In Kiobel brief, scholars provide comparative law perspective on Alien Tort Statute extraterritoriality

(credit)

Previous entries on this site have covered the Alien Tort Statute, as well as Kiobel v. Royal Dutch Petroleum Co., in which the U.S. Court of Appeals for the Second Circuit held that corporations do not have liability under the ATS.
After hearing oral argument on this issue in February 2012, the Supreme Court ordered further briefing on the issue of extraterritoriality. Oral argument has been set for Monday, October 1, the first day of the Court's 2012 Term.
For this new round of briefing and argument, I wrote the Brief of Amici Curiae Comparative Law Scholars and French Supreme Court Justice in Support of Petitioners on the Issue of Extraterritorial Jurisdiction, which treats the issue from a comparative law perspective.
I was honored that two other Int Law Grrls, Mireille Delmas-Marty, emerita holder of the Chair of Comparative Law and Internationalization of Law at the Collège de France de Paris, and Sorbonne Law Dean Hélène Ruiz-Fabri, allowed me to write in their names as well. Other signatories were George A. Bermann, Columbia's Walter Gellhorn Professor of Law and Jean Monnet Professor of  European Union Law; Olivier Dutheillet de Lamothe, member of France's Conseil d’État; Antoine Garapon, Secretary General of the Paris-based Institut des Hautes Etudes sur la Justice; Christian Joerges, Research Professor at the Law Faculty of Bremen University in Germany; and Amalia D. Kessler, Stanford's Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies.
The brief, available in full here, seeks to respond to a concern articulated by several justices at the February oral argument: namely, that the United States would be in violation of international law by allowing extraterritorial application to the ATS because it would be the only country to have recognized civil liability for grave human rights violations committed outside of the forum country.
The brief argues that universal criminal jurisdiction for jus cogens violations in civil-law nation-states is analogous to extraterritorial civil jurisdiction under the ATS.
Unwarranted similarities between “criminal” and “civil” law in both legal orders have been assumed erroneously, because both civil- and common-law systems have the same two classifications. They have significantly different meanings and functions in the different legal orders, however. Tort law in the United States is more similar in many ways to civilian criminal law than to civilian civil law:
► Civilian criminal law and United States civil law have comparable functions because of the roles of judges, prosecutors, and lawyers in the respective legal orders and societies, and because of the methods for victims to initiate legal actions in the criminal courts of civilian states, and in tort lawsuits in the United States.
Civilian judges specialize in either criminal or private law, with criminal-law judges in civilian States having a more didactic, public role than their private-law counterparts. Civilian prosecutors traditionally are nonpartisan, neutral figures. Criminal trials, which include those that arise under universal jurisdiction, are public, and organized around a concentrated, oral event. Tort trials in civilian states, on the other hand, often take place exclusively in writing, with no oral testimony, and giving the public no opportunity to witness them. Where victims in civilian states join criminal trials as civil parties, they benefit from the state’s resources and can be compensated financially. By contrast, in a tort suit, they would be barred from contingency fee arrangements and class action suits, so civil actions would not be an effective option for many.
► Conversely, the aspects of criminal trials in civilian states which render extraterritorial or universal criminal jurisdiction appropriate in those legal systems do exist in United States tort law: both are aired in public; both allow victims effective access to the court system; and both allow victims financial compensation.

Go On! Assessing SCSL's Contributions & Legacy

(Go On! is an occasional item on symposia and other events of interest)

The University of Pittsburgh Law School is hosting a very interesting conference later this week, titled Assessing the Contributions and Legacy of the Special Court for Sierra Leone to Africa and International Criminal Justice. The conference, organized by Professor Charles Jalloh, former Legal Advisor to the Office of the Principal Defender at the SCSL (logo below right), will be held this Thursday to Saturday, April 19 to 21, with a stellar line-up of speakers.
The keynote speaker will be Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues and former Prosecutor at the SCSL.
IntLawGrrls will be well represented, with Elena Baylis (University of Pittsburgh Law School), Linda Carter (Pacific McGeorge Law School), Nancy Amoury Combs (William & Mary Law School), Vivian Curran (University of Pittsburgh), Margaret deGuzman (Temple University Law School), Jennifer Easterday (Leiden University), Annie Gell (Human Rights Watch), Sara Kendall (Leiden University), me – Valerie Oosterveld (University of Western Ontario), Diane Orentlicher (American University), Leila Nadya Sadat (Washington University of St. Louis), and Jenia Iontcheva Turner (SMU Dedman Law School) either moderating or speaking.
The conference will be exploring a number of key issues relating to the legacy and impact of the SCSL, such as the prosecution of international crimes, modes of liability, state cooperation, head of state immunity, amnesties, child recruitment, gender issues, protection of peacekeepers, terrorism, trial management and innovations in defense and outreach.
A copy of the conference program is available here. To register, please see here.

Paris in America in Paris, today

A distinguished group will examine Paris in America in Paris this afternoon, at a session this 'Grrl regrets having to miss.
Featured will be 2 IntLawGrrls guests/alumnae -- Professor Mireille Delmas-Marty (below left), holder of the Chair of Comparative Legal Studies and Internationalization of Law at the Collège de France de Paris, where the colloquium will occur, and Pittsburgh Law Professor Vivian Grosswald Curran (below, near right) -- as well as U.S. Supreme Court Justice Stephen Breyer (bottom left).
The program will begin at 3:30 p.m. at Amphithéâtre Marguerite de Navarre at the Collège, located at 11, place Marcelin-Berthelot.
Inspiring the session is the English-edition title of an 1863 book by Édouard Laboulaye, Mireille (left) explained in an interview published at page 504 of n the February 17, 2011, edition of Recueil Dalloz. Published under the pseudonym René Lefebvre, Laboulaye's Paris in America went through 35 French and 8 English editions. It is a celebratory study of American constitutionalism -- no coincidence then that, as Mireille noted, Laboulaye, in his day an adminstrator of the Collège de France, "contributed actively, along with the sculptor Bartholdi, to the realization of the Statue of Liberty."
Mireille challenged her interviewer's implication that comparative law might not provide a useful platform for study of contemporary democracies (my translation):

I would not say that comparative law is a 'subaltern' discipline; to the contrary, I believe that it is indispensable in an era in which the interdependence of states has become so strong that the interactions among diverse national and regional systems lie at the heart of the phenomena of the internationalization of law. ... Even constitutional judges, presented with difficult or undecided questions, have a need for comparative law.

Acknowledging that consultation by Breyer and colleagues on the Court had provoked controversy within the United States, Mireille stated:

Paradoxically, this controversy demonstrated that, in this time of globalization, comparative law is on the front lines in democracies.

This afternoon's program thus will begin with a tribute marking the bicentennial of the birth of Laboulaye. It's on that subject that Vivian will speak. Joining her on the panel will be Professor Jean-Louis Halpérin of Ecole normale supérieure; and Professor Bénédicte Fauvarque-Cosson (far right), of Université de Paris II and secretary-general of the Société de législation comparée. Olivier Dutheillet de Lamothe, conseiller d’État and former member of the Conseil constitutionnel, will moderate.
Commenting on the transition from the 19th to the 21st century will be Columbia Law Professor George Bermann, President of the International Academy of Comparative Law.
Finally, a session titled "Le juge constitutionnel et la démocratie" will mark the French publication of Justice Breyer's latest book, titled La Cour suprême, l'Amérique et son histoire in French, and Making Our Democracy Work: A Judge's View in English. A central theme of the book, as Mireille described it to her Recueil Dalloz interviewer:

Even if he remains optimistic, Breyer recognizes that the support of the public is never guaranteed. The relation between the constitutional judge and democracy is always susceptible to reinvention.

Taking part in a discussion of the book's themes will be Justice Breyer; Mireille; Guy Canivet of the Conseil constitutionnel; and Antoine Garapon, secretary-general of the Institut des hautes études sur la justice. Senator Robert Badinter, formerly President of the Conseil constitutionnel, will moderate.
Admission is free and open to the public.

On July 18

On this day in ...
... 1900 (110 years ago today), Nathalie Ilyanova Tcherniak was born in Ivanova, Russia. She lived most of her life in France. Soon after her marriage to a fellow Sorbonne law student, Nathalie Sarraute (left) became the 1st woman to be admitted to the Paris bar, practicing from 1926 till about 1940. Thereafter she devoted herself full-time to writing. Sarraute was

one of the earliest practitioners and a leading theorist of the nouveau roman, the French post-World War II “new novel,” or “antinovel,”

as Jean-Paul Sartre dubbed her Portrait d’un inconnu (1947). Sarraute, whom our guest/alumna Vivian Grosswald Curran named an IntLawGrrls transnational foremother, died in Paris on October 19, 1999.

(Prior July 18 posts are here, here, and here.)

Guest Blogger: Mireille Delmas-Marty

It’s IntLawGrrls’ immense honor to welcome Dr. Mireille Delmas-Marty (right) as a guest blogger.
Mireille is a Professor at the Collège de France, a Paris institution of higher education founded in the 1500s. Holder of the Chair of Comparative Legal Studies and Internationalization of Law at the Collège, she publishes frequently in that subject area and also directs 3 scholarly networks on the internationalization of law: the French-Chinese, the French-Brazilian, and the French-American (participants have included 4 contributors to IntLawGrrls, Hélène Ruiz Fabri, Vivian Grosswald Curran, Naomi Norberg, and me).
I’ve had the honor of calling Mireille collègue since University of Vienna Law Professor Frank Höpfel, with whom I'd corresponded while researching global developments in criminal procedure for my Harmonic Convergence? article, kindly pointed me to her work. Then a Professor of Law at Université de Paris (Panthéon-Sorbonne), Mireille also was coordinating Corpus Juris, a project aimed at establishing for the European Union a penal code that bridged common law and civil law systems. At the same time, she’s written widely on international criminal law, and on transnational and international developments in other areas of law, among them trade and the environment.
In 1969 Mireille earned her Ph.D. in criminal law from Paris 1, whose law faculty she joined after teaching at Lille and Paris XI. Throughout her career, as detailed in her c.v., she’s been active in many organizations and earned many honors. Among them are honorary doctorates from the universities of Liège, Urbino, Uppsala, Beijing, Louvain, Montreal, and Ferrara. She’s served as a Visiting Professor of Law at universities throughout the world, as Vice President of the International Association of Penal Law, as Editor in Chief and then Director of the Revue de science criminelle et de droit pénal comparé, as a board member of the Journal of International Criminal Justice, and as a legal expert on many committees by appointment of the French government and European entities. Mireille is an Officer in France’s Légion d’Honneur and a Commander in the French National Order of Merit.
Our colleague William A. Schabas, Director of the Irish Centre for Human Rights, gave this succinct yet apt description of Mireille:

She is one of the great thinkers of our time on issues concerning law and society.

As a guest blogger, Mireille contributes a 3-part series -- the 1st post is below -- comparing U.S. and French approaches to the evolving world of transnational law. It outlines ideas that Mireille sets forth in detail in her most recent book, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (2009) (prior post), translated into English by IntLawGrrl Naomi Norberg.
For reasons she sets forth in a bilingual guest post further below, Mireille's chosen to honor the abstract painter Maria Helena Vieira da Silva, who joins other foremothers in IntLawGrrls' list just below the "visiting from..." map at right.

Heartfelt welcome!

J'assume!

Translation: I assume responsibility.
So said France's highest administrative court, the Conseil d'Etat, with respect to the arrest, detention and transportation that facilitated the deportation from France to concentration camps in Nazi Germany of 76,000 people, 11,000 of whom were children and fewer than 3000 of whom returned (photo of deportation train at left). In particular, the Conseil recognized that the participation of France in these activities was "did not result from a direct constraint by the occupier." The Conseil's decision was rendered in order to clarify the situation with respect to damages that might be recoverable by family members of persons who died during deportation. There are roughly 400 such cases currently pending before administrative tribunals. Among them is the Lipietz case decided in 2006, which, as IntLawGrrls guest/alumna Vivian Grosswald Curran and I have posted, was inspired by Holocaust litigation against the French railroad under the Alien Tort Statute (having been unsuccessful, some survivors are asking Congress for help). A central issue in both French and US cases is whether the SNCF/France or Germany was responsible for the convoys and/or whether the SNCF adequately proved it acted under duress. The Conseil's recognition of France's responsibility was thus welcomed by "Nazi hunter" Serge Klarsfeld, who, with his wife Beate (couple at right) helped bring to trial Klaus Barbie, Maurice Papon and Paul Touvier, among others. Klarsfeld also felt the Conseil was right in holding that the various measures France has taken since 1945 to indemnify Holocaust victims and their families are sufficient. In other words, the irreparable has already been repaired as much as possible. This may be in keeping with the French tort policy of limiting damages for "moral prejudice," i.e., all forms of irreparable harm, to a minimal, symbolic amount. Indeed, Klarsfeld's son, Arno, seemed to side with those who were unfavorable toward the Lipietz litigation, considering it as exploitating the Holocaust. As I've posted, the younger Klarsfeld helped represent victims or their survivors in the 1999 trial of Maurice Papon for crimes against humanity, but defended the SNCF in ATS litigation in the United States, claiming that the convoys were German, not French -- a position he'll now have to revise.

IntLawGrrls @ AALS

Kudos to all IntLawGrrls members and guests/alumnae who shone at last week's annual meeting of the Association of American Law Schools.
As mentioned above, yours truly was honored as new Chair of the Section on International Law. Here's the rest of the honor roll:
► Jeannine Bell took part in the Section of Law & Anthropology's panel on "Origins and Solutions to the Indian Freedmen Disputes"
► Johanna E. Bond presented at the "New Voices in Human Rights" panel of the Section on International Human Rights
► Vivian Grosswald Curran presented at the panel, jointly sponsored by the Sections on Comparative Law and Law and Economics, on "The Doing Business Reports by the World Bank and the Legal Origins Thesis: Is Economics Replacing Comparative Law?"
► Fiona de Londras delivered a great analysis of English, Irish, and American jurisprudence in the Section of International Law's panel on "Taking International Law Seriously: Will the United States Abide by International Law that is a Law of Rules?"
► Stephanie Farrior was elected to the Executive Committee of the Section on International Law
► Chimène Keitner presented at the "New Voices in Human Rights" panel of the Section on International Human Rights
► Linda M. Keller was elected to the Executive Committee of the Section on International Law, and further was elected, along with Annecoos Wiersema, as that Section's Newsletter Co-Editor
► Lisa Laplante was elected to the Executive Committee of the Section on International Law
► Hope Lewis was elected to the Executive Committee of the Section on International Law
► Christiana Ochoa was elected Chair of the Section on International Human Rights and Treasurer of the Section on International Law, and further served as Commentator for the latter section's "New Voices in Human Rights" panel
► Hari M. Osofsky was elected to the Executive Committee of the Section on International Law
► Annecoos Wiersema was elected to the Executive Committee of the Section on International Law, and further was elected, along with Linda M. Keller, as that Section's Newsletter Co-Editor
Heartfelt congratulations!

Guest blogger: Vivian Grosswald Curran

IntLawGrrls is delighted to welcome as a guest blogger comparative law expert Vivian Grosswald Curran (left), Professor of Law at the University of Pittsburgh School of Law in Pennsylvania, also the home institution of IntLawGrrl Elena Baylis. (photo by Linda Tashbrook)
Vivian's publications include 3 books, Learning French Through the Law (1996), Comparative Law: An Introduction (2002), and Core Questions of Comparative Law (2004, English translation of a work by German law professor Bernhard Grossfeld). The U.S. State Department appointed Vivian as the U.S. member of the Austrian General Settlement Fund Committee for Nazi-era property compensation; in recognition of her efforts last year H.E. Ewa Nowotny, Austria's Ambassador to the United States, presented Vivian with the Grand Decoration of Merit in Gold for Services Rendered to the Republic of Austria, one of the country's highest honors. Vivian, who earned her Ph.D. and J.D. from Columbia University, is a past Secretary of the American Society of Comparative Law and book review editor of the American Journal of Comparative Law, and is a member of the American Law Institute, the International Academy of Comparative Law, and Réseau ID, the Franco-American Network on the Internationalization of Law about which we've posted.
Vivian dedicates her guest post below -- a description of her latest scholarship -- to the late writer Nathalie Sarraute (right). (photo credit) Born Nathalie Ilyanova Tcherniak in 1900 in Russia and raised in France, she studied in France, Germany, and Great Britain. An ardent feminist, Sarraute is best known as a pioneer of the nouveau roman, or "new novel," form in French literature. She also was a lawyer, and was the 1st woman to be admitted to the Paris bar. Vivian writes of Sarraute, who joins other transnational foremothers at right, just below our "visiting from ..." map, "Among her many memorable sayings is one I think particularly useful for legal comparativists and internationalists":

C'est ce qui échappe aux mots que les mots doivent dire.

in English,

It is what escapes words that words must say.

Heartfelt welcome!

Legal transnationalization in French case involving crimes against humanity

Many thanks to IntLawGrrls for inviting this guest post on my article just published at 56 American Journal of Comparative Law 363 (2008), "Globalization, Legal Transnationalization and Crimes Against Humanity: The Lipietz Case." The article takes a look at how law is transnationalizing within national legal systems, in processes that are not officially recognized or acknowledged.
Particular attention is paid to a recent, highly controversial French case -- Lipietz v. the State and the SNCF, the French national railway, which in 1944 had deported civil mining engineer Georges Lipietz, 21, and others to Drancy, the French internment camp near Paris. Decided in June 2006, the case marked the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. (Judgment here; English translation here.) The article demonstrates that the 2006 decision -- subsequently overruled by a higher court with respect to 1 of the defendants -- was modeled on Anglo-American tort law concepts that do not fit within the French legal tradition.
Under French law, the plaintiffs normally would have brought their claim in a criminal court, because the underlying allegations concerned a crime against humanity; however, the plaintiffs in this case were precluded from doing so for technical reasons. When the Administrative Court of Toulouse held in plaintiffs' favor, an uproar ensued in France. (Prior IntLawGrrls post here.) Some of the reaction was due to unarticulated distress at the court’s departure from entrenched categories of French law, I suggest, and thus to the rupture of associations between those categories and equally entrenched national assumptions about justice.
The article also explores why national courts can be motivated to change law unofficially even when the effect may be likely to elicit widespread public displeasure and even when the national legal system may not be equipped to adapt to such changes. Finally, it posits current challenges of legal transnationalization:
► identifying when such transnationalization occurs;
► understanding the consequences of legal transnationalization; and
►developing adequate measures to adapt to such transnationalization.