by Chibli Mallat & Jason Gelbort
On March 5th, after oral arguments had taken place on February 28th, the United States Supreme Court surprisingly directed the parties in Kiobel. v. Royal Dutch Petroleum Co. to address “whether and under what circumstances the Alien Tort Statute [ATS], 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Previously, the main issue before the Court had been whether corporations can be liable for violations of international law under the ATS, a question that should not lead to controversy among members of the Court. However, given the Court’s new question, Kiobel promises to become a landmark Supreme Court case with respect to corporate liability for violations of international law occurring abroad that are reachable under the ATS.
What was not mentioned during oral arguments is the significant and indisputable fact that twenty U.S. Supreme Court cases decided over a period of several decades have already recognized that corporations and companies can have duties and rights under a variety of customary and treaty-based international laws. One would expect, therefore, that Kiobel will reaffirm the Court’s continual recognition of the fact of corporate liability under international law and then address other relevant issues that might divide the Justices. As demonstrated in this Essay, the first part of the Court’s new question, whether the ATS can reach violations of international law that occur in another country, should not be among the issues that divide the Justices. More particularly, this Essay addresses the fact: (1) that universal jurisdiction pertains with respect to violations of international law covered by the ATS; and (2) that varied principles of statutory construction, in addition to overwhelming trends in judicial decisions and relevant Executive and congressional recognitions, uphold universal jurisdiction underlying the ATS and its extraterritorial reach.
There is a fundamental flaw in the nature of the trade negotiations that take place in the world trading system as it exists today. Whereas many, if not most, free trade advocates believe that free trade is the best policy regardless of what a nation's trading partners do, the system tells us otherwise. Each nation offers up trade liberalization, such as promised tariff cuts, as "concessions" to be exchanged for similar "concessions" given by others. The result is an international trade agreement — either multilateral like the World Trade Organization (WTO), or, increasingly, bilateral or plurilateral — involving enforceable promises of free trade. Thus, under this system, free trade will only be adopted if all parties to the negotiations can reach agreement on a proper balance of these "concessions." In order to make further progress on free trade, we need to change the mindset and culture surrounding it. This Essay will make the case for reviving the spirit of the "purist" free traders who believed that free trade was good for its own sake, regardless of what a country's trading partners do. In this regard, the Essay discuss briefly the history of unilateral free trade thought, and offers a proposal for bringing aspects of unilateral free trade into the multilateral trading system. The proposal tries to address this fundamental flaw in the structure of trade negotiations by removing this disincentive to adopt unilateral free trade, and providing instead an incentive to do so.
The looming threat of a global ecological catastrophe produced by human-induced climate change has been insufficient to spur the world’s 194 States into consummating a pan-sectoral treaty to reduce so-called “greenhouse gas” emissions. In the interim, States remain free to adopt their own “eco-friendly” measures, though it’s unlikely they will collectively depress worldwide emissions levels down to an environmentally appropriate level. A plethora of stakeholder interests will likely serve as a drag on optimality. Still, a case could be made that “some effort” is better than “no effort,” assuming of course that “some effort” at the unilateral level is not accompanied by a major foreign relations fallout that risks jeopardizing multi-State cooperation in the future. Unfortunately, this is exactly what is unfolding right now with respect to the European Union’s politically contentious and legally controversial decision to unilaterally apply its so-called “Emissions Trading Scheme” (ETS) to all international airline flights arriving to or departing from its territory, regardless of the national origin of the carrier or the percentage of the flight conducted within EU airspace. Critics charge that the ETS violates several provisions of the 1944 Convention on International Civil Aviation (“Chicago Convention”), as well as customary international law and the EU’s aviation-specific bilateral agreements. Whether this is true or not is secondary to the undeniable fact that EU’s alleged regulatory overreach has strained its relations with a number of aviation powers, including the United States, China, India, and Russia. Several States are contemplating a formal challenge to the ETS before the UN’s official air transport organ, the International Civil Aviation Organization (ICAO), though the Organization lacks a strong enforcement apparatus. All of them have threatened extra-legal retaliatory action, with China thus far ordering its airlines not to comply with the ETS and India expected to follow. The end result could very well be a full-scale aviation trade war, with airlines, airports, and aircraft manufacturers all suffering along the way
These potential economic consequences — negative though they are — pale in comparison, however, to the damage this aeropolitical knife-fighting could do to the possibility of formulating a sector-specific aviation emissions agreement. As Brian Havel and the author have proposed, international aviation’s current legal regime provides a pathway to an incremental, but not insubstantial, emissions-reduction agreement which could be built off of the 2007 U.S./EU Air Transport Agreement — arguably the most far-reaching and sophisticated aviation trade and regulatory treaty in history. Concomitantly and, perhaps, more controversially, the Essay suggests that any and all authentically multilateral overtures (i.e., ones involving a substantial majority of the international community) to cover aviation in a sector-specific climate change agreement be suspended, at least until those States with the political will to address the aviation emissions issue have the opportunity to explore an incremental approach. Because multilateralism is likely to fail on the one hand and unilateralism has shown itself to be unproductive and deleterious on the other, neither path is normatively desirable. The incremental approach, then, remains an open area where negotiating resources can be productively directed.
The Second Circuit’s 2010 majority opinion in Kiobel v. Royal DutchPetroleum Co. held that corporations do not have obligations under international law and thus cannot have liability under the Alien Tort Statute. To prevent corporate liability would constitute a tantalizing incentive to engage in misconduct with the peace of mind no legal consequences will arise. This Essay suggests that in addition to the argument that corporations are private actors under international law, the issue can also be examined from the other angle. Large global corporations should be considered actors under international law because large global corporations and states share similar characteristics empowering both to the status of actor. Both enjoy sufficient influence, control, and power capable of causing sever harm through violations of internaitonal law. Today, large corporations can wield more capital than many states, have dozens if not hundreds of “bases” of operation across continents, and often perform traditionally governmental functions. Moreover, traditionally state actors are increasingly operating in the arena of private corporate actors, operating large sovereign investment funds, state-owned companies and engaging in private market activity. Given the multiple roles states and private corporations play, and the ensuing erosion of distinctions, there is no reason that international law obligations should remain the sole province of sovereigns. The large global corporations are indeed international law actors and should have duties and responsibilities similar to a state government.
Nearly a decade after the establishment of the International Criminal Court, the institution is at a crossroads. The ICC is enjoying increasing influence on the world stage, even among some states originally opposed to its activities. At the same time, support for the Court among African states, which constitute the greatest number of state parties to the ICC’s governing statute and the only states in which the Court has active situations and cases, appears to be fading. This year, to challenge perceived geographic bias, the African Union encouraged its member states to endorse an African for the office of chief prosecutor in the Court’s upcoming elections, a move that raised concerns about possible politicization of the office. These concerns aside, the election of a qualified African prosecutor could enhance the profile of the Court in Africa. Moreover, such an election may well strengthen the Court by making the ICC more representative, by amplifying voices of African communities supportive of the ICC, and by further illuminating the need for the empowerment and reform of national justice systems whose inability or unwillingness to try crimes under international law domestically has given the Court motive to prosecute in the first place.
NEWS & EVENTS
February 18, 2013Volume 54 Executive Board Announcement
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