The Volokh Conspiracy

The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.

Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.

Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)

The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”

He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.

I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments - now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.

Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and accepts their claims without much further scrutiny. That practice is methodologically unsound.

UPDATE: Buockaert is apparently responsible for the HRW report on the 2nd Lebanon War, entitled “Why the Died,” which accuses Israel of war crimes largely based on relies on (favorable) credibility judgements regarding Lebanese testimony about whether certain targets were Hezbollah sites. The report also admits significant errors in earlier report (that doesn’t make them lies!).

I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967.

The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s decision in Kiobel, as it also deals with suits for extraterritorial conduct of multinational corporations (though without the universal jurisdiction twist of Kiobel). It illustrates how the efforts of some American courts to implement international law norms through civil damages remedies is in fact a rather parochial exercise detached from international practice.

1) Most significantly, the Court found that international law does not create liability for corporations. This accords with the view of the Second Circuit in Kiobel – corporate liability was the issue on which cert in Kiobel had been granted, though the case was ultimately decided on extraterritorially grounds. Many who favored corporate liability argued that on this issue, courts should apply not international law, but rather federal common law. In future ATS litigation against companies with some U.S. nexus, the PLO v. Alstom decision will not make plaintiffs’ work easier.

2) The Versailles court also seemed to take a narrow view of aiding-and-abetting liability. The issue is hard to separate from the corporate liability issue, but the Court basically found that even if Israel’s conduct violated international law, the corporation does not incur liability for its involvement.

3) Ironically, the best examples of corporate liability under international law came from ATS cases (where courts had upheld such liability after having been assured of its existence outside ATS cases). Yet the French court brushed off precedents under the ATS by noting that they were merely applications of a “domestic statute” and thus not really international law. There goes global judicial dialogue – or perhaps they heard that the ATS was just federal common law!

4) The Court was pretty dismissive of “soft law” – international guidelines, best practices statements, and so forth, in creating or defining customary norms.

5) I argued recently that the U.S. is particularly attractive to human rights plaintiffs for the same reasons it is attractive to all other plaintiffs, and this cases illustrates this well. Because Alstom was the prevailing party, the Court required Palestinian plaintiffs to cover 60,000 Euros of the defendants’ costs. You don’t get that in a dismissed ATS case.

Alongside the Health Care Act decision, Kiobel is an example of the professoriate failing to predict the issues that would be taken seriously by the Court both on substance and style. When the Second and Ninth Circuit began questioning “foreign cubed” suits a few years ago, the great majority of scholars dismissed such claims as entirely spurious. The conventional wisdom was very much on the side of universal jurisdiction over corporate human rights abuses. Indeed, such cases had been around for a few decades without much controversy over the universal jurisdiction aspect per se.

Most surprising about Kiobel is the Court’s unanimity. Everyone, including myself, predicted a decision closely divided on ideological lines. Yet ll nine justices seem entirely on board with ending multinational corporate suits. (While Justice Breyer’s concurrence would leave room for Filartiga-style suits where the defendant resides in the U.S., such cases against individuals have largely fallen out of favor with plaintiffs’ lawyers.) The misapprehension of the vote of course relates back to the merits. Many scholars thought the foreign cubed issue a conservative invention to roll back human rights litigation. That position is now hard to maintain.

Belgium and the Netherlands have an interesting arrangement, an example of economics and incentives working clearly in the public law field. Belgium has more convicts than it can accomodate in its prisons. Neighboring Netherlands has the opposite problem: not enough prisoners. Several years ago, it was facing having to shutter some facilities. But then the two countries made a deal: Belgium rents space for its inmates in Dutch jails, patrolled by Dutch corrections guards. (Perhaps the Flemish hope they can be “transferred” to Dutch custody as well, or at least out of Belgium.)

One would think this would spark some significant criticism on human rights grounds. So far, a delegation from the Council of Europe paid a site visit to the Dutch prison, and issued what seems a largely favorable report. There have been calls for emulation in Britain. Prime Minister Cameron has gone halfway, and come out in favor of sending foreign nationals back to their home countries to serve their time, though implementing this has been a bit of a bother.

There may be a trend here – call it Gaolbalization. Sending prisoners to the cheapest justice provider really went global in the past few years with Somali piracy. Dozens of nations have sent warships to catch the pirates. Piracy is a universal jurisdiction crime that can be tried by any country, and the Law of the Sea Treaty gives precedence to the capturing state. The problem is, piracy prosecution is time-consuming (at least in Western legal systems) and expensive, and leaves one with a permanent pirate population.

Thus European nations, the U.S., and other countries have worked out deals with Kenya and the Seychelles to transfer pirates caught by the former nations to be tried and imprisoned in the latter. There seems to be implicit compensation in these deals, with donor countries and the United Nations Office of Drugs and Crime modernizing the prisons and courts of receiving countries, getting them new “kit,” grants and other foreign aid. The stories of these dealings, often done on a case-by-case basis, would be fine reading in itself.

In the latest twist, the receiving country, the Seychelles, has found new efficiency: transferring the pirates it convicts back to breakaway regions of the Seychelles, which the capturing states were loath to do for human rights reasons. Again, under international law, piracy is as much, if not more, within the jurisdiction of the capturing state as the receiving state. Now we will have triple-transfered pirates. (One group of pirates captured by Germany and transferred to Kenya have apparently sued in a German administrative tribunal and won some kind of judgment, though I have not managed to get much on the details.)

Prisoner offshoring is now well outside the mainstream in the U.S. It would raise many constitutional difficulties. There would be questions about whether the circumstances in the foreign prisons violated particular constitutional provisions or rights of prisoners; access to counsel would seem inherently difficult. (The agreements discussed above stipulate that the receiving country will ensure adherence to relevant human rights standards, and generally provide some monitoring). One might also think that having to serve time abroad, away from kith and kin, for offenses committed here would be an Eighth Amendment violation in itself. And I’m sure there are lots of other problems.

On the other hand, if the Dutch/Belgium deal, or the Somali system, inspires other Western states, some might suggest that the Eighth Amendment is the kind of general constitutional stuff that has to be interpreted in light of changing international standards, in a global constitutional dialogue with other Western nations. Fortunately, “Decent Respect for the Opinions of Mankind” does not require following those opinions (or maybe even listening to them).

Related to my post about Prof. Peter Spiro’s views on how international law could be used to diminish the force of U.S. First Amendment protection, I thought I’d note again some thoughts that I noted in 2009 from Harold Koh, former dean of Yale Law School and now Legal Adviser at the State Department, in his 2003 Stanford Law Review article On American Exceptionalism. Dean Koh, one of the most prominent and influential legal internationalists in the U.S., identifies the tactics that fellow internationalists can use to help shift American constitutional law to more closely mirror “international law” norms, including when it comes to “hate speech.” Here are some excerpts (emphasis added):

[I]n a penetrating essay, Michael Ignatieff has catalogued various kinds of American exceptionalism, in the process separating out at least three different faces of American engagement with the world: first, what he calls America’s human-rights narcissism, particularly in its embrace of the First Amendment and its nonembrace of certain rights — such as economic, social, and cultural rights — that are widely accepted throughout the rest of the world....

While this trichotomy is intriguing, I find it both under- and overinclusive. It lumps together certain distinct forms of exceptionalism and misses others. I prefer to distinguish among four somewhat different faces of American exceptionalism, which I call, in order of ascending opprobrium: distinctive rights, different labels, the “flying buttress” mentality, and double standards....

By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries’ laws of hate speech, libel, commercial speech, and publication of national security information. But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.

[Footnote: Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation discussed infra Part III.C.]

Now Part III.C doesn’t talk explicitly about “hate speech” restrictions, but, as I note, Prof. Koh makes clear that such restrictions should indeed be governed by the Part III.C analysis. And here are some excerpts from that analysis:

C. Addressing Exceptionalism Through Transnational Legal Process

... [T]he key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors — namely, nation states, corporations, international organizations, and nongovernmental organizations — interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states. ...

Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global [criminal] justice system.... [T]ransnational legal process could be used to erode the force of the novel U.S. tactic of unsigning the Rome Treaty [an unsigning that expressed the U.S. refusal to participate in the International Criminal Court -EV]. Under international law, it is unclear what the precise legal force of “unsigning” a previously signed treaty should be.... In 1994, for example, the United States attempted to modify its acceptance of the compulsory jurisdiction of the International Court of Justice to avoid a suit by Nicaragua, but the court itself eventually rejected that attempt as legally ineffective and proceeded to judgment against the United States. [FN86]

Rather than taking America’s unsignature at face value, a transnational legal process approach would recognize that the unsigning actually marks the beginning, not the end, of the United States’s relationship with an ongoing International Criminal Court. Henceforth, every act of American cooperation with the court will constitute a de facto repudiation of the categorical, but theoretical, act of unsignature. Thus, in a well-chosen case, a state party to the court could request that the United States provide evidence to support an ICC prosecution–as was done, for example, when the United States made classified evidence available to the International Criminal Tribunal for the former Yugoslavia (ICTY) to support the indictment of Slobodan Milosevic. Alternatively, another State could seek to extradite to the ICC a suspect located on U.S. soil. If the United States were to cooperate — as it well might in a case that served U.S. interests — the incident could reduce American exceptionalism, undermine the force of the May 2002 unsigning, and help shift the United States toward a new, more pragmatic long-term policy of cooperating with the court on a case-by-case basis....

To address America’s judicial exceptionalism, we can apply methods of reducing judicial dissonance, as described in Gerry Neuman’s article for this Symposium. But more fundamentally, we must recognize that two distinct approaches have emerged within our own Supreme Court’s jurisprudence toward America’s role in the world. The first is a “nationalist jurisprudence,” exemplified by opinions of Justices Scalia and Thomas, which is characterized by commitments to territoriality, national politics, deference to executive power, and resistance to comity or international law as meaningful constraints on national prerogative. The second and more venerable strand of “transnationalist jurisprudence” began with John Jay and John Marshall, was carried forward by Justice Gray in the The Paquete Habana case, and was articulated in the Warren and Burger Courts by Justices Douglas and White and in the numerous opinions of Justice Blackmun. The transnationalist banner is now being carried forward by Justices Stephen Breyer and Ruth Bader Ginsburg. Unlike the nationalist jurisprudence, which for guidance looks backward to territory and sideways toward executive power, transnational jurisprudence looks forward toward political and economic interdependence and outward toward rules of international law and comity as necessary means to coordinate international system interests and to promote the development of a well-functioning international judicial system.

The weeks-long conference at the United Nations to produce an Arms Trade Treaty is ending without the creation of a treaty. None of the draft treaties which have circulated in the past several days came remotely close to finding consensus support.

The impossibility of achieving consensus involved a wide variety of issues and nations, far beyond the Second Amendment concerns that have been raised by many American citizens.

The 2001 UN Programme of Action on Small Arms remains in effect. Over the last two decades, a large gun control infrastructure has grown up in the United Nations, not only in the headquarters building, but also within many of the UN various commissions and departments. Likewise, there are a significant number of NGOs which have a strong commitment to global gun control, and to using international law and the UN to solve what they consider to be the problem of excessive gun ownership in the United States. The NGOs and their UN allies have successfully used the 2001 PoA to sharply restrict gun ownership in some parts of the world, and they would have used the ATT  for the same purpose. That they did not succeed in creating an ATT may be very disappointing to them; they are not going to go away, or relent in the pursuit of their objectives.

But in their pursuit, they are not going to have the new weapon of an ATT. This is good news for human rights worldwide, especially for the fundamental human right of self-defense against violent criminals, and against violent criminal tyrannical governments.

For those of who have been waiting for an English translation of Russia’s arms statutes, your wait is over. Independence Institute intern Margot van Loon is the author of the new Issue Paper, Weapons Laws of the Russian Federation. Here is a synopsis:

• No permission or registration is needed to purchase and carry chemical defense weapons (e.g., tear gas guns) or electric defense devices such as stun guns.
• Citizens have the right to acquire shotguns for self-defense and sport.
• After five years of lawful ownership of a shotgun, a citizen may obtain a permit to purchase and use rifles for sporting purposes.
• An individual may own up to five rifles and five shotguns.
• Handguns are prohibited.
• All firearms must be registered.
• Before obtaining one’s first firearm, one must receive instruction in firearms laws and safety. Every five years, the firearms owner must pass a test demonstrating continuing knowledge of these subjects.
• The first-time owner must also obtain a medical certification that he or she does not have any disqualifying conditions, such as mental illness or alcoholism.
• In order to use a firearm for lawful self-defense, the crime victim must first attempt to give the criminal a warning, if practicable. Defensive use of firearms against women, the disabled, and minors is prohibited, unless they are attacking as part of a gang.

On the whole, the Russian Federation’s arms laws show considerably greater respect for the fundamental human right of self-defense than do the laws of some other European nations, such as the United Kingdom or Luxembourg.

The Russian Federation paper is part of continuing series of research papers from the Independence Institute providing full English translations of the arms laws of other nations. Other papers in this series are:

Colombia’s National Law of Firearms and Explosives. Full translation of the Colombian statutes, along with historical and narrative explanation. By Jonathan Edward Shaw.

Hungarian Weapons Law of May 2004. English translation and explanation, plus Hungarian text. By Crecy Azincourt.

Mexico’s Federal Laws on Firearms and Explosives.  By David Kopel.

If you would be interested in writing a paper for this series, please contact me using the information at the bottom of this page.

In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests.

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS suits with rather opposite political valences, none of which involve corporate liability or foreign-cubed situations:

• Japanese whalers are suing Sea Shepherd Conservation Society in federal court for acts of piracy, violations of the SUA Treaty other navigational safety charters. The case raises interesting issues about the availability of injunctions under the ATS, as well as the meaning of “private ends” in the definition of piracy. (H/T: Other Eugene.)

• In recent weeks the Center for Constitutional Rights, which pioneered ATS litigation in Filartiga and many subsequent cases, filed suit against a U.S. preacher for encouraging the Ugandan government to criminalize homosexuality.

An interesting question this case raises is whether the Noerr-Pennington doctrine applies to the ATS generally, and whether it applies extraterritorially. One would think that those who argue corporate liability in ATS cases should be governed by federal common law would find Noerr-Pennington, based as it is on First Amendment considerations, fully applicable in this context. Noerr-Pennington has been extended to a variety of torts and to RICO actions, why not ATS?

One answer could be that antitrust violations are simply not violations when done by governments: indeed, much of what progressive economic policies entail is cartelizing workers and industries. Human rights violations, however, specifically are human rights violations when done by governments. But this just brings us back to the crossroads: do U.S. common law or international norms govern secondary legal issues in ATS cases?

Passover approaches, and with it the end of my rotation here. It has been a pleasure, and thanks to Eugene for having me here.

One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard to have a limiting principle for the latter.

Under the logic of the government’s approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)

Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the U.S. in the past?

It is ironic that the liberal interpretation of the Commerce power would allow American exceptionalism and give Congress regulatory powers in excess of what would be allowed by international law. On the other hand, it is hard to doctrinally cabin disrespect for the domestic division of sovereignty from disrespect for the international division of sovereignty.

In Kiobel, the ATS case I have been blogging about, the Supreme Court has shown some skepticism about broad extraterritorial assertions of U.S. law (based proximately on statutory, not constitutional concerns, though in my forthcoming paper, I argue the Offenses Clause of the constitution and foreign commerce clause underpins the statutory issue. The justices might want to consider that a ruling for the government in the ACA case would open a whole world of extraterritorial legislation.

In Schecter Poultry, Justice Cardozo famously wrote:

Here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.

The point here is the “periphery” is not just internal; the periphery is also the world. That which obliterates the distinction between the local and national also tends to obliterate the distinction between global and national.

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn’t Holland where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.

UPDATE: This just gets better. I was just reminded (courtesty of twitter, see @EVKontorovich) that the Dutch strongly opposed the exercise of UJ in ATS cases, filing an amicus brief in Kiobel that said:

[T]he lower courts appear to have gone further than the established jurisprudence allows. .. the lower courts have both asserted jurisdiction with regard to a wider category of such violations, and in relation to facts in which a “sufficiently close connection” to the U.S. is entirely absent.

I would think the Dutch ruling would greatly weaken the usefulness of the Dutch/British amicus briefs to the Kiobel defendants. It is particularly embarrassing that the defendant is Royal Dutch Shell – apparently Holland knows “can dish it out, but ...can’t take it no more,” to quote Edward G. Robinson’s Rico character. This all underscores a broader point about UJ – there are several cases of nations exercising UJ, but very few of them submitting to it uncomplainingly.

Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 NORTHWESTERN UNIVERSITY LAW REVIEW 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Congress’s failure to Define
Courts in ATS cases have usually skipped the UJ question entirely. As I show in my forthcoming paper, Discretion, Delegation and Defining in the Constitution’s Offenses Clause, 106 NORTHWESTERN UNIVERSITY LAW REVIEW __ (2012), when Congress exercises its power to “Define” an offence, it gets some degree of deference about the content of the offense, as well as its UJ status. Congress did not “Define” in the ATS, but rather broadly delegated to the courts. Courts do not enjoy any special discretion to “Define.” In the absence of congressional definition, courts must stick closely to well-established international precedent on universal cognizability, an effort they have not even attempted. This is not just because Sosa’s requirements; rather, the Offenses Clause requires it. Indeed, the plurality in Hamdan case rejected conspiracy to commit war crimes because there were no precisely on-point international precedents, a demanding standard equally applicable to the universal cognizability of ATS offenses. Ironically, conservatives favored a loose approach to finding international norms in Hamdan and liberals a highly restrained one; the roles here are gain reversed.

Furthermore, a statute’s mere reference to international law in the ATS does not automatically trigger UJ. Indeed, in U.S. v. Palmer, Chief Justice Marshall read a statute criminalizing “piracy” by “any person” as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply it universally. The fact that Congress quickly acted to override this construction does not disprove the existence of the presumption as applied to international law offenses: one point of presumptions is to put the burden of clarity on Congress, and this is even more so in foreign relations issues.

[Cross-posted on OpinioJuris]

[Cross-posted on OpinioJuris]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign-cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.

Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

This series of posts, also cross-posted on OpinioJuris, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there a some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever UJ power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The next few posts draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles in these posts.

As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability.  The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law.  I – along with the foreign governments filing amicus briefs – would beg to differ.  There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.

A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law.  It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally.  The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric.  They require that “international law” be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today’s international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what “international law” is available for deployment; use American concepts of civil and corporate liability to fill in “gaps” in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.

That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world.  It is also what a legal system does when what matters to it is its “internal” legitimacy – its fidelity to its own hierarchy of authority and interpretation.  I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the “doctrine of sources,” even in a loose sense, operates in international law.  And while I’m not un-attracted by US hegemony, to be sure, and while I’m also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse “hegemonic law” with “international law.”

A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline.  (“Ne serait-ce point une Amerique lasse de son metier?” as Stendhal (might have) put it.)  Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China’s corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I’m all for American hegemony, but in today’s world, even I think it a bridge too far – and quite ungrounded in international law as such.

How one gets that concern in front of the Supreme Court, I have not the faintest idea.  But I do think it is the overarching intellectual and political question at stake.

That would be Richard Falk, whose talk on the Israeli-Palestinian conflict is hosted by “Students for Palestinian Equal Rights, Stanford International Human Rights & Conflict Resolution Clinic, the Advanced Degree Students Association, & the Stanford Association for Law in the Middle East.”

One can’t hold Stanford responsible for the activities of its student groups, but  the International  Human Rights & Conflict Resolution Clinic is an academic unit of the law school, run by faculty members.

How embarrassing for Stanford, and yet further evidence that in some circles any degree of idiocy can be forgiven so long as one is “Progressive on Palestine.”

H/T Rabbi Simon via email.