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10 Jun

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project supporting the bondholders, for which he was compensated.] In a new claim in the long-running battle between Argentina and holders of its defaulted bonds (see here), the question is whether a U.S. court can order Argentina not to pay some bondholders unless it also pays others.  Again, Argentina says the Foreign Sovereign Immunities Act (FSIA) protects it, and again it tries to make the Act’s text say something it does not. To recap, a decade ago Argentina stopped making payments on some of its bonds, and the private bondholders (including NML Capital) sued Argentina in federal court in New York (as the FSIA and the contracts governing the bonds allowed them to do).  Argentina refused to pay the resulting judgments against it, so the bondholders are seeking enforcement.  One approach is to seek discovery of Argentina’s worldwide assets; whether a U.S. court can make such an order is the subject of the first Republic of Argentina v. NML Capital case, argued to the U.S. Supreme Court in April. The bondholders’ second strategy involves a clause in the bond contracts known as the equal treatment or pari passu clause.  To oversimplify, after Argentina initially failed to make payments on the bonds, it persuaded many of the bondholders to accept new bonds, with substantially reduced payments (but some hope of salvaging part of their investment).  NML Capital (and a few others) refused to take the deal, and sued for full payment of the original bonds instead.  Argentina now wants to pay the new bondholders (that is, those who agreed to the refinancing) while refusing to pay the holders of the old bonds. But that sort of discrimination among bondholders, the U.S. court held, violates the “equal treatment” clause in the original bond contracts: the clause says that the old bonds have to be treated equally to any new bonds, and clearly they aren’t.    Argentina had already said it wouldn’t obey a court order to pay on the old bonds.  So the holders of the old bonds asked the court for an injunction barring payment on the new bonds unless the old bonds receive equal treatment.  The district court granted the order and the Second Circuit affirmed. Now Argentina is bringing this claim to the U.S. Supreme Court on petition for certiorari (scheduled to be considered at the June 12 conference).  As with the case involving the discovery order, its supposed shield is the FSIA.  But again, Argentina is trying to make the FSIA do something it does not.  Argentina concedes that the FSIA allows the bondholders’ suit: Argentina waived its sovereign immunity in the bond contracts, and the FSIA allows suit where immunity is waived (Section 1605(a)(1)).  The FSIA further says (Section 1606) that non-immune sovereigns are (subject to specific exceptions) liable to the same extent as private litigants. The only plausible exception (and the only one Argentina argues)
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09 Jun

Your weekly selection of international law and international relations headlines from around the world: Africa A Liberia-flagged oil tanker has gone missing off the coast of Ghana and a senior port official told Reuters on Saturday the captain sent a distress call to say the vessel was attacked by pirates.  Up to 37 people including women and children were killed in Democratic Republic...

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09 Jun

The conflict between China and Vietnam over a Chinese oil rig has (thankfully) calmed down a little bit, with fewer reports of rammings and water cannon fights in the South China Sea.  But the war of press release and government-sponsored editorials has heated up and all of them are wielding international law as a weapon of authority and legitimacy. Vietnam's government...

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08 Jun

I want to call readers' attention to a remarkable Israeli NGO, Breaking the Silence, which collects the testimony of Israeli soldiers about the brutalization of Palestinians during the occupation. Here is the NGO's self-description: Breaking the Silence is an organization of veteran combatants who have served in the Israeli military since the start of the Second Intifada and have taken it upon themselves to...

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07 Jun

I had a good chuckle this morning when I read Libya's latest attempt to avoid complying with its obligation to surrender Saif Gaddafi to the ICC. (Which, of course, it may be genuinely unable to do, given that he's still being held in Zintan. But that's another story.) The source of my amusement is Libya's new excuse for not being able to...

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07 Jun

This fortnight on Opinio Juris, we discussed the US Supreme Court's decision in Bond v United States. Peter argued how the Court ducked the question about the federal treaty power and provided a Bond cheat sheet. A guest post by Jean Galbraith focused on the notable silences in the Bond opinions, and David Golove and Marty Lederman described the outcome as stepping back...

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06 Jun

The New York iteration of the Human Rights Watch Film Festival will be held June 12-22. A list of films to be screened in New York is available here. HRW explains the goal of the festival: Through our Human Rights Watch Film Festival we bear witness to human rights violations and create a forum for courageous individuals on both sides of...

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05 Jun

As many readers of this blog know, Elizabeth Andersen, the  Executive Director of the American Society of International Law, has been named the new director of the American Bar Association's Rule of Law Initiative. Consequently, the ASIL has a search underway for a new Executive Director. The search announcement states, in part: The American Society of International Law (“ASIL” or “the...

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05 Jun

A new High Level sanctions review has been initiated at the UN, sponsored by the UN Missions of Australia, Finland, Greece and Sweden, in combination with Brown University and the sanctions consulting firm CCI. The purpose of the review is to assess existing sanctions and develop forward looking recommendations to enhance effectiveness. A similar process took place in 2006, known...

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03 Jun

As David Kaye notes, treaty-power advocates everywhere may be breathing a collective sigh of relief with the Supreme Court's decision in Bond v. United States. I'm not so sure how big a difference it makes, given the Senate's persistent refusal to put an expansive treaty power to work. From an academic perspective the decision is a big let-down. No big...

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02 Jun

[Jean Galbraith is an Assistant Professor at Rutgers School of Law - Camden] Thank you to Opinio Juris for letting me guest blog on Bond. The most notable thing about the Bond decision is a resounding silence.  As a matter of law, it should have been easy to find for the government.  The statutory text reads plainly in the government’s favor, and constitutional text, practice, and precedent easily support the conclusion that the federal government can override federalism interests in implementing constitutionally valid treaties.  Yet not a single justice sided with the United States.  This silence is particularly perplexing given that three justices at oral argument seemed sympathetic to the government. That is the major silence, but there are silences of reasoning in the opinions as well.  In what follows, I focus on two silences.  The first is the lack of consideration in the majority opinion of how treaty-implementing statutes might differ as a matter of statutory construction from ordinary statutes.  The second is the startling absence of constitutional history from the Framing onward in Justice Scalia’s concurrence.

The Majority Opinion

As Peter Spiro has noted, the majority ducks the constitutional question of whether the Treaty Power plus the Necessary and Proper Clause authorizes Congress to criminalize domestic poisonings like that of Ms. Bond.  Following a hint dropped by Justice Kennedy at oral argument, the Court does this by holding that there needs to be a “clear statement that Congress meant the statute to reach local criminal conduct.”  It isn’t enough for Congress to use broad language that seems to cover the act at issue; instead, Congress apparently has to do something more to signal specific intent to reach “local” conduct.  Congress didn’t do so here, so Ms. Bond wins. I won’t deconstruct the merits of this approach, although I think Justice Scalia does a good job in his concurrence of showing why it is problematic.  But I do want to mention that it leads to an interesting divergence between the interpretation of a treaty and the interpretation of implementing legislation.  The Court spent very little time on the interpretation of the Chemical Weapons Convention itself, merely noting its “doubts” that the Convention was meant to reach ordinary domestic poisonings.  If it had wanted to, the Court could doubtless have done more to interpret the Convention this way (e.g., by explicit discussion of “object and purpose” or perhaps by drawing on rule-of-lenity-related principles in international and comparative law).  But instead the Court accepted a wedge between the interpretation of a treaty and of its implementing legislation.  Federalism principles do not matter to treaty interpretation (given that these principles are country-specific) but do matter to the interpretation of implementing legislation.  If this canon of construction is about Congressional intent, then it strikes me as odd, because there is a countervailing consideration not mentioned by the Court. This is that when Congress uses language that closely tracks a treaty’s language in implementing the treaty, Congress presumably does so because it wants convergence rather than divergence with the treaty.

Justice Scalia’s Concurrence

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