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April 30, 2018

Jesner v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations

by William S. Dodge

[Cross-posted from Just Security]

On April 24, the U.S. Supreme Court decided Jesner v. Arab Bank, a case raising the question whether corporations can be sued for human rights violations, including acts of terrorism, under the Alien Tort Statute (ATS). For a preview of the arguments in the case, see here.

Justice Kennedy delivered the judgment of the Court, writing a broad and rambling opinion that might have foreclosed ATS liability for all corporations. But only Chief Justice Roberts and Justice Thomas joined Kennedy’s opinion in full. Justice Alito and Justice Gorsuch joined only those parts of the opinion that were limited to foreign corporations, and their separate concurring opinions emphasized the differences between ATS suits against foreign defendants and those against U.S. defendants. The four other Justices would have permitted ATS suits against both U.S. and foreign corporations, with Justice Sotomayor writing a devastating dissent on their behalf. So while the Supreme Court dismissed the plaintiffs’ claims against Arab Bank, the question of corporate liability in suits against U.S. corporations remains to be decided.

The ATS gives federal district courts jurisdiction over “any civil action by an alien for a tort only, in violation of the law of nations or a treaty of the United States.” The First Congress passed the ATS in 1789 with the eighteenth century law of nations in mind. But in Sosa v. Alvarez-Machain (2004), the Supreme Court held that federal courts could recognize causes of action under the ATS for violations of modern human rights law that are as generally accepted and specifically defined as the eighteenth century paradigms (infringement of the rights of ambassadors, violations of safe-conducts, and piracy). In Kiobel v. Royal Dutch Petroleum Co. (2013), the Supreme Court applied the presumption against extraterritoriality to ATS causes of action, holding that plaintiffs could only bring suits that “touch and concern” the United States. The plaintiffs in Jesner alleged that Arab Bank, a foreign corporation, had financed terrorist attacks in Israel by funneling money through its New York branch. The Second Circuit dismissed the claims under circuit precedent holding that only natural persons and not corporations can be sued under the ATS.

Framing the International Law Question

Writing only for three in Part II.A, Justice Kennedy seemed to accept the Second Circuit’s framing of the corporate liability question as whether there was a “norm of corporate liability under currently prevailing international law” that would meet the Sosa standard (p. 15). As Justice Sotomayor pointed out in dissent, however, this framing of the question “fundamentally misconceives how international law works” (p. 2). (I should disclose that I wrote the amicus brief of International Law Scholars in Jesner, on which Justice Sotomayor relied in this part of her opinion.)

The dissent correctly observed: “Although international law determines what substantive conduct violates the law of nations, it leaves the specific rules of how to enforce international-law norms and remedy their violations to states, which may act to impose liability collectively through treaties or independently via their domestic legal systems” (p. 3). Thus, Sosa’s requirement of a generally accepted and specifically defined norm of international law refers to norms of “substantive conduct,” not “forms of liability” (pp. 3-4). Because of this distinction, the plurality’s reliance on jurisdictional limits found in the charters of international criminal tribunals (pp. 14-15) was also misplaced, the dissent explained, because it “confuses the substance of international law with how it has been enforced in particular contexts” (p. 8). In other words, limits on jurisdiction are not limits on substantive law. Assuming that the international law prohibition against terrorist financing met the Sosa standard—a question the dissent would have remanded to the Second Circuit to resolve in the first instance—“nothing in international law suggests a corporation may not violate it” (p. 7).

Perhaps because of the power of the dissent, Justices Alito and Gorsuch did not join the part of Justice Kennedy’s opinion claiming that “there is a distinction in international law between corporations and natural persons” (p. 17). And even Justice Kennedy seemed to back away from his own argument in the end, concluding that “the Court need not resolve . . . whether international law imposes liability on corporations” (p. 17-18). This makes Justice Kennedy’s mistaken approach to international law nothing more than dictum in a plurality opinion.

Limiting the Holding to Foreign Corporations

The only analytical parts of Justice Kennedy’s opinion that commanded a majority of the Supreme Court were those invoking separation of powers concerns against creating new causes of action (pp. 18-19) and foreign relations difficulties (pp. 25-27). Significantly each of these parts was expressly limited to suits against foreign corporations. The first concluded with the observation that “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations” (p. 19). The second said even more explicitly: “the Court holds that foreign corporations may not be defendants in suits brought under the ATS” (p. 27).

The reasons for this limitation to foreign corporations may be found in the concurring opinions written by Justices Alito and Gorsuch. Justice Alito emphasized the foreign relations implications of suits against foreign corporations: “Creating causes of action under the Alien Tort Statute against foreign corporate defendants would precipitate exactly the sort of diplomatic strife that the law was enacted to prevent” (p. 1). In a footnote, Justice Alito expressly stated, “Because this case involves a foreign corporation, we have no need to reach the question whether an alien may sue a United States corporation under the ATS” (p. 3). He could not have been clearer.

As he telegraphed at oral argument that he might, Justice Gorsuch interpreted the ATS “to require a domestic defendant” (p. 6). Here, Justice Gorsuch largely followed the approach of A.J. Bellia and Brad Clark, which I have previously criticized. But of course, this approach to the ATS does not preclude suits against U.S. corporations for violating the law of nations. Justice Gorsuch explained: “It is one thing for courts to assume the task of creating new causes of action to ensure our citizens abide by the law of nations and avoid reprisals against this country. It is altogether another thing for courts to punish foreign parties for conduct that could not be attributed to the United States and thereby risk reprisals against this country” (p. 13). ATS suits against U.S. corporations clearly fall into the former category.

After the Supreme Court’s 2013 decision in Kiobel, my colleague Anupam Chander observed that the impact of that decision would be to free foreign corporations, but not U.S. corporations, from the risk of being sued under the ATS. In a sense, Jesner simply makes this point explicit.

I do not want to be overly sanguine about the prospects for corporate liability in ATS suits against U.S. corporations. Justice Gorsuch wrote that Sosa’s decision to give the ATS continuing relevance by permitting a limited class of human rights claims to proceed was a mistake (pp. 2-5). Justice Alito agreed (p. 3). And even Justice Kennedy strangely suggested that “there is an argument that a proper application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS” (p. 19)—a position that the majority in Sosa (including Justice Kennedy) expressly rejected. ATS suits against U.S. corporations also face a host of other obstacles, from the fact that such corporations often operate abroad through foreign subsidiaries to the standard for aiding and abetting liability. My point is simply that Jesner does not settle the question of corporate liability for U.S. corporations, and such cases constitute the bulk of litigation against corporations under the ATS. 

March 9, 2018

The Customary International Law of Jurisdiction in the Restatement (Fourth) of Foreign Relations Law

by William S. Dodge

[Cross-posted from Opinio Juris.)

In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The occasion for his comments was United States v. Microsoft, a case currently pending before the U.S. Supreme Court in which Dean Parrish has filed an amicus brief. I have given my thoughts on the case and on the amicus brief elsewhere and will not repeat them here. In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.

First, it may be helpful to sketch briefly the process for producing the Restatement (Fourth). In 2012, the Council of the American Law Institute (ALI) authorized three projects—on treaties, jurisdiction, and state immunity—under the umbrella of the Restatement (Fourth). A team of reporters was assigned to each project. I was made a co-reporter for the jurisdiction project, along with Anthea Roberts and Paul Stephan.

The ALI process begins with a Preliminary Draft prepared by the reporters, which is discussed at a meeting with the project’s counselors, advisers, and members consultative group. Based on this feedback, the reporters prepare a Council Draft, which is discussed at a meeting of the ALI Council. Based on this further feedback, the reporters prepare a Tentative Draft for discussion with the ALI membership at its annual meeting. For the jurisdiction project, three tentative drafts, covering different topics, were approved by the membership and now represent the ALI’s official position. The reporters are currently in the process of combining all the tentative drafts for the three projects together into one volume, which (as indicated below) has resulted in renumbering many of the provisions. Final publication of the Restatement (Fourth) is expected later this year.

On questions of customary international law, the Restatement (Fourth) was blessed with a great deal of expertise from U.S. and foreign lawyers and scholars. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. Our advisers included designated representatives from the State Department Legal Adviser’s Office. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here. Not all of these people will agree with every statement in the Restatement (Fourth). The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today.

The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. 2) restate the customary international law governing jurisdiction to prescribe. Section 432 of the Restatement (Fourth) (Section 402 in Jurisdiction Tentative Draft No. 3) restates the customary international law governing jurisdiction to enforce. The Restatement (Fourth) does not have a corresponding section restating the customary international law on jurisdiction to adjudicate because, as the Introductory Note to Chapter 2 (Introductory Note, Part III, in Jurisdiction Tentative Draft No. 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.)

With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Sections 408-413 set forth the most common bases establishing a genuine connection: territory, effects, active personality, passive personality, protection, and universal jurisdiction. These sections discuss foreign practice at length, citing the practice of more than 50 other countries. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

The Restatement (Fourth) does not continue the position of Restatement (Third) Section 403, which stated that customary international law requires an assessment of the reasonableness of exercising prescriptive jurisdiction in each case. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No. 3). This is a domestic principle of statutory interpretation, like the presumption against extraterritoriality and the Charming Betsy canon, under which U.S. courts may “interpret[] a statute to include other comity limitations if doing so is consistent with the text, history, and purpose of the provision.”

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law . . . a state may not exercise jurisdiction to enforce in the territory of another state without the consent of the other state.” To apply this rule, of course, one must determine where enforcement occurs in various situations. When a U.S. court requires a person in the United States to produce information located abroad, as in the Microsoft case for example, does the enforcement occur in the United States or abroad? As the reporters’ notes to Section 431 (dealing with U.S. practice with respect to jurisdiction to enforce) explains, U.S. court orders to produce information located abroad “have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce.” In the Microsoft case, the fact that none of the foreign governments filing amicus briefs—including Ireland—has characterized the warrant in question as an extraterritorial exercise of jurisdiction to enforce seems conclusive.

Dean Parrish directs most of his criticism at the Restatement (Fourth)’s statement that, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Dean Parrish’s says this is inconsistent with the Restatement (Third), but in fact the Restatement (Third)’s position was more ambiguous than is commonly appreciated. Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

An honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity. Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. The clearest evidence of this is the Brussels I Regulation (Recast) in the European Union, which prohibits the use of exorbitant bases against defendants from other EU member states, but expressly permits the use of exorbitant bases against defendants from non-EU member states and requires EU member states to enforce judgments against such defendants resting on such bases. If states do not refrain from exercising jurisdiction on exorbitant bases of jurisdiction out of a sense of legal obligation, there can be no rule of customary international law prohibiting their use.

The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. (For an overview written for a private international law audience, see here.) The Restatement (Fourth) also tries to distinguish clearly between rules of domestic law and rules of customary international law, and to state rules of customary international law only when they are supported by state practice and opinio juris. But Restatement (Fourth) does address the customary international law of jurisdiction, and it draws on a deep well of expertise in doing so.

 

February 21, 2018

Symposium: Advancing International Law Under the Trump Administration–Some Cautionary Thoughts About Litigation

By William S. Dodge

[Cross-posted from Opinio Juris.]

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. From 2011 to 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

Among Harold Koh’s many academic achievements, perhaps his most influential has been to articulate a theory of transnational legal process that explains why nations obey international law. According to this theory, public and private transnational actors generate interactions that lead to interpretations of international law that in turn become internalized in domestic law. Once internalized, such interpretations become difficult to change.

In a recent lecture at Washburn University School of Law, Harold used the lens of transnational legal process to examine “The Trump Administration and International Law.” His tour d’horizon is a tour de force, examining the entrenchment of international law with respect to immigration and refugees, human rights, climate change, Iran, North Korea, Russian hacking and cybersecurity, Ukraine, al Qaeda and IS, and Syria. As he writes, “no single player in the transnational legal process—not even the most powerful one—can easily discard the rules that we have been following for some time.”

Harold’s purpose is not simply descriptive. He also sets forth a “counter-strategy” to resist Trump’s assault on international law and international institutions. This strategy includes an “inside strategy” that government officials can use to engage other states, translate international law norms, and leverage those norms as smart power to advance U.S. interests. And it includes an “outside strategy” that non-governmental actors can use “to generate interactions that force interpretations that promote internationalizations of international norms even by resisting governments.”

I want to focus on the “outside strategy,” and particularly its reliance on litigation. “Lawsuits are the paradigmatic example” of the outside strategy, Harold explains. “[I]f a government policy moves in a legally noncompliant direction, an outside nongovernmental group can sue (generate an interaction) that yields a judicial ruling (an interpretation) that the government defendant must then obey as a matter of domestic law (norm internationalization).” There is no doubt that litigation is a critical tool to promote compliance with international law. But litigation can also serve as a catalyst for interpretations that constrain international law.

In an insightful article that should be required reading for any lawyer entering government service, Professor Rebecca Ingber has examined how different interpretation catalysts shape executive branch interpretations in the area of national security. She writes: “Once the government is implicated in a lawsuit, particularly over a matter of national security, nearly all forces align to push the executive to advocate an expansive view of its own authority, to defend past action, and to request a judgment in favor of the government on the broadest possible grounds so as to preserve executive flexibility to the greatest extend possible.” After the executive branch takes a position in the context of litigation, that interpretation can be quite difficult to change.

I witnessed this dynamic first hand when I served as Harold’s Counselor on International Law at the State Department and participated in the interagency process that produced the two amicus briefs for the United States in Kiobel v. Royal Dutch Petroleum. With respect to the question of corporate liability for human rights violations, which posed no direct litigation risk to the United States or its officials and on which the United States had not previously taken a position, it was possible to reach consensus on a position that advanced international law (a position that became entrenched and that the Trump administration repeated in its amicus brief in Jesner v. Arab Bank). But with respect to questions of extraterritoriality, it proved difficult to move away from positions adopted by the Bush Administration in the shadow of the “War on Terror” and allegations of human rights violations by U.S. government actors.

In her article, Rebecca gives the example of the Bush Administration’s “War on Terror” policies. “The Bush years are often cast as a time of momentous Supreme Court pushback against administration policies in areas where presidents had previously been awarded great deference. That is one narrative, and there is truth in it.” But she explains that there is another narrative in which “repeated years of litigation . . . did not radically alter the legal architecture for the Bush Administration’s policies in its ‘War on Terror.’ Instead, this litigation entrenched it.” Despite the desire of the Obama Administration to move in a different direction, the existing executive interpretations made it “exceedingly difficult for the new Administration to change course and suddenly take new positions in litigation, above all those that might constrain government action or fail to defend past government policies.”

Litigation can be an important interaction in the transnational legal process framework. But it can produce narrow interpretations of international law by the executive, which are only sometimes overturned by broader interpretations in the courts. And narrow executive interpretations can become internalized, just as broader judicial interpretations can.

One may be more likely to get broader judicial interpretations when the courts do not trust a particular administration, at least not on a particular issue. That factor may have played some role in the Bush Administration’s losses at the Supreme Court in the “War on Terror” cases, and it could certainly be relevant in litigation challenging some of the Trump Administration’s policies. The probability of a good interpretation from the courts may offset the probability of a bad interpretation from the executive.

Whether litigation is the right counter-strategy also depends, of course, on the alternatives. As Rebecca rightly notes, “litigation may well be the only way to force the executive’s hand.” This may be particularly true for the Trump Administration, in which other potential catalysts (like reports to treaty bodies) are likely to have less impact and other potential interpreters of international law (like the State Department) have already been marginalized.

Finally, one must consider the impact of litigation not just on the executive branch and the courts but also on the broader public mind. A case in point is the litigation challenging the Trump Administration’s Travel Bans, in which the clinics at Yale Law School have played an important role. One by-product of the litigation was a devastating declaration of former national security officials, which later became an amicus brief, confirming that the Travel Ban would likely harm counterterrorism and law enforcement efforts. The litigation has also helped galvanize resistance from members of Congress and state and local governments. Even if this litigation generates narrow executive branch interpretations of international law, and even if courts uphold some of those interpretations, the political impacts of the litigation may yet prove worthwhile.

Transnational legal process provides an important framework for understanding why nations obey international law and how to frame strategies to ensure that the Trump Administration does as well. But it is wise to remember that executive branch interpretations tend to be most regressive when made in the context of defensive litigation, and that internalization can apply to bad interpretations as well as to good ones.

February 20, 2018

United States v. Microsoft: Why the Government Should Win the Statutory Interpretation Argument

By William S. Dodge

[Cross-posted from Just Security.]

In United States v. Microsoft, the U.S. Supreme Court will determine the geographic scope of Section 2703 of the Stored Communications Act (SCA), which allows the government to obtain disclosure of communications in electronic storage upon a showing of probable cause. Three canons of statutory interpretation are potentially relevant: (1) the presumption against extraterritoriality; (2) the principle of reasonableness in interpretation; and (3) the Charming Betsy canon of avoiding conflicts with international law. The Fourth Restatement of Foreign Relations Law, to be published later this year, restates these three canons in Sections 404, 405, and 406.

(The provisions appear as Sections 203, 204, and 205 in the Tentative Drafts of the Fourth Restatement approved by the membership of the American Law Institute [ALI]. Although I served as a co-reporter for the Fourth Restatement, I write here in my personal capacity and the views expressed do not necessarily represent the views of the ALI.)

Applying these three canons leads to the conclusion that Section 2703 reaches the electronically stored communications that the government seeks in this case.

The Presumption Against Extraterritoriality

Section 404 restates the presumption against extraterritoriality: “Courts in the United States interpret federal statutory provisions to apply only within the territorial jurisdiction of the United States unless there is a clear indication of congressional intent to the contrary.” In RJR Nabisco, Inc. v. European Community, the Supreme Court articulated a two-step framework for applying the presumption. At RJR step one, a court looks to see if the presumption has been rebutted by “a clear, affirmative indication” that the provision applies extraterritorially. If so, the court does not proceed to step two but rather applies the provision according to its terms. If the presumption against extraterritoriality has not been rebutted at step one, then a court must determine at RJR step two “whether the case involves a domestic application of the statute . . . by looking to the statute’s ‘focus.’” If whatever is the focus of the provision occurred in the United States, then the case involves a “permissible domestic application even if other conduct occurred abroad.”

The brief for the United States concedes that there is no clear indication of extraterritoriality at RJR step one (p. 16). Microsoft sees a clear indication of non-extraterritoriality in Section 2703’s use of the word “warrant,” which it claims is “a legal term of art that carries a territorial limitation” (p. 15). When Congress has clearly indicated the geographic scope of a provision, the analysis should end there and a court should apply the provision as Congress directed. But there is no clear indication of geographic scope in Section 2703. As the United States persuasively argues, Congress used the word “warrant” in Section 2703 not to indicate its geographic scope but to require a rigorous showing of probable cause (p. 39).

At RJR step two, a court must determine the focus of the provision. The Second Circuit “conclude[d] that the relevant provisions of the SCA focus on protecting the privacy of the content of a user’s stored electronic communications.” The United States argues instead that the focus of Section 2703 is “disclosure” (pp. 21-26), while Microsoft says that its focus is “communications in electronic storage” (pp. 11-12). Determining the “focus” of a statute is more an art than a science, and courts should undertake it with an eye towards reaching sensible results.

Making the applicability of Section 2703 turn on where the communication is stored, as Microsoft urges, would not be a sensible result. It would make it easy for criminals to evade the provision, raising the sort of “troubling consequences” that the Court found relevant to determining the geographic scope of RICO in RJR.

It does not really matter whether the Court concludes that the focus of Section 2703 is on privacy or on disclosure, for they just really just two sides of the same coin. As the United States notes, it is not the transfer of data from one Microsoft server to another that potentially invades a user’s privacy, but rather the disclosure of communications to the government (pp. 26-28). That disclosure occurs in the United States, making the application of Section 2703 a permissible domestic application at RJR step two.

Microsoft’s strongest argument is that because Section 2703 is an exception to the unauthorized access and unauthorized disclosure provisions of the SCA, its geographic scope cannot extend beyond the geographic scope of those provisions (p. 19). But there are precedents for a statutory exception to have a broader geographic scope than the substantive provisions of the same law. It is well settled that both the Copyright Act and the Patent Act do not apply extraterritorially. Yet in Kirtsaeng v. John Wiley & Sons, Inc. and then again in Impression Products, Inc. v. Lexmark International, Inc., the Supreme Court held that exceptions to each act, created by Congress’s adoption of the “first-sale doctrine,” applied to sales occurring outside the United States.

It is certainly open to the Supreme Court to conclude that ordering a provider of electronic communications in the United States, upon a showing of probable cause, to retrieve and disclose information in the United States is a domestic application of Section 2703, even if the provider stores the information outside the United States.

Reasonableness in Interpretation

The presumption against extraterritoriality does not preclude courts from interpreting a statute to include other limitations on its geographic scope if doing so is consistent with the text, history, and purpose of the provision. As Section 405 of the Fourth Restatement puts it, “[a]s a matter of prescriptive comity, courts in the United States may interpret federal statutory provisions to include other limitations on their applicability.”

To be clear, this principle of reasonableness in interpretation is not the multifactor-balancing test found in Section 403 of the Third Restatement. There are statutes under which multifactor balancing may be appropriate, like the Bankruptcy Code. But neither the Supreme Court nor the lower federal courts have adopted such an approach to extraterritoriality more generally.

The principle of reasonableness in interpretation is instead the principle that the Supreme Court articulated in F. Hoffmann-La Roche Ltd. v. Empagran S.A. of avoiding “unreasonable interference with the sovereign authority of other nations.” As Empagran made clear, however, not all interference with the sovereign authority of other nations is unreasonable. Extrapolating from Empagran, Section 405 says: “Interference with the sovereign authority of foreign states may be reasonable if application of federal law would serve the legitimate interests of the United States.”

There is no doubt that the United States has a legitimate interest in the disclosure of electronically stored communications where there is probable cause to believe that the communications relate to criminal activity. Even if this case risks some interference with Ireland’s sovereign authority, applying Section 2703 is clearly reasonable.

The Charming Betsy Canon

Finally, there is the Charming Betsy canon that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” But applying Section 2703 to require a U.S. internet-service provider to produce information in the United States violates no rule of international law, even if the information in question is stored abroad.

Customary international law limits the jurisdiction of States in certain respects. For a customary international law rule to exist, there must be a general and consistent practice of States followed out of a sense of legal obligation. As Section 401 of the Fourth Restatement (Section 101 in the Tentative Draft) explains, customary international law imposes different rules on different kinds of jurisdiction. Only jurisdiction to enforce is strictly territorial. Customary international law permits jurisdiction to prescribe if there is a genuine connection between the subject of the regulation and the State seeking to regulate. And customary international law does not limit jurisdiction to adjudicate at all, except for certain rules of immunity.

The amicus brief of International and Extraterritorial Law Scholars claims that “the electronic seizure of electronic records physically located in another country is an exercise of extraterritorial enforcement jurisdiction . . . no different than if FBI agents had set foot on Irish soil to retrieve the data themselves” (p. 3). That is simply wrong as matter of international law. States do not view orders to produce information located abroad as equivalent to physical searches by law enforcement officials.

In both civil and criminal cases, U.S. courts have long ordered parties to produce information located abroad. Discussing these cases in the Reporters’ Notes to Section 431 (Section 401 in the Tentative Draft), the Fourth Restatement observes: “Such orders have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce. In the event of noncompliance with such an order, a court may impose sanctions constituting enforcement, but such sanctions are typically imposed within the territory of the United States in compliance with customary international law’s territorial limits on jurisdiction to enforce.”

Ireland, the United Kingdom, and the European Commission all filed amicus briefs in this case. None of them asserts that using Section 2703 to require the production of information located abroad violates international law. Indeed the United Kingdom says that it does not (p. 5). It notes that under U.K. law telecommunications providers may be required to disclose electronic communications without regard to where the data is stored (pp. 5-6). Ireland observes that Irish courts have the power to order the production of documents located abroad (pp. 5-7). And the brief for the United States identifies other countries that authorize access to data stored abroad (pp. 46-47). Without a general and consistent practice of states that treats accessing data stored abroad as an impermissible exercise of jurisdiction to enforce, there can be no customary international law rule prohibiting it.

The European Commission brief worries about the possibility of conflicts with the EU’s General Data Protection Regulation (GDPR), but it discusses a number of ways the GDPR might permit compliance with a Section 2703 warrant (pp. 8-16). In any event, the answer to these concerns is not found in international law, which does not prohibit conflicting sovereign commands, but rather in a doctrine of international comity. Specifically, the doctrine of foreign state compulsion—restated in Section 442 of the Fourth Restatement (Section 222 of the Tentative Draft)—allows a U.S. court to excuse violations of U.S. law, or to moderate the sanctions imposed for such violations, when a person’s conduct is compelled by foreign law. The Supreme Court recognized such a defense to orders requiring the production of information abroad almost 60 years ago in Societe Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, and the brief for the United States concedes that such a defense would be available in cases where foreign law prohibited disclosure (pp. 51-52).

In sum, none of the canons of interpretation relevant to determining the geographic scope of a statute leads to the conclusion that Section 2703 is limited to electronic communications stored in the United States. Under the presumption against extraterritoriality, an order to a provider to produce information in the United States is a permissible domestic application, even if the information is stored abroad. Under the principle of reasonableness in interpretation, the legitimate law enforcement interests of the United States make the application of Section 2703 reasonable, even if it risks some interference with other nations’ sovereign authority. And the Charming Betsy canon simply is inapplicable because applying Section 2703 is not an extraterritorial exercise of jurisdiction to enforce. The government should win the statutory interpretation argument in United States v. Microsoft.

December 12, 2017

UC Davis School of Law, Jindal Global Law School Hold Joint Conference

From left to right: Professor Afra Afsharipour, Professor Angela Harris, and Professor Ashutosh Bhagwat.

UC Davis School of Law and Jindal Global Law School hosted a joint conference on "Law, Institutions, and Justice: Understanding the Roles and Responsibilities of 'Public' and 'Private' Institutions in Policymaking and Governance" at Jindal Global Law School on December 2 in Sonipat, India.

This was the first in a series of interdisciplinary conferences bringing together scholars from the U.S. and India to engage in explorations of issues related to democratic institutions and the quest to ensure social, economic, and political justice. The second decade of the 21st century has brought challenges to the three pillars of liberalism - institutions, integrity, and rights. The conference created a scholarly conversation about these challenges and how best to respond to them.

UC Davis School of Law presenters included Professors Afra Afsharipour, Angela Harris, Ashutosh Bhagwat, and Peter Lee. Jindal Global Law School Professors Avirup Bose and Suvrajyoti Gupta also made presentations, as did a number of other distinguished Jindal Global University scholars.

The conference was part of a partnership between Jindal Global Law School and UC Davis that was formed almost five years ago. In addition to faculty and student exchanges, the law schools have plans for additional academic forums on timely legal issues featuring cross-disciplinary perspectives.

"We are honored to work with our distinguished Jindal Global University colleagues to explore timely issues, and we are especially excited about the deepening relationship between UC Davis School of Law and Jindal Global Law School as we expand our portfolio of partnership activities," said Beth Greenwood, Associate Dean for International Programs at UC Davis School of Law. "This visit, led by Professor Afsharipour, presented an opportunity to plan future joint interdisciplinary conferences and other innovative initiatives. We would especially like to thank our Jindal Global Law School colleagues and Vice Chancellor Dr. Raj Kumar and Dean Kevin Johnson for making this joint conference possible."

For further information, please contact Concha Romero at cromero@ucdavis.edu or at 530-752-9043.

From left to right: Professor Ashutosh Bhagwat, Professor Afra Afsharipour, and Professor Angela Harris.

From left to right: Professor Peter Lee, Jindal Global Law School Vice Chancellor Dr. Raj Kumar, Professor Angela Harris, Professor Afra Afsharipour, and Professor Ashutosh Bhagwat.

 

 

January 31, 2017

A Teach-In About the Immigration Executive Orders

Please join School of Law faculty for a discussion of President Trump's Executive Orders regarding immigration law, immigrants' rights, and human rights.

Monday, February 6, 2017, 12:00 PM
King Hall Room 1001

 

Sponsored by

Aoki Center for Critical Race and Nation Studies

Immigration Law Association

La Raza Student Association

Middle Eastern South Asian Law Students Association (MESALSA)

Lunch will be served.

January 20, 2017

Serving as Visiting Scholar at National Chiao-Tung University in Taiwan

I had the honor of serving as a visiting scholar at National Chiao-Tung University, Taiwan during the week of January 8th. My visit was coordinated by Professor Chien-Chung Lin, who has twice visited UC Davis School of Law to present papers at the American Society of Comparative Law (ASCL), Younger Comparativists Committee (YCC) Workshop on Comparative Business and Financial Law. Taiwanese corporate law scholars such as Professor Lin have been doing excellent work especially in the area of comparative corporate law, so I was very much looking forward to interacting with some of them.

I began my visit with a fabulous lunch organized by Professor Lin and our own UC Davis JD student, Oscar Yang (himself a 2016 graduate of our LLM program). Oscar and Professor Lin had graciously invited leading Taiwanese lawyers for the lunch, including Prosecutor Jawyang Huang, Taipei District Prosecutors Office. Mr. Huang has been a visiting scholar at Yale University School of Law and was Oscar's supervisor in the Office of Trade Negotiations, in charge of WTO dispute settlement cases. We were joined by two of Oscar's former colleagues who were both fabulous company, Ms. Jenny Van, Senior Legal Adviser in Office of Trade Negotiations and Mr. Jason Lai, Secretary to the Director-General of Bureau of Foreign Trade.  It was a terrific lunch at one of Taipei's most popular restaurants, Din Tai Fung. After the lunch Mr. Huang gave me a fascinating tour of the Taipei Judicial Building, where I was able to observe a few trials that were being conducted. The efficiency and order at the judicial building was quite impressive.

After the first day in Taipei, Professor Lin took me to Hsinchu, one of the educational centers of Taiwan. The city has several prestigious universities, including National Chiao Tung University and National Tsing Hua University. Hsinchu is also an economic and technology hub in Taiwan with an impressive science and technology industrial park. The science and technology park is home to hundreds of high technology companies including world-renowned firms in the semiconductor space such as TSMC and UMC. Professor Lin gave me a tour of the technology park and given my prior corporate practice experience in the semiconductor space I was quite excited to see the place!

In Hsnichu, I gave three lectures at the two law schools there.

  1. Redefining Corporate Purpose: An International Perspective, at the Institute of Law for Science & Technology, College of Technology Management, National Tsing Hua University in Hsinchu, Taiwan.
  2. Deal Structure and Minority Shareholders, at the School of Law at National Chiao-Tung University, Taiwan
  3. Legal Transplants in the Law of the Deal: M&A Agreements in India at the School of Law at National Chiao-Tung University, Taiwan


Lecturing at NTHU

My visit to National Tsing Hua University was coordinated by Professor Robert Tsai, who is trained as an attorney in both Taiwan and the U.S. The lectures were well-attended, and the audience of professors and law students asked excellent questions.

I also had the opportunity to visit the Taiwan Stock Exchange to learn more about the significant corporate governance initiatives undertaken in Taiwan. I had an informative meeting at the Taiwan Stock Exchange with Mr. Joe Tsun Cheng (Senior Vice President, Corporate Governance Department) and Ms. Tracy Chen (Associate, Corporate Governance), as well as meeting Mr. Lih Chung Chien, Senior Executive Vice President of the Taiwan Stock Exchange. At the meeting we exchanged views on corporate governance initiatives undertaken in Asia, and I detailed some of my scholarly work on the trajectory and possible outcomes of the corporate governance reforms undertaken in India over the last decade. I really enjoyed the intellectual engagement with the professors, lawyers and law students I had the privilege to meet.

Professor Lin had also kindly arranged many opportunities for me to experience the beauty and culture of Taiwan, including visits traditional tea houses, temples and the CKS Memorial Hall and Liberty Square, an afternoon at beautiful hot springs outside of Taipei, a culinary adventure with law students at one of Taipei's fabulous night markets, a tour of the National Palace Museum, several informative walks around the different districts in Taipei, and more delicious meals than I can count.  I could easily have spent weeks enjoying all that Taiwan has to offer from its vibrant coffee culture to its elegant tea houses and lush country side, all topped off by the generous hospitality and friendliness of its people.

If it is not already clear, the trip to Taiwan was truly inspiring, and I look forward to future visits!

January 20, 2017

The UK Supreme Court’s Landmark Judgment Belhaj v. Straw: A View From the United States

Cross-posted from Just Security.

On Tuesday, the Supreme Court of the United Kingdom gave its judgment in Belhaj v. Straw and Rahmatullah v. Ministry of Defence, two human rights cases brought against UK officials in UK courts. Plaintiffs did not claim that UK officials were the main actors in the alleged human rights violations, which included unlawful detention, rendition, and torture. Rather, plaintiffs claimed that UK officials had assisted other countries-principally, the United States and Libya-in committing such violations. The UK officials argued that a court could not decide the assistance claims without ruling on the legality of other countries' actions and that the cases should therefore be dismissed on grounds of state immunity or under the foreign act of state doctrine. But the UK Supreme Court unanimously rejected these arguments. This means that the claims may proceed to trial where the actions of the United States, Libya, and other countries may be reviewed.

Lord Mance gave the leading judgment, with concurring judgments by Lord Neuberger and Lord Sumption. The state immunity question was whether the suits against UK officials indirectly impleaded foreign states because, in order to maintain their claims against the former, the plaintiffs would have to show that the latter acted unlawfully. The act of state question was whether an English court should abstain from adjudicating upon sovereign acts committed by a foreign state, even outside its own territory.

How does the reasoning in Belhaj compare to the approach taken in the United States? What insights might we derive from the UK Supreme Court's treatment of these areas of law and the role of the judiciary in adjudicating questions that implicate international relations? 

State Immunity

The UK Supreme Court found the state immunity question to be quite straightforward. No foreign states had been directly impleaded because no claims had actually been brought against them. No foreign states had been indirectly impleaded "because the legal position of the foreign states" would not be affected by the suits. Para. 31 (emphasis added). The Court distinguished past cases in which foreign states were indirectly impleaded because the claims involved property in which the states had an interest. "The present appeals involve no issues of proprietary or possessory title. All that can be said is that establishing the appellants' liability in tort would involve establishing that various foreign states through their officials were the prime actors in respect of the alleged torts." Para. 29. Such "reputational" harm was not sufficient. Para. 29. As Lord Sumption put it in his concurring opinion: "No decision in the present case would affect any rights or liabilities of the four foreign states in whose alleged misdeeds the United Kingdom is said to have been complicit. The foreign states are not parties. Their property is not at risk. The court's decision on the issues raised would not bind them." Para. 197.

Although the US Foreign Sovereign Immunities Act (FSIA) differs substantially from the UK State Immunity Act, the approach of the UK Supreme Court on this question was similar to what one would expect in the United States. In Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), the US Supreme Court held that a suit to determine the ownership of property allegedly stolen by Philippine President Marcos could not proceed because the Philippines had a legal interest in the property. This is equivalent to the indirect impleading of a foreign state that the UK Supreme recognized is barred under the State Immunity Act. But in Samantar v. Yousuf, 560 U.S. 305 (2010), the US Supreme Court held that a suit against a foreign official is not necessarily a suit against a foreign state to which state immunity attaches. It would follow a fortiori that a suit a against a domestic official is not necessarily a suit against a foreign state to which state immunity attaches, which is essentially what the UK Supreme Court held in Belhaj. (Parenthetically, it is worth remembering that, in contrast to the US Supreme Court's interpretation of the FSIA in Samantar, the House of Lords has interpreted the State Immunity Act as extending state immunity to foreign officials acting in that capacity. See Jones v. Saudi Arabia, paras. 31 & 69.)

Act of State Doctrine

The foreign act of state doctrine in the United Kingdom, on the other hand, has historically been quite different from the act of state doctrine in the United States. To give two obvious examples: (1) one strand of the UK act of state doctrine is not limited to acts performed within the foreign sovereign's own territory, see Buttes Gas and Oil Co. v. Hammer (No. 3) [1982] AC 888, while the US act of state doctrine is so limited; and (2) the UK act of state doctrine contains a public policy exception, see Oppenheimer v. Cattermole [1976] AC 249; Kuwait Airways Corp. v. Iraqi Airways Co. [2002] 2 AC 883, which the US act of state doctrine does not. Each of these differences played a key role in Belhaj.

The three reasoned judgments did not entirely agree about how to organize the past cases-Lord Mance divided the foreign act of state doctrine into three types, Lord Neuberger into four, and Lord Sumption into two-nor did they agree about the proper terminology. But in the end, all members of the Court agreed on the key points and on their application to these cases. Certain strands of the UK act of state doctrine are territorially limited (specifically the first two types identified by Lords Mance and Neuberger, which Lord Sumption called the "municipal law act of state doctrine"). These strands were thus inapplicable to those claims that involved acts-particularly those of the United States-outside the foreign sovereign's own territory. But each of the judgments also identified a strand of the act of state doctrine that is not territorially limited (specifically the third type identified by Lords Mance and Neuberger, which Lord Sumption called the "international law act of state doctrine"). This strand originated in Buttes Gas and applies to cases "where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter." Para. 43 (quoting Shergill v. Khaira [2015] AC 359).

Critically, however, Lords Mance, Neuberger, and Sumption agreed that each strand of the foreign act of state doctrine was subject to a public policy exception and that the exception should apply in these cases. (Lord Mance preferred to view the exception as a limitation on the ambit of the doctrine, but did not think the distinction between ambit and exception was critical. Para. 89.) Thus, Lord Mance wrote: "The critical point in my view is the nature and seriousness of the misconduct alleged in both cases before the Supreme Court, at however high a level it may have been authorized. Act of state is and remains essentially a domestic law doctrine, and it is English law which sets its limits. English law recognizes the existence of fundamental rights, some long-standing, others more recently developed." Para. 98. Lord Neuberger similarly reasoned that, "assuming that the claimants were detained, kidnapped and tortured as they allege, the public policy exception would apply." Para. 168. And Lord Sumption said that the foreign act of state doctrine could not be applied to detention and torture because both "exhibit the same combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century." Para. 278.

Differences in Approach Among the Judgments

Despite their agreement on the most important aspects of the case, there were some notable differences in approach. Lord Mance thought that "[t]he concept of foreign act of state needs to be disaggregated, or broken down, and approached at a more particular level of enquiry." Para 11(ii). For him, too much generalization "blurs the distinctions between different types of foreign act of state" and "impedes the important task of identifying the scope and characteristics of each type of foreign act of state." Para. 40. Lord Sumption was more inclined to generalize: "It is always possible to break down the cases into different factual categories, and deconstruct the law into a fissiparous bundle of distinct rules. But the process is apt to make it look more arbitrary and incoherent than it really is. I think that it is more productive to distinguish between the decisions according to the underlying principle that the court is applying." Para. 227. Lord Sumption's approach made him somewhat less likely to insist on all of the limitations to the act of state doctrine that might be found in past cases, for example the limitation of the territorial strands of the act of state doctrine to rights in property. See para. 231.

In approaching the question of public policy, the judgments also laid different emphases on domestic and international law. Lord Mance preferred to look "to individual rights recognized as fundamental by English statute and common law, rather than to tie them too closely to the concept of jus cogens." Para. 107. Lord Neuberger agreed that the public policy exception should "depend ultimately on domestic law considerations," but added that "generally accepted norms of international law are plainly capable of playing a decisive role." Para. 154. Lord Sumption, on the other hand, looked primarily to whether international law had been violated in deciding whether to apply the public policy exception, see paras. 249-80, though even he acknowledged that "the influence of international law does not mean that every rule of international law must be adopted as a principle of English public policy." Para. 257.

The three reasoned judgments also took different views on the relevance of foreign act-of-state decisions. Lords Mance and Sumption each discussed the US cases at length, see paras. 47-56, 209-212, as well as cases from Germany, France, and the Netherlands, see paras. 67-72, 201. Lord Mance cautioned that US law was "not necessarily transposable to English law," para. 57, but also said "we should be unwise not to take the benefit of it." Para. 57 (quoting Buttes Gas and Oil Co. v. Hammer (No. 3) [1982] AC 888). Lord Sumption disapproved of the flexible US approach expressed in Sabbatino, see para. 212, without mentioning the US Supreme Court's more recent decision in Kirkpatrick, which is rather less flexible. He seemed to prefer the "instructive" approach of the French and Dutch courts. Para. 201. But Lord Neuberger advised "great caution before relying on, let alone adopting, the reasoning of foreign courts in connection with the Doctrine." Para. 133. He found the US decisions "to be of very limited assistance." Para. 134.

Act of State as International Comity

One thing that all three judgments agreed on, however, was that the act of state doctrine is a doctrine of domestic rather than international law. Drawing a distinction with state immunity, Lord Mance noted early in his judgment that "foreign act of state in most if not all of its strands has been developed doctrinally in domestic law." Para. 7. Lord Neuberger wrote that "the Doctrine is purely one of domestic common law." Para. 118. And Lord Sumption added that "[t]he act of state doctrine . . . does not reflect any obligation of states in international law." Para. 261. As I have noted in other writing, the act of state doctrine is a doctrine of international comity rather than international law. I wrote there (p. 2077) that international comity "describes an internationally oriented body of domestic law that is distinct from international law and yet critical to legal relations with other countries."

The fact that a particular doctrine is based on international comity does not mean that it must give a decisive role-or indeed any role-to the executive branch; many comity doctrines, from the conflict of laws to the enforcement of foreign judgments to the doctrine of forum non conveniens, are administered entirely by courts (pp. 2132-40). With respect to the act of state doctrine, one US Court of Appeals has recognized an exception allowing the executive to waive the doctrine, see Bernstein v. Nederlandsche-Amerikaansche, 210 F.2d 375, 376 (2d Cir. 1954), but the US Supreme Court has never approved it and has rejected a broader role for the executive in determining when the doctrine applies. See W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics, Intern., 493 U.S. 400, 405, 408-09 (1990). Before we leave the three judgments in Belhaj, it is worth noting that each of them rejected the possibility that the act of state doctrine should apply whenever the Foreign Office indicated that the case would embarrass the United Kingdom in the conduct of its foreign relations. Lord Neuberger was willing to list this as his "possible fourth rule," para. 124, but found "little authority to support the notion that the fourth rule is part of the law of this country." Para. 132. Allowing the executive to dictate to the judiciary, he thought, "would be quite unacceptable." Para. 149. Lord Mance similarly saw "little attraction in and no basis for giving the Government so blanket a power over court proceedings." Para. 41. And Lord Sumption felt that allowing the act of state doctrine to turn on the degree of embarrassment to the government "would not be consistent with the accepted principles governing the relations between the courts and the executive in England." Para. 212.

The fact that a particular doctrine is based on international comity does mean that each country is free to shape the doctrine as it thinks best. Whether one feels that it is instructive to look to the experiences of other countries or not, the simple fact is that the act of state doctrine is quite different in different countries. In contrast to the United Kingdom, the United States does not recognize a non-territorial strand of the act of state doctrine and limits the doctrine to "the official act of a foreign sovereign performed within its own territory." W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics, Intern., 493 U.S. 400, 405 (1990). On the other hand, the US version of the doctrine has no public policy exception; if the act of state doctrine applies, a US court must accept its validity "[h]owever offensive to the public policy of this country" it may be. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). Still, it seems likely that US courts would not recognize fundamental violations of human rights as acts of state to begin with. See Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995) ("we doubt that the acts of even a state official, taken in violation of a nation's fundamental law and wholly unratified by that nation's government, could properly be characterized as an act of state"). These differences among nations make the act of state doctrine a fascinating topic for comparative study. They also reinforce the point that the act of state doctrine is one of international comity rather than international law.

December 18, 2016

On the Protection of Cultural Heritage

Earlier this month, I spoke at an international gathering of national societies for the promotion of international humanitarian law organized by the International Committee of the Red Cross in Geneva. I spoke on protection of cultural heritage. These were my remarks.

4th Universal meeting of National IHL committees, December 1, 2016, Geneva -- Statement by Karima Bennoune, Special Rapporteur in the field of cultural rights

Honourable Chair, Excellencies, distinguished delegates, ladies, and gentlemen,

I am honoured to take the floor before this important gathering in my capacity as Special Rapporteur in the field of cultural rights.   My recent thematic report to the General Assembly concerned the intentional destruction of cultural heritage as a violation of human rights and I am pleased to have the opportunity to share with you some of my key findings.

Cultural heritage is significant in the present, both as a message from the past and as a pathway to the future. Viewed from a human rights perspective, it is important not only in itself, but also in relation to its human dimension. While specific aspects of heritage may have particular resonance for and connections to particular human groups, all of humanity has a link to such objects, which represent the "cultural heritage of all humankind." Cultural heritage includes tangible heritage, composed of structures and remains of historical, religious, or cultural value, and also intangible heritage made up of customs, beliefs, languages, artistic expressions and folklore.  Tangible and intangible heritage are interlinked and attacks on one are usually accompanied by assaults on the other.

The right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, inter alia in the right to take part in cultural life.  Cultural heritage is a fundamental resource for other human rights also, in particular, the rights to freedom of expression, freedom of religion, as well as the economic rights of the many people who earn a living through tourism related to such heritage, and the right to development.  The preservation and restoration of cultural heritage is also a critical tool for reconciliation and peace-building.

Given this importance of cultural heritage for human rights, I welcome the fact that, in its recent Resolution 33/20 (2016) on "cultural rights and the protection of cultural heritage," the Human Rights Council agreed that "the destruction of or damage to cultural heritage may have a detrimental and irreversible impact on the enjoyment of cultural rights."  The Council encouraged States to consider implementing the recommendations that I made to the General Assembly on these issues.

A special protection regime governs heritage protection in times of conflict. The core standards include the 1954 Hague Convention and the protocols thereto. The Hague Convention, requires States parties to respect cultural property and to refrain from any act of hostility directed against it or any use of it likely to expose it to such acts, subject only to imperative military necessity (art. 4).  The Second Protocol strengthens the rule by further limiting the military necessity exception.

I have heard worrying reports of violations of these provisions in recent conflicts. I call on states to recognize that any military necessity exception to the ban on targeting cultural property must be interpreted narrowly, taking into consideration the impact on cultural rights.  All military decisions resulting in the destruction of or damage to cultural heritage should be subject to close public scrutiny.

I note with concern that many States have not adhered to the 1954 Hague Convention and its Protocols, in particular the Second Protocol, which now has 69 parties, since the most recent accession by Norway. I was pleased to learn of the commitment that has been made for the first time by a permanent member of the Security Council, namely, the United Kingdom of Great Britain and Northern Ireland, to ratify the Second Protocol, and I look forward to the achievement of that important step. I call upon all permanent members of the Security Council to follow suit in the next two years so as to demonstrate collective leadership on this critical issue which is at the heart of meaningful peace and security.

In addition to tackling the role of States, attention must also be paid to the robust use of international standards such as article 19 of The Hague Convention - and developing other strategies - for holding non-State actors to account and preventing their engaging in destruction.

Individual criminal responsibility arises from serious offences against cultural heritage, which can rise to the level of war crimes or to crimes against humanity when carried out with discriminatory intent, and may also be evidence of intent to destroy a group within the meaning of the genocide convention. A human rights approach emphasizes accountability.  I welcomed the decision of the Office of the Prosecutor of the International Criminal Court to charge the destruction of cultural and religious sites as a stand-alone war crime for the first time in the case of Ahmad Al Faqi Al Mahdi which has recently resulted in a guilty verdict and 9-year sentence.  I endorse the conclusions in the Al Mahdi judgment that the crime in question aimed at "breaking the soul of the people of Timbuktu" and was of "significant gravity."  I very much hope to see similar prosecutions in future, and to that end I remind States of the vital need to collect and preserve evidence of any such crimes.

In the early twenty-first century, a new wave of deliberate destruction is being recorded and displayed for the world to see, the impact magnified by widespread distribution of the images. Such acts are often openly proclaimed and justified by their perpetrators and represent a form of cultural warfare being used against populations which I condemn in the strongest possible terms.  Such attacks represent an urgent challenge to cultural rights that requires rapid and thoughtful international response.

Acts of deliberate destruction are often accompanied by other grave assaults on human dignity and human rights, including acts of terrorism. They have to be addressed in the context of holistic strategies for the promotion of human rights, and peacebuilding.  Protection of cultural heritage must be included in the mandates of peacekeeping missions.  We must care about the destruction of heritage in conjunction with our grave concern for the destruction of the lives of populations. 

Acts of intentional destruction harm all, target freethinkers in majority groups and often disproportionately affect persons belonging to minorities. They contribute to intolerance and tensions between people, and deprive all humanity of the rich diversity of cultural heritage.

In responding to intentional destruction of cultural heritage today, it is critical to employ a human rights approach. Beyond preserving and safeguarding an object or a manifestation in itself, a human rights approach obliges one to take into account the rights of individuals and populations in relation to them.  It is impossible to separate a people's cultural heritage from the people itself and their rights.

A critical, related question concerns the protection of the defenders of cultural heritage who are at risk and who may even lose their lives in defence of cultural heritage, such as Samira Saleh al-Naimi, an Iraqi lawyer abducted and killed in September 2014 after denouncing destructions of religious and cultural sites by Daesh in her home city of Mosul, and many others who today continue to labour in obscurity and danger. We must not wait until we are mourning the deaths of at-risk cultural heritage defenders to rally to their cause.

People like them are cultural rights defenders. States must respect their rights and ensure their safety and security, but also provide them, including through international cooperation, with the conditions necessary to complete their work, including all needed material and technical assistance, grant them asylum when necessary and ensure that when displaced they are able to continue their work and to take part in the protection and reconstruction of their country's cultural heritage.

I also encourage the development and adoption of a fully gender-sensitive approach to the protection of cultural heritage and to the combating of its destruction, which should include promoting the inclusion of women cultural heritage experts in relevant forums and institutions.

A human rights approach also embraces prevention and the allocation of sufficient budgetary resources both at the national and international levels. Preventive action and education, especially for young people, on the importance of cultural heritage and cultural rights for all without discrimination, and the relevant norms of IHL, are vital. 

Let me conclude by stressing again how crucial it is to consider that destruction of cultural heritage is a human rights issue, including in times of conflict, when human rights law must be taken seriously as a necessary complement to international humanitarian law. When cultural heritage is destroyed, this bears important consequences for a wide range of human rights for current generations and those to come.  

Today, in our collective role as custodians of the past achievements of humanity, we are faced with a stark choice. Will we engage with cultural heritage in its diversity in such a way as to allow cultural rights to flourish and will we protect it, teach youth about it, learn from it and from the history of its destruction, and make use of heritage and its reconstruction to understand ourselves and find solutions to the grave problems that we face? Will we be up to the challenge of protecting the heritage of humanity? If the answer is no, the rights of current generations will be violated, and we will incur the scorn of future generations. Would we not prefer to bequeath a richer legacy? The intentional destruction of cultural heritage is a human rights issue. The approach to stopping it needs to be a holistic one, encompassing all regions, focused on both prevention and punishment, and targeting acts committed by both State and non-State actors, in conflict and non-conflict situations. We must not only respond urgently, but also take the long view.

Thank you.

October 26, 2016

California International Law Center 2015-16 Annual Newsletter: Letter from the Director

Editor's Note: The following is Professor Anupam Chander's "Letter from the Director" published in the California International Law Center's 2015-15 Annual Newsletter.

Dear Colleagues,

International and comparative law continues to thrive at UC Davis School of Law. I highlight here some recent news about our highly productive international and comparative law faculty, as well as news about the California International Law Center's plans for the upcoming year.

Professor Karima Bennoune was named the United Nations Special Rapporteur in the field of cultural rights. Her first report to the UN Human Rights Council can be viewed here. A second report on the intentional destruction of cultural heritage is available here. The Sacramento Bee featured her prize-winning book, Your Fatwa Does Not Apply Here, which won the 2014 Dayton Literary Peace Prize. She is currently teaching a seminar where UC Davis law students help provide research for her United Nations reports.

Professor William Dodge, who joined our faculty last year after having served as the Honorable Roger J. Traynor Professor of Law at UC Hastings, continues his work as Co-Reporter for the American Law Institute's Restatement (Fourth) of Foreign Relations Law: Jurisdiction and as a member of the State Department's Advisory Committee on International Law. His article" International Comity in American Law" was published last December in the Columbia Law Review.

I'm so pleased to announce that Professor Afra Afsharipour will serve as the Associate Director of the California International Law Center. She recently published The India Corporate Governance Handbook, a key reference tool in understanding Indian corporate regulations.

Professor Madhavi Sunder took up the position of Senior Associate Dean at UC Davis School of Law as Professor Vik Amar left to become Dean of the University of Illinois College of Law. We wish Professor Amar great success in Urbana-Champaign. Professor Sunder published The Luxury Economy and Intellectual Property, with Oxford University Press. Co-edited with Haochen Sun, Associate Professor of Law and Deputy Director of the LLM Program in Information Technology and Intellectual Property at the University of Hong Kong, and Barton Beebe, the John M. Desmarais Professor of Intellectual Property Law at New York University School of Law, the book comprehensively explores the rise of the luxury goods economy and the growing role of intellectual property in creating, sustaining, and regulating this economy.

I just returned from speaking in Brasilia last week and am off to Tokyo this coming week to speak before the Keidanren, the Japanese business federation, on issues of cross-border Internet regulation. I published a paper in the Emory Law Review with Uyen Le, Senior Research Fellow at the California International Law Center. I also authored a new paper, "The Racist Algorithm?," which is forthcoming in the Michigan Law Review. Professor Kriss Ravetto-Biagioli and I were pleased to receive a major grant from the Mellon Foundation for a Mellon Sawyer Seminar Series on "Surveillance Democracies?," which supported a lecture series during the 2015-2016 school year.

Professor Peter Lee was awarded the 2016 Distinguished Teaching Award, an honor bestowed to only one professor per year.

Just this month, Dean Kevin Johnson led some of our extraordinary immigration and refugee law faculty to a major UC Davis cosponsored conference on Migration and Asylum at the University of Geneva, Switzerland. Professors Leticia Saucedo, Brian Soucek, Rose Cuison Villazor spoke at the conference, along with Dean Johnson. UC Davis law aluma Jihan Kahssay '12 also participated.

The Center also invited several speakers from across the world as part of our mission to educate King Hall on current international and comparative law matters. We were pleased to host distinguished international lawyers including Judge Seung Wha Chang, Member of the Appellate Body of the World Trade Organization; Dr. Edward Kwakwa, Legal Counsel for the World Intellectual Property Organization; and Ms. Andrea Bjorklund, International Arbitration and Commercial Law Professor at McGill University. We hosted the Northern California International Law Scholars Works-In-Progress Workshop and the Conference of Asian Pacific American Law Faculty (CAPALF).

The Mellon Sawyer award that Professor Ravetto-Biagioli and I received, in collaboration with Professor Ken Goldberg at UC Berkeley, allowed us to host a year-long multidisciplinary seminar series to explore the tension between the surveillance state and democracy. As part of this seminar series, we invited several academics and practitioners with expertise in privacy law, encryption, and government surveillance. Such experts included Ben Wizner, the ACLU's Free Speech Director and attorney for Edward Snowden; Laura Donahue, Georgetown Law Professor and Director of Georgetown's Center on Privacy and Technology; and Helen Nissenbaum, Professor of Media, Culture and Communication, and Computer Science, and Director of the Information Law Institute, New York University. In addition, we co-hosted with the Mellon Initiative in Digital Cultures a symposium on drones titled "Eyes in The Skies: Drones and the Politics of Distance Warfare."

This fall we welcome Nida Siddiqui '16, who will serve as this year's Law Fellow at the California International Law Center. A former Student Fellow of the Center, Nida will aid in our efforts to educate and engage UC Davis students and the legal community at large on current international law issues, as well as work on international law research.

One highlight of this school year will be the 50th Anniversary UC Davis Law Review symposium with the theme of "Future Proofing Law: From DNA to Robots." We have a stellar lineup of confirmed speakers: California Supreme Court Justice Mariano Florentino Cuellar; Mark Lemley, Stanford University; Jane Bambauer, University of Arizona; Julie Cohen, Georgetown University; Paul Ohm, Georgetown University; Ryan Calo, University of Washington; Mary Anne Franks, University of Miami; Molly Van Houweling, UC Berkeley; Dan Burk, UC Irvine; Hank Greely, Stanford University; Arti Rai, Duke University; I. Glenn Cohen, Harvard University; Laura DeNardis, American University; Nancy Leong, University of Denver; Margot Kaminski, Ohio State University; Mira Burri, University of Lucerne, Switzerland; Gary Marchant, Arizona State University; Mario Biagioli, UC Davis; Lisa Ikemoto, UC Davis; Albert Lin, UC Davis; Peter Lee, UC Davis; and Elizabeth Joh, UC Davis.

None of our work would have been possible without the support of our wonderful staff-Administrative Assistant Nina Marie Bell, Senior Research Fellow Uyên Lê, and Student Fellows Varun Aery '16 and Nida Siddiqui '16. We are also grateful to support from the staff at UC Davis School of Law, including Pamela Wu, Gia Hellwig, and Sam Sellers. We also depended on collaborations with student organizations including King Hall International Law Association, King Hall Intellectual Property Law Organization, and the Journal of International Law & Policy. We also were delighted to co-sponsor events with the Aoki Center for Critical Race & Nation Studies, UC Davis School of Law International Programs, Sacramento Chapter of the World Affairs Council, the State Bar of California's International Law Section of the ABA's Section of International Law, UC Berkeley's Art, Technology, and Culture Colloquium, UC Davis Office of the Provost & Executive Vice Chancellor, Compliance & Policy, and UC Davis Information and Education Technology.

The California International Law Center is committed to increasing King Hall's contribution to the world in developing an understanding both the possibilities and challenges international law poses to our community and values. We thank you for your support and welcome your participation in our activities!

Sincerely,

Anupam Chander

Director, California International Law Center, and

Martin Luther King, Jr. Professor

UC Davis School of Law