Transnational Law Blog

Medellin v. Texas: ICJ decision creates an international obligation, but not domestic law

This morning’s decision in Medellin v. Texas is the culmination of a long line of cases, both at the ICJ and at the Supreme Court, that have attempted to determine the effect that an ICJ ruling has under U.S. domestic law. In the law review comment I am working on, I have approached this problem from the perspective of trying to doctrinally resolve the Medellin line of cases with the Supreme Court’s decision in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985). In Mitsubishi, the Court determined that parties to an international commercial contract that appointed a third-party arbitrator would, absent an entirely egregious result, be bound to the decision of the arbitrator, even if such a decision is not the same result as what would be achieved in the courts. Thus, I wondered why it might not be possible for states to take a similar approach and appoint a third party arbitrator (such as the ICJ) to resolve disputes arising under a treaty (a contract between states).

The Supreme Court in Breard and Sanchez-Llamas seemed to be hostile to the idea of allowing the ICJ such a power. Thus, I anticipated that the decision in Medellin would limit the power of the ICJ to create a binding obligation. My prediction last week was that the Court would determine that while the ICJ had the power under the treaties to decide that the US had breached an obligation to Mexico or to other states and perhaps order damages, it would not allow the ICJ the power to order  compliance measures that would have any effect under federal law. While this would be an unsatisfying answer (it is clear to most that the ICJ’s powers are not limited to award of damages), this was in some way reconcilable with Mitsubishi, since international third-party arbitrators are limited to awarding damages (and thus do not have the power to order a party to comply with the contract, only to determine that a breach has occurred.

My prediction, I think, was fairly close. I predicted it would be 5-4, though in fact it was 5-3 with a narrow concurrence by Stevens. The court did find that there is an international obligation, but declined to allow the ICJ to dictate the terms upon which it should be complied with domestically without some further action by the legislature. My initial reaction is that that approach is easily reconcilable with the approach taken in Mitsubishi. The opinion expressly notes that it is undisputed that the ICJ decision is an international legal obligation of the United States (p.8). The subsequent question is that if we accept that the US has this obligation, what needs to be done? Petitioner argued that nothing needs to be done, and that the domestic courts now have the power and obligation to enforce the judgment. The Solicitor General argued that nothing needs to be done until the President says what should be done. The Court rejected both of those approaches, and determined that compliance with our international legal obligation in this case requires some action on the part of the legislature.

Others, I’m sure, will debate the merits of whether the determination that nothing in either the Optional Protocol or Article 94 of the UN Charter creates a self-executing obligation under federal law. I think that there are good arguments to be made on either side of that debate. But the question of whether the judgment is a binding legal obligation is clear. The only question left domestically is: who is responsible for enforcing that obligation? The Court seems to state that it cannot be the judiciary acting alone, nor the executive acting alone. Thus, this problem is put squarely in the legislature’s lap (whether the federal Congress, or the state legislatures). For those concerned with constitutional overstepping of the President and/or the judiciary, this is a superb result. And even for those of us who are committed internationalists and would like to see a greater acceptance of international tribunals, this decision is not problematic. In a sense, it is a reaffirmation of the international obligation we have under the treaties, and merely concerns itself with the internal steps we must take in order to comply.

Third Party Dispute Resolution in Treaties: Medellin v. Texas

I blogged earlier about how appointing a third party dispute resolution mechanism in transnational commercial contracts was a relatively straight-forward proposition, accepted by US courts and in keeping with general contract theory. In this post I will discuss an ongoing international dispute over a treaty that has wound up at the International Court of Justice and a number of times in the Supreme Court, most recently in this term.

The dispute is a matter of treaty interpretation. The Vienna Convention on Consular Relations entered into force in 1963 and governs consular practice between states. Currently, there are 171 signatories to the Convention. At issue is a provision in the treaty that requires states to notify foreign nationals that they have a right to consult with the consular representatives of their nation of citizenship when they are arrested abroad.

The US, as you might surmise, does not do a very good job of fulfilling its obligations under this provision, even though we often demand that other nations provide consular notification protections to our own citizens arrested abroad. Thus, Mexico sought review at the ICJ of the US convictions of 51 of its nationals who had not been provided with consular notification options. Mexico was able to seek this review because both Mexico and the US (at the time), as well as 44 other nations, are parties to the "Optional Protocol" of the Vienna Convention, which provides that the ICJ shall have jurisdiction over disputes that arise under the Convention (and, for the purposes of this discussion, the third-party dispute resolution mechanism).

In 2004, the ICJ decided that the US had an obligation arising under the treaty to "review and reconsider" the convictions of the 51 Mexican nationals. One of these, Jose Ernesto Medellin, filed a suit asking the federal courts to enforce this review of his capital conviction for murder in Texas. The Supreme Court granted certiorari to the case. In "Medellin I", the question was whether Medellin had a private right of action to request review, under the argument that the ICJ decision was binding treaty law in the US.

The Bush Administration filed an amicus brief positing that under its interpretation of the ICJ judgment, there was not a private cause of action created for individuals, as the ICJ can only resolve disputes between states. Simultaneously, the President declared that the US would meet its obligations under the ICJ judgment, and ordered the Texas courts to "review and reconsider" the convictions of the 51 Mexican nationals (it should also be noted that the US then proceeded to withdraw from the Optional Protocol). The Court, in a 5-4 decision, ordered the federal case dismissed and allowed a state habeas petition to go forward.

Medellin then filed in Texas, arguing that the Presidential order for review should be upheld. The Texas courts refused to reconsider the convictions, stating that the President does not have the authority to order Texas to apply a decision of the ICJ. Medellin filed for certiorari again, and oral arguments in "Medellin II" were heard this past October. There are two questions for review: The first is whether the President has the constitutional authority to order states to obey the ICJ ruling in order to satisfy the treaty obligations. The second is whether a state has to obey the ICJ ruling as it arises under a treaty and is thus the "supreme law of the land", as the Constitution defines treaties (and would therefore be binding irregardless of the President's order).

Another question is whether the court has already decided this issue in Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006). In that case, foreign nationals who were not among the 51 Mexican nationals in the ICJ case brought a suit seeking to have their convictions reviewed given the ICJ decision. Chief Justice John Roberts wrote for the five-Justice majority that the ICJ's interpretation of the treaty was not binding on US courts, and therefore petitioners could not have their convictions reviewed.

The petitioner in Medellin argues that while the ICJ's general interpretation of the treaty may not be binding on US courts (a contention that four Justices in Sanchez-Llamas disagreed with), that the specific decision of the ICJ as it relates to the 51 Mexicans is binding as a matter of treaty obligations (and, as stated, the US agrees with that point of view).

This is obviously a complex case, and one for which there are no easy precedents. But it is clear that there is a majority of the Court that is extremely reluctant to allow the decision of the ICJ to count for much of anything. My question is this: given that the Supreme Court has allowed significant latitude to third-party dispute resolution mechanisms in commercial contracts, why this reluctance to allow third parties to resolve conflicts between States when the parties have agreed to their jurisdiction? Is there some difference between holding a commercial party to their commitment to abide by an arbitral ruling and holding the US to its commitment to abide by a ruling of the ICJ on this narrow matter?

In my next post on this topic, I will draw on international law, commercial law and contract theory contract to make an argument for why the Supreme Court should find the ICJ's decision to be binding on US courts.

Transnational Commercial Disputes In The USA Ain't Easy

A post on China Law Blog entitled, Who Needs International/Foreign Law? Not Us, We're Americans, raises a number of transnational law issues and is well worth a read. Dan Harris, the author of the post, questions whether or not US courts have an obligation to abide by international treaties and whether they abide by that obligation, and he uses the Hague Convention Rules on International Service of Process as an example. I encourage you to read the entire article but here is a portion of it:

For at least the third time (two times is coincidence, three times is a trend), a US court has allowed a case to go forward against a defendant despite plaintiff's having clearly failed to abide by the Hague Convention Rules on international service of process. The most recent instance is in a still pending case so I cannot go into the specifics on that one.

Virtually every time we have sought to get the US courts to enforce the Hague Convention or even, in one instance, when we sought to get a US court to pretty much ignore the Hague Convention, the US court has seemed perfectly willing to rule as though the United States has no obligation to abide by a treaty it signed. I have a strong sense US Courts (both state courts and federal courts) will not enforce the Hague Convention's technical service requirements (including that the summons and complaint must usually be translated into the language of the country in which it is being served). Oh, and getting a US court to throw out or stay (delay) a case so that an already pending case in another country can be decided first -- forget it. My conclusion is that US courts are happy to ignore foreign/international law in favor of handling things under US law, whether US law should apply or not.

US court judgments usually are not enforceable outside the United States and one of the reasons given for this is the failure of American courts to recognize foreign law. My foreign clients (these are international businesspeople, not in any way anti-American) are complaining to me more and more about US courts and how "they think they can ignore the rest of the world." One particularly piqued client (from a country very friendly to the United States) pointedly told me this is one of the reasons why America is becoming more and more hated and why we are losing our power. He insisted that the courts in his country would have ruled differently on the same issue and I think he is correct.

If the United States is serious about globalization, it is time our courts start recognizing that ours is not the only law in the world and that it actually behooves US business to make our courts more international in the context of business disputes.

The comments that follow the post also address some interesting transnational law issues. One in particular, a comment posted by a person named Twofish, addresses the constitutional issue of whether the Hague Convention is a self-executing treaty or a non-self-executing treaty. A self-executing treaty becomes federal law (and therefore preempts state law) as soon as it is signed. A non-self-executing treaty requires Congress to pass additional laws implementing the terms of the treaty once it has been signed, which means the terms of the treaty are not federal law until Congress has made them federal law.

Whether or not a treaty is self-executing is a very important question when determining whether state law preempts the terms of a treaty. A good example of a self-executing treaty is the CISG. As we mentioned in a previous post, it is considered a self-executing treaty because of the specificity of its language; because of its apparent purpose to create rules that would bind individuals; and because of the apparent views of the political branches that no further action is necessary. As a self-executing treaty, the CISG preempts inconsistent state law under the Supremacy Clause.

Dan Harris of China Law Blog also touches upon the enforceability of foreign judgments in the USA. The enforceability of foreign judgments is determined by state law because the USA is not a party to any treaty. Although the USA has not adopted it, many states have adopted the Uniform Money Judgment Enforcement Act. This Act requires the enforcement of foreign money judgments but allows for a number of exceptions, including lack of notice; lack of subject matter or personal jurisdiction; the foreign court procedures are not compatible with due process; enforcement would violate public policy; or there is a conflict with another final judgment. Many other countries, particularly civil law countries, also require reciprocity.

I am curious as to why Dan Harris does not talk about international arbitration? He has had some very interesting posts about arbitration in the past (see here for example), but he does not discuss it as an alternative in this context. Arbitral awards are enforceable under the New York Convention while the enforceability of court judgments (at least when the US is involved) turns only on local law. His post is discussing these matters in the context of China, which is a party to the New York Convention. China also has its own arbitration body, the China International Economic and Trade Arbitration Commission (CIETAC), which was established to settle international commercial disputes. I would be very interested to know what Dan Harris thinks of CIETAC and arbitration in general as an alternative to a judicial forum.

And the matter is also open to other bloggers and blog readers: Arbitrate or litigate in a traditional judicial forum? Do you tell your clients to put in an arbitration clause? Is it truly easier to enforce an award from arbitration than a court judgment? This inquiring mind wants to know!

Third-Party Dispute Resolution Mechanisms in Transnational Commercial Contracts

We live in a globalized world, where people, money and ideas flow easily across borders. Yet, our legal systems continue to be based on national territorial sovereignty. Thus, when it comes to a dispute between parties that are resident or present in more than one country, there is no international or transnational law that can be called on to resolve the dispute. Rather, the domestic system of one or more of the countries that have some territorial connection to the parties or the dispute steps in to govern the dispute.

This is obviously problematic. Which state's law should govern? States have developed numerous ways of attempting to resolve this quandary, including doctrines limiting jurisdiction. In the area of commercial contracts, many states allow parties themselves to agree in a contract as to which law shall govern. In the US, this approach was enshrined in M/S Bremen v Zapata Offshore Co., 407 U.S. 1 (1972). There, the Supreme Court adopted a hands-off approach to allowing commercial parties to contract the place and law that will govern their contract. Chief Justice Burger wrote in his opinion: "The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.”

States have also turned to treaties as a method of filling the gaps between municipal legal systems. Once again in the commercial context, 142 states have signed the "New York" Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This convention obliges the signatories to enforce arbitration awards rendered by third-party (non-state) arbitrators. Again in the US, under Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), the Court established that where parties in a commercial contract specify a third-party dispute resolution mechanism (an arbitrator), the judiciary will defer to that arbitrator's judgment in practically all areas, including areas involving important public policy concerns such as antitrust. Justice Blackmun wrote: "Concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes, all require enforcement of the arbitration clause in question, even assuming that a contrary result would be forthcoming in a domestic context."

Thus, in the context of commercial agreements, US law is clear: parties to an international agreement may appoint a third party to resolve any disputes arising under the agreement. We can reconcile this with Contract Theory generally: so long as it is the intent of the parties to be bound to the decision of the arbitrator, the courts should enforce that intention. The dispute resolution mechanism is nothing more than another contracted term.

That being clear, here is an interesting quandary. Let's say that the NY Convention included a clause (which in reality it does not) referring any disputes under the treaty to a third-party arbitrator. And let's say that the US did not enforce arbitral awards as required by the treaty. Another state brings an action before the arbitral body noted in the treaty, and the arbitral body says that in order to be in compliance with the treaty it signed, the US must begin enforcing arbitral awards. In other words, we have taken the third-party dispute resolution mechanism out of the commercial context and put it into the public international law context.

What status should this determination have under US law? Leaving aside the fact that commercial arbitrators only have authority to award damages and not to compel performance, is there a reason why a third-party dispute resolution mechanism should be binding in the case of commercial arbitration, but should not be binding on the U.S. when we have signed a treaty that establishes our intention to be bound by the decisions of the third party?

My next post will be on Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006), and a case currently under review by the Supreme Court, Medellin v. Texas. These cases deal with the issue of whether a decision of the International Court of Justice in binding on the US when the US has signed a treaty in which the ICJ is noted as a third-party dispute resolution mechanism for any disputes arising under the treaty.

But for the moment, I am curious if anyone has any thoughts on this. Is there a reason there should be enforceable third-party dispute resolution mechanisms in commercial contracts, but not in treaties? Should a party's obligations arising under a treaty be left solely to the interpretation of that party? I'm curious to hear your views.

Legal Development in Sierra Leone

First, I would like to apologize for my extended absence from Transnational Law Blog.  After graduating in May, I spent a delightful summer studying for the California Bar.  That experience was a piece of cake - a cake made out of glass shards, rotten eggs and fish guts, with just a pinch of self-loathing for the icing.  I spent most of August recovering by drooling on the couch and watching sports, which I highly recommend.  However, my days of flipping between ESPN, the Food Network and Bravo (I wanted Trey to win) are over as I am back in Freetown, Sierra Leone.

For the next 8-10 months I will be conducting rule of law research as a Fulbright Fellow.  My research will be examining the impact of moving the Charles Taylor trial to the Hague upon local legal development in Sierra Leone.  More generally, my research will look at the capacity building efforts of the Special Court in order to assess how war crimes tribunals can be more effective in post-conflict environments. 

I will be using this space to make periodic reports on the research as well as to comment on other Sierra Leonean and international developments.  I am coordinating my research with the American Bar Association's Sierra Leone Task Force and will hopefully be posting reports on their page as well.

I am still at a very early stage in my research; revising my research plan, drafting research materials, making contacts and setting up meetings with local rule of law experts.  For now, I will provide a brief background on the conflict in Sierra Leone and outline the details of my project. 

From the early 1990s to 2002, Sierra Leone was ravaged by a brutal civil war allegedly supported by Liberian President Charles Taylor in which an estimated 50,000 people lost their lives and the society of Sierra Leone was shattered. The conflict was characterized by campaigns of amputation, rape and the widespread use of child soldiers. In an effort to bring stability to West Africa and provide accountability for the atrocities, the United Nations and Sierra Leone established the Special Court for Sierra Leone in 2002. 

The Special Court is a hybrid tribunal comprised of international and domestic personnel and applying both international and domestic law. One of the central reasons for locating the tribunal in Sierra Leone and employing local personnel was to improve the capacity of the domestic legal system. In March 2006, Charles Taylor, the most notable figure in the conflict, was detained by the Special Court for his role in allegedly controlling and supplying munitions to the rebel forces in Sierra Leone. However, due to concerns that forces still loyal to the rebels and Taylor would pose a security threat, the Taylor trial was moved to the Hague.

While the trial will be conducted by Special Court personnel under the authority and law of the Special Court, the removal of the trial and limited involvement of Sierra Leonean personnel may undermine the capacity-building ability of the Special Court. By comparing the strategies and impact of rule of law development programs before and during the Taylor trial it will be possible to assess the development capacity of the hybrid tribunal model. The rule of law programs in Sierra Leone focus upon increasing the awareness, access and respect for law, as well as improving the basic due process standards of the local justice system. If there is a significant decline in development capacity it may indicate the necessity of trying major figures within the country of conflict. 

However, if significant legal development can be achieved in the absence of the Taylor trial, it suggests that an alternative framework for war crimes and genocide tribunals can yield positive results. This information will clarify the function and benefits of hybrid tribunals and whether rule of law development should be directly linked with hybrid tribunals. This research will provide domestic and international policy makers with valuable information for addressing future atrocities.

I intend to conduct the research in two parts. The first element of the research will focus on the rule of law development programs of the Special Court as well as civil society, including the Justice Sector Development Programme and the Lawyers Centre for Legal Assistance.  These programs provide training to legal professionals, research and advocate justice sector reform, campaign for legal awareness and provide legal assistance. The research will examine the relative success of these programs and how they have adjusted their efforts in light of the Taylor trial moving to the Hague. 

The second element of the research will involve surveys and interviews of local prosecutors, judges, legal professionals and law students at Fourah Bay College in order to study how the absence of the Taylor trial is perceived and how it has affected the local legal community. 

The research will provide insight into how the presence of the Special Courthas affected the rules, procedures, and due process standards of the local legal system. This information will be compared with the impressions and opinions of local legal professionals as to impact the Taylor trial will have upon local legal development. 

Russia's Foreign Policy -- Returning to a 'Cold War' Mentality?

In recent months, Russian President Vladimir Putin has displayed an increasingly chilly attitude toward what he sees as the West's adherence to an outdated 'world order.' In July, Putin suspended Russia's participation in the Conventional Armed Forces in Europe Treaty (providing limits on what arms the US, Canada, and Russia may station on the European subcontinent), a move widely seen as a reaction to a plan by the US and Europe to install new anti-missile interceptor sites in Poland and the Czech Republic--both former members of the Warsaw Pact. This was, perhaps, a scaled-back response, given Putin's threat in June to re-target nuclear missiles toward Europe, though Putin has since unveiled an anti-missile defense plan of his own, and reinstituted Cold War era long-range bomber patrols.

Putin has also reinforced Russian ties with rising non-Western powers. Iranian President Mahmoud Ahmadinejad was the guest speaker at the meeting of the Shanghai Co-operative Organization (SCO) last week; its member nations--China, Russia, Kazakhstan, Uzbekistan, Tajikistan and Kyrgyzstan span an increasing valuable reserve of oil and mineral resources, and the organization is perceived to be gaining political clout. Russia's gas and oil reserves have been key to its recent ascendancy--Russia's GDP has increased three-fold since 2002, with 70% of its income stemming from sales of gas and oil.

Perhaps in an effort to consolidate its position as a strategic supplier of the world's natural resources, Russia planted a titanium replica of its national flag in the seabed of the North Pole earlier this month, claiming ownership to up to half of the North Pole seabed area. The issue of who can actually claim 'legal' title to the North Pole seabed is governed by the United Nations Convention on the Law of the Sea, under which Russia would have to prove that the portion of the arctic seabed it claims--the Lomonosov Ridge--is actually an extension of Russia's landmass. Not coincidentally, scientists have begun speculating that there may be significant oil and mineral deposits underneath the North Pole, making the right to access to its seabed (and thus, those resources) potentially very lucrative. The move by Russia, however, drew criticism from other nations with potential stakes in the North Pole, and prompted countering moves by Canada, the US, and Denmark.

What's next for Russia remains to be seen. While Putin's term as President will end in 2008, his successor will likely also likely come out of the highly secretive and oligarchic FSB.

What's With the Danone Litigation in Los Angeles?

Zong, who founded Hangzhou-based Wahaha, signed a partnership agreement with Danone in 1996, eventually setting up 39 joint venture units that are 51% held by Danone and 49% controlled by Zong. With capital from Danone, but little direct management input, Wahaha grew to dominate the bottled water market in China. It also is a major producer of milk, yogurt drinks, carbonated soft drinks, juices and canned food. However, their arrangement was strained this year after Danone confronted Zong over side businesses he set up that are allegedly selling Wahaha-branded products identical to those produced by their joint venture, using the same suppliers and distribution network.

Zong's resignation came after Danone filed a lawsuit in Los Angeles against two companies linked to him and two individuals, one a U.S. citizen and one a U.S. green card holder, who are Zong's daughter and her mother respectively. In the suit, Danone claims it has been cheated out of $100 million by businesses set up by Zong that it says are selling Wahaha-branded products identical to those sold by their joint venture, using the same suppliers and distribution network. Hangzhou Wahaha Food & Beverage Sales Ltd, accused by Danone of selling products competing with those produced by the joint ventures, is a wholly owned subsidiary of Hangzhou Hongsheng, which is controlled by the British Virgin Islands-registered Ever Maple Trading.

Does any of that make sense? To begin with, what is Danone mad about? They're mad because the guy that is supposed to be running their joint venture has set up a parallel company that is not only siphoning off profits from the joint venture but it's also using the very same distribution network that the JV uses. Basically, Danone wants its money.

A question us lawyer types are initially curious about is how can Danone bring a law suit in Los Angeles against these companies and Zong's family members if the JV contract has an exclusive arbitration clause? Prior to initiating litigation in Los Angeles, Danone filed for arbitration in Stockholm, and Wahaha subsequently had its request for arbitration in Hangzhou, China approved. Generally, a US court will throw out a case if there is evidence of an exclusive arbitration clause-- So what gives? Either the LA court hasn't had an opportunity yet to throw out the case or the litigation in LA is about a dispute that did not arise from JV contract.

Also, if the Los Angeles lawsuit was not brought against Zong, then why did it compel Zong to resign? The individuals named in the lawsuit were his daughter and his daughter's mother. Perhaps having his family members implicated in this scam shamed him, and he lost face. Perhaps he resigned in an attempt to get Danone to drop the law suit in Los Angeles, taking the burden of the Los Angeles law suit off of his family. Neither of these seem very likely, but they're possible...

Wu Xiaobo of Beijing University, a personal friend of Zong for 16 years and also an author of a book about Wahaha, said that the involvement of Zong's family in the running of the Wahaha JV was unprecedented. If Zong's family members were executives in the JV, then they owe a fiduciary duty to the JV under the new China company law, which is very similar to the company law in the US. Usurping a corporate opportunity is a breach of fiduciary duty, and it is possible that this is the very issue being litigated in LA. Moreover, Zong could have resigned from his position in an attempt to avoid being sued in China for the very same cause of action.

The next question is why didn't Danone, as a shareholder in the JV, bring an action on behalf of the JV against Zong for breach of fiduciary duty in China? Probably because Danone is afraid of the Chinese legal system, which is just another mistake that needs to be added to the long list of mistakes Danone has made doing business in China. Even if the legal system in China is corrupt (and we don't think it is), the chances of Danone getting screwed in the Chinese legal system are miniscule. The last thing the Chinese want right now is (more) bad press, and the world press is currently focused on the outcome of this dispute in China. Danone should utilize this media coverage to their advantage and bring a suit against Zong in China, and it is likely China would use this as an opportunity to demonstrate that their legal system is mature enough and sophisticated enough to handle this kind of international litigation.

UPDATE: Dan Harris of China Law Blog just had an editorial published in the Wall Street Journal on this very subject, and the excellent opening line reads as follows: "The much-publicized legal fight between French beverage maker Groupe Danone and its Chinese partner, Wahaha, calls to mind an ancient Chinese proverb often used to describe a bad marriage: 'Same bed, different dreams.'" For more about joint ventures in China see the following CLB post entitled: China's Joint Venture Jeopardy.

Using International Law to Resolve the Iran/UK Marine Dispute

A few days ago Francis A. Boyle, associate from the Transnational Foundation for Peace and Future Research and professor of international law at the University of Illinois, College of Law,  argued that the dispute between Iran and the United Kingdom should be resolved through implementation of the Hague Convention for Pacific Settlement of International Disputes.  Under the 1899 Hague Convention, which both Iran and the UK are parties to, when diplomatic measures do not resolve international differences then an International Commission of Inquiry may be formulated by the parties in dispute.  Presumably, under Boyle's analysis, the dispute between Iran and the United Kingdom cannot be resolved by diplomatic means because they concern factual issues that can only be resolved by legal analysis.   They are fundamentally based upon where the soldiers were captured, for if in Iranian waters then Iran has every right to seize those illegally entering into its waters.  The problem with Boyle's suggestion is that if we accept Boyle's suggestion, then any Commission will inevitably be forced to determine the legal rights of Iraq, a third party, by determining legal boundaries between Iran and Iraq in the Persian Gulf.

As noted by former British Ambassador, Craig Murray: "there is no agreed maritime boundary between Iraq and Iran in the Persian Gulf."  Murray, who also headed the Maritime Section of the Foreign and Commonwealth Office from 1989 to 1992, explains:

The British Government has published a map showing the coordinates of the incident, well within an Iran/Iraq maritime border. The mainstream media and even the blogosphere has bought this hook, line and sinker.

But there are two colossal problems. 

A) The Iran/Iraq maritime boundary shown on the British government map does not exist. It has been drawn up by the British Government. Only Iraq and Iran can agree their bilateral boundary, and they never have done this in the Gulf, only inside the Shatt because there it is the land border too. This published boundary is a fake with no legal force.

B) Accepting the British coordinates for the position of both HMS Cornwall and the incident, both were closer to Iranian land than Iraqi land. Go on, print out the map and measure it. Which underlines the point that the British produced border is not a reliable one.

Absent Iraq's intervention or consent to the proceedings, this would run counter to the well-accepted principle of international law requiring the participation of indispensable third parties.  Under the "Monetary Gold principle," "an international tribunal cannot decide a dispute between the parties before it if the very subject matter of the decision would be the rights and obligations of a State which is not a party to the proceedings.”  This principle has not only been expounded continuously by the International Court of Justice, but also accepted generally by international tribunals as a general principle of international law such as in Larsen v. Hawaiian Kingdom before the Permanent Court of Arbitration and has been used to criticize exercise by the International Criminal Court over non-party nationals.  The one exception to this is that international courts and tribunals are not precluded from exercising its jurisdiction if its judgment does not lead it to rule on the legal position of subjects of international not present in the proceedings, even though its reasoning could be transposed to them.  Here, however, any Commission would be forced to rule on whether Marines were in Iranian or Iraqi territorial waters.  Thus they would be forced to determine legal rights of parties not present in the proceedings.

Absent Iraq's participation, therefore, no move should be made to determine territorial boundaries between a non-party to the dispute.  If anything, international law would be best implemented to condemn Iran's violations under the Vienna Convention on Consular Relations by failing to grant access to the Marines and general human rights obligations by failing to grant the prisoner's general guarantees of justice.  Specifically, article 36(1)(c) of the VCCR guarantees that "consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation."  Moreover, the actions by the Iranian government are clearly in violation of article 14 of the ICCPR which contemplates that detained persons should obtain a free and fair trial before being found guilty of the commission of a crime.  The political nature of the dispute has distracted attention from the very fact that Iran has found UK marines guilty through coercive statements without bringing the parties before an impartial tribunal, military or civil.

Death at the Special Court

In an event that could radically alter the perception of the Special Court for Sierra Leone, Chief Sam Hinga Norman, the first accused in the Civil Defence Forces (CDF) case, died due to complications from surgery.  Norman underwent surgery in Dakar, Senegal to address wounds suffered during the war, including hip complications.  According to a Special Court press release, Norman suffered a massive heart failure after surgery and was unable to be revived.

The death of Norman is a tragic event not only for the Special Court, but for attempts at international justice.  The trial against Norman had almost concluded and a verdict was due early this spring.  Because of the death, the Special Court will not announce a verdict in the case, despite the significant work that had already been completed on the judgment.  Knowledge of the outcome of the case will be limited to the few court personnel who were researching and writing the judgment.

The significance of Norman's death is exacerbated because he is the second accused to die while in Special Court custody.  Foday Sankoh, a prominent figure in the Revolutionary United Front, died from a stroke in 2003 while awaiting trial.  Many Sierra Leoneans remain suspicious of Sankoh's death and some think that he was assassinated by the Special Court.  Such accusations, while groundless, still resonate among the people of Sierra Leone.  Norman's death will have a profoundly more significant impact.  There had been some rumblings from the supporters of Norman that the surgery should have been performed in the UK.  His death in Dakar will only feed the baseless rumors that the Special Court was complicit in his death.

Accusations will also be leveled at the ruling Sierra Leone People's Party (SLPP) and President Ahmed Tejan Kabbah.  Norman had been a prominent member of the SLPP and ally of Kabbah.  However, when Kabbah turned Norman over to the Special Court to be tried for war crimes, Norman split from the SLPP.  Norman was a folk hero and continues to have significant support in the south of Sierra Leone.  With nation-wide elections this summer in Sierra Leone, there was already significant tension between the SLPP and Norman's supporters.  The verdict in the Norman case would have increased the tension, and his death will almost certainly bring the situation to a boiling point.  The sensationalistic press in Sierra Leone will no doubt add to rumors and suspicion that the SLPP had some hand in the death of Norman.

At the international level, the death of Norman before judgment will echo the death of Slobodan Milosevic at the ICTY.  The death of Milosevic spread similar rumors of assassination and left the proponents of international justice scrambling to justify the prosecution.  Despite the massive amounts of money and time invested in trying Milosevic there was no verdict, no conclusion and no resolution.  Similarly, the success of the Special Court will be called into question with the death of Norman.  This will only increase the pressure upon the Special Court to successfully prosecute Charles Taylor, a case that is only at its early stages and presents far more challenges than the Norman case.

While there will still be a verdict for the two other accused in the CDF case, the absence of Norman will impact the legitimacy of the verdict.  If either, or both, of the accused are found not guilty, then significant questions about the innocence of Norman will arise.  This will only feed the rumors that the Special Court, perhaps knowing that he was to be innocent, killed Norman.  This will strain the relationship between the Special Court and the Sierra Leone community and increase the stakes for the outreach efforts of the Special Court.  With the unrest in neighboring Guinea, any unrest in Sierra Leone, which is likely in the wake of the death of Norman, will be an issue of great concern.

Keeping Things Civil: The Hybrid Tribunal in Lebanon

It is interesting times for regional international criminal tribunals.  Kevin Jon Heller of Opinio Juris has a post discussing the failure of the Cambodian Tribunal to reach an agreement on the Rules and Procedure.  And, on November 15th, Secretary-General Kofi Annan released a report detailing the establishment of a special tribunal for Lebanon to investigate the assassination of former Prime Minister Hariri.   

Although building upon the hybrid model used in Sierra Leone, there are several interesting, and perhaps controversial, innovations in the design of the Lebanon tribunal.  More so than previous hybrid models, the Lebanon tribunal looks to the domestic legal system and incorporates elements of the civil law system of Lebanon.

Most significantly, the tribunal increases the role of the judiciary in investigating the case and allows for trials in absentia.  While the investigative judge is a basic element of civil law systems and was used in the Iraqi High Tribunal, the trial in absentia provision is sure to garner criticism.  The report justifies the provision by noting a similar provision in the Lebanese legal system and citing European Court of Human Rights jurisprudence.  Moreover, the provision provides that where a suspect is tried in absentia, the Defence Office will provide defence council for the case.  However, with the difficulties of the Defence Office in Cambodia and the jury still out on the Defence Office in Sierra Leone, it should be interesting to see whether the Defence Office can adequately function in Lebanon.    

The design of the Lebanon tribunal is sure to ignite a debate over international standards of due process.  With the varying standards of the Iraqi High Tribunal, the Cambodia Tribunal and the Lebanon tribunal, it would seem that some of the fundamental conflicts between civil and common law systems that expose themselves in international litigation (juries, discovery, judicial control, etc.) remain in the field of international criminal law.  It will be interesting to follow whether the ICC will establish a singular concept of due process standards or whether the continued use of hybrid tribunals will signal a rationalization of due process standards for international criminal law.