Go On! "Law Beyond State" @ Sheffield Law

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

From Alexandra Bohm, Ph.D. candidate at England's University of Sheffield School of Law, comes news of a workshop there, entitled "Doing Law Beyond the State: Research Methodologies in Comparative, EU and Public and Private International Law." Part of the law school's research project of the same name, the workshop will be held January 18-19, 2013; early-bird fee applies through November 23.
Alexandra writes:

'An initial, “scoping workshop” brings together established and early-career scholars to have a “cross-generation” and cross-specialisation dialogue. We will adopt a ‘what have we learned?’ approach, considering how the growing interest in method and importance of theory among traditional approaches to legal scholarship has important impacts on the academy and on legal practice.'

Scheduled presenters listed here; workshop details and registration here.

On October 24

On this day in ...
... 1970, the U.N. General Assembly adopted Resolution 2625 (XXV), entitled the "Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations." Paragraph 1 began:

'The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations.'

The declaration then proceeded to detail means by which states ought to respect the prohibition on threat or use of force, set forth tersely in Article 2(4) of the U.N. Charter.

(Prior October 24 posts are here, here, here, here, and here.)

Kiobel: A Preview of the Arguments

(Part 2 of a 2-part series; Part 1 is here)

This Monday, October 1, the U.S. Supreme Court will hear reargument in Kiobel v. Royal Dutch Petroleum, on the extraterritorial reach of the Alien Tort Statute. (Prior ATS posts)
Based on the merits and amicus briefs, four issues will likely consume the oral argument; specifically, the:
►  Impact of the Court's 2004 judgement in Sosa v. Alvarez Machain;
►  Presumption against extraterritoriality;
►  Status of universal civil jurisdiction under international law; and
►  Adequacy of existing abstention doctrines.

The Case for Shell
In its supplemental brief, Shell seeks a categorical bar on extraterritorial ATS litigation, one that would foreclose not only actions against corporate defendants, but also actions against individual human rights abusers.
Shell’s case rests on a core assertion that extraterritorial ATS litigation violates foreign sovereignty and international law. The argument relies on two canons of statutory construction:
► First, invoking the presumption against extraterritoriality, Shell argues that courts must not recognize ATS actions for foreign human rights abuses because the ATS does not explicitly say that it applies extraterritorially. Citing to the Court's decision in Morrison v. Australia National Bank (2010) (prior post), Shell contends that this presumption limits a court’s power to recognize a federal common law cause of action, even if the substantive norms derive from international law.
► Second, invoking the Charming Betsy canon – that an ambiguous statute should be construed not to violate international law – Shell argues that the ATS violates international law because it lacks a basis for prescriptive jurisdiction.
Notably, Shell contends that the ATS is not a valid exercise of universal jurisdiction, for the reason that states have only consented to universal criminal jurisdiction, not universal civil jurisdiction. In Shell’s view, universal civil jurisdiction is a greater invasion of sovereignty, since private litigation is not checked by prosecutorial discretion. Harvard Law Professor Jack Goldsmith’s amicus brief for Chevron forcefully argues this point:

'Under international law, a nation’s sovereignty over activities within its territory is presumptively absolute, subject to exceptions by national consent. Nations […] have not, however, consented to allow a foreign court to entertain civil causes of action on the basis of universal jurisdiction, as is done in ATS cases.'

The Case for the Kiobel Plaintiffs
In their supplemental brief, the Kiobel plaintiffs argue that Sosa already answered the question of extraterritoriality. Sosa presumed that the ATS applies to abuses overseas: it embraced Filártiga v. Peña-Irala (2d Cir. 1980), and crafted a framework to address concerns of international comity. Shell’s categorical bar nullifies this framework.
Moreover, plaintiffs argue, the presumption against extraterritoriality does not apply to jurisdictional statutes such as the ATS. Even if it did, the statute’s text and history overcome the presumption. As the legal historians brief shows, when Congress enacted the ATS, it clearly intended the law to enforce international norms like piracy, which extended beyond U.S. borders. Indeed, Attorney General Bradford’s 1795 opinion – applying the ATS to actions in Sierra Leone – confirms that the framers understood the ATS to have extraterritorial effect.
The plaintiffs also argue that the ATS’s global reach is fully consistent with international law, as follows:
► First, the ATS exercises “adjudicative jurisdiction” rather than “prescriptive jurisdiction” – the ATS does not legislate regulations and project them overseas; it simply provides a forum to adjudicate international law claims.
► Further, under the S.S. Lotus Case (Permanent Court of Justice 1927) (prior posts), one state’s exercise of jurisdiction is presumed valid, unless it violates a specific prohibitory rule. Shell fails to prove that international law prohibits providing a civil remedy for foreign human rights abuses. To the contrary, international law authorizes universal jurisdiction and obligates states to provide effective remedy.
► Moreover, as Justice Stephen G. Breyer noted in his Sosa concurrence, universal criminal jurisdiction necessarily contemplates universal civil jurisdiction, since many countries allow civil remedies alongside criminal prosecution.
As demonstrated in a brief by the Yale Law School Center for Global Legal Challenges, on which Yale Law Professor Oona A. Hathaway (right) is counsel of record, many civil law countries permit plaintiffs to initiate universal jurisdiction proceedings, much like the ATS. (A few weeks ago, a post by IntLawGrrl Vivian Grosswald Curran outlined the amicus brief she authored, which puts forward further comparative law arguments.)
The brief of U.N. High Commissioner Navi Pillay, for which Santa Clara Law Professor David Sloss is counsel of record, further elucidates:

Navi Pillay

'Retributive and compensatory justice go hand in hand. If international law allowed States to exercise universal criminal jurisdiction over gross violations, while prohibiting them from offering victims compensation for the same violations, this would cut off the second leg of the principle of effective remedy, which universal jurisdiction is meant to protect.'

The U.S. Government Walks the Line
Though it argued for the plaintiffs in Kiobel I, the U.S. government filed an amicus brief on behalf of neither party in Kiobel II.

On June 28

On this day in ...

... 2004, through its appointed Coalition Provisional Authority administrator, Paul Bremer, the United States transferred Iraqi sovereignty back to the people of Iraq.  The BBC reported that the Baghdad ceremony was "low-key," and had been advanced a couple days "in an attempt to prevent the occasion being marked by bloodshed." The final convoy of U.S. troops would not leave the country until the end of December 2011. (credit for image of Iraqi flag in effect 2004-2008)

(Prior June 28 posts are here, here, here, here, and here.)

Limits on sovereignty & collective security

(My thanks to IntLawGrrls for the opportunity to contribute, in 2 parts, a version of remarks I delivered on the at the March 2012 annual meeting of the American Society of International Law. A full version of my comments will be published in the ASIL Annual Meeting Proceedings)

Two trends challenge the ability of international law – in particular, the collective security structure of the U.N. Charter – to constrain the use of force. Today’s post will address the first trend, of changing normative understandings; the second trend, of changing warfare technologies, will be addressed in a post tomorrow.

Changed understandings of sovereignty
Increasingly in recent decades, legal scholars, advocates, and policymakers have articulated an understanding of state sovereignty as limited. A state is said to be required to execute certain responsibilities. If it fails to do so, others may step to ensure proper execution of those responsibilities. The argument emerged in two very different discourse communities:
►Human rights, which speaks of atrocity prevention and the responsibility to protect; and
►National security, which talks of state duties to prevent the export of terrorism.

Responsibility to protect
A 2001 report by the International Commission on Intervention and State Sovereignty offered a starkly different understanding of sovereignty than that taken for granted prior to World War II:
‘State sovereignty implies responsibility…Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.’
The report noted that the use of military force to protect populations should be a last resort, authorized by the U.N. Security Council, yet it stopped short of making such authorization a requirement. If the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action,” the report stated, “concerned states may not rule out other means to meet the gravity and urgency of that situation.”
The normative logic of responsibility to protect suggests that Council authorization should not be dispositive. As Anne Orford put it in her IntLawGrrls posts, the conceptual framework implies that the lawfulness of state authority is dependent on the capacity and will to protect populations from at least certain kinds of egregious harms. As a matter of logic, if sovereignty involves a responsibility to protect, and a state’s failure to protect its own population triggers a responsibility to protect in other states, that responsibility exists regardless of the (in)action by the politicized and veto-prone Council.

Terrorism prevention
Prior to the terrorist attacks of September 11, 2011, most states accepted (publicly, at least) the international law principle that force could not be used inside the territory of a sovereign state unless the:
► State at issue consented;
► Security Council authorized use of force under Chapter VII of the U.N. Charter; or
► Use of force was in self-defense against an “armed attack” as delineated by Article 51.
But the 9/11 attacks, which occurred two months before issuance of the first report on responsibility to protect, changed things.

The Law of the Sea Convention: A New Hope

This month marks the 30th anniversary of the adoption of the Law of the Sea Convention. July will mark 18 years since the 1994 Agreement on Implementation, which modified the Convention to resolve US objections, was opened for signature. Eight years have passed since Senator Lugar convened the first round of hearings on the Convention in the Senate Foreign Relations Committee.
Working toward US accession to the  Law of the Sea Convention (prior posts) is not a task for the impatient, but an event held yesterday (May 9th) suggests that this pace is about to change.

Renewed Public Attention to UNCLOS

Business Panel on US Interests in the LOS Convention

The outlook for US accession to the Convention improved sharply this week with a high profile event organized by the Atlantic Council and the Pew Trusts. Co-chaired by former senators John Warner and Chuck Hagel, the event gave equal billing to economic and national security interests in the LOS Convention. In the opening panel, representatives of the US Chamber of Commerce, the American Petroleum Institute, Lockheed Martin and Level 3 Communications addressed the economic opportunities and other benefits that would be opened up for American companies by US accession to the Convention.

Heather Conley
Discusses the
Arctic and LOS

The second panel addressed new security issues. Heather Conley of CSIS focused on international transportation, national sovereignty and boundary resolution issues in the Arctic. John Nagl from the Center for a New American Security addressed navigation, energy and resource security issues worldwide. John Norton Moore focused on the increase of national sovereignty over the seabed and its resources that would come with accession.

Lean Panetta Endorses
the LOS Convention

The event was particularly notable for the stature of the people who made the case for the Convention. In addition to John Warner and Chuck Hagel, former Senate Majority Leader Trent Lott, who now represents Shell Oil and Lockheed Martin’s interests in joining the Convention, sat in the front row and spoke with attendees about the tactics of senate approval. Admiral Robert Papp, the Commandant of the US Coast Guard, gave a strong and personal endorsement. After lunch, the meeting closed with keynote presentations given by the Chairman of the Joint Chiefs of Staff, General Martin Dempsey, and by Secretary of Defense Leon Panetta.

Read On! On the right of states to exclude migrants

(Read On! ... occasional posts on writing worth reading)

Are states obligated to provide justifications for not admitting the entry of an alien who seeks mid- and long-term stay in their territory?
Bas Schotel (below right), Assistant Professor of Legal Theory at the University of Amsterdam, provides a positive answer to this question in his recent book, On the Right of Exclusion: Law, Ethics and Immigration Policy (2012), published by Routledge. I had an opportunity to introduce it at the Law Faculty Seminar of the University of Amsterdam, which takes place once a month, and has been one of the important agents to stimulate the faculty-wide academic discussion. (book cover credit)

Schotel's positive answer to the question above would be contrasted with a standard account given by international lawyers.
His book focuses on what he terms "normal" migrants, namely, those aliens who have neither a legal right to admission nor the special legal protection such as the case of refugees. Under customary international law, a receiving state has the discretion to admit or exclude such migrants without providing justifications to them. Schotel tries to refute this standard account by unpacking and analyzing the legal and political theories behind it. He argues that a state has the "duty to justify" the exclusion of migrants who are situated in the entry point of a state's legal order—and he does so not by way of advocating the right to free movement, but by reconsidering the nature of a state's legal order and its authority, which might have traditionally left normal migrants at the edge of legal sphere.

Case for a Duty to Justify Non-Admission

Schotel makes the case for the state's "duty to justify exclusion" in the following four steps"
► He first rejects the two major existing theories that underpin the sovereign states' discretional exclusion without justification: the rule of inherent sovereign power (Chapters 1-2) and the exclusion thesis (Chapters 3-4).

The admission of aliens is often described as part of sovereign states' inherent power. Yet Schotel contends that such a sovereign power narrative, including the need to safeguard territorial integrity, does not provide the theoretical basis for exclusion without justification; it is to be invoked against other states, and not against migrants.

Regarding the latter, the exclusion thesis, he draws on the observations of Carl Schmitt, Giorgio Agamben, and Hans Lindahl. Despite variance in their accounts, it is possible to abstract a common tenet for the purpose of the states' encounter to aliens: "inclusion", especially the one based on a territory, is essential for founding and sustaining any political and legal order, and such inclusion necessarily implies exclusion.

Schotel refutes this "exclusion thesis" as a basis for the states' right to exclusion without justifications. It is not only inconsistent with the historical facts that there are different forms of creating orders without territories. It is also conceptually problematic; to establish what is included within one legal order does not by itself define the externality. Namely, inclusion does not necessarily imply exclusion.

On April 13

On this day in ...
... 1987 (25 years ago today), was issued a Joint Declaration by Portugal agreed to transfer to China sovereignty over Macau, in 1999. Negotiations toward this goal had begun in the mid-1970s, after a coup brought to an end a long-standing military dictatorship, and the new government withdrew Portuguese troops from the Asian territory over which Portugal had exerted influence for centuries. Today Macau, which has more than a 1/2 million people in its nearly 30-square-kilometer space off the mainland, is a "special administrative region" of China, enjoying considerable autonomy and its own legal system. (map credit)

(Prior April 13 posts are here, here, here, here, and here.)

The United Nations & the responsibility to protect

(My thanks to IntLawGrrls for the opportunity to contribute this post, consisting of remarks I delivered last Thursday at "Military Intervention and the Law of Peace," the opening plenary session of the 2012 annual meeting of the American Society of International Law)


Introduction
Ladies and Gentlemen, it is a great pleasure to be here with you. Today’s panel raises very topical issues. As we are limited by time, I will focus my comments on the concept of the “Responsibility to Protect” (R2P) in the context of current work at the United Nations, and its implementation in the situations in Libya and Syria.

2005 World Summit
In 2005, more than 150 Heads of State and Government unanimously embraced the “Responsibility to Protect” (R2P). They declared that

'each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity,'

and that

'the international community, through the United Nations, also has the responsibility … to help protect populations'

from those crimes.

The three pillars of R2P
In addressing the challenge of “operationalizing” R2P, the Secretary-General has identified three pillars of action:
► Pillar I is the enduring responsibility of States to protect their populations.
► Pillar II is the role of the international community to assist States to protect their populations before crises and conflicts escalate to the level of the commission of R2P crimes.
► And Pillar III involves a commitment that States

'are prepared to take collective action in a timely and decisive manner, through the Security Council, in accordance with the Charter … where national authorities are manifestly failing to protect their populations.'

(Credit for above right U.N. photo by Mark Garten of U.N. Secretary-General Ban Ki-moon, courtesy of the United Nations)
The commitment also includes action under Chapters VI and VIII, as well as under Chapter VII, and includes cooperation with relevant regional organisations, as appropriate. And of course, the concept is necessarily limited by the legal framework provided under the Charter. Any decision of the Security Council to take action would require the concurring votes of each permanent member. This underscores that R2P does not create any additional exceptions to the prohibition on the use of force under the Charter, – the exceptions being acts in self-defence, and acts authorized by the Security Council.
Most States have agreed that the UN’s role should focus, at the outset, on prevention. The challenge for giving true practical meaning to the concept is thus to work out how the UN can best assist States to protect their populations before crisis situations occur, particularly as there will be situations in which the Security Council will not authorize enforcement action under Chapter VII. This challenge has yet to be met, and of course differs with each unique situation.

R2P gives expression to important international developments
R2P gives expression to what had become a global-wide conviction that it is immoral and unacceptable for States to allow gross violations of the human rights of their populations, and that the international community has a responsibility to prevent these crimes. In this light, R2P has grown out of a number of important developments:
► It reflects a recognition of the changing nature of conflict since the drafting of the Charter in 1945 – today most conflicts occur within States rather than between them.
► It signifies a broad acceptance of fundamental principles of human rights, and reinforces the normative content of the crimes of genocide, war crimes, [ethnic cleansing], and crimes against humanity.
► And it affirms States’ obligations under international law to prevent, prosecute and punish these crimes.
At the heart of R2P is the recognition that state sovereignty – the cornerstone of international relations – entails responsibility. States have a responsibility to protect their populations from the R2P crimes. Building upon this responsibility is the positive obligation which is placed upon the international community to assist States to meet their responsibilities and to take action where these responsibilities are not met. This notion of sovereignty as responsibility underscores that sovereignty is the basis for a certain status and authority under international law, as well as for enduring obligations towards one’s people.
Importantly, rather than detracting from the principle of State sovereignty, R2P reinforces it. It drives home the role of the State as a protector of its nationals. As stated by the Secretary-General, R2P is

'an ally of sovereignty, not an adversary.'

As one of the defining attributes of statehood and sovereignty is the protection of populations; prevention of atrocity crimes begins at home. R2P reinforces the collective security mechanism established by the Charter with its emphasis on prevention, and that enforcement measures may only be taken in accordance with the legal framework prescribed by the Charter.
So some might ask, what is new?

On January 17

On this day in ...
... 2005, the Convention on Jurisdictional Immunities of States and Their Property was opened for signature at U.N. headquarters in New York, having been adopted by the General Assembly the previous month. An article by our colleague David P. Stewart described the treaty as

the first modern multilateral instrument to articulate a comprehensive approach to issues of state or sovereign immunity from suits in foreign courts.

With only 13 member states, the convention remains well short of the 30 states parties required for it to enter into force.

(Prior January 17 posts are here, here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

It acknowledged that the ICSID framework is silent as to mass proceedings, but found that it would run counter to the purpose of the Italy-Argentina [bilateral investment treaty] and to the spirit of ICSID to interpret such silence as a prohibition on mass proceedings. ...
The tribunal’s findings can be contrasted with the approach the U.S. Supreme Court has taken to this issue in the commercial arbitration context.

-- Professor Karen Halvorsen Cross (right) of Chicago's John Marshall Law School, in an ASIL Insight entitled "Investment Arbitration Panel Upholds Jurisdiction to Hear Mass Bondholder Claims against Argentina." She details the "remarkable jurisdictional findings" in the August 2011 decision in Abaclat, a matter heard by a 3-member arbitral tribunal of ICSID, the International Centre for the Settlement of Investment Disputes. The reasoning of the 2 panel members in Abaclat differed, Cross explained, from that of the 5-Justice majority in Stolt-Nielsen SA v. AnimalFeeds Int’l Corp. (U.S. 2010), "that 'the differences between bilateral and class-action arbitration are too great for arbitrators to presume . . . that the parties’ mere silence on the issue . . . constitutes consent to resolve their disputes in class proceedings.'" Dissenting from his colleagues' contrary conclusion was arbitrator Georges Abi-Saab; he subsequently resigned from the Abaclat tribunal. The effects of the August decision, on the matter at hand as well as on other arbitrations raising similar issues of small claims and large sovereign debts, thus remain to be seen.

Write On! "Beyond States" in Paris

(Write On! is an occasional item about notable calls for papers)

From Dr. Birgit Schlütter, our colleague at the Norwegian Centre for Human Rights, University of Oslo, comes news that papers "on the interaction between authorities at different levels" are being sought for a spring 2012 workshop in France.
It's the 3d International Workshop on Authority Beyond States, sponsored by AUSTAT, the ongoing authority-beyond-states project in which Birgit and others are involved. The workshop will be held May 3 and 4, 2012, at the Centre franco-norvégien en sciences sociales et humaines in Paris.
Organizers write:

The exercise of authority by international institutions raises a number of puzzling challenges across the disciplines that study the international. Recent history has seen a substantial increase in the number of international institutions, the claims to authority of which may rival not only the traditional bailiwick of sovereign states, but also the authority of other partially overlapping international institutions. How are those clashes of authority and frictions between actors resolved, if at all? How do the various subjects addressed by international authority – such as governments, corporations, NGOs, individuals, as well as international institutions themselves – respond? Even though conflicts of authority is a problem that political and legal practice and theory have had to deal with for centuries, new international institutional frameworks challenge established solutions to such problems, both in practice and in theory.
For example, recent contributions in international legal theory raise questions about interaction between the national and the international. But constitutionalism, pluralism or global public law approaches often concentrate on the international, while guiding principles, like subsidiarity or federalism, are yet to be analysed in more detail. Likewise, research in political science on multilevel, global governance raise questions about how the agents involved resolve conflicts of competence and jurisdiction not just between different levels, but also among international institutions themselves. Relatedly, while much recent political theory starts from the assumption that states are being challenged in their traditional mandate and capacity to govern, the resulting calls for international institutional reform suggest new puzzles about how to settle clashes of authority in lieu of sovereignty.

They invite submissions in the disciplines of international and comparative constitutional law, political science, international relations, and political theory, that address the exercise of authority by international institutions. Of particular interest are papers dealing with the vertical interplay between international institutions and domestic authorities and the horizontal interplay between different international institutions. Empirical, theoretical, conceptual, and normative analyses all are welcomed
Interested persons should submit an abstract of no more than 500 words, plus a short biography, via the online form available here. Deadline for submissions is January 15, 2012. Participants whose papers are selected will be reimbursed for travel and accommodation expenses.
Details here.

On November 21

On this day in ...
... 2001 (10 years ago today), the European Court of Human Rights (right) issued its judgment in Al-Adsani v. United Kingdom. (photo credit) The applicant, who possessed dual British-Kuwaiti citizenship, alleged, in a lawsuit brought in Britain, that he had been abducted and tortured by the government of Kuwait. British courts had blocked the suit pursuant to a statute that granted immunity to the foreign state. The European Court ruled that this result did not violate the protection against torture and right of access to the courts guaranteed the applicant in the 1950 European Convention on Human Rights.

(Prior November 21 posts are here, here, and here, and here.)

On April 9

On this day in ...
... 1949, the International Court of Justice decided its 1st case. Its judgment on the merits in Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) held by a vote of 11 to 5 that Albania was responsible for destruction and loss of life stemming from the 1946 incidents in which British destroyers hit mines while traveling in Albanian waters. (map credit) By a vote of 14 to 2, the ICJ further declared that Britain's entry had not violated Albanian sovereignty. The ICJ ruled unanimously that its finding of responsibility constituted satisfaction, and so declined to award damages.

(Prior April 9 posts are here, here, here, and here.)

Sovereign immunity in Canada

(Thanks much to IntLawGrrls for inviting me to contribute this guest post on several important developments in human rights litigation in Canada)

One of the things that always strikes me in working with torture survivors and victims’ families is how consistently people say they want to help prevent others from experiencing the same trauma. They want something hopeful to result from such dramatic pain and loss, and often see the pursuit of justice as one of the means to achieve this.
That was certainly the message from Canadian-Iranian Stephan Kazemi as he digested the outcome of a key decision in his lawsuit against Iran for the torture and death of his mother, Zahra Kazemi (left). He could see that while the decision is a victory in terms of his own ability to proceed, it closes the door to most other cases in Canada for torture suffered overseas and undermines his broader goal.

Zahra Kazemi was a photojournalist from Montreal, Canada,, whose work sought to shed light on political and human rights issues, often highlighting the strength of women in situations of poverty and oppression. In 2003, she traveled to Iran during a time of demonstrations against the government, and with a press card took photographs of family members outside the notorious Evin prison who were seeking information about those thought to have been falsely imprisoned.

As a result, Zahra was herself detained, brutally raped and beaten. Her son in Canada, an only child in his twenties at the time, sought her return for treatment in Canada. This was denied, and she died of her injuries. No one was ever held accountable in Iran for Zahra’s torture and death. After other possible avenues to redress had been exhausted, a lawsuit was filed against Iran in Quebec Superior Court, on behalf of Zahra’s estate and of her son Stephan. The first hurdle in the case was the need to address the claims of the Government of Iran and the three named individual officials that they were immune from the lawsuit because of Canada’s State Immunity Act (SIA).

Passed in 1982, the SIA was intended to provide assurance to other governments that they would not be sued in Canada as they carried out their official or “sovereign” duties. A strong argument can be made that acts that are in clear contravention of international law – such as torture – cannot be considered “sovereign”. The SIA uses a restrictive approach and contains two exceptions to immunity – for commercial activities and for injuries suffered inside Canada. Unfortunately there is currently no exception in the legislation for torture or other serious violations of international human rights. The intervention of the Canadian Centre for International Justice, for which I serve as Executive Director, as a friend of the court in the Kazemi case was an attempt to remedy this.

The Quebec Superior Court took almost a year to issue its judgment on the state immunity issue. When it finally came in late January, it was a very mixed result. The court permitted Stephan's individual claims to proceed on the basis of the existing exception written into the SIA that eliminates immunity for injuries suffered inside Canada. It found that the nervous shock Stephan suffered as a result the mistreatment of his mother could fall under this exception. His individual part of the case will proceed and it will certainly be significant – the first trial of its kind in Canada.

However, the claims by the Estate of Zahra Kazemi were dismissed on the ground that the abuses Zahra suffered were only in Iran; she never suffered an injury in Canada. The court upheld immunity in those circumstances, rejecting arguments that immunity should not be permitted for torture and other serious human rights violations. The paradoxical result of the court's approach is that relatives in Canada of persons tortured or killed abroad may have a remedy while the persons who were actually tortured often will not.

Yet while the judgment is disappointing, there is still hope:

► Aspects of the case could be subject to appeal, and decisions about that will be made in the coming weeks.

► The judgment is also a clear invitation to Canadian Members of Parliament to act by passing a bill that is currently before them, intended to clarify that there should never be immunity for torture, war crimes, genocide or crimes against humanity. Bill C-483, a private member’s bill, was re-introduced in Parliament on March 3, 2010 by Liberal MP Irwin Cotler (right) with the support of MPs from the other three parties that hold seats: the Conservatives, New Democratic Party and Bloc Quebecois. The bill would deny immunity to countries and officials alleged to be responsible for torture, genocide, war crimes and crimes against humanity by creating a new exception to the general rule in the SIA that foreign governments cannot be sued in Canada. The exception would remove the key barrier to lawsuits involving allegations of these violations of human rights and humanitarian law, and create an important precedent as the civil courts of other countries also grapple with the issue of state immunity.

Further developments in the Kazemi case will be important to watch, as will progress on the parallel efforts at law reform through the legislature. It is my very deep hope that Stephan Kazemi will have the opportunity to offer this final tribute to the tremendous courage his mother demonstrated through her work and art.

Recognizing Palestine

One nation in the Middle East is seeking a change in status even as a neighboring state faces a change in regime.
The nation is Palestine.
Though some members of the Palestinian people are dispersed, many live in the West Bank and Gaza, the latter of which shares a border with Egypt, locus of recent political ferment about which we've posted.* (map credit)
In these Palestinian territories, the entity known as the Palestinian Authority governs by dint of circa-1990s international agreement. The Authority administers "within the framework of a semi-presidential multi-party republic, with a Legislative Council, an executive President, and a Prime Minister leading the Cabinet."
IntLawyers will see in the above paragraph 3 of the 4 traditional indicia of statehood:
1) Permanent population;
2) Defined territory; and
3) Government.
Not immediately apparent is this indicator:
4) Capacity to enter into relations with other states.
The declaratory theory of statehood would emphasize the word "capacity" in that last phrase, so that statehood would exist whenever an entity possessing Nos. 1-3 has the ability to effect No. 4. Yet in practice the constitutive theory holds sway. For if no fully recognized states themselves recognize the entity -- if no states actually enter into relations with it -- the entity cannot act as a state.
Put another way:

Not everything that looks like a state and quacks like a state is able fully to operate as a state.

(image credit) The trickiness of that 4th indicator has left scholars chewing for years over Palestine's status.
► Even without sufficient recognition by others, does it sufficiently possess the 4 attributes?
► Is it a "state" for purposes, say, of litigating before the International Court of Justice, by ICJ Statute Article 34(1) a forum open only to "states"?
► For purposes of referring a situation to the International Criminal Court, as the Palestinian National Authority in fact is attempting to do?
► Does it benefit -- and it is burdened -- by other rights and duties of states?
Developments may be shifting this debate.
In recent months, a series of states has recognized Palestine as an equal sovereign.
December began with the announcement, on the 3d day of that month, that Brazil "recognized the state of Palestine along the 1967 borders before Israel's seizure of the West Bank." The notice in response to a Palestinian request, Politico's Laura Rozen reported, "took Washington by surprise." She added:

Brazil was the last of the so-called BRIC nations [Brazil, Russia, India, China] to recognize Palestine. More than 100 countries, including almost all the African and Arab ones, had recognized it, "so it was the natural thing to do," a Brazilian official explained ....

Days later, Argentina said it would recognize Palestine.
Less than a week into the New Year came news that Chile had recognized Palestine.
A couple weeks ago, Russia reaffirmed its recognition.
Then came Peru, reportedly joining Bolivia, Ecuador, Guyana, and Uruguay in addition to South American countries already named.
Last week, Suriname added its name to the list.
Such news has compelled France to deny reports that it too was ready to recognize.
Yet elsewhere in Europe, there are calls for recognition and, in the case of Ireland, a late January upgrading of the Irish presence in Palestine to a "diplomatic mission," a step short of recognition. (France, Spain, and Portugal already had made the same move.) Palestine continues to seek wider European recognition. The European Union-U.N.-Russia-U.S. "Quartet" was expected to discuss Palestine "on the sidelines" of a conference in Munich this past weekend.

What of the United States?
As of mid-January, the U.S. official word for such recognitions was "premature." Given that more than half the world's countries appear already to have recognized, it's a word that may be meant to imply a policy change sooner rather than later.

* Not-unrelated aside: CNN reports that in recent days, West Bank rallies in support of pro-democracy protests in Egypt have been "shut down by Palestinian Authority security claiming the participants did not have the appropriate permits to hold such events."

On January 11

On this day in ...
... 1943, in what The New York Times called a "first concrete step toward the new era that is expected to follow the war in the Far East, with full restoration of China's sovereignty over her own soil," United States, Britain, and China signed treaties that ceded extraterritoriality and other special privileges that the 1st 2 countries had claimed over China (then flying the Republic of China/Nationalist flag at left) for the preceding hundred years. The Chinese-American treaty was signed in Washington; the Chinese-British treaty, by which Britain held on to its claims over Hong Kong, was signed in Chungking (today, the Sichuan province city of Chongqing).

(Prior January 11 posts are here, here, and here.)

On December 26

On this day in ...
... 1933, delegates at the 7th International Conference of American States, held in the capital of Uruguay, signed the Montevideo Convention on the Rights and Duties of States. Notable among its provisions were these:

ARTICLE 1
The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.
....
ARTICLE 3
The political existence of the state is independent of recognition by the other states. ...

The inter-American treaty thus embraced the declaratory theory of statehood, in contrast with the constitutive theory that makes other states' recognition the marker of statehood.
The Montevideo Convention entered into force exactly 1 year later; the United States was a charter member state. Among the 6 listed members of the U.S. delegation at Montevideo was Dr. Sophonisba Breckinridge (photo credit), a political scientist and attorney profiled in an earlier IntLawGrrls post.


(Prior December 26 posts are here, here, and here.)

On December 19

On this day in ...

... 2005 (5 years ago today), Armed Activities on the Territory of the Congo, the caption given a dispute between the Democratic Republic of Congo and Uganda, was issued. In this judgment the International Court of Justice decided, inter alia, that Uganda violated principles of non-use of force and non-intervention by acting militarily on Congolese territory and by supporting rebels. It also found Uganda responsible for breaching obligations under international human rights and international humanitarian law on account of the killings, torture, and other abuse that its troops committed against Congolese civilians, and its own failure to put an end to such crimes. In addition, the ICJ determined that Congo violated its Vienna Convention on Diplomatic Relations obligations toward Uganda on account of attacks that Congolese troops committed at Uganda's embassy in Kinshasa. Each country was held to owe reparations to the other.

(Prior December 19 posts are here, here, and here.)

On December 14

On this day in ...
... 1962, the U.N. General Assembly passed Resolution 1803 (XVII), "Permanent sovereignty over natural resources," which declared:

The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.

It then set forth principles framing the exercise of these rights. Among them was a right to nationalize property upon payment of "appropriate compensation"-- though not "prompt adequate and effective compensation," as the United States had urged. The resolution also promised "good faith" adherence to "[f]oreign investment agreements freely entered into by or between sovereign States," a formulation that omits investment contracts entered under colonialism. (photo credit)

(Prior December 14 posts are here, here, and here.)