Corporate Liability and the ATS: Kiobel's Impacts Remain Unclear

by Marco Simons

Last fall, I blogged about a decision by the Second Circuit Court of Appeals, in New York, ruling that corporations could not be sued for international human rights abuses under the federal Alien Tort Statute (ATS). This sent shockwaves through the human rights legal community, but its impact is far from determined, especially as other federal appeals courts begin to decide whether to follow or reject Kiobel.

Yesterday, I watched a hearing at the D.C. Circuit Court of Appeals in Doe v. Exxon Mobil, a human rights case involving abuses in Indonesia. Corporate liability is an issue in the appeal, but the judges made it clear that they were not about to follow the Second Circuit's ruling without examining whether it was correct--and they asked a lot of tough questions of both sides. One judge indicated that he thought it made sense that the issue of corporate liability under the ATS should be a question for US domestic law (in which corporations are universally held liable on the same basis as human beings)--and the judges made it clear that they had read the amicus briefs detailing the ways in which the Kiobel analysis was flawed (for example, in supposing that German corporations who partnered with the Nazis were not subjected to punishment after WWII).

Indeed, we still don't know what's happening with the Kiobel decision itself. After the ruling, the plaintiffs filed a petition for rehearing, which asked the panel to reconsider its decision and also asks all of the judges on the court (the "en banc" court) to review what the three-judge panel had done. In late December, the court issued a notice saying that the petition for rehearing had been denied, which would ordinarily signal the end of the process. But the next day, the clerk issued another notice saying that the first notice had been issued in error.

It's hard to know what to make of this, but that won't stop me from hazarding a wild guess: What happens when a petition like this is filed is that the three-judge panel first gets to decide whether they want to reconsider their decision. If they don't, then the rest of the judges can decide if the en banc court should rehear the case. The petition doesn't get granted or denied until the end of this process. What I suspect happened here is that the court erroneously issued an order denying the petition after the three-judge panel said they were not reconsidering their decision, but before the court had decided whether to hear the case en banc. If that's correct, the judges are probably in the process of voting whether to rehear the case en banc.

Meanwhile, the issue continues to come up in other cases. In October, I blogged about the Firestone case, in which the trial court agreed with Kiobel and dismissed the claims. That case is now on appeal to the Seventh Circuit Court of Appeals, which will be the next court to take up the issue. The next year may determine whether Kiobel was an outlier or a seminal case--and conflicts between the federal appeals courts may bring us closer to having the issue decided by the Supreme Court.

Jan 26, 2011

Why the Challenges to the Health-Care Law Are Wrong — And Right

http://blogs.wsj.com/law/2011/01/21/why-the-legal-challenges-to-the-health-care-law-are-wrong-and-right/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+wsj/law/feed+(WSJ.com:+Law+Blog)

JANUARY 21, 2011,

By Ashby Jones

In a provocative piece over at the National Law Journal, Wisconsin Law professor Andrew Coanstakes out a position that’s new to us: that both sides in the debate over the constitutionality of the Affordable Care Act are correct. And, at the same time, they’re both wrong.

(For background, click here for all of the LB coverage on the debate over the constitutionality of the law, arguably the signature domestic-policy achievement reached by the Obama administration.)

So what is Coan talking about? He explains, on the one hand, his assertion that both sides are right:

For courts to uphold the act would thus cast aside a cherished principle of American constitutional law — that the national government is one of limited powers, with everything else left to the states.

On the other hand, he writes:

For courts to invalidate the act would thus cast aside another bedrock principle of American constitutional law — that Congress has plenary power to regulate interstate commerce, including health insurance, and also wide flexibility in choosing how to carry that power into effect.

But both sides, he writes, are also wrong; wrong to deny the validity of their opponents’ arguments.

Coan compares the current conflict to one that emerged during the presidency of George Washington, when Congress passed legislation incorporating a national bank. The bank’s proponents claim the Constitution gives Congress the powers to tax and to borrow money, and, by extension, establish a national bank.

The bank’s opponents, on the other hand, argued that, in Coan’s words, “if Con­gress could incorporate a national bank merely out of convenience, what could it not do?”

At the end of the day, the Supreme Court upheld the bank, ruling implicitly that “Congress is usually in a better position than the courts to determine how to carry those powers into effect.” If the people really object to a piece of legislation, they can vote Congress out of office.

Coan concedes that the national bank situation may not be directly applicable to the health-care situation. And he doesn’t weigh in on one side or another.

Instead, his request is refreshingly modest:

If their decisions follow the lead of most commentators, both courts and the country will fail to appreciate the hard compromises that either result would entail. One bedrock constitutional principle or another must give way. It would make for wiser judicial decision-making — and a healthier democracy — if we began to wrestle with this openly now.

Massachusetts High Court Finds Vienna Convention on Consular Relations Self-Executing?

by Julian Ku

Actually, I am not quite sure, since all I have is this report on the recent decision of the Supreme Judicial Circuit of Massachusetts holding that the Vienna Convention on Consular Relations gives foreign nationals legal rights to the notification of their consular officials if they are arrested by Massachusetts authorities:

Massachusetts, Cordy wrote, will take steps now to bring the state into compliance: “In order to enable the full effect to be given to [the Vienna Convention], we conclude that the notifications it requires must be incorporated into the protocols of the state and local law enforcement agencies of Massachusetts.’’

Cordy said foreign nationals will have the right to seek a new trial if they were not made fully aware of their rights under the Vienna Convention.

Sounds pretty reasonable, except I haven’t actually looked at the opinion. Can anyone point me to a link?

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(1) To me, it does not really have implication for Medellín v. Texas, 552 U.S. 491 (2008), though.

Do Free Trade Agreements Threaten the States? Well, Maybe the Korea-U.S. FTA Does, At Least a Little

by Julian Ku

I am sympathetic to the concern, expressed in this short article, about the threat that international agreements pose to state laws. The American states, as I’ve argued here and here, need more autonomy in foreign affairs and in their interaction with international law, not less. But I think free trade agreements like NAFTA are generally the least intrusive of those agreements in many ways, since many of their provisions cannot be enforced directly against the states in most cases. Certainly, no free trade agreement has ever been used to override a state law in the U.S.

Still, the anti-trade site I linked to above may have a point with the pending Korean U.S. Free Trade Agreement. Unlike NAFTA and other FTAs I am aware of, KORUS seems to allow for ICSID arbitration of investor disputes, and ICSID enforcement as well. ICSID Award enforcement in the U.S. could permit, at least in theory, a Korean investor to enforce the relevant KORUS provisions in a U.S. court proceeding without the consent or intervention of the U.S. federal government. That is a big shift and could expose state laws to more foreign investor litigation than before.

January 21st, 2011

Update from the ECCC - JANUARY 13, 2011

The Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia today confirmed and partially amended the Closing Order (analogous to an indictment) against the four regime leaders in custody and destined to become Case 002 before the ECCC. The four remain in provisional detention.

The accused filed appeals filed against the Co-Investigating Judges' Closing Order. Most of the grounds of appeal were dismissed, but the Pre-Trial Chamber did apparently require a specification as to the existence of a link between the underlying crimes against humanity and an armed conflict, confirming that the so-called war nexus (about which we've blogged before) remained an element of crimes against humanity in the Khmer Rouge period.

In addition, the PTC ruled that rape per sewas not an enumeratedcrime against humanity at this time, but it was an "inhumane act" and so remained prosecutable under that moniker.

A written opinion is expected soon. Stay tuned...

North African People Power

North African People Power

After more than 23 years in office, Tunisia’s President Zine el-Abidine Ben Ali, “Zinochet”as he was dubbed, was forced from power yesterday by popular protests.

These protests began after Mohamed Bou’aziz, an unemployed university graduate in the town of Sidi Bouzid, attempted to burn himself to death on December 17 when the produce he sold on the street to earn a living was confiscated. (He later died of his injuries.)
How could Mr. Bou’aziz know what the implications of his desperate act would be in just one month’s time? His sacrifice inspired huge demonstrations that spread across the North African country, organized in part through resourceful use of Twitter and Facebook. These were met with brutality by the security forces, a grim reality that simply provoked more protest. Unarmed demonstrators were regularly teargassed. Many were arrested. As many as 70-80 people were shot or beaten to death. But the protesters marched on.

This largely peaceful, democratic revolution (on the side of the opposition at least) was not led by or inspired by the fundamentalist movements that have tried to claim the oppositional space in many Arab and North African contexts in recent years. It was instead, by all accounts, a largely secular appeal for real political reform and for social justice. As reflected in today's front page of the Paris daily Liberation (above; credit), women, many unveiled, were increasingly visible in the protest marches.

One can hope that today’s initial victory of North African people power will serve as an example of what is possible in other countries in the region. This is what Noam Chomsky has called the threat of a good example. One dictator brought down by popular revolt – no dictator is safe now.
Hope is a powerful, incandescent force.

Hope in the political realm has been a rare commodity of late in this part of the world. Bou’aziz’s revolution may have brought that back. But, just as the power of hope should not be underestimated, neither should the danger of hopes unfulfilled.

It is unclear exactly what the future holds for Tunisia now.

Mohammed al-Ghannouchi, the Prime Minister who has also been in power since 1999, has taken over as President since the departure of ousted President Ben Ali, whom Saudi Arabia "'welcomed.'" A state of emergency was declared, with soldiers guarding public buildings, tanks on the streets of Tunis, and prohibitions on public meetings.

The government must respond to the grievances that first provoked these events – creating jobs, meeting human needs, fostering equality of all kinds, enabling freedom of expression and association, institutionalizing real social democracy – rather than simply engaging in window dressing that preserves the Tunisian system with a different figurehead.

The international community, and the U.S. government, should support this process.
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The biggest external impact of events in Tunisia could come in neighboring Algeria, which Ivisited twice last fall, and which witnessed scattered, sporadic émeutes– riots – throughout 2010. The country has just experienced a week of widespread, intensive youth protests that seem to have been the result of a similar long-simmering anger over high unemployment, corruption, economic disparities and la hogra, the arrogance with which officials often treat ordinary people. (photo credit)

However, the immediate catalyst was likely the sharp increase in the price of staples like cooking oil and sugar at the beginning of the year. See this useful discussion of the possible causes by journalist Chawki Amari writing in El Watan, one of Algeria’s leading daily newspapers.

Some have suggested that the initial disturbances may have been provoked – perhaps by private interests that control the sugar and oil markets and were unhappy over government regulatory action in this arena. It is hard to say.

However, even if this were the case, legitimate popular anger clearly took over from there. Some - only some - of the recent protests turned violent with young rioters throwing stones at police and passing cars, burning tires and looting shops.

Unfortunately, the avenues for peaceful protest are stifled in Algeria due to the continuing imposition of a state of emergency since 1992.

For example, following the week’s protests, last Sunday, January 9, a civic group called the Intercommunal Association of Aïn Benian-Staoueli tried to hold a peaceful gathering in the coastal town of Staoueli about 20 kilometers outside of Algiers. Their efforts were forcefully thwarted by “preventive” arrests. Algerian writer and journalist Mustapha Benfodil, who was attempting to cover the event, was among those arrested. He later recounted his experiences in El Watan, offering an eyewitness account of la hogra in action. As he notes, those picked up by the police that day were suspected of the rather kafka-esque offense of “attempted peaceful gathering.” (They have since been released – though across the country many young protestors remain in jail.)

While the roots of Algeria’s emergency law admittedly lie in the terribly real struggle with armed fundamentalism that consumed the 1990s and claimed as many as 200,000 lives, and the fight against terrorism in Algeria remains a concern in light of the current activities of Al Qaeda in the Islamic Maghreb, today’s emergency regulations are often used instead against peaceful government critics who have nothing whatsoever to do with such movements. (During the recent protests, attempts by fundamentalists to rally demonstrators to their banner failed resoundingly.)
In fact, the Algerian government now uses the state of emergency to justify the banning of public gatherings of all kinds.

For example, when I visited Algiers in late November to attend a meeting on a proposed draft law on violence against women, the meeting was declared officially non-authorized the day before it was to take place in the central Hotel Safir. Hence, it was held quietly instead in a small room at a more remote location, with many participants unable to attend. It is shocking that a meeting of women working to stop violence against women requires an official permit. Who exactly is being protected by “emergency” legislation in this scenario?

For Algeria’s democratic opposition, the current challenge is to find a way to translate this month’s explosion of youthful anger into positive political change, and to maximize the jolt of energy from events in next door Tunisia.

According to Benfodil, the former task requires the mobilization of civil society, trade unions, academics, the middle class, NGOs and others, “if they truly want to transform this impetuous winter into a democratic spring…”

Some believe that it may be difficult to make a real political transformation as long as Algeria’s government possesses the significant material resources it uses to selectively placate sectors of the population. But attempts to publicly speak out for change continue, as witnessed by a peaceful youth demonstration today in Algiers. And it remains to be seen what the impact of the winds blowing from Tunisia now will be.

While in life Mr. Bou’aziz was given little opportunity to have an impact on society, in death he may have helped to change not only his own country, but the entire region.

The International Convention for the Protection of All Persons from Enforced Disappearances

The International Convention for the Protection of All Persons from Enforced Disappearances, (priorposts) has entered into force. (hat tip)

Some months after the U.N. General Assembly adopted the multilateral treaty on December 20, 2006, IntLawGrrl Jaya Ramji-Nogales predicted that this effort to address the phenomenon of forced disappearances "may represent the future of international human rights law – enforcement through specificity." Jaya wrote:

The enforced disappearance treaty makes the interesting move of labelling and targeting a certain pattern of human rights violations, thus creating very specific norms that might be used by advocates to overcome the enforcement problems faced by more general human rights treaties. In addition, the Convention’s enforcement committee has the ability to hear urgent claims, to undertake field investigations, and to bring widespread and systematic enforced disappearance to the attention of the General Assembly.

The treaty will be monitored, as Jaya's post indicated, by the U.N. Working Group on Enforced or Involuntary Disappearances.

Among the 5 independent experts who comprise this Working Group is 1 woman,Jasminka Džumhur (left), a gender and human rights specialist from Bosnia and Herzegovina. Chairing the group is Jeremy J. Sarkin, a South African legal expert. Other members are:
Olivier de Frouville, a law professor at l'Université de Montpellier 1 in France; Osman El Hajjé, a law professor and president of the Jinan University Human Rights Centre in Lebanon; and Ariel Dulitzky of Argentina, a clinical law professor at the University of Texas.
Despite her optimism back in 2007, Jaya worried that desired "near-universal ratification" might be hard to come by.

Entry into force, at least, was relatively rapid.

The convention entered into force almost exactly 4 years after being adopted -- on December 23d of last year, 30 days after Iraq became its 20th state party. Today, less than a month later, it now has 21 states parties, Brazil having ratified soon after Iraq. Beside those 2 countries, the other states parties are Albania, Argentina, Bolivia, Burkina Faso, Chile, Cuba, Ecuador, France, Germany, Honduras, Japan, Kazakhstan, Mali, Mexico, Nigeria, Paraguay, Senegal, Spain, and Uruguay.

As pointed out in a U.N. press release respecting the status of the treaty, about 70 other states "have taken the preliminary step of signing it, an expression of their intention to ratify it at some point in the future."
And yet many countries remain fully outside the treaty regime.

Among those that have neither signed nor ratified are 4 of the P-5 members: China, Russia, the United Kingdom, and the United States.

What We’ve Learned from WikiLeaks

by Kevin Jon Heller

As the U.S. government continues to try to shut down WikiLeaks — preferably, it seems, without having to actually charge Assange or the website with an actual crime — it’s important not to forget how much we’ve learned through WikiLeaks’ efforts. Here is a (partial) list created by Greg Mitchell, who has been keeping a daily log of all things WikiLeaks at The Nation:

§ The Saudis, our allies, are among the leading funders of international terrorism.

§ The scale of corruption in Afghanistan tops even the worst estimates. President Hamid Karzai regularly releases major drug dealers who have political connections. His half-brother is a major drug operator.

§ The Pentagon basically lied to the public in downplaying sectarian violence in Iraq. Our military handed over many detainees they knew would be tortured to the Iraqis. US authorities failed to investigate hundreds of reports of torture and abuse by Iraqi police and military.

§ After the release of the Iraq logs, new tallies put the number of documented civilian casualties there at more than 100,000. The Afghanistan logs similarly showed many more civilians killed there than previously known, along with once-secret US assassination missions against insurgents.

§ The British government assured Washington that our interests would be protected in its “independent” public inquiry into the Iraq War. (our - US?)

§ The Pakistani government has allowed its intelligence unit to hold strategy sessions with the Taliban. Despite longstanding denials, the United States has indeed been conducting special ops inside Pakistan and taking part in joint operations with the Pakistanis.

§ The Yemenis have lied to their own people, taking credit for air attacks on militants in that country—but it was the United States that did the job. The Yemeni president gave us an “open door” to combat terrorism. Washington has secretly shipped arms to the Saudis for use in Yemen.

§ The Saudis, contrary to their public statements, want us to bomb Iran. So do some other countries in the region—or so they say in private.

§ Our State Department asked our diplomats at the United Nations to spy on others, including the secretary general, even aiming to retrieve credit card numbers.

§ At last we got to read in full the historic 1990 memo from US Ambassador to Iraq April Glaspie before Iraq’s invasion of Kuwait and the first Gulf War.

§ The Obama administration worked with Republicans to protect Bush officials who faced a criminal investigation in Spain for alleged torture.

§ Pope Benedict XVI impeded an investigation into alleged child sex abuse within the Catholic Church in Ireland.

§ Bribery and corruption mark the Boeing versus Airbus battle for plane sales. “United States diplomats were acting like marketing agents, offering deals to heads of state and airline executives whose decisions could be influenced by price, performance and, as with all finicky customers with plenty to spend, perks,” the New York Times reported early this month.

§ Israel destroyed a Syrian nuclear reactor in 2007.

§ US diplomats have been searching for countries that will take Guantánamo detainees, often bargaining with them; the receiving country might get a one-on-one meeting with Obama or some other perk.

§ Among several startling revelations about control of nuclear supplies: highly enriched uranium has been waiting in Pakistan for more than three years for removal by an American team.

§ The U.S. embassy in Paris advised Washington to start a military-style trade war against any European Union country which opposed genetically modified (GM) crops.

§ The British have trained a Bangladeshi paramilitary force that human rights organizations consider a “government death squad.” (DO- PKO ?)

Joshua Norman has an even more complete list at CBS News, one usefully divided up by region. It’s available here.

January 14th, 2011

Good job, Hillary

Posted By Blake Hounshell Thursday, January 13, 2011 - 2:46 PM

Hillary Clinton gave a good speech today, excoriating Arab leaders for their lousy record on reform and bluntly warning that if they don't shape up, they'll face growing extremism and alienation among their beleaguered populations.

"In too many places, in too many ways, the region’s foundations are sinking into the sand," she said. "The new and dynamic Middle East that I have seen needs firmer ground if it is to take root and grow everywhere."

And she warned that "others will fill the vacuum" if "leaders don’t offer a positive vision and give young people meaningful ways to contribute."

"Extremist elements, terrorist groups, and others who would prey on desperation and poverty are already out there, appealing for allegiance and competing for influence," she added.

Clinton's talk, at a democracy conference here in Qatar, took place against the backdrop of spiraling unrest in Tunisia, growing tension in Gaza, and the collapse of the Lebanese unity government led by Sunni billionaire Saad Hariri. She seemed fired up, perhaps because she had met earlier with civil society activists from across the region and during her previous stops in Abu Dhabi, Dubai, Oman, and Yemen.

According to Stephen McInerney, head of the Project on Middle East Democracy, Clinton struck the right notes.

"Secretary Clinton's remarks today are the clearest sign yet that she understands the vital need for genuine reform and progress in the region and the dangers of maintaining the status quo," he said in an email. "I think we're seeing the impact of recent developments in Tunisia, Egypt, and elsewhere around the region, as well as the impact of the Secretary's meetings with civil society on each stop of this trip."

Still, things are not looking good for the U.S. position in the Middle East right now. The peace talks between Israel and the Palestinians are hopelessly stalled; Lebanon is in shambles; traditional U.S. allies like Egypt and Saudi Arabia are losing influence. There's definitely growing frustration with the authoritarian order across the region, though not necessarily to America's advantage.

Improbable as it may have seemed a month ago, much depends on how events play out in Tunisia. A relatively peaceful transition of power could inspire and empower reforms across the region. An even bloodier crackdown could provoke more destructive feelings of despair and empower radicals. Or, most likely of all, the Middle East will continue to limp along as it has been, never really advancing but never really dissolving into chaos. We'll see.