In association with the International Commission of Jurists

This Month (Or So) in Chevron

28 Mar

With all of the attention we are devoting on Opinio Juris to Chevron's "rainforest Chernobyl" in Ecuador, it's important not to forget that Chevron's human and environmental destruction extends far beyond Ecuador's borders.  Here are few of its other activities over the past month or so: 1. Five Chevron executives have been forbidden to leave Indonesia because of a remediation project...

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28 Mar

I am not going to respond in depth to Professor Cassel's recent post on Chevron's responsibility for the "rainforest Chernobyl" caused by its predecessor's dumping of million gallons of crude oil and billion gallons of toxic waste into the Ecuadorian rainforest.  The plaintiffs' attorneys have prepared a lengthy and thoroughly footnoted reply to his open letter; interested readers can find...

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27 Mar

[Doug Cassel is Professor of Law at Notre Dame Law School] Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.). I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility. I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter. Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them:
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27 Mar

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law] I summarized in a previous post my arguments that the presumption against extraterritoriality should not apply to the ATS to the extent courts use international law incorporated into U.S. common law as the rule of decision. The presumption was raised explicitly by the brief of the UK and Dutch Governments in Kiobel and will likely be raised again. This post addresses three discrete but related issues that may arise going forward:

1. Whether the ATS’s jurisdictional character alters the application of the presumption against extraterritoriality; 2. Whether “universal civil jurisdiction” is sufficiently recognized under international law—an issue that seemed to get attention at oral argument based on Chevron’s amicus brief; and 3. Choice of law, including as to corporate liability.

I’ll address each issue in turn, though I’ll say at the outset that I will also try to tie them together to open up what might be a new route for corporate liability grounded in an old legal discipline historically included as part of “the law of nations”; namely, private international law. Some of these preliminary thoughts will be elaborated and bolstered by other arguments in an amicus brief Anthony D’Amato and I intend to file in support of neither side.
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27 Mar

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status. Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time. Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime. Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”
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26 Mar

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS....

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26 Mar

[Eugene Kontorovich is Professor of Law at Northwestern School of Law] Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch...

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26 Mar

Lawfare has published a very interesting guest post by Haridimos Thravalos on whether conspiracy is a war crime.  The whole thing is worth a read; here is the intro: In June 2006, the U.S. Supreme Court struck down President George W. Bush’s use of military commissions to try suspected members of al-Qaeda in Hamdan v. Rumsfeld, 548 U.S. 557...

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26 Mar

I returned ten days ago from a week of teaching international humanitarian law in Jericho. It was my first time in the West Bank, and I won't soon forget it. I was particularly struck, not surprisingly, by the limitations on Palestinian life and movement -- the endless checkpoints, the hideous wall, the massive illegal settlements dotting the landscape....

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25 Mar

That’s the title of a new paper in the Stanford Law Review by Columbia Law School’s Matthew Waxman (link is to SSRN).  One highly topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups.  It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy or other Constitutional values – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman’s new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too:  What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring?  (Below the fold, the abstract from SSRN.)
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23 Mar

[James G. Stewart is Assistant Professor of Law at the University of British Columbia] Jens Ohlin, with George Fletcher and in his own right, has been a pioneer in bringing criminal theory to bear on international criminal justice. His earlier work warned us that our dogmatic insistence on ascertaining international criminal law in pre-existing sources of public international law risked undermining the inherently criminal nature of this adjudicative process and the fundamental notions of criminal law that must apply as a consequence. As is the case with the other critics who have written for this blog, my article is counterfactually dependent on his earlier groundbreaking work. I think it appropriate to start by placing Ohlin’s comments in context. His admirable defense of the differentiated model of blame attribution presently in place in international criminal justice does not take into account that arguably the most prominent theorists even within his own jurisdiction, from Michael Moore to Sandy Kadish and Larry Alexander, all view complicity as conceptually superfluous. This does not respond in any way to Ohlin’s comments, but I do think it important to table the growing body of authoritative academic argument against the differentiated model international courts have unquestioningly absorbed. In many respects, my article is an attempt to do just that. On another preliminary note, I fear that Ohlin’s criticisms might miss the real essence of the paper. Most importantly, he does not address the normative substance of “modes of liability” in international criminal justice. Both the title to his response (“Names, Labels, and Roses”), and the content of his remarks under that heading imply that the issue is just one of nomenclature, as if there were no normative significance to convicting someone of genocide for recklessly assisting the crime. But the major argument in my paper is that in its extremities, complicity violates the same standards that commentators have used to criticize the overreach of other “modes of liability” within the discipline, and that consequently, this mode of liability too is sometimes unjustifiably harsh or simply unprincipled.
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