This week on Opinio Juris, the debate on Kiobel continued. Katherine Florey pointed out how the decision will deepen the divide between state and federal approaches to extraterritoriality issues. Ken Anderson argued that the ATS should be understood as the “law of the hegemon”. Peter agreed with Samuel Moyn that more attention to corporate social responsibility regulation could potentially have a broader impact in improving human rights than high profile ATS cases. Corporate social responsibility was also central to Peter’s post on the impact of recent tragedies in the Bangladesh garment industry on voluntary corporate codes.

Eugene Kontorovich wrote a guest post on the recent decision of a French Court of Appeals rejecting claims that the contract between Alstom Transport and the State of Israel for the construction of the Jerusalem Light Rail was illegal due to a violation of international law. Disagreeing with Eugene, Kevin pointed out that the Court of Appeal is silent about the possibility of a war crime under the Rome Statute.

On another controversial dispute involving a big corporation, Roger wrote about an Ontario Court’s decision to dismiss the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada.

In news from international courts, Julian was surprised by reports about the ICJ Registrar calling the Bolivia’s application against Colombia “impeccable“, since he thought Bolivia’s case was ridiculously weak. Should the case reach the merits and go against Colombia, chances are though that we’ll end up with Colombian complaints about biased judges after the conclusion of the case, as it did for the recent decision in its case against Nicaragua.

Turning to the ICC, Kevin was troubled by Judge van den Wyngaert’s decision to withdraw from the ICC’s Uhuru Kenyatta case, and followed up with further thoughts. He also congratulated Leiden for winning the ICC Moot Court.

In other posts, Julian pointed out how China is now also pushing the boundary with India, and  asked whether force feeding of detainees on a hunger strike is always illegal. Kevin noted with horror a quote from Ari Fleischer on the difference between Nazis and terrorists, and recommended Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists

As always, we provided news wraps and a list of events and announcements. Many thanks to all our “younger” readers for the many New Voices abstracts. It’s wonderful to see such a great response! Jessica and I are working through the submissions and plan to finalize the selection by mid-May.

Have a nice weekend!

Ari Fleischer, former Bush press secretary, explaining why terrorists are more dangerous than Nazis:

They [the Nazis] followed the law of war. They wore uniforms and they fought us on battlefields. These people are fundamentally, totally by design different. And they need to be treated in a different extrajudicial system.

Noted with horror but without comment.

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

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

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

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

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

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

ABC’s Univision reports on this op-ed by former Colombian foreign secretary and former vice justice minister, which seems to accuse shadowy Chinese business interests of influencing the recent ICJ decision in Nicaragua v. Colombia.  Here is the crux of the alleged wrongdoing (or at least shady conduct):

…in November 2012, the ICJ issued a ruling that certified that most of the contended area belonged to Colombia. Nicaragua however, was awarded an area of nearly 7,500 square kilometer.

Nicaragua needed part of the awarded area to be able to build the massive inter-oceanic canal the government is envisioning, according to Sanín and Ceballos. The canal is set to be built in 10 years at an estimated cost of nearly $30 billion.

The alleged problem is that one of the judges who delivered the ICJ’s decision is Xue Hanqin, a Chinese national who apparently knew the Nicaraguan ambassador to the court from a previous work position. The Colombians argue that Xue Hanqin probably knew about the canal and should have recused herself because her government had a major interest in the ruling’s outcome. Since she didn’t there are growing suspicions that she might have been working to advance China’s economic and geopolitical agenda.

My Spanish is even vaguer than my French, but, accepting the Univision description as accurate, than this seems like a weak attempt to discredit the ICJ decision.  To be sure, it is possible that Judge Xue knew the Nicaraguan ambassador from her time as a diplomat, and it is also quite likely that she knows about the Chinese government’s interest in a Nicaraguan canal.

But none of that seems to be close to enough to require a recusal or its equivalent.  To be sure, the ICJ’s practice on recusal is pretty lax, and could use some further development.  But even if you think that the Egyptian judge should have been recused from the Israeli Wall advisory opinion, at least the accusation there was about statements made, or views held, by the individual judge.  It was not a claim that he should recuse himself because the Egyptian government opposed the Wall.

But the Colombians are essentially saying that because the Chinese government would have favored the Nicaraguan case, and had a material interest in a favorable outcome, its judge should have recused herself.  That could not be the rule, since it would require recusals all the time.  Now, if they had evidence Judge Xue held shares in a Chinese company that was building the canal, that would be something.  But there is no such accusation, as far as I can tell. (Note: Colombia did not even request her recusal).

Is Judge Xue biased? I suppose she might have been. But she would not have been much more biased than any of the other judges on the ICJ.  With 15 judges, her bias could not have been all that important in the ICJ’s unanimous opinion anyway.

Columbia University historian Samuel Moyn has a tough post up on the Foreign Affairs website on Kiobel and the arc of the Alien Tort Statute, which he sees as having served the narrow constituency of us rather than being true to the historical origins of human rights:

The ATS has been a boon for U.S. law schools, in which students rightly interested in saving the world have been taught to view the statute as an all-powerful tool. But the popularity of the law might have led them to neglect the fact that it offers only a quick fix for a few people with access to U.S. courts, not fundamental change.

The takeaway, with which I’m sympathetic: human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.

Far better would be to move on to other ways of protecting human rights — less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. If it moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble.

I’m sure there will be room for both paths, that is, for some to keep at it with the ATS while others look to put non-judicial mechanisms better to work. But one takeaway for US law schools would be to give a little more play to the latter. Pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.

Probably not. The tragedy in Bangladesh — more than 400 dead — on the heels of a fire there in November, is no doubt casting a negative light on non-governmental certification schemes.

But there’s no clear alternative. Voluntary codes of conduct are now routinely subject to institutionalized third party supply-chain monitoring (evidenced by the fact that a number of monitoring firms are themselves publicly traded companies). Obviously, the system is coming up short, as critics vigorously note (see, for instance, this labor-funded study released last month). Many are pushing for something that looks more like public regulation. In that view, the recent Bangladesh episodes look like the global equivalent of the Triangle Shirtwaist fire in 1911, which ushered in the modern era of workplace safety regulation in the United States.

That’s not the the way it’s going to play out, at least not for now. The capacity just isn’t there, either nationally or globally, to fully legalize labor rights. But there are new approaches mixing private-public components that are gaining traction. The most notable example, at the global level, is the UN Guiding Principles on Business and Human Rights. That may set a long-term baseline from which to refine labor rights and other norms into workable practices on the ground. In an interesting (and well-timed) essay in the Boston Review, MIT’s Richard Locke sees promise in regulation by host governments, even in the developing world. Public regulators can overcome capacity deficits by taking a more measured, strategic approach, using carrots to create conditions (e.g., transparency) that improve the effectiveness of private schemes. In the end, only the state can create the level playing field necessary to their success.

The result is some form of polycentric governance, for what that’s worth. The Bangladesh tragedy is training unprecedented attention on the question of how better to hold corporations to human rights norms, defining it as one of the major issues of globalization. It may be, as John Ruggie says of the Guiding Principles, the end of the beginning.  But even the basic outlines of a durable solution still seem over the horizon, and a lot of institutional mapping and empirical study remains to be done.

• North Korea has sentenced US citizen Kenneth Bae to 15 years’ hard labor for “crimes against the state.”
• In a clash on the border of Pakistan and Afghanistan that lasted more than two hours, one Pakistani policeman was killed and two Afghani soldiers wounded. 
• The UK Supreme Court has ruled that the government has been failing to meet EU air quality standards and has solicited the European Court of Justice for guidance.
• Chad has foiled an attempted coup that officials claim has been planned for months, with the arrest of several rebels.
• The Pope has weighed in on the tragic factory accident in Bangladesh last week, calling the unjust wages “slave labor” and condemning unbridled quests for profit as going “against God.”
• Foreign Policy has posted a guide on how to close Guantanamo.

An Ontario court in Yaiguaje v. Chevron has dismissed the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada. Essentially the dismissal rests on the doctrine of the separate legal identities of parent and subsidiary corporations.

Chevron has no assets in Canada, and the subsidiaries’ assets there cannot be attached to enforce a judgment against the parent company. This is not a particularly controversial proposition. Therefore the fight over the recognition and enforcement of the dubious $19 billion Ecuadorian judgment should be resolved elsewhere.

Here’s the key language (paras. 110-111):

By way of summary, Chevron does not possess any assets in this jurisdiction at this time. The evidence also disclosed that no realistic prospect exists that Chevron will bring any assets into this jurisdiction in the foreseeable future…. The plaintiffs’ contention that the assets of Chevron Canada ‘are’ the assets of Chevron has no basis in law or fact…. Accordingly, any recognition of the Ecuadorian Judgment by this Court would have no practical effect whatsoever in light of the absence of exigible assets of the judgment debtor in this jurisdiction.

…. Chevron is on record saying: ‘We will fight until hell freezes over and then fight it out on the ice.’ While Ontario enjoys a bountiful supply of ice for part of each year, Ontario is not the place for that fight. Far from it…. The evidence disclosed that there is nothing in Ontario to fight over…. In my view, the parties should take their fight elsewhere to some jurisdiction where ultimate recognition of the Ecuadorian judgment will have a practical effect.

Chevron’s press release responding to the ruling is here. The Ecuadorian plaintiffs’ press release is here.

I have no desire to get into an argument with Eugene Kontorovich about the ostensibly “landmark” decision of a French intermediate court — especially because, like him, I am far from fluent in French and the decision strikes me as quite legally complicated. But it is important to push back against claims like these (emphasis mine):

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

There are two significant problems here. First, despite emphasizing war crimes, Eugene’s post focuses solely on the Fourth Geneva Convention’s prohibition on the transfer of civilians into occupied territory; it simply ignores the Rome Statute’s very different war crime of direct or indirect transfer. Here is Art. 49(6) of GC IV (emphasis mine):

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

And here is Article 8(2)(b)(viii) of the Rome Statute (emphasis mine):

(viii)     The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

To begin with, it’s worth noting that it is anything but self-evident that Art. 49(6) requires “actually organizing and moving population en masse (compare to individual transfers in 49.1),” as Eugene claims in the comments to his post. His analogy to the Nazis’ colonization of Poland and Ukraine — in which civilians “weren’t merely encouraged, but rounded up” — is misplaced, because unlike Art. 49(1), Art. 49(6) does not require the transfer of civilians to be forcible. Moreover, the war crime in question — Art. 8(2)(b)(viii) — even more clearly does not require “actually organizing and moving population en masse,” because it prohibits both direct and indirect transfer. Art. 8(2)(b)(viii) thus prohibits a much broader range of actions than Art. 46(1). And, of course, a violation of Art. 8(2)(b)(viii), unlike a violation of Art. 49(6), gives rise to individual criminal responsibility.

The second significant problem with Eugene’s post is that, in fact, the French intermediate court’s decision appears to say nothing at all about whether settlement activities qualify as war crimes. Given my French, I am loathe to conclude unequivocally that it does not. But the decision does not mention either the Statut de Rome or Art. 8(2)(b)(viii), nor does it mention crimes de guerre (war crimes) or transfert… indirect (indirect transfer) — two obviously critical expressions in the French version of the Rome Statute.

The French intermediate court’s decision may well be a landmark concerning corporate responsibility; I’m sure Eugene will tell us in his next post. But I think it is to safe to say that the decision tells us little, if anything, about whether Israel’s settlement activities qualify as the war crime of direct or indirect transfer of civilians into occupied territory.

Note: I have restructured the post for clarity.

The Office of the U.N. High Commissioner for Human Rights seems to be condemning the forced feeding of hunger-striking Guantanamo detainees as torture, or perhaps as cruel, inhuman, and degrading treatment in violation of the Convention Against Torture.

Force-feeding hunger strikers is a breach of international law, the UN’s human rights office said Wednesday, as US authorities tried to stem a protest by inmates at the controversial Guantanamo Bay jail.

“If it’s perceived as torture or inhuman treatment — and it’s the case, it’s painful — then it is prohibited by international law,” Rupert Coville, spokesman for the UN high commissioner for human rights, told AFP.

This statement makes great headlines, but I don’t have any idea what exactly Coville is saying.  If its painful, then it is torture or inhuman treatment prohibited by international law? “If it’s painful” is not exactly a very demanding standard.  And the World Medical Association standards aren’t necessarily binding nor have they achieved total consensus.

As this Reuters report notes, U.S. courts, and even the European Court of Human Rights, have held that not all forced feeding is illegal.  Even in holding a particular forced feeding a violation of European human rights law, the ECtHR seems to have carved out an exception for “preserv[ing] the life of hunger strikers if shown to be medically necessary and not done for punitive reasons.”

So if that’s right, I think the OHCHR is acting rashly by issuing a blanket condemnation of all force feeding as a violation of international law, or even condemning the Gitmo force-feedings without any acknowledgment of the possible legal justifications.  It makes good headlines, but it should not be taken as an authoritative legal judgment or conclusion.  No doubt force feeding is horrible, and maybe the type of force feeding in Gitmo does cross the line (doesn’t sound like it, but I suppose it is possible).   But let’s not be so quick to assume its always illegal.

This report out of Prensa Latina in Havana suggests that the ICJ has expressed some sort of positive opinion on quality of Bolivia’s case against Chile.

In a press conference, [Bolivian Foreign Minister] Choquehuanca announced the International Court notified Chile on the start of the process and reasserted the Bolivian will of not affecting the bilateral relations with Chile. He also said the Court regarded the Bolivian demand as impeccable, and he expressed his trust in a favourable resolution for Bolivia.

(Emphasis added).  Now there are no doubt some translation issues here, and Prensa Latina is not exactly the most authoritative source.  But it does seem like the Bolivian Foreign Minister is suggesting that the ICJ, in its routine acceptance of an application by a member state, expressed some opinion about the nature and quality of Bolivia’s substantive case.  I am sure this is NOT the case, since the Court’s Registrar is only functioning in an administrative capacity here.  So if the Foreign Minister did in fact say what Prensa Latina reported, his statement is very misleading.  Hey, ICJ Press Office! I think you should issue a statement or something.