

I think it is fair to say that when Kevin and I agree on a legal question, there is a good chance there is a lunar eclipse happening or some other rare astronomical phenomenon occurring somewhere.  But since both of us think that the U.S. has no international legal basis to deny a visa to Iran’s new UN ambassador, this “fair and balanced blog” should consider the international law arguments offered in favor of the U.S. decision, especially as Iran has signaled it is going to fight this US decision, maybe by seeking an ICJ advisory opinion or an arbitral tribunal. This NYT article outlines three international law arguments that the U.S. might invoke in descending order of persuasiveness (at least to me):

Precedent and Practice Trump: Larry D. Johnson, who served as the Deputy Legal Counsel to the U.N. in the past, suggests that the U.S. and the U.N. have come to a tacit agreement to avoid disputes on visa denials.  If a visa is denied, the country facing denial must bring this matter up with the U.S.  The U.N. will not do so.  If this past practice is followed by the U.N., it effectively undermines the legal basis for Iran’s challenge.  Absent the Headquarters Agreement with the U.N., the U.S. has no obligation to issue a visa to Iran’s UN envoy, and Iran (not being a party to the Headquarters Agreement) has no international legal basis to protest.

My take: If this is current practice, and there is some evidence for this, the U.S. is really just acting consistent with its nearly sixty year pattern of practice by denying the visa in this case.  This doesn’t exactly legalize (internationally) the US act, but it does help.  

The Iranian Hostage Crisis Trumps: John Bellinger, over at Lawfare, suggests that because Iran’s UN Envoy was involved in one of the most egregious violations of diplomatic immunity rights in the past century, there will be little sympathy from other countries for Iran.

My take: This might be right, but it is not clear to me that the past violations would meet the “security exception”, and it is not even clear that the security exception is a valid international reservation to the Headquarters Agreement.  In any event, this is not really a legal argument, but a judgment on international politics.  If Iran goes to the General Assembly, the merits of this political judgment will be tested.

The UN Charter’s Human Rights Obligations Trumps: University of Houston lawprof Jordan Paust argues that because Iran’s UN Ambassador was involved in what the ICJ called a violation of human rights, the U.S. would be justified denying him a visa in reference to its U.N. Charter obligation to “respect human rights.”

My take: With all due respect to Professor Paust, I don’t think the U.N. Charter can be fairly read to require states to “respect human rights” in violation of their other international obligations.  The language of the Charter in Article I asks states to “promot[] and encourag[]” human rights. It is far from mandatory language.

Moreover, if correct, this is the exception that swallowed the UN Headquarters Agreement.  The U.S. could deny a visa to anyone whom it believes has or is likely to undermine “respect for human rights.” Past practice suggests the U.S. has not interpreted either the Charter or the Headquarters Agreement in this way.

If Iran decides to seek a General Assembly resolution, it will not require the U.S. to change its decision, but it would probably be a good test of John Bellinger’s thesis about where countries’ sympathies lie. My guess is that we are going to see tons of absentions.

If Iran gets the U.N. to demand arbitration under the Headquarters Agreement, this would be more interesting.  The U.S. might have to follow China and Russia’s example by simply refusing to participate in the arbitration. And the U.S. would probably lose that arbitration (although enforcement is another matter).   If I were Iran’s government, that would be a pretty ideal outcome. They still will not get their ambassador, but they can cause some pretty serious soft power damage before they give up.

Disaster Displacement: Gaps in International Norms

by Kristen Boon

There is an interesting interview with Professor Walter Kahlin, former Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, on disaster displacement over at the IPI’s Global Observatory.

He discusses why the current international law regime on refugees is incomplete when it comes to displacement.  He explains:

Back in 2010, Haiti was hit by one of the most devastating earthquakes, and hundreds of thousands who were displaced within the country immediately found refuge in makeshift camps. But many showed up already during the very first night—the first few days after the earthquake—at the border of the neighboring Dominican Republic. The question for the president was: should he open the borders or should he keep them closed? And he couldn’t get any guidance from any kind of international law because these people, even though they didn’t have any opportunity at that time for their wounded family members to access medical assistance (this came only later), they were not protected as refugees or in any other kind of quality by international law. A gap.

The IMO concurs, stating:  “climate refugees fall through the cracks of asylum law.”   This is clearly an area ripe for reflection.    Do climate refugees have a right of access to neighboring countries?   What should the definition of “climate refugee” be?    More importantly, given the problem of differentiating between climate disasters and natural disasters, it makes it very difficult to determine the different obligations of the international community.    There appears to be little appetite to revise the 1951 convention on the status of refugees to include climate refugees, which would afford them protections akin to political refugees.  Interestingly, the UNHCR has spoken out against this approach, claiming that while environmental degradation can contribute to forced, cross-border migration, this should not translate into more grounds for granting refugee status.

There are some interesting initiatives afoot to fill the gap.   The Nansen initiative, a self-described  “bottom-up” initiative is starting to canvas the norms that might apply.   Information is available here.   The ILC is studying the related question of protection of persons in the event of natural disasters here.   Academics have entered the debate.  Professor Katrina Wyman at NYU has canvassed the current models and proposed a “rights model” in an article here, which would boost the levels of migrants from developing to developed countries to begin with.  She writes:

How might immigration policy be changed to increase resilience in developing countries vulnerable to the effects of climate change? One option would be to make it easier for citizens of developing countries that are vulnerable to climate change to move to destination countries temporarily or permanently, for example, by boosting allowable immigration levels from these countries.

Do our readers have any other suggestions on important sources or approaches to this important new international issue?

Weekly News Wrap: Tuesday, April 15, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Middle East and Northern Africa

Europe

Americas

UN/Other

  • Nepal would weaken the foundations of “genuine and lasting” peace after a decade-long civil war if it gave amnesties for serious crimes committed during the conflict, according to Navi Pillay, the UN High Commissioner for Human Rights.

Now in Paperback: The Oxford Guide to Treaties

by Duncan Hollis

Just a quick note to flag for interested readers that Oxford has released a paperback version of my book, The Oxford Guide to Treaties.  Happily, it is significantly cheaper than the hardback version — it’s listed for under $60 on Amazon right now.  I hope that this edition will interest non-institutional buyers for whom the earlier price tag was a bit steep. See here and here for additional links.

Events and Announcements: April 13, 2014

by Jessica Dorsey

Event

  • The British Institute of International and Comparative Law and Cambridge University Press invite you to the International and Comparative Law Quarterly Annual Lecture 2014, to be held at Charles Clore House at 5.30-7.30pm on Tuesday 20th May. Professor Mindy Chen-Wishart of Merton College, Oxford will deliver a lecture entitled: ‘Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding’, followed by a question and answer session. The event is free to attend, but please register here. The lecture will discuss an increasing awareness of the unquestioned assumptions of one’s own legal system as a means of understanding how a transplanted doctrine has been applied in a particular context, with a focus on Singaporean courts ‘borrowing’ undue influence in family guarantee cases from the English legal system. Through exploring hierarchy versus equality, the positional versus the personal, and collectivism versus individualism, it will conclude on whether a ‘Western’ legal transplant can be successful in a very different Singaporean cultural context. The Young Scholar Prize 2013 will also be awarded at the event, to Bharat Malkani, University of Birmingham, for his paper: The Obligation to Refrain from Assisting the Use of the Death Penalty. This Prize is awarded annually to a scholar aged 35 or under at the time of the publication of their article. The welcome address for the event will be given by the General Editor of the ICLQ, Professor Malcolm Evans OBE. The Lecture will be followed by a drinks reception, and is generously sponsored by Cambridge University Press, who publish and distribute the ICLQ.

Announcements

  • The Academy on Human Rights and Humanitarian Law sponsors the Program of Advanced Studies on Human Rights and Humanitarian Law which runs from May 27th to June 13th 2014. The program offers 19 courses taught by more than 43 prominent scholars in the field of human rights in both English and Spanish, with experience in the International Criminal Court (ICC), the International Court of Justice (ICJ), United Nations, Inter-American Commission and Court on Human Rights, recognized international NGOs and think tanks. Last year, the program welcomed more than 165 participants from over 24 countries with differing backgrounds and levels of experience for an intensive three weeks in Washington, D.C. The Program is offered in three categories which include the modality of Certificate of Attendance, ABA Credits for students currently studying in a U.S. law school and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. Additionally during the Program, the Academy hosts Human Rights Month, which features several special events such as panels, a film series, and site visits to international organizations. The May 1st deadline is less than a month away. The organizers encourage you to apply as soon as possible. You can access more information here
  • International scholars and practitioners of transitional justice are invited to apply for a 1-week workshop and training program on transitional justice organized and led by the Hague Institute for Global Justice from 23-27 June 2014 in The Hague. This week-long training is part of the Transitional Justice in Africa Fellowship Program, a joint initiative by the Hague Institute and the Institute for Justice and Reconciliation (IJR) in South Africa, that brings together senior and mid-level expert scholars and practitioners with extensive experience working to advance transitional justice in their community. For more information about the application process and the fellowship program, please visit our website at: Hague 1-week fellowship program.
  • The Grotius Center for International Law at Leiden University has announced several summer schools:

    International Criminal Law (23 June – 4 July 2014, The Hague) From Theory to Practice
    This summer school offers a unique opportunity to gain expertise in international criminal law in the International City of Peace and Justice. The course, which welcomes around 50 participants from all over the world, combines theory with practice: academics from Leiden University and experts from the international courts and tribunals lecture on topics as genocide, crimes against humanity, the crime of aggression and modes of liability, while students develop their skills through a cross-examination session and a challenging moot court exercise. (Law) Students and young professionals are invited to apply. Application deadline: May 1, 2014.

    Columbia Summer Program (June 30 – July 25, Leiden) In American Law
    The Columbia Summer Program is organized by the Law Faculties of Leiden University, the University of Amsterdam and Columbia University in the City of New York. Since 1963 these summer courses are held alternately at the Leiden Law School and at the Amsterdam Law School. The program is entirely taught by Columbia professors, and is designed to provide a general introduction to the American legal system for lawyers and other (legal) professionals, or (graduate) students interested in the program. Besides the excellent educational aspects, the Columbia Summer Program is also known for its exceptional fine atmosphere amongst participants and professors from Columbia University. Take a look at the website and apply before May 1, 2014!

    International Children’s Rights (7 – 11 July 2014, Leiden/The Hague) Frontiers of Children’s Rights
    Frontiers of Children’s Rights provides a comprehensive children’s rights course, which takes a close look at contemporary children’s rights issues from a legal perspective accompanied by reflections from other academic disciplines, legal systems, local perceptions and realities. Leading academic and professional experts in the field of children’s rights, international law and other relevant disciplines offer inspiring and interactive lectures, seminars and excursions in and around the historical university town of Leiden. Professionals and advanced students are welcome to apply. A limited amount of scholarships are available for this course. Application deadline: May 1, 2014.

    Human Rights and Transitional Justice (14 – 18 July 2014, The Hague) Transitional Justice and Regional Responses to Conflict
    Past decades have witnessed new approaches and tensions in the interplay between international justice, regional approaches and local responses to conflict. International Courts and Tribunals have sought to develop policies and mechanisms to engage with domestic constituencies and actors. But practice has also shown weaknesses and constraints of international criminal justice institutions. The ICC has faced challenges in its engagements in regional conflicts and new regional initiatives are emerging. At the same time, regional human rights have had to deal with dilemmas of historical justice and transitions. The Summer School explores these developments, including practice and underlying accountability strategies. Professionals and advanced students are kindly invited to apply before May 1, 2014.

    Women, Peace and Security (9 – 20 June 2014, The Hague) Challenges and Achievements
    In 2000 the UN Security Council adopted Resolution 1325, affirming the important role of women in the prevention and resolution of conflicts and in peace building, and calling on all parties to take special measures to protect women and girls from gender-based violence in situations of armed conflict. The 15th anniversary of Resolution 1325 in 2015 has been set as a marker for the achievements and goals on this core issue of international peace and security. This course, a joint initiative of Oxfam Novib and Leiden University, takes a close look at the WPS agenda and enables the participants to increase their knowledge, skills and networks in this field. Professionals and advanced students with a demonstrated interest in the theme are invited to apply before 1 May 2014.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

Can the U.S. Legally Deny Iran’s New U.N. Ambassador a Visa to New York? Nope.

by Julian Ku

According to Reuters, the U.S. is thinking hard about denying a visa to Iran’s new U.N. Ambassador, thus preventing him from taking up his post in New York. The new ambassador, Hamid Abutalebi, apparently participated in the Iranian takeover of the U.S. embassy in Tehran back in 1979. Although nothing is official yet, it looks like the U.S. is going to invoke its “security exception” to the U.N. Headquarters Agreement to deny Abutalebi a visa.   As in the case involving President Bashir of Sudan, denying a visa to Iran’s ambassador would almost certainly violate the Headquarters Agreement.  Let’s take a look at Section 11:

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations…

Iran’s ambassador is clearly covered by this language. The only U.S. argument flows from the “security” exception attached to the Headquarters Agreement upon its approval by the U.S. Congress.

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States….

As a matter of international law, I do not think the United Nations ever officially accepted this amendment to the original Headquarters Agreement, and certainly it has never accepted the rather broad U.S. interpretation of this provision.  A deal was struck in the past to allow the U.S. to give very limited visas that kept visitors within 15 miles of UN Headquarters.

In any event, the U.N. has battled with the U.S. several times in the past over the use of this clause to deny visas to the PLO, or even to close down PLO observer missions at the U.N.  The U.N. even sought arbitration (as provided by the Headquarters Agreement) as well as an advisory opinion from the ICJ when the US went after the PLO back in the late 1980s.

Does this mean the U.S. cannot deny the visa? I think under domestic U.S. law, there is certainly a plausible basis for denial given Abutalebi’s past connections and U.S. practice in this area.  But the U.N. would be well within its rights to claim a violation of the Headquarters Agreement and to demand an arbitration that it would have a good chance of winning.   I don’t get why the U.S. wants to pick this fight at this time. I’d prefer it hang tough on its demand that Iran eliminate its nuclear weapons program rather than deny a visa over actions taken by a guy 35 years ago.  But it looks like we are going to have this fight, so stay tuned.