Paust Response to Ochoa Article

by Jordan Paust

Christiana Ochoa’s article provides important insights into the relevance of various jurisprudential approaches to questions concerning the role of individuals and other nonstate actors in the international legal process. Her primary concern is whether individuals participate in the formation of customary international law. In sharp contrast to what she and too many others prefer to identify as a “traditional” approach (what she otherwise rightly recognizes as an unrealistic “state-centric account”), her answer is “yes.” Besides attention to the reality of participation, she offers insights into what she terms “doctrinal bases for inclusion of individuals” and “modern social/philosophical bases” for inclusion, which she terms globalization, cosmopolitanism and cosmopolitan citizenship, transnationalism, and participatory democracy.



In general, I come out quite favorably in her consideration of various jurisprudential orientations. I am correctly placed within a “Realism” camp that has benefitted from the insights of Myres McDougal and Harold Lasswell and their post-Realist jurisprudence known as the New Haven School (which she recognizes has included Michael Reisman, Lung-chu Chen, Rosalyn Higgins, Isabelle Gunning, and Janet Koven Levit, among others). As Christiana remarks, “Professors Chen and Paust further the realist’s insight that individuals already do contribute to CIL formation.” An important statement about the reality of participation is that of McDougal, Lasswell, and Reisman offered at pages 140-41 of her article. We use these insights partly in our casebook: Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 34-40, 42-43 (2 ed. 2005). For further exposition, I recommend Lasswell & McDougal, Jurisprudence For A Free Society: Studies in Law, Science and Policy vols. I & II (New Haven Press 1992); and Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective (2 ed. 2000, Yale University Press).



With respect to the reality of participation, our jurisprudential orientation compels us to seek to identify the realistic role played by individuals, groups, and so forth in the formation of law or normative content, as well as their role with respect to other aspects of the legal process. For example, international law concerning the content of customary international law (CIL) as well as the meaning of treaty law demands awareness of generally shared patterns of opinio juris or general patterns of relevant legal expectation. This is one of the admitted elements of dynamic CIL and one of the primary foci for interpretation of treaty content or “meaning,” one utilized necessarily in connection with efforts to identify and clarify the “ordinary meaning” to be given to the terms of a treaty (since “ordinary” meaning is necessarily the generally shared or “objective” meaning of a term or phrase, a real human meaning as opposed to some theoretic but not commonly understood meaning). See Paust, Van Dyke, Malone, supra at 69-70.



What I take issue with is the notion that relevant opinio juris or generally shared meaning merely should be or merely has been that of “states.” For example, Christiana offers an initial inquiry into some of the history of Article 38(1)(b) of the Statute of the ICJ on pages 171-73. Yet she concludes that the article encompasses merely “state” practice and opinio (id. at 132, 170) despite the fact that the word “state” was excluded from subparagraph (b) and that the drafters used the word “state” in subparagraph (a) and used the word “nation” in subparagraph (c). We disagree. See Paust, Van Dyke, Malone, supra at 4-5.



More generally, historically, there have always been other actors than the “state.” “Nations” (e.g., Indian “nations” and “tribes”) and “belligerents” (e.g., the Confederate States of America) have long participated in the international legal process. For example, they have had treaties with states and have been bound by customary international law. Other nonstate actors have included “empires” and “coalitions.” In our own history, we had a Continental Congress before we created the “state” of the United States, and we had a treaty with Great Britain in 1783, prior to creation of that “state.” In my own writings, I have identified numerous cases where individuals had responsibility under customary international law and treaty-based international law. For example, it was recognized early that individuals could be prosecuted for many types of crime under international law. See, e.g., The Reality of Private Rights, Duties, and Participation in the International Legal Process, 25 Mich. J. Int’l L. 1229, 1237-39 (2004). A famous case in that regard is Henfield’s Case in 1793, involving the direct incorporation of CIL and treaties for criminal prosecution. Also in our history and that of western Europe and elsewhere there have been recognitions of human rights of individuals for at least two hundred years. See, e.g., Paust, International Law as Law of the United States 193-217, passim (2 ed. 2003). Individual responsibility and rights are generally not at issue here. Christiana’s primarily concern is the role of individuals in the formation of law.



Even Oppenheim, the rigid state-oriented positivist who wrote in 1912 that “states” are the only actors, admitted that many textwriters disagreed with his preference (including Bonfils, Bluntschli, Fiore, and Martens). See 25 Mich. J. Int’l L. at 1231-32. Perhaps the British chose this unrealistic preference in order to facilitate their dominance in various “colonies.” In any event, traditional international law, even through the early 20th Century, recognized the role of “nations,” “belligerents,” and entities other than the “state.” That alone demonstrates the error of the states-alone theory and the error that such an unrealistic theory was “traditional” outside of rigid state-oriented positivist circles and those (I admit that there have been many) who simply repeat their printed preferences. Earlier, cities, like Venice, had treaties with states and the Ottoman Empire. It would be improper for us to retroactively impose on such entities a theoretic construct that we use at this time called the “state.”



When was the “state” of Greece, the cradle of “civilization,” created? When did the “state” of Germany occur or the “state” of Japan or Italy? Within the 19th Century. Were there treaties with leaders or groups within such areas prior to the “state”? Did persons from such areas and groups play no role in the formation of CIL, treaties, and normative content more generally? I suspect that our research into roles of actual participants in international agreement processes and CIL during the 17th, 18th, and 19th centuries has been incomplete, that our awareness of history is imperfect. I know that writers such as Francis Lieber, who codified customary laws of war in 1863, looked to practices of tribes, confederations, nations, and actors other than the “state” (because I had the privilege of looking through some of the books from his personal collection and some notes that he wrote in some of the books – which were housed in the Judge Advocate General’s School in Charlottesville). It is enough to know that Oppenheim was wrong. Perhaps “readers” here can disclose other examples of treaties involving non”state” actors



Christiana quotes the Martens clause (see Martens above) from the 1899 Hague Convention, which was mirrored in the 1907 Hague Convention No. IV (all around the time of Oppenheim’s unrealistic preference). As she notes (at 130), it is very interesting that the clause refers to “nations” and the “laws of humanity” as well as the “public conscience.” Henfield’s Case had mentioned the “duties of humanity” and others mentioned the “laws of humanity” (not the “state”). In the 1919 Report of the Responsibilities Commission, it was recognized that individuals were subject to criminal sanctions for offenses against the “laws of humanity,” which today are called “crimes against humanity.” See Paust, Van Dyke, Malone, supra at 986-87. It is also of interest that Henry Wheaton’s Elements of International Law recognized in 1855 that “[p]rivate individuals, or public and private corporations may … become the subjects” of international law. See Paust, Van Dyke, Malone, supra at 20. We find the extract from United States v. Von Leeb, id. at 29-30, to be informing of the continued recognition in the mid-20th Century of to role of persons in the formation of normative content and that the process is “democratic.” If there is a dovetailing of realism in this respect (e.g., concerning awareness of the realistic role of individuals and groups) and ideologic preferences, it relates to the preference for human dignity or individual value found in human rights law (e.g., in the Universal Declaration of Human Rights, art. 1) and the interrelated preference for a one-person-one-vote legitimacy of governmental authority (e.g., id. art. 21(3) (“the will of the people”)) and processes of political self-determination (e.g., in the 1970 Declaration on Principles of International Law).

The Individual and Customary International Law Formation

by Christiana Ochoa

First, I would like to thank Roger Alford and VJIL Editor-in-Chief Chris Ripple for the groundwork they’ve done to create this blogging opportunity. I’ve followed VJIL/Opinio Juris posts all week and have found them very informative.



In my most recent article, The Individual and Customary International Law Formation, I propose opening a space for non-state actors, specifically individuals, in the process by which customary international law (CIL) is formed. A good portion of the article is devoted to a discussion of the concept of custom, as well as to a brief history of CIL, and the current thinking regarding CIL (both in terms of accepted doctrine and critiques thereof). Because the idea that non-state actors ought to participate in the CIL-formation process has not gained a tremendous amount of traction previously, the article also steers readers through the existing literature addressing the possibility, reality and prospects for inclusion of non-state actors in this process. Readers not familiar with CIL doctrine or these contributions to its various sub-literatures will surely find this section informative. However, as is so often the case, it is the second half of the article to which I would like to draw your attention, for it is here that the central portions of my argument– that the CIL-formation process should include individuals – takes shape. In the second half of the article, I venture to provide theoretical underpinnings for the proposition that individuals should be recognized in CIL formation doctrine and construct a framework for how this might be accomplished, both doctrinally and practically.



In essence, my argument rests on what I see as two doctrinal premises. The first is a general shift in thinking about individuals as mere objects of international law – akin to rivers, cattle or real property – to a generally accepted recognition of individuals as subjects of international law. This shift, I argue, has created a deep doctrinal inconsistency due to the fact that customary law, international or otherwise, has typically been conceived of as the law that arises from its subjects. The recognition of individuals as subjects of international law has thus rightly drawn the validity and legitimacy of CIL into question – CIL doctrine no longer permits it to arise from all of its subjects. Rather, CIL continues to look only to states.



The second doctrinal premise is that international law accepts the participation of individuals in international law – particularly those aspects in which they are most interested, such as human rights – and creates routes for this participation. The article focuses on the recognized participation of individuals in the process by which human rights treaties are formed to illustrate that while human rights treaties may address many of the same norms as compose the CIL of human rights, there is no recognized avenue for individuals to participate in CIL formation. There is no avenue for individual participation even in the area of human rights, which is oriented toward the individual and recognizes and anticipates that states will be rights violators. And this is true despite evidence that states do not always represent the human rights aspirations and desires of their populations (see, e.g., the recent events in Burma).



The article also discusses social/philosophical bases for including the individual. These bases ought to be quite familiar to international law scholars and include globalization, cosmopolitanism and cosmopolitan identity, as well as transnationalism, and globalization from below. The premise of each of these theories is that the hold of the state on international power and influence is no longer monolithic. If this is the case, then we are pushed to rethink not just who international law protects and who it governs but also how it is made and by whom. Given the deeply democratic rhetoric and idealism of the international project and the real and perceived need to continually reinforce the legitimacy of that project, the article stops briefly to inquire about the relationship of democracy to a democratized method of law formation. (I develop this inquiry further in a forthcoming note titled, The Relationship of Participatory Democracy to Participatory Law-Formation, 15 INDIANA J. GLOBAL LEGAL STUD. __ (2008, forthcoming)).



I imagine some of you will suggest, as some of you already have, that my article is self-limiting in that it does not propose that all manner of non-state actors (including private groups) be included in the CIL formation process. I sympathize with that critique. It is very possible that other non-state actors should similarly be included in CIL formation. I did not address other actors comprehensively because I opted for the more careful and methodical approach afforded by addressing only individuals. As a result, other non-state actors simply fell outside of the purview of the article. Thinking through the doctrinal and social/philosophical justifications for including other non-state actors will clearly be a separate and significant undertaking. I hope, however, that if that task is taken up by someone else, before I get to it in my own work, that my bases for expanding the formative actors of CIL will be helpful to those future authors.



For those persuaded by the arguments I make for doctrinal alterations, I would especially like to direct your attention to the last section of the article, titled “Operationalizing the Inclusion of Individuals” – the section in which I make an early foray into the practical application of my theory. In the first part of this last section I begin to develop a framework for assessing custom among individuals (presumably if individuals are to be included in determinations of CIL, a methodology for doing so would have to be developed). This is the section of the article that I find most exciting because it is here that the real prospective puzzles lie. These puzzles, perhaps not surprisingly, mirror those that have vexed CIL scholars for decades. What would “count” as custom; individuals’ beliefs about their rights or their expectations about how various actors ought to behave, or both? And what use would we make of the practice of individuals, given that custom arises from conduct and actual behavior as opposed to arising from beliefs and expectations alone? And what levels of uniformity, universality and duration would we expect of individual’s beliefs, expectations and behavior before custom could be asserted and ascertained?



Finally, I attempt to address another question that will naturally arise: What would be the material sources that could serve as evidence of the formation of international custom among individuals? This section leaves open significant questions for future debate – questions that mirror the debate that has ensued since Article 38(1)(b) was drafted – about the proper material sources of evidence in respect to state opinio juris and practice. Because the study of individuals, their behavior, their beliefs and their customs has not traditionally been a focus of the law, this is an inherently cross-disciplinary endeavor that will require contributions from and dialogue with, among others, political scientists, anthropologists, sociologists and journalists. Again, the article offers only a framework and a list of possible avenues for obtaining evidence of custom formation among individuals.



Given the significant scholarly attention and debate that has been devoted to these questions under traditional state-oriented CIL doctrine, it is my hope and expectation that these questions will attract the attention of current and future international law scholars as they contribute to a new literature on the possibility of non-state actor contributions to CIL. I hope for this because I believe in the project – I believe individuals really should be consulted in the CIL formation process.



For those of you especially interested in this article, please feel free to contact me (cochoa AT indiana DOT edu). The Indiana University School of Law is hosting a conference on April 3-5, 2008 on “The Individual and Customary International Law Formation,” during which these ideas will be further explored and developed. It would be wonderful to see you in Bloomington for that event.




A Response: Sanchez-Llamas and the Value of ICJ Judgments

by Mark Movsesian

I thank Roger for his thoughtful comments. Roger himself has written a seminal article in this area, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675 (2003), and I’m grateful for his kind words about my work.



Let me try to address his points. First, I agree that Medellin addresses a narrower issue from Sanchez-Llamas: the enforcement of ICJ judgments rather than their precedential effect. As Roger says, the “foreign judgments” model fits Medellin better than it does Sanchez-Llamas. Because enforcing a judgment does not create systemic effects within a domestic regime, it is less problematic than granting a judgment precedential effect. I also agree that the US has an international-law obligation to comply with Avena under the Optional Protocol and the UN Charter. But if you accept dualism as the most plausible approach to ICJ judgments – as I do, for the reasons I explain in my piece – you have to ask another question. Is there a domestic-law obligation to enforce Avena? I’m not so sure that the treaties create such an obligation. (The President’s memorandum may do so, but I don’t understand Roger to be asking about that). You have to interpret treaties, like contracts, fairly and consistently with the background assumptions of the parties, and neither the Optional Protocol nor the UN Charter indicates that states were contemplating domestic-court enforcement when they signed on. Contrast, for example, the New York Convention on international commercial arbitration, which clearly contemplates domestic judicial enforcement of international arbitral awards.



Second, on Justice Ginsburg’s “middle way,” I don’t read her dissent quite the way Roger does. Justice Ginsburg’s point was not that a subsequent federal statute superseded the VCCR, but that there was no conflict between the ICJ’s judgment and US law in this case. According to Ginsburg, Avena barred a state from applying a procedural default rule only where the state’s actions themselves had precluded the defendant from raising his VCCR claims at trial. That was not the situation in Sanchez-Llamas – Oregon had done nothing to prevent the defendant from raising his VCCR claims at trial. So Oregon’s application of its procedural default rule did not violate the treaty, as the ICJ had interpreted the treaty. I think this was step-two, rather than step-one, under Roger’s analysis of Charming Betsy.



Finally, I do recognize that the Court has stated that the opinions of foreign courts are entitled to “considerable weight” in treaty interpretation. Perhaps, as the quote from Justice Scalia suggests, these statements mean that there’s a presumption in favor of deferring to foreign courts. But, as I discuss in the article, the Court does not always act as though such a presumption exists. Sometimes it defers to foreign-court interpretations and sometimes it does not. One could explain the Court’s decisions in dualist terms: the Court adopts the reasoning of foreign courts when it believes there are good reasons for doing so – promoting uniformity, for example – but goes its own way when it believes those reasons are lacking.



I hope to develop these points in a paper I’m presenting at a conference at Duke next semester. For now, I’d like to thank Roger again for his careful reading and his OJ colleagues for this fun blogging opportunity.


Sanchez-Llamas and the Value of ICJ Judgments

by Roger Alford

Mark’s excellent article provides a thoughtful analysis of Sanchez-Llamas and the significance of that case for the question of deference to decisions of international tribunals. There is much to commend about this article. I particularly like his analysis of the risks and rewards of the dualist approach and his forceful argument that dualism strikes the appropriate balance of those risks and rewards. (pp. 90-96) He also has some great stuff on why the European model of deference to the ECJ and the European Court of Human Rights does not work for the United States (pp. 112-114).

Unlike Medellin, it is important to recognize that the Sanchez-Llamas petitioners who rely on the ICJ’s decision in Avena were not among the 51 nationals whose claims were espoused by Mexico in that case. As such, the case does not trigger questions about the direct enforcement of ICJ decisions by virtue of our treaty commitments. It appears from Mark’s article that had Sanchez-Llamas been a case like Medellin, then “the United States has an international obligation to comply with an ICJ judgment in a case to which it is a party.” (p. 88). In other words, if there is a federal mandate requiring that an ICJ decision have dispositional value, then apparently Mark believes it should have such effect.

The question raised by Sanchez-Llamas then, is what effect should a national court give to an ICJ decision on matters of treaty interpretation. Mark presents the choices as either “information” value or “disposition” value, with the majority in Sanchez-Llamas opting for the former, and the dissent choosing the latter. I think the choices are broader than that. I think the dispositional approach is most useful in those situations in which (1) there is either a federal mandate requiring domestic courts to give such effect to the international decision or (2) the United States is a party in the international litigation and the prevailing party seeks direct recognition and enforcement of the ICJ decision.

My sense is that Sanchez-Llamas falls into neither of those categories and therefore dispositional value is inappropriate. Thus, contrary to Mark’s discussion in his article (pp. 106-107), I don’t think the “foreign judgment” model fits the facts of Sanchez-Llamas. (Medellin is a harder question). But does that leave us with simply the option that the international decision has only informational value (what I have previously called the “Paquete Habana model” of deference)? I don’t think so.

There is a third way, suggested by Justice Ginsburg in her concurrence, that moderates between the majority and dissenting opinions. She recognized that under the last-in-time rule, a subsequent statute would supersede any inconsistent provision in the earlier Convention. Thus, whatever value one might give to the ICJ decision as to the meaning of the treaty obligation, a subsequent conflicting statute must be given appropriate effect. She then engaged in an independent analysis of the meaning of the federal “procedural default rule” statute and concluded that the Supreme Court could not give effect to Article 36 of the VCCR in light of that conflicting statute.

As I have suggested in a previous article, what the Court did in Breard (and arguably what Justice Ginsburg did in Sanchez-Llamas) was a Charming Betsy “step-one” analysis. Charming Betsy requires two steps: (1) can the subsequent statute and the earlier international obligation be reconciled; and (2) if so, interpret the statute in manner consistent with the international obligation. Because Justice Ginsburg could not overcome the first step, she did not need to address the second step.

Perhaps one could say this middle approach continues to give the Court complete discretion to interpret the meaning of the federal statute as it sees fit (i.e., the ICJ’s interpretation of the federal statute is only of informational value), but the Court should give presumptive value to the decisions of an international tribunal charged by the United States (and other signatories) with interpreting the meaning of the treaty obligation (i.e., the ICJ’s interpretation of the international treaty obligation is not dispositional as to the meaning of the treaty, but is given presumptive weight).

As Justice Scalia put it in Olympic Airways, “it is reasonable to impute to the parties [to a treaty] an intent that their respective courts strive to interpret the treaty consistently.” It is equally reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently with the interpretation given by the international tribunal charged by the parties with resolving disputes as to the meaning of the treaty.

Judging International Judgments

by Mark Movsesian

I’m grateful to the folks at Opinio Juris and VJIL for this opportunity to introduce readers to my article and to Roger for offering to serve as commentator.



My article discusses the Court’s decision last year in Sanchez-Llamas v. Oregon. Sanchez-Llamas addressed the precedential effect of ICJ judgments in domestic courts. (By contrast, Medellin v. Texas, which the Court heard last week, involves the enforcement of ICJ judgments themselves). In the article, I show how the main opinions in Sanchez-Llamas mirror the debate about international tribunals, and the ICJ in particular, that has preoccupied the international-law academy for the last decade. The Court’s opinion adopts what I call a dualist approach to ICJ judgments. It holds that ICJ judgments have only “information value” for domestic courts – ICJ judgments can supply good arguments and helpful analysis, but they cannot influence the outcome of a case, the way domestic precedent can, by virtue of their status as judicial pronouncements. The dissent, by contrast, adopts the comity model, which teaches that American courts should presumptively defer to ICJ judgments – should give them presumptive “disposition value” – in the interests of justice and global uniformity.



I argue that the dualist approach is better than the comity model at balancing the advantages and disadvantages of international tribunals like the ICJ. The comity model draws support from inapposite regional analogies, both European and American, and fails to resolve the legitimacy problems of international tribunals. In rejecting the comity model, Sanchez-Llamas suggests that the American approach to international judgments will be a moderate and sensible one.


A Response: Reciprocal Unilateralism

by Austen Parrish

As an initial matter, thanks to Professor Craik for his kind and well-thought out comments to our article. I should note that Neil has done some wonderful work on transnational environmental governance and the use of environmental impact assessments. Just as one example, his paper on deliberation and legitimacy in transnational environmental governance is excellent and well worth the read.

But on to the task at hand… To a large extent, Neil agrees with our analysis on the loosening restrictions on extraterritoriality. Yet Neil is somewhat unconvinced of our overall thesis. He emphasizes that there remains substantial disincentives for Canadian provinces to embrace unilateralism in the form of enacting a statute that would permit transnational litigation. Neil then outlines what he perceives to be the key remaining barriers to suit. Certainly, Neil is correct on one level. Disincentives for suit still exist. But I’m less convinced than Neil that they are insurmountable as they once were. Let me explain.

First, Neil describes the various transgovernmental networks at play in the U.S.-Canadian relationship, where he believes policy may more likely be influenced. As a descriptive matter, Neil is correct to point out the existence of a whole host of transgovernmental cooperative activities, some formal and some informal. Many subnational actors engage in an ongoing discourse over environmental policy impacting the two countries. But it’s difficult to see how these networks meaningfully reduce the likelihood of transnational litigation. Those networks appeared impotent to stop the filing of the Pakootas lawsuit, or to reduce tensions in other recent heated cross-border disputes, such as Devils Lake, the Softwood Lumber impasse, oil drilling in the Arctic National Wildlife Reserve, and many others. Some of the cooperative activities that Neil highlights support, rather than undermine, our thesis. As I discuss in this article, the Great Lakes Compact and Agreement, for example, specifically include citizen suit provisions, permitting for the first time cross-border litigation as a means of enforcing the terms of the Compact. And ultimately, how successful these transgovernmental networks have been is far from clear. Although Ontario filed formal comments objecting to the EPA’s New Source Review Program under the Clean Air Act, what weight, if any, those comments were given is uncertain. Some believe the comments fell entirely on deaf ears, or at least were given much less weight than the concerns of other U.S. stakeholders. In fact, Ontario has had a long history of objecting to U.S. environmental regulations as being insensitive to Canadian concerns (think of the 1980s with Acid Rain). If anything, history suggests that the sort of relationship that Ontario has tried to cultivate with the state governments has not been terribly effective in protecting Canadian interests.

Neil then turns to the jurisdictional hurdles that remain. Neil believes that any statutory approach taken toward remedying Ontario pollution would need “to seek damages from polluters regardless of location.” We agree. Ontario has its own housecleaning to do, and would need to enact a neutral statute, similar to the one that existed in Imperial Tobacco. We do not suggest that Ontario could enact a statute that discriminates solely against foreign (i.e. U.S.) polluters – such a statute would surely fail. We also agree with Neil’s observation that Canada’s position on extraterritorial jurisdiction is “less fulsome than the American position.” But as the U.S. has broadly interpreted the effects doctrine to permit prescriptive and legislative jurisdiction in a wide-range of contexts, other countries have started also to permit extraterritorial jurisdiction when substantial effects are felt within their countries. The result has been a dramatic rise in the last decade of other countries extraterritorially applying their laws (from antitrust, to securities, to human rights, to criminal law claims). Why Canadians would buck these world-wide trends is unclear. Viewed from a different perspective, if the U.S. increasingly relies on extraterritorial laws without considering comity (e.g., Pakootas, but also other cases like Hartford, where a multilateral balancing approach incorporating comity concerns was rejected), Canada may have little choice but to engage in a tit-for-tat strategy, despite that strategy being antithetical to its long-term goals.

In the end, Neil and I are more in agreement than disagreement. Neil is right on point when he concludes that “unilateralism lacks predictability, and ultimately, it lacks any transformative potential to create a shared normative vision regarding common threats to the natural environment.” But I think Neil’s position – like mine – is an outlier among current international legal theorists. Few scholars seem concerned about the use of domestic courts to solve transnational problems, while at the same time encouraging and embracing multilateral agreements. In fact, academics perhaps should be concerned how current international scholarship has become so polarized on this point. On the one hand — to use a term often ascribed to Peter Spiro – “sovereigntists” appear content to generally attack international law and its institutions as a threat to American uniqueness, without providing an alternative approach to serious transboundary challenges. On the other hand, many internationalists encourage the use of extraterritorial laws despite the long-term drawbacks and the potential to undermine the development of more meaningful international law. Look at the burgeoning literature encouraging the use of the Alien Tort Statute as a means of redressing human rights abuses under universal jurisdiction (as an aside: I’d be interested in what others think on this broader point; I hope readers will comment.) The result is that Neil, Shi-Ling, and I may be on the fringes when we see extraterritorial lawsuits as a method for bringing uncooperative partners back to the bargaining table. (If you’re interested, I’ve explored this last issue, international legal theory, the global growth of extraterritoriality, and the decline of multilateral lawmaking, in a new paper.) Given all this – and the changes in law and science that make such suits more plausible than before – Canadians might well be wise to seriously consider extraterritorial transnational litigation as a pragmatic necessity.

One last point, before our guest stint ends. I wanted to extend some thank yous. First, thanks to VJIL and Opinio Juris for hosting this forum: a great idea. I should also have mentioned that the portion of our article describing the Devils Lake dispute drew heavily from the work of Opinio Juris’s own Duncan Hollis. Duncan’s work on Devils Lake and his scholarship on state consent and the changing sources of international law is first-rate. Second, I think I speak for both Shi-Ling and myself when I say working with VJIL has been an excellent experience. The journal’s suggested edits to our article were on point, meticulous, and well-thought out. VJIL provided us with timely suggestions and feedback in easy-to-understand redlines. The article was taken quickly to publication, and the board was responsive to our emails and requests. In short, we were very pleased to have decided to publish with VJIL. From an author’s perspective, VJIL’s reputation as one of the nation’s premier international law journals is well-deserved. In particular, special thanks goes to Naja Armstrong-Pulte for her careful edits, and to Christopher Hammer and Chris Ripple for their help in the other stages of the production process.

Reciprocal Unilateralism

by Neil Craik

At the heart of Professors Hsu and Parrish’s excellent paper is the turn to transnationalism in environmental governance in North America. The authors point to both the potential increased demand for transnational litigation, due to the (political) unavailability of bi-lateral approaches, and the potential for increased supply of transnational solutions through the dismantling of jurisdictional and evidentiary barriers to successful claims. As a normative development, the authors are ambivalent about the turn to extraterritoriality, and perhaps with good reason, since it is far from clear whether the short gains in effectiveness will be outweighed by instability over the long term.



For my part, while I generally agree with Austen and Shi-Ling’s analysis of the legal issues surrounding the loosening restrictions on extraterritoriality, I think there remain some substantial disincentives for Ontario (or any other Canadian province) to embrace unilateralism. Firstly, while formal bi-lateral institutions, such as the International Joint Commission, appear to have fallen out of favour, there remains a fairly dense set of transgovernmental environment networks and interactions operating between Canada and the United States. For example, on the air quality issue, the Canada-U.S. Air Quality Committee, made up of officials from federal and sub-national agencies from Canada and the U.S., has, inter alia, provided a forum for reciprocal notification and consultation of activities having transboundary impacts on air quality and is currently developing strategies to address the must problematic air sheds around the Great Lakes and Puget Sound/Georgia Basin. Similarly, the Commission for Environmental Cooperation has created networks addressing biodiversity, marine ecosystems, and compliance issues, in addition to assisting in the development of pollution release and transfer registries in North America. The recent Security and Prosperity Partnership of North America includes a number of environmental initiatives that utilize transgovernmental networks as the primary means of implementation. Networks and other cooperative activities are also growing at the sub-national level, with provinces and states in the border regions entering into environmental cooperation agreements, such as the Great Lakes Agreement and Compact. The turn away from formal bi-lateral institutions has not resulted in a cessation of transboundary regulatory activity, but has lead to more informal transgovernmental cooperative activities. The question that governmental officials will need to ask themselves before taking extraterritorial measures is how unilateral actions will affect those activities.



A second avenue of recourse for transboundary pollution currently being pursued is direct involvement in the source state’s public regulatory process. Ontario has, for example, filed formal comments objecting to the EPA’s proposed changes to the New Source Review Program under the Clean Air Act and has commented on the proposed rulemaking on National Ambient Air Quality Standards for Ozone. Ontario also filed an amicus brief in United States v. Cinergy Corp., supporting the U.S. government’s NSR enforcement action. In these matters, the Ontario government has worked closely with state governments and may be reluctant to be seen as acting unilaterally when it is seeking to influence the decision-making process through public law avenues.



On the supply side, two potentially significant jurisdictional hurdles remain. Firstly, Canadian provinces face constitutional restrictions in enacting extraterritorial legislation. Here Shi-Ling and Austen rightly point to the Supreme Court of Canada’s decision in Imperial Tobacco v. B.C. as supporting a province’s right to enact legislation that has extraterritorial impacts. However, in Imperial Tobacco the legislation was not itself aimed at companies outside of Canada, but rather sought recourse from tobacco companies regardless of their presence in or out of the jurisdiction. Thus, in that case, the court found that the “pith and substance” of the legislation was not extraterritorial. Had the court found otherwise, the constitutional challenge would have been successful. If a statutory approach is taken towards seeking damages related to pollution, a purely extraterritorial approach would present a significant challenge. The alternative is to seek damages from polluters regardless of their location, but that may present difficulties of its own, given that much of Ontario’s air pollution originates within that province.



Secondly, the Canadian position on the international law of extraterritorial jurisdiction may be less fulsome than the American position. Canada has asserted extraterritorial jurisdiction, most prominently in support of its seizure of the trawler Estai in 1995, but has maintained, in the Pakootas litigation, for example, that extraterritoriality must account for an affected state’s interests through comity. Canadian courts while applying a “real and substantial connection” test to subject matter and personal jurisdiction, would temper that with considerations of comity. Any uncertainty could likely be overcome through clear statutory language, but the position would cause a great deal of unease within the federal government and a province would likely face some pressure to avoid an unequivocal extraterritorial extension of prescriptive authority such as Austen and Shi-Ling propose. This, of course, is emblematic of the concerns that Austen and Shi-Ling raise concerning transnationalism, where a sub-national government can potentially prejudice a national position by acting independently in the transnational sphere. Reciprocity in this instance may have its costs, in so far as it requires Canada to give up its long standing opposition to unilateralism in international law. Given the significant differences in relative power between Canada and the United States, the Canadian insistence on comity as a basis to resolve jurisdictional conflicts is less about the moral high ground (the Helms-Burton Act notwithstanding), than it is pragmatism.



Shi-Ling and Austen are absolutely correct in identifying that recalcitrance by a negotiating partner on matters of shared concern, be it transboundary pollution, climate change or trade, requires a response, and certainly one response is to resort to unilateral measures. Reciprocal unilateralism in its best light, and the one the authors emphasize, is a short term strategy; a form of tit-for tat that serves to bring an uncooperative partner back to the table. As a long term strategy, however, unilateralism lacks predictability and, ultimately, it lacks any transformative potential to create a shared normative vision regarding common threats to the natural environment.


The Risk of Using Domestic Law to Solve Transboundary Harm

by Austen Parrish

Shi-Ling nicely describes the crux of our article, and the different perspectives that we brought to the project. Here – very briefly – I wanted to take a step beyond our paper and elaborate on my nervousness over using domestic laws, applied extraterritorially, to solve transboundary (or international) problems. What Shi-Ling accurately describes as my lament.



I agree with Shi-Ling that sometimes subnational litigation may be necessary to provide some relief to otherwise intractable problems. Our article, of course, advocates a transboundary lawsuit. Certainly it makes sense for Canadians to explore using domestic environmental regulations to remedy U.S. pollution having a substantial effect and causing significant harm in Canada. This is particularly the case when the U.S. seems disinterested in seriously exploring bilateral or diplomatic solutions, and when the U.S. itself has commonly unilaterally applied its own domestic laws extraterritorially in a wide-range of contexts. The pending Pakootas v. Cominco case (the Trail Smelter dispute) currently on cert. petition to the U.S. Supreme Court — where CERCLA has been applied against a Canadian company for activities solely occurring in Canada – may well cause Canadians to rethink their reluctance to extraterritorially apply their own laws.



But to my mind, extraterritorial lawsuits (i.e. transnational litigations) are problematic. In some ways, recent international legal scholarship has encouraged these suits. Sovereigntist/revisionist scholars have pushed internationalists to turn domestically with their sustained attack against international, multilateral instruments as a threat to American democratic sovereignty. On the other hand, internationalists have also turned away from traditional sources of international law and multilateralism, believing the traditional view that international lawmaking should be the sole business of nation-states to be anachronistic. Instead, substate/nonstate actors are encouraged to create and enforce international law. The academy is filled with international scholars who now embrace constructivist, pluralist, and transnational perspectives.



Yet I suspect that extraterritorial lawsuits undermine what both groups of scholars value most. States applying their domestic laws extraterritorially (i.e., asserting their own legislative or prescriptive jurisdiction) undermines the collective determination of states to resolve disputes bilaterally or multilaterally. In short, domestic lawsuits may threaten the creation of meaningful international laws. Scholars who are skeptical about international law as a threat to democratic sovereignty should be even more concerned. Extraterritorial lawsuits lead not only to patchwork solutions, but also are antithetical to democratic self-rule. In fact, extraterritorial lawsuits threaten democratic sovereignty to a much greater extent that international law ever has. So as much as I believe a Canadian lawsuit is possible to remedy transboundary pollution, broadly speaking I am nervous about what it portends for international law. In the long-term, bilateral and multilateral treaties (and their institutions) often will remain the best way to address transboundary challenges.






Canadian Provinces Suing Americans for Transboundary Harm

by Shi-Ling Hsu

The Canadian province of Ontario suing Americans over transboundary air pollution?! Are we serious?



We are. A convergence of a political, legal, and scientific developments have made this hypothesized lawsuit possible – a lawsuit that would have seemed quite unlikely just a few years ago. Tobacco litigation in Canada signals the lowering of some jurisprudential hurdles, causation problems have been partially overcome by the advance of epidemiological research and air quality modeling, and the politics of U.S.-Canada relations are sour enough to test the patience of the usually unlitigious Canadians. Richard Lazarus helpfully commented to us during the inaugural Harvard-Boalt-UCLA Junior Environmental Scholar workshop that he has seen variations of this before – that this lawsuit would be an attempt to change the “default position” in an unresolved environmental conflict. I think that is true, although we did not articulate that as directly or elegantly as Professor Lazarus did.



Our paper presents a melding of two different conflicting perspectives. Austen Parrish, the international scholar, generally laments the extraterritorial application of domestic law, while I, the environmentalist, look for ways to remedy environmental externalities. Austen’s previous work on the Trail Smelter is representative of his commitment to the rule of law in international contexts. My recent work on climate change litigation is representative of my search for remedies and subnational solutions to the seemingly intractable problem of climate change. Of course, there are reconciliations of these perspectives, and this paper is one of them.



A step back then suggests that this lawsuit is not just the freak result of a perfect storm. In fact, this lawsuit, if brought, may be a harbinger of things to come. The increasing knowledge base of environmental harms and causes are transforming the way that we think the boundaries of legal wrongs. And the fractious nature of international environmental politics may well give rise to the kind of unilateralism that Professor Parrish has lamented in his previous work. Looking forward, with acid rain from China settling in on the West Coast of North America, is it so implausible that a recalcitrant Chinese government, combined with a growing American nativism towards China, will give rise to a similar lawsuit for trans-Pacific air pollution?






The New Partnership with Opinio Juris

by The Editors of the Virginia Journal of International Law

Now in its forty-eighth year of publication, the Virginia Journal of International Law is pleased to continue its participation in the scholarly debate of international legal issues through a new partnership with Opinio Juris. By continuing this conversation online, VJIL remains committed to staying at the center of a dynamic and interactive field of international legal scholarship.

From transboundary environmental harms to the effect of international judgments in domestic courts to a new model of customary international law formation, the issues explored in Vol. 48-1 demonstrate the range of VJIL’s coverage of both public and private international law. We hope that you will take a moment to visit our website for full copies of the three articles to be highlighted over the next week on Opinio Juris. On our website you will also find copies of the two student notes appearing in Vol. 48-1.

We look forward to this new partnership as an exciting forum for discussion. Between the appearance of our authors on Opinio Juris and the blogging surrounding their respective articles, we hope that you will keep in contact with us through our website to continue the conversation.

OJ/VJIL Partnership

by Roger Alford

Opinio Juris is pleased to announce that it has established an informal partnership with the Virginia Journal of International Law to promote VJIL scholarship on Opinio Juris.

This week we will highlight the three articles just published by VJIL in Volume 48, available here. The authors of those articles, Shi-Ling Hsu & Austen Parrish, Mark Movsesian, and Christiana Ochoa will each guest blog with Opinio Juris this week to discuss their scholarship. We also will have respondents who will post a reflection about each article.

On Tuesday, Shi-Ling Hsu (University of British Columbia) and Austen Parrish (Southwestern Law School) will discuss their article on Litigating Canada-U.S. Transboundary Harm. Neil Craik of the University of New Brunswick will be the respondent.

On Wednesday, Mark Movsesian (St. John’s) will discuss his article on Judging International Judgments. I will be the respondent to Mark’s article.

On Thursday, Christiana Ochoa (Indiana-Bloomington) will discuss her article on The Individual and Customary International Law Formation. Jordan Paust of the Houston Law Center will be the respondent.

We encourage you to read these articles and join in the discussion this week. We are very pleased with this opportunity to highlight leading scholarship on our blog.