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.

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law and blogs at the Volokh Conspiracy, where this contribution is cross-posted.]

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last month that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions.  The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.

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.

This conventional reading of 49(6) as generally banning Jewish settlements is disconnected from the text, which only speaks of “transfers” carried out by the Government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position (though I am unclear how much of a role domestic legal principles played). Now one might say the government is always “involved” – roads, security, zoning, etc., but ubiquitous “background” roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. (On the other hand, if one gets a package bus/light rail ticket, it would be an unusual literal case of “transfer” into occupied territory.)

Indeed, the French case would be a strong one for inferring governmental role, since the defendant worked under contract with Israeli governmental entities. My understanding of the Court’s opinion is a little fuzzy here, but it seems they say contractual privity is not enough to trigger 49(6) either. This would certainly make it inapplicable to the vast majority of Israeli settlers (not all, necessarily, since 49(6) is ultimately a case-by-by-case factual question.

The Court goes on the reject the notion that the relevant norms have become customary or jus cogens and apply without the particular textual restrictions of 49(6).

Israel’s critics often  claim that “everyone agrees” that international law bans all “settlement activity” as it is broadly called, and that only Israeli apologists could believe the arguments to the contrary. (In the Human Rights Council’s recent report on Israel’s settlements, light rail is itself called a settlement.) I assume the Versailles Court of Appeals won’t be accused of being unduly sympathetic to the Jewish State.

Indeed, many might share my surprise on such a decision coming from a European court, especially given the supposed uniformity of views on the underlying legal issues. Perhaps two factors may explain the surprising decision: this is not an international court, but an ordinary municipal one, and it was an important French industrial concern, rather than Israel, in the dock. International lawyers may what could positively be described as professional or scientific knowledge of the matter, or more cynically as guild orthodoxy. Judges unversed in these verities might see things differently. And of course, here international law is being used against important and powerful domestic interests.

The plaintiffs could still appeal to the Cour de Cassation, which however is not obligated to hear the appeal.

• US President Barack Obama is making a new push to close the detention facilities at Guantanamo Bay, Cuba, saying Gitmo is damaging US interests. 
• Chile will be Latin America’s only representative in the 2014-2015 UN Security Council.
• The ECHR has ruled that Ukraine violated former Prime Minister Yulia Tymoshenko’s rights by detaining her for politically motivated reasons.
• The genocide trial against Guatemalan dictator Rios Montt has resumed, just short of two weeks after a judge suspended all proceedings.
• The US is still investigating use of chemical weapons in Syria, with President Obama stating that depending on how the weapons were used, the US might have to rethink its strategy in Syria.
• Foreign Policy has a post about why those wanting intervention in Syria are wrong.
• The UN International Labor Organization released a report with one major finding that the key to ending child labor is to advocate social protections.
• May Day protests, meant to demand better workers’ rights, are occurring around the world, in places such as Indonesia, The Philippines, Turkey, Cambodia and several European cities.

I want to take a moment to spruik (if you don’t know the word, look it up!) Jeffrey Kahn‘s new book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, which has just been published by the University of Michigan Press. Here is the publisher’s description:

Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.

In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.

As an American who lives abroad but likes to see his family, I will avoid casting aspersions on terrorist watchlists. I’ll leave that to Jeff. Make sure to check out his book!

• The Syrian Prime Minister has survived a car bomb in Damascus, an event UN Secretary General Ban Ki-Moon labelled a “terrorist attack.”
• Ban Ki-Moon also urged Syria to allow international experts access in order to establish whether chemical weapons were used. Meanwhile, in a phone call to President Putin, President Obama has expressed his concern over the use of chemical weapons in Syria.
• The European Union Rule of Law Mission in Kosovo (EULEX) sentenced five men to prison for their roles in an organ trafficking syndicate.
• Afghan President Hamid Karzai has admitted to taking money from the US CIA in order to  pay for operational and health care costs as well as rent for some of the staff’s housing. Foreign Policy cheekily asks: do bags of cash ever help the CIA get what it wants?
• British retailer Primark and Canadian brand Loblaw are two Western companies that will compensate families of the victims of last week’s tragic clothing factory accident in Bangladesh.
• As nearly two-thirds of all detainees at Guantanamo have now joined the hunger strike, the US has sent extra medical staff to monitor the situation.
• During their first summit in ten years, Japan and Russia have agreed to talks to settle their dispute over the four Pacific islands, known in Russia as the Southern Kuriles and in Japan as the Northern Territories. If successful, the negotiations will formally end WWII between the two states.
• A change of guard in the Netherlands where Queen Beatrix is abdicating today and handing over the crown to her son Willem-Alexander, who becomes the country’s first King since the late 19th century.

I have now had the opportunity to read both Judge van den Wyngaert’s request to be excused from the Kenyatta case and the Presidency’s decision to grant that request. There is no question that workload did indeed play a role in the Judge’s decision to withdraw. But it also seems clear that there was at least one other reason, as I will explain below.

To begin with, though, I want to apologize to anyone — especially the Judge! — who saw my post as an attack on Judge van den Wyngaert’s integrity. That was certainly not its intent; I have nothing but respect for the Judge. Indeed, I intended the post to praise the Judge for her willingness to challenge the prosecution’s conduct openly and in writing, while still questioning whether withdrawing from the case was a good idea or consistent with the ICC’s rules. Unfortunately, having re-read the post a few times, I can see that I was nowhere near clear enough in expressing my intent. I should have avoided talking about “convenient excuses” and the like. My apologies again to anyone who thought I was attacking the Judge.

Now, my thoughts in light of the newly-released documents. First, my (at least partial) misinterpretation of the Judge’s actions reflects an ongoing problem with the Court’s release of information to the public. Had the Court made the relevant documents available in a timely fashion, I would have written the post differently — and more importantly, the Kenyan press would have found it more difficult to further discredit the case against Kenyatta by drawing a connection that may not actually exist. All too often, though, critical documents are either never put on the ICC website or are uploaded days after decisions themselves attract attention. I can usually hunt down documents I need, whether through personal connections or by asking for them here on the blog. But too many others depend solely on the website. Something needs to be done.

Second, to echo David Koller’s comment to my previous post, I am a bit baffled by the idea that Judge van den Wyngaert was only temporarily assigned to the Trial Chamber in the Kenyatta case. Here is paragraph 2 of her request to be excused:

On 30 March 2012, I was requested to accept temporary assignment to Trial Chamber V, in view of the limited capacity of judges in the Trial Division, as the newly elected judges assigned to that Division had not yet been called to The Hague. I accepted this assignment on the clear understanding that it would be limited in time and only for the purposes of the preparation of the two Kenya trials.

I am not completely convinced that the Rome Statute and Rules of Procedure and Evidence allow such a temporary assignment. Art. 39(4) of the Rome Statute does provide that “[n]othing in this article shall… preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court’s workload so requires.” My guess, though, is that the drafters of Art. 39(4) assumed that PTC judges would be temporarily assigned to the TC for the duration of a particular case, not simply for part of it. I could be wrong about that and invite readers to weigh in. Regardless, such temporary assignments are a terrible idea — not only because the departure of a judge just before trial can prejudice one of the parties (as I still believe is the case regarding the defence in the Kenyatta case), but also because they actually waste judicial resources by requiring two different judges to familiarize themselves with the case.

Third, and most importantly, I still have to disagree with those who insist — in the comments to my previous post or via email — that Judge van den Wyngaert withdrew solely because of her workload. Two very cryptic statements in the Presidency’s decisions contradict that idea (emphasis added):

The Judge submits that her assignment to that Chamber was temporary, only for the purpose of the preparation of the two Kenya cases for trial. REDACTED.

[snip]

The Presidency, having considered the matter before it, finds the request to be well founded. In coming to this conclusion the Presidency took particular note of the workload and REDACTED of the Judge as described above.

The second statement in particular makes clear there is more to the Judge’s desire to withdraw than just workload. I have no idea what the other rationale might be — although it’s impossible not to speculate that it is indeed that the Judge does not trust the prosecution to conduct itself fairly in the Kenyatta case. (And no, that’s not a criticism of the Judge!)  Maybe it’s not; maybe the rationale is completely different. But once again we have an optics problem: I think the public has a right to know precisely why a judge who has been so openly critical of the prosecution in an important case wants to be excused from that case. And I fail to see what could possibly justify the Presidency’s decision to redact the additional rationale — with no explanation whatsoever.

We need answers, and we need them sooner rather than later.

[Katherine Florey is Professor of Law at UC Davis]

I come late to this discussion.  Professors Alford and Whytock have adeptly explored the question of whether international human rights litigation might be reframed under state tort law.  To their observations, I would add the following: Because state choice-of-law methodology is incredibly diverse, it is difficult to make predictions or generalizations about the overall prospects for human rights cases in state court.  Regardless of what the general landscape might hold, however, it is easy to imagine scenarios in which foreign plaintiffs successfully pursue human rights claims arising abroad by invoking state tort law.  Consider a claim subject to the conflicts methodology used in California, known as comparative impairment.  Although comparative impairment is among the more nuanced and sophisticated of modern conflicts methodologies, it is also persistently biased toward forum law.  For example, before a California court will even consider the possibility of applying foreign law, the party advocating for the application of such law must demonstrate that foreign law materially differs from California law and that the foreign jurisdiction has an interest in having its law applied.  Given the near-universality of tort law principles of some sort, the first requirement, in particular, may prove problematic for defendants arguing that their conduct should be governed by a foreign jurisdiction’s laws.  Comparative impairment additionally favors forum law when it comes to damages.  Courts applying California conflicts methodology have consistently held that foreign jurisdictions have no interest in limiting damages as to non-resident defendants.  Even in some cases involving defendants who are residents of the damages-limiting jurisdiction, some courts have applied California law.

It is easy to imagine how these principles could converge to create appealing prospects for human rights plaintiffs seeking to bring state tort claims.  Indeed, recent cases like Bowoto v. Chevron, in which the court applied California law to claims by Nigerians for activities undertaken by Chevron in Nigeria, provide a ready template.

The possibility that some human rights litigation will be displaced into state court is thus very real, even if the extent of that displacement is difficult to predict.  And that leads me to a further observation.  To the extent that state courts increasingly operate concurrently with federal courts as forums for the litigation of cases with extraterritorial elements, the disparate treatment of extraterritoriality issues under state and federal approaches becomes ever more problematic. And Kiobel seems likely to compound those problems, not only because it pushes another category of foreign-squared or -cubed cases into state court, but because it takes the federal law of extraterritoriality in a direction increasingly incompatible with state conflicts approaches.

What do I mean by this?  I see two main ways in which Kiobel’s reasoning is likely to impede useful dialogue between federal and state approaches.  The first is the meaning, and relevance, of territory in assessing the scope of a sovereign’s prescriptive jurisdiction.  Everything about Justice Roberts’s opinion reflects a narrow, stubbornly physical notion of territoriality.  He seeks to crisply cordon off from the ATS’s reach “conduct occurring within the territorial jurisdiction of another sovereign” – a category that (because it assumes a definition of territorial jurisdiction based on the physical location of conduct) seems both question-begging and potentially troublesome to apply in practice.  And his odd final formulation – that the presumption might be “displace[d]” as to claims that “touch and concern the territory of the United States” – suggests an even more constrained view of the relationship between law and territory.  Justice Roberts’s territoriality is one not of a sovereign, but of a landowner.  By contrast, modern state conflicts approaches, in reaction (perhaps overreaction) to the rigidly territorial approach of the First Restatement, have tended to sideline territoriality entirely.  Famously, modern conflicts approaches tend to privilege the parties’ domiciles over the site of relevant events; even when location of events does come into play, the place of both conduct and injury may frequently be relevant.  But even more broadly, modern conflicts doctrine speaks in terms of relationships and interests.  It has done more than reject territorial formalism; it has made it largely irrelevant.

Second, and more practically, Kiobel cements the sense that the Court has conclusively abandoned an approach to extraterritoriality grounded in comity and international norms in favor of one rooted entirely in statutory interpretation.  Whatever might be said for or against this shift more generally, it virtually guarantees that state courts applying predominantly common law will find little or nothing in the Court’s recent case law to guide them.  This is not for lack of interest or concern on the part of state courts, which have often earnestly attempted to follow the Court’s extraterritoriality approach to the extent that they can.  In the wake of Morrison, some state courts have interpreted state statutory law to be consistent with its federal models; some state courts, for example, have limited the extraterritorial application of state RICO statutes in light of federal precedents doing the same.  But Morrison or Kiobel shed precious little light on the question of how far state law should extend when no legislative intent exists about which to make presumptions.

All of this means that state conflicts doctrine and principles governing the extraterritorial reach of federal statutes are likely to drift farther apart.  Further, it means that state courts are bereft of guidance at a time when they are increasingly likely to need it.  State choice-of-law doctrine, developed to deal with trivial interstate differences over guest statutes or interspousal immunity, seems increasingly provincial when it is pressed into service for weighty matters of corporate responsibility and human rights.  It is possible that, for the moment, personal jurisdiction and forum non conveniens issues will forestall a rush of foreign-cubed plaintiffs into state courts.  But if not, where do we go from there?

Last week, the government of Bolivia filed an application in the International Court of Justice against Chile arguing that Chile has breached its “obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean.”

Is it just me, or is this the weakest case ever filed at the ICJ?   I am baffled as to how there could be compulsory jurisdiction under the Bogota Treaty, whose relevant provision reads:

“…the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation”.

According to Bolivia, the legal dispute exists because “Chile denies its obligation to enter into negotiations regarding Bolivia’s fully sovereign access to the Pacific Ocean.”  Ergo, there is a dispute over whether Chile has an international obligation to negotiate and whether it has breached this obligation that it denies having.

But this is circular.  Bolivia is the one claiming there is an obligation, and the mere fact that Chile denies the existence of the obligation can’t by itself create the basis for jurisdiction.  Bolivia needs to point to some source which imposes a legal obligation  on Chile an obligation to negotiate in good faith on this issue.  The following appears to be Bolivia’s best effort to find such an obligation:

17. The Bolivian note of 1 June 1950, invoking the different declarations and commitments formulated by Chile, proposed: ”for the Governments of Bolivia and Chile to formally enter into a direct negotiation to satisfy Bolivia’s fundamental need for obtaining an own and sovereign access to the Pacific Ocean, thus resolving the problem of Bolivia’s confinement, on the basis of natural conveniences and the true interests of both countries”

18. The Chilean note in response, dated 20 June 1950, states that: ”( … ) my Government ( … )it is willing to formally enter into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia an own and sovereign access to the Pacific Ocean and for Chile to obtain compensations that are not of a territorial nature and that effectively take into account its interests”

Apparently, those negotiations never worked out.  But there is an even more fundamental point. The 1950 Chilean note states that the government “is willing to formally enter into a direct negotiation”.  It doesn’t say that the Chilean government obligates itself to negotiate (whatever that would mean anyway).   The same non-obligatory language is true of a 1975 statement that Chile ”would be prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Linea de la Concordia” (emphasis added).  Even if there was a treaty provision that explicitly obligated the parties to negotiate in good faith, I would be skeptical.  But there isn’t even that.

Maybe I’m missing something, but this case looks like a sure loser on admissibility. It looks like it is going to be a major waste of time for the ICJ.  I admit I am not an expert on the relevant treaties here, or on this dispute, but if Bolivia’s application reflects its best arguments, then I can’t see how the ICJ could possibly allow this application to proceed.  How would they ever avoid future cases where one party asks another party to negotiate, and then complains when that party doesn’t agree to do so.  This should be a slam-dunk unanimous admissibility dismissal for the ICJ. I just hope they don’t need more than a year to figure this out. (If someone out there has a good defense of Bolivia’s case for jurisdiction, would love to hear about it.)

For the procrastinators among us, here’s another friendly reminder about our New Voices Symposium coming up in July and August. As a recap, this July, we are planning to launch a new feature called New Voices: a two-month online symposium to run alongside our regular posts. Our goal is to give students, new practitioners and emerging scholars a chance to profile their work by providing a platform for fresh ideas that will hopefully stimulate discussion with our regular bloggers and commentators.

We invite submissions on any topic of international law from LL.M., Ph.D., and S.J.D. students as well as those in the early stages of their careers (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing their final degree), anywhere in the world.

If you’re interested, please send a 200-word summary of your idea and your CV to opiniojurisblog [at] gmail [dot] com by May 1, 2013–that’s this coming Wednesday! If selected, we’ll let you know by mid-May. We’ll also let you know at that point when your post is scheduled to go online. Final submissions between 1000-1500 words will be required two weeks before publication for review, so at the earliest by mid-June.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

• According to a recent report, tens of millions of dollars from the CIA were delivered to the office of Afghanistan’s president, Hamid Karzai over the course of decades, meant to buy US influence in Afghanistan.
• Syria’s neighbors are wary of a US-led intervention, should the US decide to take military action in the face of new evidence of chemical weapon use by the Syrian government–evidence that Syria claims is “inconsistent with reality and a barefaced lie.”
• Iraq’s media regulator has suspended licenses of ten broadcasters, including Al-Jazeera, accusing them of inciting violence after reporting on security raids on a Sunni protest camp.
• To complement Kevin’s post from the weekend, Jurist has more on the recent withdrawal of ICC Judge Christine van den Wyngaert from the Uhuru Kenyatta trial.
• Foreign Policy highlights a document uncovering the US’ plans to carry out cyber attacks since the Clinton years.
• The last of the South Korean workers at the joint industrial complex will withdrawal in the face of North Korea’s escalating nuclear threats.
• Rebel fighters from Darfur have stormed the Sudanese city of Um Rawaba and have vowed to take Khartoum.
• In a sign of rising patriotism, Japan celebrated its first “Restoration of Sovereignty” Day on Sunday, to celebrate the end of allied occupation after WWII.

Not content to push border disputes with only Japan and the Philippines, China apparently has decided that now is also a good time to create a border crisis with India.  Last week, Chinese troops apparently crossed over a disputed border to camp 20 km inside Indian-claimed territory in the remote region of the Himalayas (the Chinese deny the incursion has occurred and both sides appear to be climbing down a bit).

This rather hostile-to-China essay in the Japan Times provides a nice summary of how China has stepped up its activities on three different territorial fronts at the same time.  First, there is the ongoing dispute with the Philippines over the Scarborough Shoal/Huangyan Island in the South China Sea. Then, there is that dangerous dispute with Japan over the Diaoyu/Senkakus in the East China Sea.  Finally, China is provoking India.

Overall, China’s strategy appears to be to put its interlocutors on the defensive and to exhaust them with low-intensity incursions. This is working.  Japan is now repeatedly having to scramble its jets over the Senkakus at repeated Chinese incursions, and India is apparently rushing troops to the remote border region to confront the Chinese troops.  But, as the author of the essay notes, these are all reactive measures that allow China to keep the initiative.  China is not seeking a war, but it is seeking to push the envelope against its neighbors, with some success. India is trying to keep the dispute from escalating and Japan has been defensive about the Senkakus for the first time in decades.

Only the Philippines seems to be able to push back and force China to react, albeit through the soft pressure of an Annex VII UNCLOS arbitral proceeding.

It is impressive how China can keep three of its neighbors scrambling to respond while it slowly builds up its territorial claims.  In the long run, China v. India/Japan/Philippines/Vietnam/etc.  seems like bad odds, but so far it is working. Will international arbitration play any role in resolving these disputes?  I doubt it, but we will soon get some empirical evidence if the Philippines is able to win a judgment that affects or shifts China’s behavior.