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Weekend Roundup: November 16-22, 2014

by Jessica Dorsey

Over the past week on Opinio Juris, we again enjoyed a lot of different perspectives from our guest bloggers, beginning with Rob Howse, whom Kristen introduced as this week’s featured guest blogger. He highlighted the return of neo-conservativism in Washington, reminded us of Alexandre Kojève’s being a neglected figure in the history of international law and also discussed the breakthrough at recent WTO talks and the trade facilitation agreement this week. He also posted on Liam Murphy’s book What Makes International Law Law?

Additionally, we heard from S. I. Strong announcing that the preliminary results from a recent empirical study on international commercial mediation and conciliation are now available.

Nicolás Carrillo-Santarelli talked about the most recent events in Colombia with the negotiations between the government and FARC rebels being suspended due to the and the kidnapping under IHL, including discussion around the illegality of deprivations of liberty, which sparked quite an intellectual debate in the comments.

A post also came in from Andrea Pin on the Italian Constitutional Court, the International Court of Justice and German war crimes. Duncan French and Jean d’Aspremont co-blogged on the ILC project on the identification of customary international law in summary of the two-day expert level seminar hosted by Lincoln Law School and the Manchester International Law Center.

Roger wrote up his analysis on the Ninth Circuit’s muddled comity analysis in Mujica v. Airscan while Kevin worked out some of his thoughts on the baffling Comoros decision and introduced a new videogame challenging the player to survive as long as possible as a civilian in a war-torn fictional city. Additionally, he introduced and congratulated the newly minted Dr. Mark Kersten.

Finally, I wrapped up the news and listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

Weekly News Wrap: Monday, November 3, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: November 1, 2014

by Jessica Dorsey

Events

  • Junior Scholar Workshop – Law and Human Rights in the Global South: the Role of the State and the Non-State, UBC Law School, June 8-10, 2015. At this point in history it is trite to suggest that the evolving role of non-state actors is transforming the landscape of human rights law. Yet despite repeated calls to incorporate the reality of non-state actor law-making in our accounts of human rights law, scholars are still struggling to incorporate this empirical insight in the emerging literature of law and human rights. How can human rights law be further enriched by a nuanced understanding of the ways in which non-state actors are both protecting human rights and preventing the realization of these rights? And what is the role of the state in protecting human rights in an era where security, immigration control and global trade appear to dominate state political agendas? This Workshop invites submissions on all these themes, including papers addressing the scope, impact and future of human rights as they apply to the corporate world. For full details, including information about application processes, please see the official flier here.

Announcements

  • The International Committee of the Red Cross (ICRC) has recently launched the online version of the casebook, How does law protect in WarThis new online reference platform in IHL features:
    • Regular updates with new case studies on contemporary armed conflicts
    • An comprehensive IHL outline composed of 14 different themes
    • More than 350 case studies covering past and contemporary armed conflicts
    • More than 20 model IHL courses and pedagogical resources for IHL lecturers
    • More than 300 terms and notions referenced in the online index “A to Z”
    • Full online navigation between theory and practice through internal links and search engine
  • The ICRC has also published its IHL Bibliography, 2014-3.
  • The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories. More information can be found here. The deadline for submissions is 9 January 2015.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: October 18-31, 2014

by An Hertogen

This fortnight on Opinio Juris, Jens predicted that the Ebola crisis will become a Chapter VII issue at the UN. The theme of the UN and diseases continued in Kristen’s update on a hearing on the UN’s Privileges and Immunities in the Haiti Cholera case. In other UN news, she summarized some of the issues discussed at a meeting on the Security Council’s methods.

Kevin wrote on the Constitutional Court of South Africa’s decision in the Zimbabwe Torture Docket case, finding that international law did not prohibit universal-jurisdiction investigations in absentia.  Kevin also assessed the likelihood of the ICC’s OTP opening an investigation into Chevron’s activities in Ecuador. For those in need of a refresher on these activities, Peter recommended Paul Barrett’s Law of the Jungle.

Peter looked ahead at the Supreme Court argument in Zivotofsky v. Kerry, and pointed out three factors that in his view point to the Court sustaining the Jerusalem Passport Statute, while Julian wondered what China really means when it celebrates the “International Rule of Law”.

Kevin congratulated Dapo Akande on his promotion to Professor of International Law at Oxford, and recommended a post by Mark Kersten on the terror attacks in Canada.

We ran two guest posts: one by Chimène Keitner on the evolving law of foreign official immunity, and one by William Dodge who raised a question on the Convention on the International Sale of Goods.

Finally, Jessica wrapped up the international law headlines (1, 2), and we listed events and announcements (1, 2). Our readers may also be interested in a Lawfare podcast on al-Bahlul, featuring Kevin, Wells Bennet and Steve Vladeck.

Have a nice weekend!

Three Reasons Why Jerusalem Passport Statute Survives Zivotofsky

by Peter Spiro

Everyone is ramping up for Monday’s Supreme Court argument in Zivotofsky v. Kerry, with notable entries from Jack Goldsmith on Lawfare, Marty Lederman on Just Security, and Eugene Kontorovich on Volokh. They have been debating a narrow doctrinal basis (suggested by the SG and pressed by Jack) for striking down the law as a kind of passport regulation beyond Congress’ power under Article I.

A little more on that below, but in the meantime, here are three atmospheric factors that point to sustaining the statute, none of which will be mentioned in the decision.

1. Passports would say “Israel,” not “Jerusalem, Israel”. Along the way, Zivotofsky modified his demand from the latter to the former. If he wins, his passport will list his place of birth simply as “Israel”. This makes a huge difference in the optics, literally. There are already an estimated 100,000 US passports that list “Israel” as place of birth; upholding the passport measure will only increase the number. None will say “Jerusalem, Israel.”

The visual out on the web of the passport with the Stars and Stripes and other official US Government ornamentation as background on the personal information page would have easily been mistranslated as US Government recognition of Israeli sovereignty. Without the graphic, there’s too much explaining to do — you have to connect the document with a person (and that person’s birth information) to cause the offense. The attenuation should mitigate the risk of damage on the ground.

2. The government lacks the amicus support one has come to expect in a case like this. Where is the brief from former U.S. diplomats? In Medellin, Madeleine Albright et al. argued that the failure to find the VCCR self-executing would do serious damage to US foreign relations. There’s no equivalent in Zivotofsky, in circumstances in which the risk of damage would seem an order of magnitude higher (in the end, US-Mexico relations survived Medellin’s execution, and there have been no reported cases of other countries violating US citizen rights under the VCCR). The silence from other quarters might make the justices feel a little more confident that upholding the statute is not going to spark riots in the Arab world.

The government garnered only three amici in support. Perhaps everyone is scared away from taking a stance that looks anti-Israel. The American-Arab Anti-Discrimination League makes a non-delegation argument (as in, the statute unconstitutionally delegates decisionmaking to private individuals, namely, those who choose “Israel” over “Jerusalem”). The “True Torah Jews” argue that Zivotofsky lacks standing. And one David Boyle makes a grab-bag of arguments, including a Logan Act claim. Can anyone with a bar admission file green briefs these days? On the petitioner’s side, check out Louis Fisher’s anti-Curtiss-Wright diatribe (okay, did the Government have to cite Curtiss-Wright more than a dozen times in its brief?).

3. Why would the Court have taken the case, except to reverse? If the Court were inclined to strike the statute down, letting the D.C. Circuit’s creditable ruling stand would have accomplished that objective in a low-profile, low-cost way.

The doctrinal math for sustaining the statute is straightforward. The Secretary’s action is readily framed as Youngstown category 3 (much more so than the presidential memo in Medellin). From there, it’s a simple matter of finding Congress to have authority over the issuance of passports.

Assuming it doesn’t ignite the Arab Street, the decision won’t be of immediate consequence. Recognition decisions are much less important than they once were, and the probability of serious splits between Congress and the White House slighter still (hence the relative paucity of recent historical precedent for the issue). Ditto for passport authority parameters. This just isn’t something that gets fought over very often. Because the result looks unthreatening in these ways, I don’t see the Court going through Article I gymnastics to carve out this particular aspect of passport issuance from what is otherwise clearly within congressional authority (that is, some general authority over the issuance of passports under the foreign commerce and naturalization clauses). The Article I argument sounds more like a hairsplitty Breyer dissent than a broadly reasoned Roberts majority.

Upholding the statute would fit nicely into the Court’s project of normalizing foreign relations law. Zivotofsky I was a key step in that agenda, playing the Marbury card against the conventionally deployed political question doctrine in this kind of foreign relations dispute. Medellin was another. Upholding the statute would be normalizing. Exclusive presidential powers are exceptional; they seem less amenable to judicial supervision, especially when they are located in an amorphous and historically uncabined foreign relations power.

Update: Eugene Kontorovich notes here that there aren’t any amicus briefs from foreign governments, either. One wouldn’t think that unusual, but (as Eugene points out) such foreign government amicus participation has become pretty routine. (One other case in which foreign governments went missing: last year’s treaty power case, Bond v. United States.) Eugene is right to remind us that we shouldn’t read too much into amicus non-participation. But the silence might make the Court more confident in rebuffing the Government and its argument that enforcing the statute will upsets the apple cart of Middle East peace.

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…

Paul Barrett’s Law of the Jungle (Excellent Account of Chevron Ecuador)

by Peter Spiro

Paul Barrett gave a talk earlier this week at Temple on his Law of the Jungle. It’s a terrific journalistic account of the epic 20-year battle over Chevron’s pollution of Ecuador’s rain forest.

For anyone with a vague awareness of the case the book supplies a highly readable cheat-sheet. I suspect like many with incidental interests in international law, I had some idea that Chevron (Texaco) did some awful things in Ecuador but also that there was something not-quite-right about the plaintiffs’ side of the equation. Barrett’s account fills out the picture on both sides.

The book is a model biography of a case with epic turns. It’s also in many respects the biography of Steven Donziger, the activist lawyer who made this case different from other suits against US multinationals for misdeeds abroad. Barrett paints a pretty persuasive picture of how Donziger’s hubris ultimately did him in. For starters, Donziger had himself shadowed by a documentary filmmaker, the raw footage of which ended up discoverable along with the rest of his paper trail. Material that would ordinarily have remained protected by attorney-client privilege ends up supplying the backbone to Barrett’s narrative.

That gives the book something of an unbalanced feel — the equivalent from Chevron’s side isn’t part of the record ($400 million in fees to Gibson Dunn!), so Chevron’s litigating maneuvers get much less air time here. Conservatives and the business community will be happy with the result (see this favorable review in the Wall Street Journal, for instance). But although Chevron got itself in trouble in various respects along the way (starting with the oil drilling itself, but also including the strategically disastrous push to have the proceedings transferred to an Ecuadorian court which ultimately delivered an $18 billion judgment in the case), its lawyering was clearly of a more conventional description. There are interesting cameos of Ecuadorian politicians and judges, litigation venture capitalists, and other US lawyers who misguidedly jumped on board even after the veneer of celebrities and good press had started to crack. But it’s Donziger that makes this the exceptional case.

And exceptional for the telling. For any cause lawyer, this is a cautionary tale. Sure, one has to play public interest cases from various angles, in and outside the courtroom (including of course the media, with which Donziger proved masterful until things started falling apart). But there are limits, and Donziger clearly exceeded them on various fronts. Though he may yet survive the RICO judgment entered against him in the SDNY (on appeal, on fairly technical grounds unrelated to the underlying facts), he’ll come out of this with a severely tarnished reputation among progressives as well as more natural adversaries.

I’m not sure that the lessons are generalizable much beyond that. The book closes with thoughts on how US class-action lawyers have overreached in other contexts. I don’t know that Chevron Ecuador necessarily points in that direction. US-style litigation could still take hold on a global basis even as it gets a haircut at home. This case shows that transnational disputes have yet to be adequately institutionalized, with much greater potential to get out of hand in various directions. No one really wins on that terrain.

Expanding the UN Ombudsperson’s Mandate & Better Cooperation Between the ICC and Sanctions Regimes

by Kristen Boon

The UN Ombudsperson’s office currently has jurisdiction over the 1267 sanctions regime, but the discrepancy between the due process afforded to individuals affected by that regime as opposed to other regimes has long been noted: individuals listed under the various sanctions regimes applicable to situations in Africa, and the Weapons of Mass Destruction regimes applicable the situations in Iran and North Korea, only have access to a UN focal point to request delisting. The UN focal point, however, has fewer powers and does not operate under the same due process guidelines as the Ombudsperson.

This issue was debated last week in the Security Council during an open meeting on Security Council methods. According to the UN Press who reported on the day long meeting, Kimberly Prost, the UN Ombudsperson, noted that in her experience a fair process was essential to the implementation of sanctions, and it connected with a possible reduction in legal challenges to the application of sanctions at regional and domestic levels.  For analysis of the reasons the UN Ombudsperson herself and certain Member States support extending the Ombudsperson’s mandate, see Maya Lester’s blog here. General background on the Working Methods debate is available here.

At the same session, states also discussed overlap between sanctions regimes and the ICC, and ways to improve cooperation. For background on the main issues, see my blog here.

There is little question that an expansion of the Ombudsperson’s mandate at least to more sanctions regimes, and better cooperation between criminal tribunals and the UN Sanctions regimes will improve the effectiveness of UN sanctions. Moreover, they complement the UN High Level Review of Sanctions which is coming to an end, in which a parallel effort to assess and improve sanctions regimes has taken place.

 

What Does China Mean When It Celebrates the “International Rule of Law”?

by Julian Ku

In observance of United Nations Day on October 24, China’s foreign minister Wang Yi issued a long statement expressing China’s view of itself as a “staunch defender and builder of international law” (Chinese version here). As China-watchers know, China’s Communist Party has just completed its “Fourth Plenum” (sort of a Party leadership strategy meeting) on the theme of the promotion of the rule of law, so it is not surprising that China’s leadership would have something to say about the international rule of law as well.

The statement is pretty predictable (and largely unobjectionable) in its broad pledge for Chinese support to “international law” or the “international rule of law.”  It is hardly pathbreaking.  Still, as I have suggested in earlier posts, China’s government tends to have a slightly different view on what constitutes “international law” as compared to the United States or Europe.  So while much of the statement is pretty anodyne (it is communist-party-speak, after all), there are a few points relating to China’s emphasis on sovereignty and its allergy to human rights that are worth noting:

1) International Law and China’s History of National Humiliation

The statement places China’s commitment to international law in the context of its historical struggles facing foreign oppression in invasion beginning with the Opium War of the 1840s.  This reference to China’s historical weakness in the nineteenth and twentieth centuries is standard nationalist fare in China, but it is interesting that it is linked here to modern international law. As the statement notes, “[s]eeing the contrast between China’s past and present, the Chinese people fully recognize how valuable sovereignty, independence and peace are.”  I think this historical experience is a useful explanation for why there are deep roots to the version of international law presented here.  For China, international law is closely linked to its achievement of independence from foreign powers, and there is no principle more dear to China in international law than “sovereignty” and independence from foreign domination.  Those of us educated in the States have been taught that sovereignty is usually an obstacle to the promotion of international law (Louis Henkin even called it the “S” word), but that concept is still hard to sell in China.

2) Sovereignty 5:  Human Rights 0

Indeed, the statement mentions “sovereignty” five times as a fundamental principle of international law, as referenced in the United Nations Charter. Thus, the statement cites certain universally recognized norms of international law and relations such as

…[A]s respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others, as enshrined in the UN Charter, are the foundation stones upon which modern international law and conduct of international relations are built.

This is right out of Article II of the UN Charter.  But it is hard to imagine a statement by the United States about international law that did not also mention the UN Charter’s commitment to the protection of human rights.  To be sure, human rights protection is not in Article II of the UN Charter’s list of “Principles” but it is odd (at least to an American) to see it ignored so completely here.

3) Just Say No to Responsibility to Protect 

The statement takes direct aim at those countries who are interventionist.

Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs. Some countries follow a pragmatist or a double-standard approach to international law, using whatever that suits their interests and abandoning whatever that does not.

Hmm.. I wonder which country or countries it is referring to here?  This position also reflects longstanding Chinese policy against any kind of military intervention (and most other kinds as well) no matter what the justification.  So don’t count on a Chinese vote for that Syria intervention.

4) Go Democracy (between, but not within, nations)!

The statement also endorses democracy…that is to say, democracy in international lawmaking.  It accuses some countries (the One-Who-Must-Not-Be-Named) of trying to make “rules of certain countries as “international rules”, and their standards “international standards”. I am guessing this is clearly a shot at the U.S. in areas as varied as trade laws, IP, and human rights.

5) Philippines and UNCLOS arbitral tribunal: Don’t You Dare Ruin International Law

Not surprisingly, the statement takes aim at international and national courts.   It declares:

“National and international judicial institutions should avoid overstepping their authority in interpreting and applying international law. Still less should they encroach on the rights and interests of other countries under the pretext of”the rule of law” in total disregard of objectivity and fairness.”

I think this is clearly a warning signal to the UNCLOS arbitral tribunal formed to resolve the Philippines claim against China.  This is another sign there will be no backing down on this arbitration. China is going to continue to loudly proclaim its commitment to rule of law, and continue to reject and maybe even denigrate the legitimacy of this arbitration.

6) International Rule OF Law, not Rule BY Law

Finally, I’ll note that the statement’s use of the phrase “international rule of law” might help clarify a debate among China-watchers as to what China means by the phrase “rule of law.”  As Josh Chin has usefully explained in the Wall Street Journal here, the Chinese phrase “法治“ (fazhi) is often translated as “rule of law” but could also be translated as “rule by law”.  Indeed, there is a traditional Chinese “Legalist” tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government.  Most China-watchers would probably say that “rule by law” is a more accurate translation of what the Chinese Communist Party means when they call for the promotion of the “法治” (fazhi) in domestic reforms, since most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.

No matter what the Party means domestically by 法治 (fazhi), it is clear that its use internationally fits within the Western conception of law as an autonomous force constraining state power and preserving state equality.

In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction.

Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with.  It will be interesting to see if this conception bleeds over into the Party’s push for domestic rule of/by law reform.

 

The ICC, Continuing Crimes, and Lago Agrio

by Kevin Jon Heller

Lawyers for the Lago Agrio plaintiffs have filed a communication with the ICC asking the OTP to investigate Chevron officials for alleged crimes against humanity in connection with the company’s “rainforest Chernobyl” in Ecuador. Ecuador ratified the Rome Statute in 2002.

Regular readers know my sympathies — both ethical and legal — lie squarely with the Lago Agrio plaintiffs. The only thing more unconscionable than Chevron’s destruction of the rainforest in Ecuador is its willingness to lie and manufacture evidence in order to avoid paying for its destruction. In a world with better criminal laws, I have no doubt that the CEO of Chevron and everyone else involved in the company’s misdeeds would be serving long prison sentences somewhere.

But we do not live in a world with better laws, and unfortunately the Lago Agrio plaintiffs’ communication faces a steep uphill battle. To begin with, the communication is not quite sure what Chevron has done that qualifies as a crime against humanity. It oscillates — very confusingly — between failing to pay the damages award in Ecuador (p. 19), attempting to cover up the extent of the pollution in Ecuador (p. 23), engaging in unsavoury litigation practices (p. 25), maintaining the polluted conditions (p. 36), and causing the pollution in the first place (p. 36). Those are, of course, very different arguments.

One thing is clear: the ICC could not prosecute Chevron’s deliberate dumping of more than 18 billion gallons of toxic waste-water into the Lago Agrio region, because that dumping occurred long before 1 July 2002, when the Rome Statue entered into force. That’s too bad, because I think a strong case can be made that intentional pollution of an area occupied by civilians could, in the right circumstances, qualify as a number of crimes against humanity — from forcible transfer to persecution to “other inhumane acts.” As the plaintiffs rightly note (p. 27), an “attack on a civilian population” does not have to involve physical violence.

That said, the communication seems to suggest that the plaintiffs view the contamination as some kind of continuing crime. It claims (p. 40), for example, that the potential crimes against humanity involved in the dumping “continue even today.” The idea seems to be that those crimes will continue until Chevron remediates the pollution — similar to the idea, promoted by various scholars, that Israel’s illegal transfer of its civilians into the West Bank will qualify as a crime against humanity until such time as the settlements are disbanded or that enforced disappearances continue until the responsible government identifies the fate of the victims. It is an open question whether the ICC will even recognise continuing crimes, as the ICTR has. I’m skeptical, given the drafters of the Rome Statute’s quite deliberate decision not to give the ICC retroactive jurisdiction. Few Latin American governments would have ratified the Rome Statute if they knew that their actions during the Dirty War would be open to judicial scrutiny.

But let’s assume the ICC will recognise continuing crimes. Would that mean the Lago Agrio plaintiffs have a case? It’s an interesting question. As noted above, it’s possible that Chevron’s deliberate pollution of the Lago Agrio region qualified as the crime against humanity of forcible transfer; “forcible” doesn’t require physical force and the defendant(s) do not have to intend to drive people fro where they are lawfully entitled to be. (They simply have to be virtually certain that will be the result.) So there is at least an argument that Chevron is responsible for forcible transfer until it cleans up the region to the point where displaced residents can return to their homes. But I can’t see the ICC accepting that argument, if only because of the potential implications — there are probably dozens of situations in member-states in which pollution predictably drove people from their homes and continues to prevent their return. That’s the problem with “continuing crimes”: they simply throw open the courthouse door in a manner the drafters of the Rome Statute were unlikely to have intended.

But that is not the only problem with the communication. Even if the ICC recognised continuing crimes, it is not clear how the current crop of Chevron officials could be held responsible for the (continuing) forcible transfer of people from Lago Agrio. Aiding and abetting would seem to be the most likely mode of participation, given that those officials presumably had nothing to do with the dumping of the waste (which was done by Texaco, which Chevron later acquired). Not paying the judgment and litigation misconduct, though reprehensible, would hardly qualify as aiding and abetting the forcible transfer. (I suppose one could argue paying the plaintiffs would make it easier for them to return home, but I can’t see the ICC convicting someone on such an attenuated basis.) The only real argument would be that Chevron’s current officials are aiding and abetting the continuing forcible transfer by failing to remediate the environmental damage in Lago Agrio. That is not a nonsensical idea, but it seems unlikely to succeed. Art. 25(3)(c) aiding and abetting would almost certainly be off the table, because it would require the Chevron officials to subjectively intend for people in Lago Agrio not to be able to return to their homes. No matter what you think of Chevron — and I obviously think precious little — that would be nearly impossible to prove. More likely is Art. 25(3)(d)’s version of aiding and abetting, contributing to a group crime, which would “only” require the OTP to prove that Chevron officials contributed to the forcible transfer by impeding remediation despite knowing that Chevron intended for the displacement to continue. Again, no matter what you think of Chevron’s remediation efforts (much of which was fraudulent), that’s a stretch. Not impossible, to be sure. But a stretch.

In short, unless the ICC is willing to recognise continuing crimes and adopt a very capacious understanding of aiding and abetting, it is difficult to see the OTP opening an investigation into the Lago Agrio situation. All of the other crimes against humanity identified by the Lago Agrio plaintiffs — murder, persecution, other inhumane acts — clearly took place, if they took place at all, long before 1 July 2002. And the current Chevron officials can hardly be held accountable for them.

Privileges and Immunities Hearing in The Haiti Cholera Case against the UN

by Kristen Boon

An interesting and significant hearing on the UN’s Privileges and Immunities in the Haiti Cholera case took place on Thursday morning, October 23, in the Southern District of New York.   For plaintiffs, the hearing was a milestone because it represented the first time that they have had the opportunity to argue any aspect of their case regarding the cholera epidemic in Haiti in a tribunal.   Hearings on privileges and immunities are rarely granted by domestic courts (judges generally make the determinations on the basis of written submissions of the parties), and so Judge Oetken’s invitation was an unusual and important development.  Plaintiffs were represented by the Institute for Justice and Democracy in Haiti, and the District Attorney responded for the United States, as host state to the UN.   Three amici spoke on behalf of plaintiffs.

In front of a packed court room, lawyers for the plaintiffs in Georges et al v. UN made the case that the UN has breached the Convention on Privileges and Immunities of the UN by not providing an “appropriate mode of settlement” for private law matters as required by Article 29 of the Convention on Privileges and Immunities of the UN (CPIUN).   This argument is developed in the plaintiff’s August 28 sur reply (available here), in which they state that the broad immunities granted to the UN in Article 2 of the convention need to be read in light of the UN’s obligation to make appropriate modes of settlement in Article 29. According to the plaintiffs, the UN’s failure to adhere to Article 29, which in this case would involve the establishment of a mechanism like the Standing Claims Commission envisioned in the model status of forces agreement (SOFA), should result in a lifting of the UN’s immunities.

In response, the US government, who has asserted absolute immunity on the part of the UN, relied on its letter in support of its statement of interest dated July 7 (available here), making the case that the UN’s immunities are absolute under Article 2 of the CPIUN, and that the only exception to Article 2 is an express waiver of immunity, which the UN has not given in this case.  According to the US government, Article 29 cannot be read as a condition precedent to Article 2.

Judge Oetken displayed a high level of knowledge of the applicable international legal framework and precedent in US courts and abroad on the scope of the UN’s immunities.   He appeared to be using the oral argument as an opportunity to test ways to frame the question, and to challenge each of the parties with regards to the scope of applicable precedents.  He both orally acknowledged that he is bound by 2nd circuit precedent, and cases like Brzak, in which the UN’s immunity was found to be absolute, and expressed interest in whether courts elsewhere have faced a similar question or come to a different conclusion with regards to the scope of the UN’s immunities. He was interested in Plaintiffs argument that there is a fundamental bargain between member states behind the CPIUN, which, if breached by the UN’s decision not to provide an appropriate mode of settlement, might be a basis to lift the immunity protections under the CPIUN.  Using terminology from contract law, he asked the US government if the UN were not in material breach of the treaty in this instance, for failure to provide a mechanism to resolve the claim. He also engaged in a close reading of the text of the CPIUN – noting that Article 29 says that the UN shall provide appropriate modes of settlement, not may or might. Moreover, he challenged both parties about venue, asking whether, pursuant to Article 30 of the CPIUN, the ICJ wasn’t the better forum to resolve questions of interpretation, such as the relation between Articles 2 and 29, and why Haiti or the US couldn’t refer such a question to the ICJ.

From my perspective two issues that were not addressed by the parties in oral argument that seem important to the resolution of the case involve the distinction between public and private law disputes, and the status of private parties within the CPIUN.  To recall, the plaintiffs take the position that the claims in this matter are private (sounding in tort, involving a request for compensation for death or injury), whereas the UN’s response to their initial complaint stated that the claim was not receivable because it would involve a review of political and policy matters.  The UN did not provide reasons for this characterization. Given the centrality of the distinction between public and private law definitions under Article 29 with respect to the obligation to provide appropriate modes of settlement, clarity about the definition of public versus private law will be important to this and future such cases against International Organizations like the UN.  Second, the status of the claimants, here private individuals who were never part of the ‘grand bargain’ underlying the CPIUN between UN member states was not explored, yet this seems significant to the question of material breach.

Judge Oetken has reserved judgement, and a decision in this case is not expected before the new year. Two other class actions have been filed in US courts and are currently pending.

For background on this case, please see my prior blogs on Opinio Juris and an October 17 program on CBC Radio entitled “The Current” in which journalists, lawyers, and an independent academic (myself) were interviewed. http://podcast.cbc.ca/mp3/podcasts/current_20141017_93209.mp3

Weekly News Wrap: Monday, October 27, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • A group of asylum seekers in Australia who took the immigration department to court over the exposure of their personal details in a major data breach have won a federal court appeal, and the immigration minister has been ordered to pay their costs.

UN/World