Monthly Archives: April 2013

‘I wish I had a more positive story to tell. But I see no signs of change.’

Thus was I quoted in “Protesterer for døve ører,” a story that reporter Heidi Taksdal Skjeseth published this morning in Dagavisen, Norway’s leading daily newspaper. The headline translates as “Protesting on deaf ears” –  a tragically apt title for the news that half or more of the detainees at Guantánamo are on hunger strike, many of them being force-fed, and that the U.S. government’s response is to send more medics trained to force-feed. Elsewhere in her article (Google Translate version here), Skjeseth notes my comment that nobody in Congress or the White House is expressing much concern these days about what’s happening at terrorGTMO – neither the standstill in the once-promised closure, nor the standstill in military commissions proceedings. (My prior GTMO posts available here; for the most up-to-date developments, see the Twitter feed of Carol Rosenberg of the Miami Herald.) One hopes for something – something other than a detainee’s death – to break that impasse.

If you’re in D.C. today, you can learn more about all this from Jess Bravin, the Wall Street Journal reporter who’s covered the military commissions for years and penned The Terror Courts, a brilliant book about same. My longer review is yet to come, but you can hear it from the source by attending Jess’ presentation at noon today at the American Society of International Law. Details here. (Update: now that this event has taken place, video available here.)

Having urged others to “read and teach and write about” peace in the American Society of International Law speech I gave earlier this month, I’m happy to take note of upcoming events and projects that push the peace agenda:
palac► The Peace Palace is soon to celebrate its 100th birthday, a milestone to be marked by numerous events at The Hague. On August 28, 1913, the Netherlands’ Queen Wilhelmina opened the red brick building that’s now home to the Permanent Court of Arbitration and the International Court of Justice. Among those who spoke at the ceremony was peace campaigner Jane Addams of Chicago, who’d win the Nobel Peace Prize in 1939 (and, long after, become the heroine of my 2013 ASIL speech). Events surrounding the Peace Palace centenary include:

►► At the Hague City Hall, an Exhibition on Women and Peace, opening August 15 and running through September 21. Among the women to be honored in this exhibit are 1905 Nobel Peace Prizewinner Bertha von Suttner (pictured below, on the right side of the Palace, opposite Hugo Grotius) and IntLawGrrls foremother Aletta Jacobs.

►► Sponsored by the International Criminal Court Student Network, a conference entitled “Peace Through Law: The Development of An Ideal,” August 25 to 27 at the Park Hotel Den Haag. The Network asks younger scholars (“undergraduate and graduate students and early professionals/academics peace(generally within five years of terminal degree) studying or working in the field of international criminal law”) to submit a 400-word abstract proposing a 20-minute talk on a topic “focused on the history and philosophy of the development of international criminal law and its relationship to peace and justice,” for presentation at the conference and eventual publication in the Network’s journal, Issues in International Criminal Justice. Deadline for abstract submission is May 1; details in the call for papers here. (My thanks to Central Michigan Philosophy Professor Hope Elizabeth May, a conference organizer, for the head’s up on this event.)

►► An official commemoration on the morning of August 28, plus the unveiling of a statue of Suttner in the Palace’s main hall. That same afternoon, a 2-day conference entitled “Sustainable Peacebuilding in Conflict-Affected Settings” will be held.

► Later next academic year, participants in the 2d conference on the Creation of International Law, a network of women scholars and practitioners, will discuss the conference theme, “Exploring the International Law Components of Peace.” Organizers include Professor Cecilia Marcela Bailliet, an IntLawGrrl; she convened the 1st conference 4 years ago at her home institution, Oslo Law 075in Norway. (Oslo conferees at right; prior posts on that conference here, here, and here.) This next conference will be held April 4 and 5, 2014, at the University of Wisconsin School of Law in Madison. Cecilia and her co-organizers seek papers, to be published in the Wisconsin International Law Journal, on an array of topics within the overall theme. Deadline for submission of abstracts is October 1, 2013; details in the full call for papers here.

kiobelPerhaps the only surprise in yesterday’s ruling in Kiobel v. Royal Dutch Petroleum was the vote: the long-running lawsuit, brought by Nigerian-born U.S. asylees, was rejected unanimously by the 9 Justices of the U.S. Supreme Court.

The bottom-line outcome (though not the vote margin) could be read on the wall 13 months ago, when the Court – having just heard argument on the question of whether corporations could be sued under the statute – announced that it would hear reargument on this question:

‘Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.’

As I’d noted ‘way back in 2010, the question became ripe when the Court, in a securities judgment called Morrison v. National Bank Australia Limited, broadly reaffirmed the notion that absent clear statement to the contrary, all acts of Congress should be presumed to apply only within the borders of the United States.

In many respects, the rather terse, 14-page opinion of the Court by Chief Justice John G. Roberts, Jr. does little more than state that this presumption of extraterritoriality applies to suits under the circa-1789 statute at issue, the 33 words of which –

‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’

– include no explicit statement one way or another. Much is left for future litigation, with various opinions offering glimmers of fact patterns that might, to adopt the words of the Court (p. 14), operate “with sufficient force to displace the presumption against extraterritorial application”:

► Roberts’ own opinion concludes by stating:

‘On these facts, all the relevant conduct took place outside the United States. … Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. …’

The sentences permit the inference that the outcome would not be predetermined if some “relevant conduct” occurred within the United States and/or if the corporate defendant were chartered in or otherwise operated extensively in the United States, to a degree greater than Shell.

► The 4 Justices whom many expected to dissent, though they agreed with rejection of the suit in Kiobel, set out a 15-page concurrence in the judgment positing a framework for situations that might be actionable notwithstanding the newly reaffirmed presumption against extraterritoriality. Justice Stephen G. Breyer thus wrote – in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – that jurisdiction would lie if:

‘(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest …’

National interest, this exceptionally American opinion stated,

‘includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.’

► The Court’s perennial swing vote did not expressly endorse the above 3-part test. Nevertheless, Justice Anthony M. Kennedy, in a solo concurrence, underscored that Roberts’ opinion

‘is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.’

Kennedy noted that the decision in Kiobel does not affect fact patterns falling within the scope of the Torture Victim Protection Act of 1991. Even allegations of human rights abuses not covered by TVPA, yet not fully foreclosed by Kiobel, await additional litigation. As Kennedy put it:

‘[I]n those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.’

In short: Dealt a harsh blow yesterday, some litigation under the Alien Tort Statute lives on, though perhaps just to die another day.

unicefBelow the surface of many U.S. stories about the plight of the world’s children, the careful reader sees a subtext – a suggestion that it is over there, and not here, that awful things happen to children. The careful reader knows this isn’t so, that, sadly, U.S. children suffer, too. Yet even the careful reader might be surprised at a new UNICEF report that gives the United States abysmal marks on children’s welfare.

As depicted in a table on page 2, Child well-being in rich countries: A comparative overview, released Wednesday by UNICEF’s Office of Research, ranked the United States 26th out of 29 industrialized countries evaluated. The United States joined Romania as the only countries placing in the bottom third on every metric: material well-being, health & safety; education; behaviors & risks; and housing & environment.  (Ireland was the only English-speaking country to place in the upper third of the list, which ranked the Netherlands 1st.)

The United States ranked dead last on obesity – nearly 30% of its children, close to 10 points higher than any other country – though it had the lowest rate of alcohol abuse. The United States had the 3d worst homicide rate for children, and was 1 of only 4 countries where child homicides exceeded 4 per 100,000. In other countries, that number is much lower, between 0 and 2.5.

The report singled out the United States’ low ranking as evidence that “there does not appear to be a strong relationship between per capita GDP and overall child well-being.” (p. 3) In other words: It is not how much wealth a country has, but on whose behalf a country chooses to allocate that wealth.

Sovereignty is dear to the People’s Republic of China. We international lawyers all know that. But we may have only a vague sense of why; that is, why Chinese jurists hold close to the concept of sovereignty. Nor are we likely to know what China thinks about other aspects op170f international law. I’ve just come across a few essays which provide some answers.

Each was published in the Chinese Journal of International Law by Dr. Xue Hanqin (right), on whose American Society of International Law intervention (video now available here) I recently posted. Xue wrote the articles while she was China’s ambassador to the Netherlands and, in 2 cases, a member of the International Law Commission. Today, she’s a judge on the International Court of Justice. Her status makes her take on China and international law well worth a read.

In “China’s Open Policy and International Law” (2005), and again in “Chinese Observations on International Law” (2007), Xue posited as the structural foundation  the Five Principles of Peaceful Coexistence, agreed upon in 1954 by Burma/Myanmar, China, India, and Indonesia. As she described them, the 5 are:

  1. “mutual respect of sovereignty and territorial integrity”;
  2. “mutual non-aggression”;
  3. “non-intervention in international affairs”;
  4. “equality and mutual benefit”; and
  5. “peaceful-coexistence.”

Xue wrote that China values sovereignty from the perspective of its history – a history marked by decades of invasion and occupation, which came to an end only in the mid-20th C. “I must say frankly,” she wrote in 2005:

‘[T]he first introduction of international law into China from the western world in the late 19th century left the Chinese people with little fond memories, as it was done through cannons and warships.’

cjil(Regarding this history, she referred to the 1990 Hague Academy lectures by the Professor Wang Tieya.) In her 2007 article, Xue situated China within the “viewpoint of the developing countries,” that “international law is based on a foreign legacy.” By this view, the U.N. Charter won acceptance because it enshrined “certain values” that postcolonial states “had been fighting for: sovereignty, equality, democracy, and self-determination.” She argued that the international legal system depends on “diversity of autonomous political communities,” and would falter if all members were forced to adhere to “one single social model.” She expressed concern lest the concept of responsibility to protect become a vehicle for usurping “multilateral mechanisms” for determining whether states may intervene against another. And even as she repeated China’s statements in support of “a just, impartial and effective” International Criminal Court, Xue argued, in the name of sovereignty, against ICC exercise of its Article 12(2) nonconsensual jurisdiction. (My own exploration of that provision is here.)

The 2 essays, along with “International Treaties in the Chinese Domestic Legal System” (2009), which Xue coauthored with Jin Qian, demonstrate the extent to which China has embraced such cooperation. (No doubt this theme is further developed in Xue’s own Hague Academy lecture, published here in 2012.) The country has entered more than 300 multilateral treaties, the vast majority since 1979.  And through a complex process that is neither entirely monist nor entirely dualist, it has implemented treaty obligations domestically – with respect to its World Trade Organization accession alone, China altered nearly 3,000 domestic laws and regulations.

China’s human rights record is, of course, an easy target for outside criticism. Yet Xue’s articles indicate that the framework for compliance is there: China has ratified thematic human rights treaties, such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as comprehensive treaties like the International Covenant on Economic, Social, and Cultural Rights – none of which the United States has ratified. (The countries switched sides on the International Covenant on Civil and Political Rights, with the United States a party and China a nonparty.) Xue further emphasized a 2005 amendment to China’s Constitution, by which Article 33 now provides:

‘The state respects and guarantees human rights.’

Xue acknowledged the growing participation of nongovernmental organizations and other nonstate actors. Indeed, she pointed out that she herself once introduced delegates at a U.N. conference on desertification “our peasants,” whom she’d brought as “grass-roots representatives” of the problem. Yet Xue questioned whether their presence had “changed the basis of decision-making”; in her view, “national interests remain a determining factor for international cooperation.”

China_revisedforState_480_1On these and other critical topics – law in the South China Sea, for instance, or climate change –  reading these 3 essays will help the Westerner contemplate the international legal system from the standpoint of the world’s most populous state.

‘Mais elle est l’inverse d’une féministe. Elle n’aime guère les femmes en général, ne flatte pas les électrices et ne travaille qu’avec des hommes, ou presque. En onze ans de règne, le plus long de l’après-guerre, elle ne promeut qu’une seule femme au sein du cabinet. Sa politique sociale n’exprime aucune compassion pour les mères au travail. Tout se passe comme si elle n’avait, égoïstement, revendiqué l’égalité des sexes que pour elle-même.’

mtthat is,

‘But she was the inverse of a feminist. As a general matter, she didn’t prefer women, didn’t cater to women voters, and worked with men only, or almost so. Throughout her 11-year tenure, the longest since World War II, she appointed only 1 woman to her Cabinet. Her social policies expressed no compassion for working mothers. Everything happened as if, egotistically, she had claimed equality of the sexes for herself alone.’

– Jean-Pierre Langellier, in a Le Monde article recalling Margaret Thatcher, the “divisive” British politician who died yesterday at age 87. His essay not only recalled the overt sexism that was directed at Thatcher even by other world leaders, but also stressed that she did not turn to sisterhood as a means to confront that hostility. (credit for (c) 1975 Reuters/Stringer photo)

whitehouse7apr13lgMemorable bits ’n’ pieces from the just-concluded annual meeting of the American Society of International Law:

► Comments by Dr. Xue Hanqin, who has been a law professor and government official in China and, since 2010, a judge on the International Court of Justice. For a taste of the incisive observations she made during the closing plenary on “Global Governance, State Sovereignty, and the Future of International Law,” consider her opening remark after moderator José Alvarez (NYU Law) introduced the other panelists, Bruno Simma (Michigan Law/Munich Law) and Joel Trachtman (Tufts/Fletcher), then her. I paraphase:

‘I see this panel is “The West – And the Rest.'”

►The emphasis placed on fundamental fairness during a dialogue between Fatou Bensouda, International Criminal Court Prosecutor, and Judge Theodor Meron, President both of the International Criminal Tribunal for the former Yugoslavia and the Mechanism for International Criminal Tribunals. (Video of their Brookings appearance, also last week, is here.) Asked at ASIL about recent acquittals at the ICC and ICTY, as well as the latter’s counterpart for Rwanda, both stressed that accountability is to be equated not with conviction, but rather with the subjecting of charged crimes to a fair process of adjudication of individual criminal liability – a process that accepts the possibility that some individuals will not be found guilty beyond reasonable doubt. (Yours truly made similar points in this 2002 AJIL essay on a 2001 ICTY decision.)

CAREpaket_frei3_01Bruno Simma recalling a day in 1945 or 1946. A 5-year-old boy who had just lived through the end of World War II, he saw a CARE package fall from the sky and into the village in Austria where he lived. In it were watercolors and marbles. They became his only toys. The package, stamped U.S.A., marked his 1st memory of the United States of America. (Simma went on to become a distinguished law professor, 1st in Austria and then in Germany and the United States, as well as a judge on the International Court of Justice. He is now a member of the Iran-U.S. Claims Tribunal, and received ASIL’s Hudson Medal at the annual meeting.)

► A discussion of “The Past & Future of African International Law Scholarship.” I was lucky enough to catch parts of a couple presentations at this panel. Erika George (Utah Law) offered a thoughtful review of From Cape Town to Kabul: Rethinking Strategies for Pursuing Women’s Human Rights, the super new book by Albany Law Dean Penny Andrews. A imagesreview of international economic law books by Uche Ewelukwa-Ofodile (Arkansas Law) underscored that notwithstanding all the troubles covered in mainstream media, Africa is on the rise. (Kudos to moderator/organizer James Gathii, whose Loyola Law class I’d had the pleasure of leading earlier in the week.)

► Not the least by any stretch, the reunion of IntLawGrrls, members of ASIL’s Women in International Law Interest Group, and assorted male friends at Thursday’s luncheon, where I delivered my talk on “International Law and the Future of Peace.” Present in the sold-out room, in addition to our life-size cardboard cutout of proto-foremother Eleanor Roosevelt, were so many women and men – I cannot name them all. Women who have inspired my lifework, like judges Patricia Wald and Joan Donoghue and prosecutor Fatou Bensouda; dear colleagues, like Betsy Andersen, Jaya Ramji-Nogales, and Beth Van Schaack, not to mention Andrea Bjorklund and Karima Bennoune from my former home, California-Davis Law, as well as Laura Kagel, Harlan Cohen, and Charlie Hunnicutt from my current home, Georgia Law; present and former students, like Kate Doty, Kelly Wegel, Kaitlin Ball, Sonia Farber, and Caroline Arbaugh; and the Addis Ababa University Law lecturer and 5 students comprising Ethiopia’s 1st all-woman Jessup team. My thanks to all who were able to attend or sent their regards. Thanks too, of course, to WILIG, which has just launched a mentoring program that generated much excitement among the young international lawyers present.

► After the meeting ended, I headed to the National Gallery of Art (the Dürer exhibit and the Matisse cutout room are must-sees; the pre-Raphaelites, not so much). Standing at a corner monwhere we pedestrians had a good view of the 555-foot-tall marble obelisk known as the Washington Monument, a wee boy asked his father an excellent, and perhaps unanswerable, question:

‘Why did we built that?’