West Law Report

Fixing Failed States

Posted in Afghanistan Constitution, Authors@Google, International Law, UN by mrkooenglish on June 27, 2008

Jun 2008

(1 hr)

Former U.N. advisers to Afghanistan Ashraf Ghani and Clare Lockhart discusses their latest book, “Fixing Failed States: A Framework for Rebuilding our Fractured World.”
In the talk:

In Fixing Failed States, the authors describe the effort to save failed states–vividly and convincingly–offering an on-the-ground picture of why past efforts have not worked and advancing a groundbreaking new solution to this most pressing of global crises. Military force, while certainly necessary on occasion, cannot solve the fundamental problems, and humanitarian interventions cost billions yet do not leave capable states in their wake. Ghani and Lockhart argue that only an integrated state-building approach can heal these failing countries. As they explain, many of these countries already have the resources they need, if only we knew how to connect them to global knowledge and put them to work in the right way. Their state-building strategy, which assigns responsibility equally among the international community, national leaders, and citizens, maps out a clear path to political and economic stability.

The bio of the speakers:

Ashraf Ghani played a central role in the design and implementation of the post-Taliban settlement in Afghanistan, serving as UN adviser to the Bonn process and as Finance Minister during Afghanistan’s Transitional Administration. He has worked at the World Bank and taught at Johns Hopkins and Berkeley universities. He has been nominated for the job of Secretary General of the United Nations and considered for the job of President of the World Bank. He chairs the Institute for State Effectiveness.

Clare Lockhart is Director for the Institute for State Effectiveness. She has worked for the World Bank, the United Nations and advised the Government of Afghanistan government in Kabul on its strategy and programs from 2002 to 2005. She advises countries and international organizations on state-building and has written widely on the topic.

http://www.effectivestates.org

Advertisements

Sosa, customary international law, and the continuing relevance of Erie

Posted in Harvard Law Review (Article), Sosa v Alvarez Machain by mrkooenglish on June 11, 2008

(1)
An article of Curtis A. Bradley, Jack L. Goldsmith, and David H. Moore in Harvard Law Review (Feb 2007) (68 pages):

This Article analyzes the Supreme Court 2004 decision in Sosa v. Alvarez-Machain against the backdrop of the post-Erie federal common law. The Article shows that, contrary to the assertion of some commentators, Sosa did not embrace the odern position?that customary international law (CIL) has the status of self-executing federal common law to be applied by courts without any need for political branch authorization and, indeed, is best read as rejecting that position. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (that is, the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute (ATS), authorizes courts to apply CIL as domestic federal law.

The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely, admiralty and interstate disputes), as well as gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS, application of CIL to the war on terrorism, and the use of foreign and international materials in constitutional interpretation.

(2)
Responding by William S. Dodge Customary International Law and the Question of Legitimacy (9 pages):

In 1997, Professors Curtis Bradley and Jack Goldsmith shook the international law academy by arguing that the Supreme Court decision in Erie Railroad Co. v. Tompkins made it illegitimate for federal courts to continue to apply customary international law (which they called CIL) without further authorization from Congress. The Supreme Court 2004 decision in Sosa v. Alvarez-Machain seemed to reject this argument, holding that federal courts could apply customary international law under the Alien Tort Statute (ATS) without any authorization beyond the jurisdictional grant. Undaunted, Professors Bradley and Goldsmith (joined now by Professor David Moore) have returned to claim that Sosa in fact supports their argument and that ourts can domesticate CIL only in accordance with the requirements and limitations of post-Erie federal common law.? In my view, their latest article not only misinterprets Sosa but also raises fundamental questions concerning both the legitimacy of customary international law itself and the legitimacy of requiring its express incorporation into the U.S. legal system, a requirement that is contrary to the understanding of the founding generation.

(3)
Responding by Ernest A. YoungSosa and the Retail Incorporation of International Law (8 pages):

Since its release in 2004, Justice Souter majority opinion in Sosa v. Alvarez-Machain has become something of a Rorschach blot, in which each of the contending sides in the debate over the domestic status of customary international law (CIL) sees what it was predisposed to see anyway. Neither the thoughtful article by Professors Curtis Bradley, Jack Goldsmith, and David Moore, nor this comment upon that article, is any exception to that tendency: we, too, read Sosa as vindicating our previously expressed positions on this debate. That is an embarrassing situation for scholars all round, and it counsels caution in interpreting what the Court actually did and said in Sosa. But the willingness of all sides to claim victory doesn mean that nobody, in fact, won. I think that CIL revisionists like Professors Bradley, Goldsmith, and Moore (with whom I consider myself at least a fellow traveler) have the better claim on Sosa. In this brief comment, I hope to explain why.

An objection to Sosa

Posted in Harvard Law Review (Article), Sosa v Alvarez Machain by mrkooenglish on June 11, 2008

A NOTE in Harvard Law Review (May 2006): AN OBJECTION TO SOSA — AND TO THE NEW FEDERAL COMMON LAW (.pdf) (22 pages)

Legal scholars have frequently derided the absence of a coherent theory of federal common law.1 As Professor Martha Field has put it, “[b]ecause limits on federal common law are incoherent, individual litigants have the opportunity to change the substantive rules in many situations in which state law has been assumed to govern.”2 Nonetheless, federal courts at the very least have adhered to a standard taxonomy of when such judicial lawmaking is appropriate: federal common law can arise both in “those [cases] in which a federal rule of decision is ‘necessary to protect uniquely federal interests,’ and [in those cases] in which Congress has given the courts the power to develop substantive law.”3 The Supreme Court has subdivided the former category into “rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases.”4 Into the latter category the Court has placed a variety of important national laws that fail to include either substantive rules necessary for their enforcement5 or express causes of action.

In Sosa v. Alvarez-Machain,7 a 2004 case concerning the scope of the Alien Tort Statute (ATS),8 the Court expanded federal common law to include a narrow set of eighteenth-century international law claims, such as piracy, as well as claims under modern customary international law (CIL)9 with at least as “definite content and acceptance among civilized nations” as those eighteenth-century norms.10 In doing so, the Court conceded that the ATS only grants federal jurisdiction over international law torts and thus that the first Congress did not create, explicitly or implicitly, a right of action under the statute.11 In a similar vein, the Court hinted that CIL claims brought under the ATS might fall into the special federal interest “enclave” of “our relations with foreign nations” but failed to explain why, if that is the case, any international law norm is not sufficient to invoke general federal question jurisdiction under 28 U.S.C. § 1331.12

This Note’s ambition is modest: to demonstrate that Sosa’s common law is inconsistent with the traditional taxonomy of federal common law. It first explains the Erie-based justification for the standard taxonomy. It then reviews the legal developments and doctrinal tensions
that gave rise to Sosa. Turning to the decision itself, this Note shows how Sosa is the first time the Court has unabashedly recognized federal common law that does not fall in either of the categories. Finally, this Note considers whether a footnote in Banco Nacional de Cuba v. Sabbatino13 undermines this conclusion.

Alien Tort Statute Accomplice Liability Cases: Bell Atlantic v. Twombly

Posted in Alien Tort Claims Act, Fordham Law Review by mrkooenglish on May 24, 2008

Amanda Sue Nichols’s paper in Fordham Law Review (Mar 2008): Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausability Pleading Standard of Bell Atlantic v. Twombly? (.pdf) (49 pages):

When a corporation operating abroad either conspires with, or aids and abets, an oppressive regime in violating human rights, victims can seek redress in U.S. courts under the Alien Tort Statute. In assessing such claims, some courts have chosen to apply a liberal pleading standard, while others have applied a heightened pleading standard to combat frivolous lawsuits. This Note suggests that courts should apply a third standard—the plausibility standard applied to claims under section 1 of the Sherman Act by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly (2007). This Note argues that applying that standard to Alien Tort Statute accomplice liability claims best addresses procedural and practical concerns of both the government and defendants, while ensuring that the judicial system continues to afford plaintiffs the ability to seek justice.

See also
Romero v Drummond Co. (2007)

Human Rights Plaintiffs May Plead Aiding and Abetting Theory of Liability

Posted in Alien Tort Claims Act, apartheid, Harvard Law Review (case) by mrkooenglish on May 24, 2008

A case summary of Harvard Law Review (May 2008): Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (.pdf) (8 pages):

FEDERAL STATUTES — ALIEN TORT STATUTE – Second Circuit

Some of the most interesting and unsettled questions in human rights litigation after Sosa v. Alvarez-Machain concern the status of secondary liability theories, prominently including aiding and abetting. Although several courts have held that aiding and abetting liability is available in Alien Tort Statute (ATS) cases, there is continuing debate over whether it should be available at all, how it should be defined, and what sources of law courts should consult for answers to these questions. Recently, in Khulumani v. Barclay National Bank Ltd. (2007), a Second Circuit panel held that ATS plaintiffs “may plead a theory of aiding and abetting liability,”5 but split on whether courts should look to customary international law or federal common law to determine the availability and scope of this liability theory. Although the three separate opinions in Khulumani indicate the difficulty of the issue, the best reading of the key U.S. cases and of customary international law is that courts should look primarily to federal common law to decide questions about aiding and abetting liability in ATS cases.

The Extraterritorial Constitution and the Interpretive Relevance of International Law

A note in Harvard Law Review (May 2008) (.pdf) (22 pages):

For over a century, courts have wrestled with the question of whether, and to what extent, the Constitution applies outside of the United States. While this question first surged to prominence when the enterprise of American expansionism went to the Supreme Court in the Insular Cases, it has begun to receive renewed attention in recent years as the post-9/11 war on terrorism has brought extraterritoriality issues to the fore. Though the precise legal framework that will govern this question is unclear at the moment, there are indications the Constitution may apply when the result would not be “impracticable and anomalous.” Given the significance of this matter, it is striking that the “impracticable and anomalous” standard “has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism.” Indeed, the standard has been criticized for giving courts too much discretion on sensitive matters.

Part I discusses the state of the law following United States v. Verdugo-Urquidez (1990) and the contemporary significance of the question of extraterritorial application of the Constitution. Part II situates the “impracticable and anomalous” standard in historical context, drawing on the nineteenth-century use of international law to identify “powers inherent in sovereignty,” and lays out a justification for the contemporary use of international law in fleshing out the Constitution’s extraterritorial applicability.

Part III argues that in the context of the war on terrorism, it is sensible to look to IHL to guide the inquiry into when certain rights apply extraterritorially. By reference to the differences between battlefield targeting law and detention law — vestiges of the traditional “Hague Law”-“Geneva Law” distinction in IHL — this Note demonstrates how, under the “impracticable and anomalous”standard, Fourth Amendment protections do not apply to house-tohouse counterterrorist sweeps abroad, but Fifth Amendment procedural due process protections apply to war on terrorism detainees held extraterritorially. These examples prove nothing conclusively, but they do illustrate the promise the international law–based approach offers in clarifying this murky area of the law. Finally, Part IV concludes with some discussion — and some potential caveats — regarding the broader usefulness of this framework beyond IHL and the war on terrorism.

Sosa v. Alvarez Machain

Harvard Law Review leading case summary: Sosa v. Alvarez Machain (2004): (.pdf) (11 pages)

Controversy has surrounded the Alien Tort Statute (ATS) since the Second Circuit pulled it from centuries of obscurity in the landmark case of Filartiga v. Pena-Irala. The current debate within the judiciary and the acad-emy arises largely from the confluence of two great legal shifts during the twentieth century: the changed relationship between the federal courts and the common law since Erie Railroad Co. v. Tompkins, and the evolution of customary international law, particularly its increased attention to the rights and duties of individuals rather than of states.

Last Term, in Sosa v. Alvarez-Machain (2004), the Supreme Court entered the debate and held that the prohibition in customary international law against arbitrary detention was not defined specifically enough to allow a claim under the ATS. While the Court did decide that claims under recently developed norms of international law may indeed be ac-tionable under the ATS, Sosa failed to articulate a clear conception of the interaction between customary international law and domestic law, and offers little guidance to lower courts both within ATS doctrine and beyond.

Hamdan v. Rumsfeld: Implications for the Geneva Conventions

Posted in Geneva Conventions, Guantánamo, Hamdan v Rumsfeld by mrkooenglish on May 20, 2008

In the paper (Harvard Human Rights Journal, Vol 20, Spring 2007) (.pdf) (9 pages), Regina Fitzpatrick discusses:

Last term, in Hamdan v. Rumsfeld (2006), the Supreme Court of the United States held that the military commissions convened by the Bush Administration to try non-citizen terror suspects could not proceed as constituted because they lacked congressional authorization and violated both the Uniform Code of Military Justice (“UCMJ”) and the Geneva Conventions. This Recent Development focuses on the Court’s analysis and application of the Geneva Conventions, the most comprehensive codifications of international humanitarian law.

Hamdan has significant, and potentially dangerous, ramifications for international norms in foreign policy practice and American jurisprudence during—and beyond—this interminable “war on terror.” If the dissent’s view in Hamdan were to prevail,3 the applicability of the Geneva Conventions would be notably limited, their domestic enforcement would be left solely to those responsible for violating them, and the customary international law they embrace could be altered.

International obligations

Posted in confiscation order, House of Lords (case), Times Law Report, Vienna Convention by mrkooenglish on May 20, 2008

(See also Westlaw report: R v Green)

From The TimesMay 19, 2008

International obligations
House of Lords

Published May 19, 2008

Regina v Green

Before Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches May 14, 2008

The Drug Trafficking Act 1994, in giving effect to the United Kingdom’s obligations under the Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime 1993, fell to be construed without regard to legislation in other countries which had chosen to give effect to those obligations in a different way.

The House of Lords so held in dismissing an appeal by Mark Green from the order of the Court of Appeal (Lord Justice Moore-Bick, Mr Justice David Clarke and Mrs Justice Swift) (The Times June 15, 2007) upholding a confiscation order made against him under the 1994 Act by Judge Steiger, QC.

Mr Tim Owen, QC and Mr Andrew Bodnar for Green; Mr David Perry, QC and Mr Duncan Penny for the Crown.

LORD BINGHAM, giving the opinion of the committee, said that Mr Owen had argued that sums retained by the appellant’s codefendants should have been deducted from his confiscation order, pointing out that the confiscation regimes of Australia, New Zealand, the United States and Canada did not sanction recovery of the same sum from different offenders.

However, for the reasons given in R v May (The Times May 15, 2008) where two or more defendants obtained control of property jointly, each of them had obtained the whole of it within the meaning of the 1994 Act.

In construing a United Kingdom statute the meaning of which it judged to be clear, the committee could not be influenced by the legislation of other countries, even if those countries had chosen to give effect to common international obligations in a different way.

Solicitors: Stokoe Partnership, Leytonstone; Crown Prosecution Service, Special Crime Division.

Justices’ Conflicts Halt Apartheid Appeal

Posted in Alien Tort Claims Act, apartheid, US Supreme Court by mrkooenglish on May 19, 2008

(1)
NY Times reported that recusal of four justices in the case of South Africa Apartheid:

Financial and personal conflicts of interest affecting four Supreme Court justices left the court without a quorum last week and unable to decide whether to hear an appeal brought by more than 50 companies that did business in apartheid-era South Africa.

Is it usual for every such case?

(2)
And a brief:

The Alien Tort Statute, sometimes called the Alien Tort Claims Act, lay dormant for most of two centuries until it was rediscovered as a way to seek redress in United States courts for human rights violations committed overseas.

The Supreme Court, while not foreclosing the use of the statute for that purpose, has been notably skeptical. A footnote in a 2004 Supreme Court decision on an unrelated Alien Tort Statute case referred specifically to the South African lawsuit, noting that there was “a strong argument that federal courts should give serious weight to the executive branch’s view of the case’s impact on foreign policy.”

In its ruling last October allowing the case to proceed, the United States Court of Appeals for the Second Circuit, in New York, ordered the district court to consider defenses it had not previously addressed. These include whether the suit presents a “political question” that is beyond the institutional capacity of a federal court to resolve.

“A footnote in a 2004 Supreme Court decision”?

(3)
What case is it? Rasul v Bush (2004)? Sosa v Alvarez-Machain (2004)?

John Yoo: Talk with Harry Kreisler

Posted in Anti-terrorism law (US), International Law, John Yoo, President's Authority, Torture by mrkooenglish on May 19, 2008

Conversations With History
Jan 2008

(60 min)

John Yoo, the law professor, discussed Presidential war powers. Professor Yoo analyzed the situation confronting the United States after the 911 attack and explained the development of the legal justifications for the Bush’s administration’s response. Topics addressed include the memorandum on torture, the interface between law and politics, secrecy and democracy, and the Bush legacy.

D.C. Circuit Declines To Overturn Lower Court’s Finding of Justiciability in Tort Suit Brought by Indonesian Villagers

Havard Law Review case summary (Issue 121, Jan 2008): Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007) (.pdf) (8 pages)

FEDERAL COURTS — POLITICAL QUESTION DOCTRINE

In 2001, Exxon Mobil Corporation (Exxon) operated a natural gas extraction and processing facility in the Aceh province of Indonesia. Eleven Acehnese villagers sued Exxon in the U.S. District Court for the District of Columbia, alleging that Exxon’s security forces — composed of members of the Indonesian military — committed murder, torture, sexual assault, and other tortious acts against them. The plaintiffs brought claims under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), in addition to common law tort claims. Exxon filed a motion to dismiss the complaint on the ground that the claims were nonjusticiable political questions.