Category: International & Comparative Law


Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.

On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
Read More


Wrongful Auction of Stolen Chinese Cannon

The cannon pictured was stolen from the Chinese by Webb Hayes, son of president Rutherford B. Hayes, after the notorious Boxer Rebellion of 1899-1901 fomented by foreign armies. Other Chinese property Hayes stole is displayed at the Hayes presidential museum in Cleveland and at West Point’s museum. The cannon will soon go on sale at auction in New York, says the New York Times, at the Cowan Auction house.

All those involved in sustaining the original theft should be ashamed, including the current “owner” and the auction house.  The property should be returned to China. The current “owner” of the cannon paid $150,000 for it last year, fixed it up, and now proposes to fetch three to four times that. 

It seems offensive, yet also common, for Westerners to deny that they hold stolen goods that rightfully should be returned to China.  On the rare occasions when Westerners have returned such property, Chinese respond with an outpouring of gratitude.

The first such example appears to have occurred about two decades ago, thanks to senior executives of American International Group (AIG).  In 1991, a senior executive of AIG’s Asian life insurance business heard that a Paris gallery came into possession of ten imposing bronze window panels. Initial research suggested these exquisite objects—each towering ten feet and emblazoned with iconic serpents and dragons—may have been part of the Baoyun Pavilion at the Summer Palace in Beijing, looted by foreign armies during the Boxer Rebellion.

The executive reported this to AIG’s chief executive, Hank Greenberg, who was also chairman of the Starr Foundation, created by his predecessor, the legendary insurance pioneer, Corneilus Vander Starr, who had opened American insurance operations in China in 1919.  Greenberg, who had been running AIG’s insurance operations in China since 1975, and had many friends in the country,  instantly appreciated the significance of this discovery. He knew that the Pavilion had been closed ever since, as the loss of those windows amounted to a loss of face for the Chinese people.

Experts confirmed that the window panels were indeed those missing from the Pavilion. The treasured national assets had been stolen by a French army officer amid the period’s pillaging. The Starr Foundation bought the iconic window frames from the French gallery for $510,000 and arranged for repatriation into China.

A national rededication service followed in December 1993, broadcast throughout the country on television. Millions of grateful Chinese watched tearfully during the ceremony. It was the first time that any foreign organization had returned missing national Chinese artifacts to the homeland. It was the right thing to do.

It would be the right thing to do with this cannon as well, along with the items in the Hayes presidential museum that the president’s son stole, the items at West Point, and anything else Westerners stole from the Chinese during the Boxer Rebellion.


Physical Punishment and Parental Rights

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children.  This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases.  In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality.  (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)

The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes.  Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse.  Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.”   Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa.  (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).

Read More


ECHR on Diplomatic Assurance, pt. 2

I would like to thank Sarah Waldeck and the rest of the Concurring Opinions authors for allowing me to stay on until February 15th.  A lot happened has happened in the past few days with significant implications for international human rights law, but before I turn to these events I want to finish up my thoughts on the recent decision by the European Court of Human Rights in Othman v. United Kingdom.

To briefly recap, the Court’s judgment contained two main holdings. First, it found that diplomatic assurances agreed upon by Jordan and the United Kingdom sufficient to mitigate the risk that the Islamist cleric Omar Othman (a.k.a. Abu Qatada) would be tortured if extradited to Jordan for trial.  Second, it found that transfer to Jordan would expose Othman to an unfair trial, in that it was likely that evidence derived from torture would be used against him.  The second holding effectively bars the United Kingdom from transferring Othman to Jordan. The United Kingdom has 3 months days to appeal the decision to the Grand Chamber.

As promised in my previous post, I want to offer some thoughts here on whether the ECHR persuasively addressed criticism of the post-transfer monitoring arrangement created by MOU and exchange of letters between Jordan and the United Kingdom. The judgment contains some significant weaknesses in this regard, as I detail here:

Read More


The Yale Law Journal Online: Outcasting, Globalization, and the Emergence of International Law

 The Yale Law Journal Online has published the second in a series of responses to Oona Hathaway and Scott S. Shapiro’s article Outcasting: Enforcement in Domestic and International Law, which appeared in the November 2011 issue of The Yale Law Journal. In Outcasting, Globalization, and the Emergence of International Law, Robin Bradley Kar builds on Hathaway and Shapiro’s work by recasting their conclusions in the context of obligation. Kar argues that understanding the perceived obligatoriness of law is key to arguing whether international law is law. Enforcement mechanisms like outcasting or physical sanction are effective because they provide the necessary evolutionary stability conditions for a system of international legal obligations to thrive. Kar posits that the emergence of such a system is evidence of a significant transformation in our social order.

Preferred citation: Robin Bradley Kar, Outcasting, Globalization, and the Emergence of International Law, 121 YALE L.J. ONLINE 413 (2012),


Privacy Torts in Canada and the International Convergence of Privacy Law

Over at the HL Chronicle of Data Protection, I have a post entitled Privacy Torts in Canada and the International Convergence of Privacy Law. The post discusses a recent privacy tort case from Ontario, Canada that recognizes the Warren and Brandeis’ privacy tort of intrusion upon seclusion.  From the post:

The recognition of the US privacy torts by a Canadian court is further demonstration of a general trend – the convergence of privacy law across countries around the world.  Although profound differences in the law remain between countries, there has also been significant convergence.

Read the rest of the post over at HL Chronicle.


ECHR on Diplomatic Assurances

Belated greetings to the CoOp community and thanks to Sarah Waldeck for enabling this opportunity to blog for what is left of January. I had hoped to post initially from Jordan, where I was visiting in January as a consultant for the American Bar Association’s Rule of Law Initiative (ABA ROLI), but the ABA’s regulations do not permit me to blog about the specific people or organizations that I met with during my visit.  I am still seeking clarification on the boundaries between specific information and general impressions, so for the moment I will keep my comments to the public record.  The following reflects my personal judgment only and is not based in any way on information disclosed in meetings held in my recent trip.

For my initial post, I want to set down some thoughts about the decision last week by the European Court of Human Rights in the case of Othman (Abu Qatada) v. United Kingdom, a decision effectively prohibiting the U.K. from deporting to Jordan a Islamist cleric who is currently being held in England without charge (and at least in part on the basis of secret evidence) and who has previously been convicted in absentia on terrorism charges in Jordan.

Though Jordan originally requested Othman’s extradition, it appears that the current litigation arises from the U. K.’s desire to deport him from England on national security grounds, rather than try him on terrorism charges.

The ECHR’s decision involved two main holdings:  first, that diplomatic assurances transmitted via a memorandum of understanding (MOU) between the United Kingdom and Jordan are sufficient to overcome the likelihood (based on Jordan’s human rights record) that Othman would be tortured if he were returned to Jordan to face trial on terrorism charges; second, that the U.K. would be violate Othman’s human rights nonetheless if it deported him to Jordan because evidence derived from torture would likely be used against in any trial.  My comments here focus mainly on the assurances part of the holding.

It should first be noted that the ECHR has firmly established the principle of judicial review of diplomatic assurances.   This in itself puts the European system far ahead of the United States, in which diplomatic assurances are regarded as the province solely of the executive.   See Report by Columbia Law School Human Rights Institute, Promises to Keep:  Diplomatic Assurances in U.S. Terrorism Transfers (Dec. 2010).  The ECHR initially began reviewing diplomatic assurances in cases involving the death penalty.  Its review of diplomatic assurances in terrorism cases began in the wake of revelations in 2004-2005 that, despite assurances to the contrary, Egypt had tortured two terrorism suspects transferred by Sweden, with assistance from the U.S., after rejecting their requests for asylum.  Human rights NGO’s and UN bodies have generally opposed the use of diplomatic assurances, but political consensus within Europe has split over the question whether assurances can be meaningfully regulated, or whether their use should be rejected outright.

Human rights’ NGO’s Amnesty International’s counterterrorism expert Julia Hall called the diplomatic assurances part of the Othman holding “an alarming setback for human rights” and said the decision as a whole was “a case of one step forward, two steps back.”

This I think overstates the extent to which the decision represents something qualitatively new in terms of the Court’s jurisprudence.  As a general matter, the standard used in Othman was set out in an earlier case, Saadi v. Italy (2008), in which the Court rejected assurances from Tunisia that terrorism suspects convicted in abstensia would not be tortured if returned to Tunisia, on the grounds that the assurances given by Tunisia were brief and formulaic and lacked any post-return monitoring system. The Court found that it had the obligation to review the “practical application” of the assurances and outlined a case-by-case approach in which the weight given to the diplomatic assurances depends “on the circumstances obtaining at the material time.” Saadi, para. 148. Subsequent decisions by the ECHR (more than a dozen) have identified particular factors to be considered, such as the national security profile of the individual involved, the availability of post-transfer monitoring, the specificity of the assurances in prohibiting torture, and the receiving country’s general human rights record with respect to torture.  The Court sets out these factors in Othman (para. 189), without indicating any relative weighting among them.  (For an overview of the case law, see Note (Alice Izumo), Diplomatic Assurances Against Torture and Ill-Treatment: European Court of Human Rights Jurisprudence, 42 Colum. Hum. Rgts. L. Rev. 233, 256-273 (2010)).  In at least one earlier case – Gasayev v. Spain (2009)– the court appears to have  found that diplomatic assurances from a country with a poor human rights record on torture (Russia) mitigated the risk involved in transfer, when the assurances specifically stated that international standards would be met and that diplomats from the transferring state would be able to monitor the post-transfer treatment of the detainee. (For some reason, I cannot pull up this case in the ECHR database of cases, but the Court cites it several times in setting out the factors to be considered in evaluating assurances.  Othman, para. 189 (vi), (viii), (xi)). Significantly, Othman, represented by Gareth Peirce, did not stake out a position that diplomatic assurances could in no case be adequate to mitigate the risk of torture, but he did argue that satisfactory standards would be met only in cases where 1) systemic torture had been brought under control and 2) if isolated acts of torture continue, there is an independent monitoring body with proven effectiveness and criminal sanctions against torture.  Othman, para. 168.

What seems to be emerging in the ECHR’s jurisprudence on diplomatic assurances is the requirement that, where a receiving state has a record of systematic torture, assurances must include a monitoring system. Jordan’s dismal record on torture has been the subject of numerous NGO and UN body reports, and the Court agreed with the parties that, “without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan.”  Othman, para. 192. Several factors convinced the Court that the MOU would, in effect, rebut the presumption that Othman would be tortured if returned to Jordan.  The Court found the MOU in the Othman case to be particularly strong.  Indeed, the Court stated that the Jordan-U.K. MOU is “superior in both its detail and its formality to any assurances which the Court has previously examined.”  Othman, para. 194.  More importantly, the MOU provided for a monitoring system, and the Court also examined its terms of reference.  The Othman decision also makes much of the strength of the diplomatic ties between Jordan and the U.K. and the apparent political will in Jordan to fulfill the conditions in the MOU.

In my next post, I will look at the details of the monitoring agreement in more detail and evaluate whether the general and specific objections of human rights NGO’s have been persuasively addressed by the Court.


Stanford Law Review Online: The Iraq War, the Next War, and the Future of the Fat Man

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.


Stanford Law Review Online: Don’t Break the Internet

Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.


Post-Soviet Russia: Just Like 15th Century England?

Yesterday I noted that I would blog a bit this month about the rule of law in Russia.  Today’s Wall Street Journal carries a front-page feature article by Guy Chazan that offers a rare look into the world of Russia’s oligarchs.  I’m interested in the fate of Mikhail Khodorkovsky, once Russia’s richest man, now its most famous prisoner.  Chazan’s story focuses on two more oligarchs: Boris Berezovsky and Roman Abramovich.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, they relied on its weakness to amass their wealth.

Now that those empires need protecting, however, it is to law that the oligarchs turn.  Berezovsky, once the éminence grise behind Boris Yeltsin, now lives in luxurious self-imposed exile in London.  The WSJ reports that he is worth about $750 million.  Abramovich owns the Chelsea Football Club and the world’s largest yacht; his worth is estimated at about $16.5 billion.  Berezovsky has sued Abramovich for $6 billion, alleging that the latter violated oral agreements about various oil and metal companies in Russia.  Berezovsky claims he left his stake in them in Abramovich’s hands after he fled to London to escape the wrath of then President Vladimir Putin.

According to Abramovich’s attorney, Jonathan Sumption, there is nothing to this claim.  The dispute arose, he says, in a “society without law,” and the deal the two men made was itself “corrupt.”  That might seem like a strange legal defense but, as Sumption continued, “the reality was that that was how business was done in Russia at the time.” 

The case is being heard at London’s High Court.  To help the judge understand the millieu in which the oligarchs did business, Sumption told the court: “In our own national experience, we have to go back to the 15th century to find anything remotely comparable.” 

Maybe.  But the average Russian citizen observing this legal squabble might note that 15th century England had something that 21st century Russia lacks: Robin Hood.