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Dear World Media: The U.S. is NOT Challenging China’s Territorial Claims in the South China Sea (Yet)

by Julian Ku

I have been following closely the U.S. Navy’s plans to use military ships and aircraft to challenge China’s aggressive land reclamation activities in the South China Sea, and China’s not very positive reaction to these plans.  But although there is a real dispute brewing here that could escalate into a sovereignty fight, I think media reports are making this dispute more serious than it actually is.

Contrary to some media reports, the U.S. Navy plans do NOT intend to challenge China’s “sovereignty” claims in the South China Sea. Instead, the U.S. Navy is asserting its rights to freedom of navigation under international law. If we understand the U.S. Navy plans in this context, it may help us defuse (at least somewhat) the growing tensions between the U.S. and China in this region, if only the media would help us out with better reporting.

From CNN, here is an example of how media reporting is making this dispute seem worse than it is.

Above the South China Sea (CNN)The Chinese navy issued warnings eight times as a U.S. surveillance plane on Wednesday swooped over islands that Beijing is using to extend its zone of influence.

The series of man-made islands and the massive Chinese military build-up on them have alarmed the Pentagon, which is carrying out the surveillance flights in order to make clear the U.S. does not recognize China’s territorial claims.

(Emphasis added). This report feeds into the (accurate) narrative about growing tensions between the US and Chinese navies.  In this story, the US Navy is flying “over” the Chinese islands in order to challenge or reject China’s territorial claims.  But later in that same report, CNN says that U.S. Navy is considering “flying such surveillance missions even closer over the islands, as well as sailing U.S. warships within miles of them, as part of the new, more robust U.S. military posture in the area.” (emphasis added).

Here’s the problem.  If the U.S. Navy aircraft featured in the CNN video (a military surveillance plane and “sub hunter”) actually flew “over” the Chinese artificial islands, then why would they consider flying even closer “over” the islands and what would be the significance of sending naval ships?

In fact, the US Navy has tried to make it clear to reporters that they are merely conducting freedom of navigation operations and “that U.S. military aircraft do not fly directly over areas claimed by China in the Spratly Islands.” (in the washington post).  It’s my guess that the Navy hasn’t even flown within 12 nautical miles of the artificial islands.

Why? Because as far as I can tell, this is a standard US Navy “freedom of navigation” operation that it uses to assert international law rights of navigation against numerous countries around the world.  It is NOT, as the CNN and other reports suggest, a challenge to China’s territorial claims.

Freedom of Navigation” operations involve sending US Navy warships into both the 200 nautical mile Exclusive Economic Zone and the 12 nautical mile territorial seas recognized under the UN Convention on the Law of the Sea.  In the view of  the U.S., military warships and aircraft are free to conduct surveillance operations (e.g. spying) in any country’s 200 nm EEZ and surface warships (but not military aircraft or submarines) have the right to “innocent passage” through a country’s 12 nautical mile territorial waters.

The U.S. Navy has been conducting  “freedom of navigation” operations for decades to enforce these views of international law, and it even has a “Freedom of Navigation” website making public where it has been operating. The point of these operations it to publicly challenge a country which is making (in the U.S. view) unjustified legal rights under UNCLOS.  China has a longstanding disagreement with this U.S. interpretation of UNCLOS. So they always make protests, and China has sometimes sent its fighter jets out to harass or challenge US spy aircraft.

But the bottom line: pace CNN, freedom of navigation operations are not challenges to “territorial claims” or “sovereignty.” The US Navy operations assume that the other nation has “sovereignty” over the relevant coastline or island.  So the US Navy operations near China’s artificial islands can assume that China has sovereignty but still demand China allow US military aircraft and ships  transit rights etc. under UNCLOS.

It is worth noting that the U.S. could escalate the dispute with China.  The U.S. might take the view that China is building artificial islands on top  of reefs or submerged features which do not entitle China to any legal rights at all (See UNCLOS, Art.60(8): “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”).  If so, then the US would fly within 12 nm miles or even directly “over” the artificial islands. Such operations would effectively be a direct challenge  to a China’s territorial claims, because the U.S. would be taking the view that China has no territorial basis at all for claims in the South China Sea.

“Challenging legal rights under UNCLOS” doesn’t make for very sexy headlines or get many clicks as compared to “challenging China’s territorial claims”. But it is worth parsing media reports about US Navy activities in the South China Sea very carefully, and it would be nice of those well-sourced reporters would clarify just how close the US Navy is going to fly/sail to China’s reclaimed islands.

Maybe the U.S. government should directly challenge China’s territorial claims and sovereignty claims.  I am not sure in my own mind whether the U.S. should take that next step.   But for now, the U.S. hasn’t challenged China’s territorial claims yet, and I wish reporters would stop making it seem like it is doing so.

Favorite Treaty Reservation, Ever!

by Julian Ku

The NYTimes has a piece today on how Idaho’s refusal to implement the Hague Child Support Treaty is causing problems for the U.S. and for Idaho as a whole.  I hope to have more to say about this treaty later. For now, in looking at the treaty, I wanted to point readers to one of the more amusing U.S. treaty reservations I’ve ever run across.  In giving its advice and consent, the U.S. Senate made two reservations, one of which follows:

(2) In accordance with Articles 44 and 62 of the Convention, the United States of America makes a reservation that it objects to the use of the French language in communications between the Central Authority of any other Contracting State and the Central Authority of the United States of America.

The treaty actually allows a country to “object” to the use of either French or English and there is no doubt a serious purpose for allowing this kind of objection.  But there is something great about an official objection “to the use of the French language”.  Indeed, I am glad to see that the U.S. was not the only country to object to French for communications under this treaty.  It is joined by the Czech Republic, the Republic of Estonia, the Hellenic Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, Hungary, the Kingdom of the Netherlands, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland in this objection.

As a long-suffering student of the language, I’ve often wanted to “object” to the use of French. I am glad the U.S. Senate (and all those other countries in Europe) share my Francais-phobia.

Guest Post: The Status of the Territory Unchanged: Russia’s Treaties with Abkhazia and South Ossetia, Georgia

by Natia Kalandarishvili-Mueller

[Natia Kalandarishvili-Mueller is a Lecturer in Humanitarian Law at Tbilisi State University, Institute of International Law, Faculty of Law, and a PhD Candidate at the University of Essex, School of Law. The views expressed in the post are that of the author only.]

Russia still occupies twenty percent of Georgian territory. On 24 November 2014, the Russian Federation and Abkhazia, one of Georgia’s breakaway region, signed a Treaty on Alliance and Strategic Partnership. The document is an avenue for Abkhazia’s incorporation into Russia’s military, economic, social and legal space. Particularly, it aims to create a common security and defence system and armed forces of Russia and Abkhazia in the form of joint defence and border protection forces and unifies standards of warfare management and law enforcement. Moscow also envisages the breakaway region’s support with military equipment. The provisions provide for the harmonization of the breakaway region’s legislation not only with that of Russia, but also with the standards of the Eurasian Economic Union. Russia also guarantees helping Abkhazia not only with its international recognition, but also facilitating Abkhazia’s membership in international organizations. On 18 March 2015, Russia and the other one of Georgia’s breakaway regions, South Ossetia, also signed a Treaty on Alliance and Integration (and here) containing basically the same provisions.

The Government of Georgia regards both these treaties as Russian annexation of Georgian territories (here and here). Georgia’s view is not without grounds. As a whole, the aforementioned documents also undermine the right to return and the right to self-determination of ethnic Georgians and their descendants who have been forced to flee their homes during the 1990s and 2008 armed conflicts. At present, the issue of the ethnic cleansing of Georgians is dealt with by the ICC, but only in the context of the 2008 armed conflict. The ICC Prosecutor’s Office Report on Preliminary Examination Activities (December 2014) observed that

[…] there is a reasonable basis to believe that South Ossetian forces carried out a widespread and systematic attack against the ethnic Georgian civilian population in South Ossetia and adjacent areas in the context of the armed conflict in the period from August 2008 through October 2008 that amounted to the crime against humanity of forcible transfer of ethnic Georgians under article 7(1)(d). There is a reasonable basis to believe that these forces also committed war crimes of pillaging under 8(2)(b)(xvi) and/or article 8(2)(e)(v) and destroying civilian property belonging to ethnic Georgians under article 8(2)(a)(iv) and/or article 8(2)(e)(xii) in the same period. (para. 140)

Hence, from the perspective of international law, the signed treaties raise complex issues such as the legality of the use of force, state formation, the management of natural resources, and the validity of these very treaties in light of the VCLT of 1969, occupation law, territorial annexation and the legality of self-determination of these territories. This post chooses to focus on the last three aspects, namely the interplay of the principles of annexation and self-determination in light of occupation law. Two questions may, therefore, be posed in light of the signed treaties:

  1. According to International Humanitarian Law (IHL), what is the relationship between occupation law and annexation of territory?
  2. What is the relevant legal framework for self-determination in international law and how may it be connected with occupation law?

 

Occupation Law and the Annexation of Territory

In light of the first question, I argue that even when an instance of annexation of territory takes place, the situation of occupation continues from the perspective of IHL, and the responsibility of the occupying power vis-à-vis the civilian population persists. Hence, no matter what type of treaty is forged or which agreements are achieved by Russia and the breakaway regions of Georgia, Abkhazia and South Ossetia will still remain occupied in light of Article 42 HR 1907. This stance echoes the reading of Article 47 of the GC IV, which states that:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

Likewise, the commentary to Article 47 regards the relationship between situations of occupation and those of annexation in the following way:

[…] an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.

Dinstein, too, considers that an occupant cannot take the title, i.e. the possession of the territory it occupies. The displaced sovereign, therefore, remains to be holding the title de jure and the annexation of the occupied territory by the occupant is prohibited (Y. Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, 2009, p. 49). Thus “any unilateral annexation of an occupied territory – in whole or in part – by the Occupying Power would be legally stillborn” (ibid. p. 50). Therefore, IHL does not fall mute, as it bases its application on the facts on the ground. The fact that Russia continues to exert effective control over Abkhazia and South Ossetia in light of Article 42 HR 1907 cannot be swept under the carpet. Even if Russia considers signing these treaties to be valid because it has herself recognised Abkhazia and South Ossetia as sovereign states, in light of the separability of ius ad bellum and ius in bello, for IHL the situation remains unchanged:

This complete separation between ius ad bellum and ius in bello implies that IHL applies whenever there is de facto armed conflict, however that conflict can be qualified under ius ad bellum, and that no ius ad bellum arguments may be used in interpreting IHL. (M. Sassòli, A.A Bouvier, et al., How Does Law Protect In War? ICRC, Vol. I, 2006, p. 103)

 

Occupation Law and Self-Determination

In light of the second question, I argue that a situation of occupation may end with self-determination. However, resorting to self-determination may only be justified once the effective control of the occupant over the territory is completely relinquished and the process of self-determination is free from any third-party interference, particularly by the former occupant. Furthermore, self-determination, if exercised contrary to the international law principles of state sovereignty and territorial inviolability, undermines these very principles. In 1970, the Secretary General of the UN stated that:

… as far as the question of secession of a particular section of a Member State is concerned, the United Nations attitude is unequivocable. As an international organisation, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of a Member State. (U. Thant, “Secretary General’s Press Conferences” (1970) 7:2 UN Monthly Chronicle 34 at 36)

There are two forms of self-determination: external and internal (A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, p. 5). Internal self-determination means that an entity establishes its self-government within the internationally recognized borders of a state (C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, London School of Economics and Political Science, PhD thesis, 2009, p. 90). In practice, internal self-determination can take various forms, from simple cultural autonomy to the canton system in Switzerland (C. Dominicé, The Secession of the Canton of Jura in Switzerland, in Secession: International Law Perspectives, in M. G. Kohen (ed.), Cambridge University, 2006, pp. 453–469).

External self-determination, on the other hand, means that an entity determines its status under international law, establishes its position among the international community and regulates its relation with other states free from the intervention of any state (supra, C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, p. 90). Direct recourse to external self-determination (i.e., secession) could undermine not only the principles of sovereignty and territorial integrity, as mentioned above, but render the whole concept of self-determination unjust. As such, this right has been linked to the colonial period and was aimed to free the people from the oppressing regimes. In its decision, the Supreme Court of Canada makes this point explicit:

International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people […]. (Reference RE Secession of Quebec Supreme Court of Canada (1998) 2. S.C.R. 217 §112)

Further, the Canadian Supreme Court views external self-determination as a step of last resort in particular situations:

The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. (ibid., § 126)

It has to be mentioned that the circumstances which would pronounce the conditions for external self-determination in international law lack clarity. This is also evidenced by the stance the ICJ took in the advisory opinion on Accordance of International Law of the Unilateral Declaration of Independence in Respect of Kosovo, when it only dealt with the issue of whether or not Kosovo’s unilateral declaration of independence was in accordance with international law (§ 49-56 and § 82-83). Based on arguments of those in favor of external self-determination, Borgen summarized one possible way such a rule could be formulated:

“Any attempt to claim legal secession “that is, where secession trumps territorial integrity” must at least show that:

  1. 1. the secessionists are a “people” (in the ethnographic sense);

  2. 2. the state from which they are seceding seriously violates their human rights; and

  3. 3. there are no other effective remedies under either domestic law or international law” (C.J. Borgen, Kosovo’s Declaration for Independence: Self-Determination, Secession and Recognition, ASIL Insights, Issue 2, Volume 12, February 29, 2008 available here)

In the context of de-colonisation, the concept of self-determination meant that colonies were allowed to “secede” and form a state on their own. But when it comes to “communities that are not colonies and within existing states, self-determination means ‘internal self-determination’, the pursuit of minority rights within the existing state” (C.J. Borgen, States and International Law: The Problems of Self-determination, Secession, and Recognition in B. Cali (ed.), International Law for International Relations, Oxford, 2009, p. 207).

Therefore, before directly leaping to claims of secession, internal self-determination has to be exercised. In this context, the demographic situation of the territory must not be changed and all those who lived there and who were forcibly transferred away from it have to have a say in the future of its status. At least this is what permeates the logic of international law. This would respectively apply to the Georgians and their descendants who were evicted from Abkhazia and South Ossetia and who were the victims of ethnic cleansing, both during the 1990s armed conflicts and the 2008 war.

Examining self-determination and occupation law in tandem points to the fact that it has to be viewed in light of the element of consent, i.e. who gives consent of the presence of the hostile state on the territory. The lack of consent to be present on one’s territory during military occupation means the previous power/sovereign is absent from the territory and does not exercise effective control over it as any state ought to over its own territory. So that consent is regarded valid, it must not be coerced and be extended by the recognised government of the recognised state (E. Benvenisti, The International Law of Occupation, Oxford University Press, 2012, p. 67).

When an occupant claims not to have effective control over the territory, but remains on the territory either by an alleged invitation of the de facto regime or by a drawn-up treaty, not only the legality of the regime has to be questioned, but also the validity of the treaty has to be examined in light of the VCLT.

In my view, these are the points that bring to the forefront the tension between occupation law and the principle of self-determination. Any recourse to the right of self-determination of a territory should be done only once a situation of occupation has completely ended and even then it should only be exercised without third-party intervention in addition to restoring the original demographic situation. During military occupation, when elections or the determination of the political future of the occupied territory are underway without the genuine consent of the ousted government, the situation on the ground continues to be one of occupation.

[This post has been slightly revised from the previous version that was posted.]

Weekly News Wrap: Monday, April 20, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • Poland has summoned the United States’ ambassador in Warsaw over an article written by a top U.S. intelligence official on Poland’s alleged responsibility for the Holocaust during World War Two, a foreign ministry spokesman said on Sunday.
  • After months of positive progress, the two and a half-year-old peace process in Colombia between the government and rebel group the Revolutionary Armed Forces of Colombia (FARC) is in crisis once again.

Oceania

UN/World

Events and Announcements: April 19, 2015

by Jessica Dorsey

Calls for Papers

  • Call for papers for ‘The Latin American Challenge to the Current System of Investor-State Dispute Settlement’ will analyze current developments and the proposed design of UNASUR’s investment dispute settlement centre, as an example of the Latin American ‘challenge’ to investment arbitration and place it within the wider context of reform of investor-state dispute settlement as evidenced elsewhere in the  world. It will prioritise critical and theoretical (rather than descriptive) approaches that will guarantee a scientific interest in the volume long after its publication date. Scholars, IIA negotiators and experienced practitioners are invited to submit cutting-edge proposals that go beyond the state of the law to this call for papers for the Journal of World Investment & Trade. The guest editors of this  Journal of World Investment & Trade Special Issue areDr-  Katia Fach (University of Zaragoza, Spain) and Dr. Catharine Titi (University Panthéon-Assas, France).

Events

  • The final workshop of the Annual Seminar Series of the Centre for Law and Society in a Global Context (CLSGC)Constructive Links or Dangerous Liaisons? The Case of Public International Law and European Union Law will take place at Queen Mary Innovation Centre, Clark-Kennedy Lecture Theatre, on 25-26 June 2015.The workshop concludes the ‘Beyond Pluralism’ project, building on the introductory round-table discussion held in October 2014 on general aspects of the EU-PIL interface and the ‘thematic dialogues’ on specific issue-areas that followed until March 2015. The event will gather top-rank contributors, coming from all over Europe, to consider findings and put them into perspective. The objective is to assess how best to articulate the link between the two regimes and possibly re-define their relationship offering a comprehensive account of their interaction, overcoming current limitations of monist, dualist and pluralist approaches. To register and for full programme details, please, visit the website here.

Announcements

Our previous events and announcements post 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.

Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

400+ Academics Sign an Open Letter in Support of Harold Koh

by Kevin Jon Heller

I’m one of them. Here is the text of the letter:

To Whom It May Concern,

A recent petition at NYU urges people to express “no confidence” in the Law School’s invitation to Harold Hongju Koh to teach international human rights law this semester. We understand that this petition is motivated by Professor Koh’s recent service as Legal Adviser to the U.S. Department of State in the Obama Administration. We agree that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program. We also agree that U.S. actions must conform to a demanding application of constitutional law and international law.

Nevertheless, we believe the petition is deeply misguided. Professor Koh has been a leading scholar of, and advocate for, human rights for decades. While some may disagree with him on particular issues of law or policy, he is widely known for his unquestionable personal commitment to human rights and his eminent professional qualifications to teach and write on the subject. Any number of reports confirm that Professor Koh was a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.

While we strongly support the free exchange of ideas that is fundamental to civil society in general, and the academy in particular, we think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty. The world needs more human rights professionals who are willing to commit themselves to government service on behalf of their nation.

You can find a list of the signatories, which span the political spectrum, here.

The States Continue to Exist in Foreign Affairs: Implementing Treaties

by Julian Ku

Among my many hobby-horses is a  fascination with the role of the individual American states in the interpretation and implementation of international law within the U.S.  In past work, for instance, I have argued that states can individually implement treaties via guidance from Uniform Laws. I had a few examples of this phenomenon in my article, and I think it will be an increasingly common way for the U.S. to carry out its treaty obligations for those matters that are handled by state governments under American law.

So I was glad to run across this article about controversy over a bill in Idaho to conform to the 2008 Amendments to the Uniform Intercountry Child Support Act. The controversy stems from the fact that the 2008 Amendments require states to recognize and enforce child support orders from countries that are members of the Hague Convention on Child Support and that lawmakers in Idaho are concerned that states applying Sharia law might have their orders enforced by Idaho courts.  Putting this controversy aside for a moment, it is worth noting that states ultimately have a choice whether or not carry out U.S. obligations under the treaty, even though the U.S. has obligations under international law.  The federal government has decided to encourage states to carry out the treaty obligations via the spending clause by tying federal funds to adopting the 2008 amendments.  But states like Idaho can choose to not take the funds, and essentially refuse to comply with the treaty.

So it is worth noting, and perhaps celebrating, this continuing trend of relying on states to carry out US treaty obligations.  I think this trend is likely to continue.

Guest Post: Is the Alien Tort Statute Headed Back to the Supreme Court?

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court held that the cause of action for human rights suits under the Alien Tort Statute (ATS) did not reach claims against a foreign corporation if all the relevant conduct occurred abroad. Lower courts have struggled with how to apply Kiobel to cases involving American corporations and conduct in the United States. On Friday, the second anniversary of the Kiobel decision, the Justices are scheduled to discuss the petition for review in Cardona v. Chiquita Brands International, Inc., a case that would allow them to provide further guidance in such cases.

Kiobel was something of an outlier—a class action against a foreign parent corporation (Royal Dutch Shell) based entirely on its foreign subsidiary’s activities in a foreign country (Nigeria), in which the foreign parent’s home countries (the Netherlands and the United Kingdom) objected that their own courts were more appropriate forums for the plaintiffs’ claims. The Supreme Court held that the principles underlying the presumption against extraterritoriality limit the causes of action that may be brought under the ATS, but it did not close the door to corporate suits entirely. In a cryptic final paragraph, Chief Justice Roberts wrote:

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

But what if some of the relevant conduct took place inside the United States? The Court majority plainly did not adopt the position of Justice Alito’s concurring opinion that the international law violation itself must occur in the United States. And what if the corporate defendant were not just “present” in the United States (as foreign corporations are considered to be for jurisdictional purposes) but actually had U.S. nationality?

Justice Breyer (whose concurring opinion was joined by Justices Ginsburg, Sotomayor, and Kagan) thought the ATS cause of action should cover claims against U.S. nationals and claims based on conduct in the United States. Justice Kennedy, who provided the crucial fifth vote for the majority opinion, did not tip his hand, but he emphasized in his own concurring opinion that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”

Lower courts are divided over how to answer these questions. The Second Circuit has been the most restrictive. It has held that the U.S. nationality of the defendant is simply irrelevant and that the alleged conduct in the United States must itself constitute a violation of the law of nations (although significantly the Second Circuit recognizes that the law of nations violation in the United States could consist of aiding and abetting a human right violation abroad). See Mastafa v. Chevron Corp., 770 F.3d 170, 187-89 (2d Cir. 2014). The Second Circuit also continues to hold that suits against corporations cannot be brought under the ATS at all because the law of nations does not recognize corporate liability. See Chowdury v. World Bangladesh Holding Ltd, 746 F.3d 42, 49 n.6 (2d Cir. 2013).

Other circuits have concluded that the U.S. nationality of a corporation is relevant in recognizing a cause of action under the ATS but not sufficient by itself. See Doe v. Drummond Co., 2015 WL 1323122, at *14 (11th Cir. Mar. 25, 2015); Mujica v. Airscan Inc., 771 F.3d 580, 594 (9th Cir. 2014); Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516, 527 (4th Cir. 2014). None have held, like the Second Circuit, that the international law violation itself must occur in the United States. And one has expressly reaffirmed its prior holding—again, contrary to the Second Circuit—that corporations may be sued under the ATS. See Doe v. Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 40-57 (D.C. Cir. 2011) (recognizing corporate liability); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017-21 (7th Cir. 2011) (same).

The petition the Justices are planning to discuss on Friday has facts at the other end of the spectrum from Kiobel. The defendant corporations are both U.S. companies. They allegedly approved payments from their offices in the United States to the terrorist organization Autodefensas Unidas de Colombia (AUC) and facilitated shipments of weapons and ammunition with the purpose of aiding and abetting extrajudicial killings to suppress labor activism and local competition. Although the case is before the Supreme Court on a motion to dismiss, there is no dispute that the alleged payments occurred. In a criminal prosecution brought by the United States, Chiquita pleaded guilty to making illegal payments to the AUC. A divided panel of the Eleventh Circuit concluded in Cardona that all the relevant conduct occurred abroad, but without bothering to explain why the conduct alleged to have occurred in the United States was not relevant.

The facts alleged in Cardona certainly seem sufficient to recognize a cause of action under the criteria set forth in Justice Breyer’s concurring opinion. Four Justices joined that opinion, and it takes only four votes to grant cert. If those Justices think the facts in Cardona are sufficiently egregious to persuade Justice Kennedy that an ATS cause of action against U.S. corporations should exist in at least some circumstances, they could well vote to hear the case.

Weekly News Wrap: Monday, April 13, 2015

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

  • In the first meeting of its kind in nearly 60 years, U.S. President Barack Obama and Cuban leader Raul Castro sat down together for over an hour on Saturday at a regional summit in Panama, moving a step closer to restoring diplomatic ties.
  • As the United States and Iran come closer to a historic nuclear deal, many U.S. states are likely to stick with their own sanctions on Iran that could complicate any warming of relations between the long-time foes.
  • U.S.-led forces targeted Islamic State militants in Syria with three air strikes from Saturday to Sunday morning, and also conducted 10 air strikes in Iraq, the U.S. military said.
  • A U.S. federal judge on Friday denied a last-minute request by four U.S. former Blackwater guards convicted in the massacre of 14 unarmed Iraqis in 2007 to have their sentencing postponed, and said it will go ahead as planned on Monday.

Oceania

UN/World

Events and Announcements: April 12, 2015

by An Hertogen

Events

  • On April 13-14, 2015, the University of Alabama School of Law will host a workshop and symposium event on the topic of the Rights of States in International Law.  The event will be organized by Professor Dan Joyner. The participants will workshop their papers, which are to comprise a special issue of the Cambridge Journal of International & Comparative Law, which is being organized by Professor Joyner and Dr. Marco Roscini. This project is devoted to the question of whether fundamental rights of states, which appear to be recognized in the provisions of a number of conventional and customary sources of international law, actually exist. These purported rights include the right to self-defense, the right to existence, the right to private life/noninterference, the right to permanent sovereignty over natural resources; the right to be free from economic coercion, and the right to peaceful nuclear energy. If in fact they do exist, what is their source and legal character? What are their juridical implications – e.g. when they come into conflict with the legal obligations of the right holder, or with the actions of other states and international organisations? The papers in this special issue seek to examine these questions both theoretically and doctrinally, and to provide a framework for understanding the fundamental rights of states, and their role in the international legal system. For questions concerning the workshop/seminar, please contact Professor Dan Joyner at djoyner [at] law [dot] ua [dot] edu
  • Registration is now open for the International Institute of Humanitarian Law’s specialized course on the Conduct of Peace Support Operations (PSO) from June 15 – July 19, 2015 in Sanremo, Italy. The aim of this course is to prepare potential civilian and military staff and augmentees for PSOs by providing an understanding of the legal issues affecting their deployment and mission accomplishment. Participants will examine and discuss the wide ranging legal issues underpinning PSO mandates affecting mission design, and those legal aspects which will shape and govern the deployed force and mission. Seminar topics include the legal bases for PSO, the applicability of human rights and LOAC, criminal responsibility and the legal implications of detention, cyber activities, and emerging technologies on PSO.  For more information see here.

Our previous events and announcements post 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: April 4-10, 2015

by Jessica Dorsey

This week on Opinio Juris, we hosted a Book Symposium on Interpretation in International Law. The Symposium was introduced by Daniel Peat and Matthew Windsor who offered the framework and context of the book in describing their introductory chapter (available here), explaining that the idea of interpretation in their work centers around the metaphor of a game, with each of the authors contributing their thoughts on elements of that game.

In the next post, our own Duncan examined the object of the game of interpretation in terms of its existential function. Then, on Tuesday, Michael Waibel analyzed the players of the game by discussing the nature of interpretive and epistemic communities in international law. Wednesday, Julian Arato confronted the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Thursday, Fuad Zarbiyev characterized the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. And finally on Friday, Philip Allott’s contribution (emblematic of the aims of the book) reflected on ways to promote critical and open-minded reflection on interpretive practices and processes in international law.

We had two guest posts, one from John Louth who discussed how many international law books are published each year, and one from Gabor Rona, who addressed the recent holding Maldonado v. Holder as it pertains to the US’ obligations under the Convention Against Torture.

Kevin offered his thoughts on the advantage for Palestine of a slow preliminary examination with respect to Palestinian statehood and the recent petition to bar Harold Koh from teaching human rights at NYU and Roger highlighted a debate amongst scholars on the investment arbitration chapter in the TPP and TTIP.

I posted the news and events and announcements.

Thanks very much to the contributing authors of Interpretation in International Law as well as our guest contributors and to you for following us on Opinio Juris. Have a great weekend!