Animal Welfare Protection: U.S. Law in the International Context

By: Laurence Cromp-Lapierre 

cow

On September 13, 2014, I had the opportunity to attend the California Animal Law Symposium, a student-run conference on animal legal issues in California, hosted by University of California, Hastings. Several panels discussed the global trends in legal protection for animal welfare and raised concerns about the enforceability of current regulations. The European Union (EU) leads the world with the most progressive approach toward animal welfare. However, there is a lack of an international standard or treaty that meets the hallmarks of an effective global protection regime, as well as ongoing opposition to robust domestic rules to protect animal welfare in countries like the United States and China. Because this area of the law exposes several flaws both in the United States and other nations, many organizations are now fighting worldwide for the implementation of a better legal framework. This post aims to portray the current legal protections available to animals in the United States and abroad.

The most promising model for animal welfare activists appears to be the EU approach. Europeans have a desire to protect animals, as evidenced by EU laws that minimize unnecessary animal suffering and recognize moral status and inherent value in animals. To grant moral status to animals is to say that how they are treated is morally important and that, as human beings, their interests and welfare deserve moral consideration. For example, following the UNESCO Universal Declaration of Animal Rights, an inter-governmental agreement prohibiting cruelty to animals, the Council of Europe created several animal welfare treaties regulating the treatment of animals and fixing regional standards for their transport. The European Convention for the Protection of Pet Animals governs the treatment of companion animals and acts as a protective measure against any form of suffering and distress. The system implemented in the EU also offers legal protection to farm animals. The European Convention for the Protection of Animals Kept for Farming Purposes acts as the parent legislation to many directives and guarantees a consistent treatment of farm animals throughout the EU. This convention and related directives ban husbandry practices that are common in the United States, such as battery cages for egg-laying hens, veal crates for veal calves, and gestation crates for pregnant sows. The EU has also set much tighter restrictions than the United States on the length, time, and conditions of animal travel. These legal instruments touch on the main issues with respect to the treatment of companion, farm, and research animals. However, the EU could improve its system by increasing the enforcement and level of comprehensiveness of its instruments and by advocating for an international treaty to protect animals.

The United States is far from leading by example on legal protection for animal welfare. Three federal statutes govern animal welfare: the Animal Welfare Act, the Twenty Eight Hour Law of 1877, and the Humane Methods of Slaughter Act.  However, these three statutes exclude all poultry, which make up most of the land animals killed for food. Also, there is no federal law that protects farm animals on the farms where they are raised.

The vast majority of states have adopted additional legislation around animals, and the legal system currently in force indicates that most states perceive animals merely as a kind of property belonging to their owners. Viewed as simple machines, animals’ legal protection is often minimal and enforcement of their limited rights is not a priority. For example, state governments have created farm exemptions, aiming to ensure that the statutes about animal welfare do not apply to farm animals. As a result, it is legally permissible for an individual to intentionally torture or maliciously kill farm animals.

Reform is difficult. Anyone wishing to bring a case to court will likely encounter several difficulties.  U.S. politicians have been inclined to foster the meat and dairy industries’ interests, and meat and dairy producers apply their influence to limit regulation and enforcement. Legislation tends to prioritize keeping the cost of food low to spur consumption above protecting animal welfare. Due to the current economic situation and its importance on policy-making, one could expect little or no improvement to happen in this area of law within the upcoming years.

However, animal welfare activists have gained some traction in the United States in that companion animals have now been recognized as having a moral status. Since, in contrast to farm animals, they are not simply viewed as the property of their owners, they benefit from a greater legal status. In sum, U.S. legislation can still be improved and should at least be upgraded to the EU standards.

Finally, two current practices toward dogs in China and Romania demonstrate that, although there might be a desire to protect companion animals in some parts of the world, such beliefs are not universal. For instance, the lack of legislation in China permits the annual meat festival in YuLin, China, where dog meat is sold. Such an event has financial implications, as it creates income and increases consumption. Allegations were made that some dogs are hung upside down, some are beaten and then left to slowly bleed to death and others are skinned and boiled alive. Those are only a few examples of the inhumane treatment given to the animals at this event. In addition such unacceptable treatment, this shocking festival creates monetary incentives for individuals to steal dogs in order to sell their meat.

Similarly, after the death of a child who was allegedly attacked by stray dogs, the Romanian government has adopted a law allowing the mass killing of tens of thousands of stray dogs in the capital. Those animals are treated cruelly. For instance, they are being brutally caught, kept in crowded unclean wire cages, without sufficient food and medical treatment and then poisoned, drowned and tortured to death. Animal welfare activists and animal rights organizations have since put pressure on the Romanian government to implement a new law, notably by organizing demonstrations throughout the world.

Both instances in China and Romania indicate that an international treaty governing animal welfare could address customary practices that the global community agrees are violations of shared norms. In sum, the situation in respect to animal welfare is alarming. The current standards appear to be either insufficient or not adequately enforced, and so legislators at both the national and international levels must take action.

Laurence Cromp-Lapierre is an LL.M. Candidate at Berkeley Law. She is a student contributor for Travaux. 

This Day In International Law – September 26

By: Guilherme Duraes

On September 26, 2005, international weapons experts announced the full disarmament of the Irish Republican Army (IRA). The international community received the announcement as one of the final, and most important steps toward upholding and implementing the provisions of the Good Friday Agreement (GFA) of 1998.

A majority of Northern Irish parties and the British and Irish national governments had signed the Good Friday Agreement, also known as the Belfast Agreement, on April 10, 1998, to bring a halt to the violence that had devastated the region for decades.

Voters of both Northern Ireland and the Republic of Ireland approved the Agreement, and the Irish government had to amend its Constitution in order to remove the original territorial claim over Northern Ireland. As per the Agreement, Northern Ireland would remain a part of the United Kingdom (UK), with a devolved system of government. Residents of Northern Ireland could choose to claim either British or Irish citizenship, and they would be able to join the Republic of Ireland in the future, contingent upon a referendum in both Northern Ireland and the republic.

The central goal of the Agreement was to establish respect for civil and cultural rights in the region, justice and policing, and decommissioning of weapons. The Agreement also established intergovernmental and civil society organizations between Northern Ireland and the Irish Republic, Northern Ireland and the UK and the Irish Republic and the UK. By 2005, the parties to the Agreement had reached most of their goals, but there were still uncertainties as for the decommissioning of weapons in the island of Ireland. Therefore, the announcement in September 2005 that the IRA no longer held weapons represented a milestone in the peace process, and virtually the final step in implementing the Agreement.

Though the main strands of the Irish Republican Army have now fully disarmed, some paramilitary groups continue to operate under the name of “IRA”. However, these groups did not thwart the peace process and the GFA is seen today as a rather successful international treaty.

Guilherme Duraes is a J.D. Candidate at Berkeley Law. He is a student contributor for Travaux. 

The CrISIS in U.S. Foreign Policy and The Rule of Law

By: Alexander J. Brock

As President Obama prepares to address the United Nations (UN) General Assembly in New York today to help build an international coalition in the fight against the Islamic State in Iraq and Syria (ISIS), he may have some tough questions to answer. As some have been quick to point out, the strikes earlier today on ISIS’s de facto capital, the Syrian city of Raqqa, may very well be a violation of international law of armed conflict and of the UN charter. The lack of a clear legal justification for the administration’s actions in Syria is not an isolated incident. Rather, it is just the latest in a series of legally questionable responses that the administration has made in the Middle East over the last four years. The fact is that the popular uprisings that have swept across the Middle East beginning in late 2010 have revealed an anachronistic foreign policy strategy and legal mechanisms ill-equipped to address the new reality in a region that has undergone fundamental change. Washington’s inability to adapt its approach to the Arab world stems from the lack of an overarching strategic vision for the region and America’s role in it.

Responding to ISIS, the AUMFs, and Self-Defense

The White House has received extensive criticism for its position on the domestic legality of the air strikes against ISIS, which the administration has sought to justify under a 2001 Authorization to Use Military Force (AUMF) that was enacted to enable attacks on al Qaeda for its involvement in the September 11, 2001 terrorist attacks, and also under a 2002 AUMF that authorized the war in Iraq. With these as statutory authority, the administration claims, the President has satisfied the requirements of the War Powers Act and therefore does not need congressional authorization.

Administration officials, however, have stated a number of times in the past that the president had desired to repeal the 2001 AUMF, saying there was a need for discipline so as to avoid being “drawn into more wars we don’t need to fight,” or, “grant[ing] presidents unbound powers more suited for traditional armed conflicts between nation states.” For Obama now to seek the protection offered him by the AUMF is awkward at best, and illegal at worst: the AUMF, according to critics, was clearly not intended to cover groups like ISIS, which formally split with al Qaeda earlier this year. As for the 2002 law that authorized the Iraq war, this position, too, seems at odds with past statements from high-level administration officials: just a few months ago, National Security Advisor Susan Rice wrote in a letter to Speaker of the House John Boehner, “with American troops having completed their withdrawal from Iraq…the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal.” To make matters more confusing, the White House maintains that it continues to support the law’s repeal, despite using it as authority for the offensive.

Another looming problem for President Obama is the possibility that his actions in Syria violate international law.

The strikes against ISIS in Iraq are relatively well-founded: they are being carried out with the consent (and indeed at the request) of the Iraqi central government in Baghdad, and thus constitute an act of collective self-defense, one of the permissible causes for military action under Article 51 of the UN Charter.

In Syria, however, President Bashar al-Assad has made no such request, nor has he given consent for the attacks and, as a result, the United States’ military operations seem to violate the sovereignty of the Syrian state.

In the absence of Assad’s permission or a UN Security Council resolution, the administration has chosen to depict the fight in Syria as an extension of the collective self-defense argument for Iraq, claiming that ISIS fighters have attacked Iraq from safe havens within Syrian territory. It also names the existence of U.S. personnel inside Iraq, and invokes the right to defend the security of those personnel.

The issue is not whether these legal arguments are sound, but rather to show that this step was even necessary. The current legal mechanisms at the administration’s disposal do not reflect the reality on the ground in the Middle East since the popular uprisings of 2010, where the landscape has changed considerably, but rather a different period long ago. To need to resort to the argument of collective self-defense, i.e. that attacks in Syria are actually on behalf of Iraq for its self-defense, in order to launch attacks on what is an obviously dangerous terrorist group, shows that something is lacking in the President’s legal toolkit.

“Making It Up as We Go”

But the most recent crisis in Iraq and Syria is just the latest symptom of a much broader phenomenon in American foreign policy in the Middle East of “making it up as we go.” It was only one year ago that the President sought congressional authorization to carry out strikes against the Assad regime in Syria for its use of chemical weapons, which Obama had deemed a “red line.” The arguments that the administration advanced in support of a military strike were hard to pin down as they changed from day to day. They ranged, on one hand, from the humanitarian and the moral, with Secretary Kerry’s statement that, “the indiscriminate slaughter of civilians…by chemical weapons is a moral obscenity” to, on the other hand, arguments of deterrence, claiming that other dictators would consider using chemical weapons if they saw they could do so with impunity, and then, finally, to the purely punitive, wanting to punish Assad for such a flagrant violation of international norms.

The questions surrounding the legality of a strike on Syria were as numerous as the administration’s justifications for it. In the absence of a resolution from the UN Security Council, which was almost certainly doomed to fail because of Assad-ally Russia’s veto power, the only other acceptable circumstance for military intervention is “national or collective self-defense,” as far as the United Nations is concerned, and the administration never made that argument. Even if it had put collective self-defense forward as the justification, the Syrian rebels would have had to request the intervention and the White House would have had to recognize rebel forces as the legitimate government in Syria—something the administration was certainly not prepared to do. The deterrence argument, too, would only be actionable with a UN Security Council resolution. And the “humanitarian intervention” argument obscured more than it clarified—why was it that a relatively small amount of chemical weapons, used in what appeared to be a limited location in an isolated incident in August 2013 that killed 1,400 people, justified a humanitarian intervention, but the almost 70,000 people who had been killed through conventional warfare as of August 1, 2013, did not?

The administration was ultimately spared further articulation of its legal justification for an attack on Syria for crossing the President’s “red line,” with the diplomatic solution spearheaded by Russia.

Aiding Egypt?

The recent political turmoil in Egypt, too, has revealed the Obama administration’s lack of a cohesive framework for handling regional dynamics. This was brought into sharp relief with the July 3, 2013 coup that ousted President Mohammed Morsi of the Muslim Brotherhood. Under Section 7008 of the FY12 Consolidated Appropriations Act (P.L. 112-74), the United States is prohibited from providing aid to, “…the government of any country whose duly elected head of government is deposed by military coup d’etat or decree…or a coup d’etat or decree in which the military plays a decisive role.” Neither Section 7008, nor any other provision of U.S. law offers a definition of a “coup” or a “coup d’etat.” Indeed, analysts and observers both in the United States and in Egypt had heated debates over whether what happened in Cairo on July 3 was a coup or not. In Egypt, labeling the event as a “coup” indicated one’s political affiliation with the Muslim Brotherhood or its supporters, and those who called it a “popular revolution,” represented some form of the status quo ante from the Mubarak era, and heated debate permeated the popular press across the country. In Washington, too, controversy surrounded the “coup-not-coup” issue, in no small part because of the Obama administration’s choice to call it neither.

Here, though, the Obama administration was confronted with what the law required on the one hand, and with the reality that the new military-led regime in Cairo was sure to be friendlier toward American interests than that of the Muslim Brotherhood on the other hand. To label the military takeover as a coup, and thus suspend aid, would surely be consistent with U.S. support for the emergence of democracy in the Middle East, and yet such a move risked alienating a much-needed potential ally in the region in the form of the new government led by Field Marshal Abdel Fattah al-Sisi. White House officials consistently refused to label what had happened in Egypt a “coup,” despite all the evidence to the contrary, and as a result the aid continued to flow to Cairo even as the new regime performed brutal crackdowns on protesters and other supporters of the Muslim Brotherhood, beating and imprisoning them in blatant violations of human rights. But Washington, perhaps out of desperation for a recognizable government in the Arab world, ignored its own laws and the principles of democracy.

Reflecting on Libya

 Finally, going back to 2011, there was the military intervention in Libya. The justification put forth by the Obama administration was in line with the U.N. Security Council Resolution 1973, which provides for intervention “to protect civilians and civilian populated areas under threat of attack.” However, this humanitarian argument soon morphed into a mission aimed at achieving regime change. But the stated purposes of the intervention, and the arguments justifying that intervention, did not stop there. As Micah Zenko outlined on his blog with the Council on Foreign Relations, there were a number of different objectives and incentives behind joining the NATO-led military intervention in Libya, despite the fact that it was a country of little strategic interest to the United States. There was the thought that it would communicate a message to other dictators in the region about using force to quell peaceful protests; that it would support the Libyan rebels, who had displayed impressive credentials to figures such as Senator John McCain during his visits there; that it would be friendly reciprocity to American allies in Europe who offered assistance with the war in Afghanistan; and finally, it was believed that the operation would be easy to complete in a short amount of time. What began as an operation that sought only to protect Libyan civilians from the brutality of its eccentric leader turned into what was essentially yet another episode of U.S.-sponsored regime change in an Arab country.

Conclusion

The Obama administration has adopted a “crisis management” approach to the Middle East since early 2011. No longer able to form a foreign policy based on reliance on friendly authoritarian rulers in the region to keep the peace and to help manage crises as they arise, Washington finds itself grasping at straws in trying to justify its decisions, leaning on decades-old statutes intended to govern entirely different circumstances, and ignoring both its own legislation and international law when they prove to be inconvenient to the circumstances. This has damaged American credibility in the world. The foreign policy establishment and senior White House officials need to acknowledge that the Middle East as they knew it for the last forty years is no more, and there is an urgent need to design and articulate a clear strategic vision for engaging with the new Middle East if the United States wishes to continue to lead. Without such a vision, the same panicked and mercurial policymaking that has characterized this administration’s decisions in the region will continue for years to come.

Alex Brock is a J.D. Candidate at Berkeley Law.  He is a student contributor for Travaux.

This Day In International Law – September 19th

By: Aaron Murphy

September 19th, 1946

In a speech at the University of Zurich in Switzerland, Sir Winston Churchill lamented Europe’s seemingly eternal “series of frightful nationalistic quarrels” that “wreck the peace and mar the prospects of all mankind.” Sobered by the devastation of the Second World War and desperate to permanently suffocate the sectarian flames that engulfed the continent on such an alarmingly regular basis, Churchill called for large-scale solidarity and greater political cohesion.

“We must build a kind of United States of Europe,” he said.

Churchill’s clarion call planted the seeds for the Council of Europe and presciently wove the prospect of a unified Europe into the future of the continent.  Today, the Council counts forty-seven nations among its members, dedicating itself to the promotion of human rights and the development of legal standards and rule of law initiatives among the countries of Europe.

September 19th, 1959

September 19th of 1959 found Nikita Khruschev barred from entering Disneyland due to “security concerns.” One wonders if the Cold War would have ended much sooner had Khruschev been allowed to frolick through The Most Magical Place On Earth for a solid twenty-four hours. In any case, the mental image of a joyfully intoxicated Soviet Premier floating through the delightful environs of “It’s A Small World” certainly lifts the spirits.

The Right to be Forgotten, Revisted

The recent decision of the Court of Justice of the European Union, in Google Spain SL v. Agencia  Espanola de Proteccion de Datos (“AEPD”), C-131/12 (May 13, 2014), available at www.curia.europa.eu, has received extensive media coverage, with commentators suggesting that the ruling is “ground-breaking,” “astonishing,” and “upsetting.”  Those descriptions may greatly overstate the significance of the ruling, especially for U.S. businesses.

The decision grows out of a complaint by a Spanish citizen against a Spanish newspaper and Google Spain, claiming that a 12-year-old story about his former financial troubles should be removed from the internet and links to the story extinguished.  AEPD, the Spanish data protection authority, denied the request as to the newspaper (which had lawfully published the story), but granted the request as to Google.  The Court of Justice affirmed, on both points.  The decision turns on the conclusion that Google Spain is subject to European Union (“EU”) regulation, and that its service “retrieves, records or organizes” data (within the meaning of the EU Data Protection Directive), such that Google is thus a “controller” of data, subject to regulation under the Directive.  The Directive, moreover, establishes fundamental rights of privacy, including the right to expungement of information that no longer serves its original purpose.

What the decision does not do is establish a broad and unequivocal “right to be forgotten.”  First, the territorial coverage of the ruling is limited.  Because the case involved a Spanish citizen, Spanish newspaper, and Spanish internet operation (a Google subsidiary in Spain), the decision on jurisdiction was relatively easy.  Whether European data protection authorities would seek to extend jurisdiction to other cases with weaker connections to Europe remains for further development.

Second, the Court did not suggest that validly-created news content must ever be altered.  Quite the opposite.  The Spanish newspaper was permitted to display its original story via its website.  The removal of Google links to the story, moreover, does not absolutely prohibit access to the story.  As to future cases, moreover, the Court suggested that a balancing process must apply, in which the interests of internet users may override the interests of data subjects in protection of data concerning their private lives.  Thus, where the data subject plays a role in public life, or other public interests arise, such interests may tend to decrease the data subject’s right to claim protection for sensitive information and the removal of internet links that may not be required.

Finally, the ruling is not self-enforcing.  To obtain similar relief from Google or any other web operator, the data subject must make a request to the company.  The company must evaluate the request (conducting the “balancing” test suggested by the Court), and determine whether relief appears required.  Only if the data subject is unsatisfied with the results, and only if the data subject can convince data protection authorities that the result is improper, might there by additional rulings directing similar relief.  Because data protection authorities vary in their views from country to country the availability of the remedy may also vary greatly.

The Google Spain decision is surprising in at least one regard.  The EU has under consideration revisions to its Data Protection Directive (adopted in 1995).  The general purpose of the revisions is to update the data protection regime, in light of new technologies and practices, and to make more uniform the treatment of data protection across the national systems in Europe.  One feature of the revisions under consideration is recognition of a “right to be forgotten.”  These and other revisions have been the subject of intense political in-fighting, as well as lobbying efforts from foreign companies potentially affected by more stringent regulations.  The recent Snowden/NSA revelations have only added fuel to the controversy.  In that context, the European Court’s decision to wade into a controversial area, which arguably could be better settled through the political process, appears unusually bold.

The stakes are high in this arena.  The Data Directive reform proposal includes significant enforcement procedures, including (potentially) fines of up to five percent of a company’s global turnover for violations of the law.  The proposed revisions also seek to clarify that EU data protection law may apply to any services directed at EU citizens, regardless of where the service controller is located.  Thus, even though most US businesses may conclude that they are not immediately affected by the Google Spain decision, they should pay careful attention to European developments that may affect their operations.

The author is a partner at Park Jensen Bennett LLP, in New York City.  The views expressed are solely those of the author, and should not be attributed to the author’s firm, or its clients. 

Corporate Liability for Human Rights Violations After Kiobel: Judge Scheindlin Opens the Door

By Neil A.F. Popović

On April 17, 2014, District Judge Shira Scheindlin, perhaps best known for her ruling on New York City’s stop-and-frisk policy, issued another decision sure to provoke strong reactions on both sides. In In re South African Apartheid Litigation, No. 02-MDL-1499 (SAS) (S.D.N.Y.), Her Honor ruled that “corporations may be held liable” under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). More specifically, the court held that Ford Motor Company and IBM might face liability for aiding and abetting violations of international norms by manufacturing military vehicles and computers for South African security forces during the apartheid era. What does that mean, and why does it matter?

The ATS confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. In 2010, the Second Circuit Court of Appeals decided Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), holding that the ATS does not allow claims against corporations, and dismissing claims by Nigerian nationals alleging various corporations aided and abetted human rights violations in Nigeria. The Supreme Court granted certiorari on the question of corporate liability and heard oral argument in 2012. After oral argument the Court directed the parties to submit supplemental briefing on a different question—“whether and under what circumstances the ATS allows courts to recognize a cause of action for violations of the law of nations occurring” outside the United States—and it scheduled another round of oral arguments.

The Supreme Court issued its opinion in Kiobel on April 17, 2013, affirming the Second Circuit’s judgment of dismissal “based on . . . the second question” and ruling that the “presumption against extraterritoriality applies to claims under the ATS.” 133 S. Ct. 1659, 1663 (2013). The Court held that: “all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” 133 S. Ct. at 1669. The Court went on to say: “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Id. The Court’s opinion did not directly address the issue of corporate liability under the ATS.

The South African Apartheid case was pending in the Second Circuit when the Supreme Court issued its opinion in Kiobel. After considering post-Kiobel supplemental briefing, the court of appeals remanded the case to the district court, stating: “The opinion of the Supreme Court in Kiobel plainly bars common-law suits, like this one, alleging violations of customary international law based solely on conduct occurring abroad.” Balintulo v. Daimler AG, 727 F.3d 174, 182 (2d Cir. 2013). On remand, Judge Scheindlin dismissed the remaining foreign defendants and ordered the remaining parties—plaintiffs and the American company defendants—to brief the question whether corporations can be held liable under the ATS after Kiobel.

Deciding that question required two steps of analysis. First, the court had to consider whether the question of corporate liability remained open in light of the Second Circuit’s Kiobel decision precluding corporate liability, followed by the Supreme Court’s decision dismissing plaintiffs’ claims based on the presumption against extraterritoriality. Judge Scheindlin surveyed recent case law, including the Supreme Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), in which the High Court rejected ATS claims against a German company because the company lacked sufficient U.S. contacts to support personal jurisdiction, but made no reference to corporate liability. Id. at 763.

Judge Scheindlin concluded that the Supreme Court’s decisions in Kiobel and Daimler “directly undermine” the Second Circuit’s holding that corporations cannot be liable under the ATS. According to Her Honor, by “explicitly recognizing that corporate presence alone is insufficient to overcome the presumption against extraterritoriality or to permit a court to exercise personal jurisdiction over a defendant in an ATS case,” the Supreme Court implied that “corporate presence plus other factors can suffice” to overcome the presumption against extraterritoriality and justify exercising personal jurisdiction. The standards “may be difficult to meet in all but the most extraordinary cases,” but the Supreme Court’s explication that certain factors could overcome the presumption or justify personal jurisdiction would not make sense if corporations were otherwise immune from ATS liability.

Second, having determined that corporate liability remains possible notwithstanding the Second Circuit’s opinion in Kiobel, the court concluded that corporations are subject to liability under the ATS. Citing Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1019 (7th Cir. 2011), Judge Scheindlin distinguished between: (a) “whether the alleged conduct violates a definite and universal international norm,” which is governed by international law; and (b) who can be held liable for a violation of the norm, which is governed by federal common law. The court specifically disagreed with the Second Circuit’s opinion in Kiobel, stating that the appellate court had misread the famous footnote 20 from Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004), in which the Supreme Court posed the question “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” In Judge Scheindlin’s analysis, footnote 20 does not suggest that corporate or individual liability is a substantive element of international law, but rather indicates that some norms of international law may only be actionable when violated by the state, as distinguished from private actors, corporate or individual.

On the question of who can be liable, the court found it “obvious” that corporations are subject to tort liability. The court rejected proposed analogies to actions brought under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), because Bivens addressed liability of individual federal officers, or the Torture Victims Protection Act (“TVPA”), because the TVPA refers specifically and only to liability of “individual[s].” It did not matter to Judge Scheindlin that there may have been few past cases establishing corporate liability for violations of international norms. She flatly rejected the notion that a private actor could shield itself from liability for violation of universal norms by incorporating.

Judge Scheindlin authorized plaintiffs to move for leave to file an amended complaint against the remaining defendants, stating, “plaintiffs must make a preliminary showing that they can plausibly plead that those defendants engaged in actions that ‘touch and concern’ the United States with sufficient force to overcome the presumption against the extraterritorial reach of the ATS, and that those defendants acted not only with knowledge but with the purpose to aid and abet the South African regime’s tortious conduct . . . .” Thus, the court left the door ajar for plaintiffs to pursue corporate defendants under the ATS, but it did not make it easy for them to squeeze through. Even if plaintiffs can overcome the presumption against extraterritoriality and establish the requisite “purpose,” it remains to be seen whether the Second Circuit—and perhaps the Supreme Court—will explicitly recognize corporate liability under the ATS.

For American companies doing business overseas, the South African Apartheid decision serves as a reminder that they cannot ignore human rights violations associated with their overseas activities, lest they face potential liability in U.S. courts under the ATS. And for foreign plaintiffs seeking compensation in U.S. courts under the ATS, the decision serves as a reminder that they must be able to establish not only that the defendants’ conduct violates universally established and sufficiently precise norms of international law, but also that the conduct “touches and concerns” the United States with sufficient force to overcome the presumption against extraterritoriality, and that defendants acted “not only with knowledge but with the purpose to aid and abet” the norm-violating conduct.

 

The Potential of U.S. Policy on Mass Atrocity Prevention

By Maggie Byrne

How does the United States make its policy on human rights? A group of eight Berkeley Law students traveled to Washington, DC over spring break last week to investigate. We conducted interviews with government officials whose work involves the creation, influence, or implementation of U.S. human rights policy. We met with officials from several agencies, particularly the Departments of State and Defense, as well as practitioners who work in Congress and non-governmental organizations. The trip was organized as a field research expedition, part of a semester-long seminar in the U.S. policymaking process on human rights and democratization with Professor Jamie O’Connell.

Three key factors emerged in our interviews that revealed the complexity of U.S. human rights policy making. First, human rights concerns can be viewed as irrelevant, if not opposed, to the priority of national security in foreign policy. Second, human rights issues involve competing interests across many government branches, particularly various agencies within the Executive Branch. Third, Americans are ambivalent about the extent to which the United States should be the leader of human rights and democracy around the world, as opposed to focusing on domestic issues, such as the American economy.

There is potential for the Atrocities Prevention Board (“APB”), created by President Obama in 2012, to mitigate issues stemming from all three key factors as they pertain to mass atrocities prevention. The APB was established in Presidential Study Directive 10 (“PSD-10”), which opens with the declaration, “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States,” directly addressing the first and third factors. PSD-10 proposed the creation of the APB in recognition of the fact that today, over sixty years since the Holocaust and twenty years since the Rwandan genocide, the U.S. had still not developed a comprehensive, interagency approach to prevent and respond to mass atrocities. The APB also addresses the second factor because it includes representatives from across the interagency and requires that the representatives at various levels meet regularly to discuss brewing threats. This level of regular information sharing is unusual, and preparation for the meetings sparks dialogue and research at the various agencies.

Although such conversation does work to improve interagency collaboration, the APB’s influence is inherently limited. Most significantly, the APB’s asserted role in national security is discrete. In part, this is because national security efforts tend to be reactive to threat reporting, and the APB is an attempt to stem threats before they form. Prevention efforts rarely make headlines because success is a non-event rather than a newsworthy disaster. Moreover, the dominant view in national security is formed predominantly by military, intelligence, and economic issues. In this framework, it is difficult to make the argument that mass atrocities in the Central African Republic, for example, threaten U.S. national security in terms of counterterrorism or global political pressure.

At another level, the APB’s influence may not spread beyond the small, human rights-focused offices within massive government agencies that send representatives to lower level APB meetings. This could change if senior principals at the agencies buy into the central importance of mass atrocity prevention and demand their normalization and incorporation. However, the mandate of departments like State and Defense is so broad, it is unlikely they will ever share a high priority in a sub-issue like mass atrocity prevention.

Finally, the APB is largely invisible to the American public. This is in part by design; the APB is “cost neutral,” and so draws no attention as a new or great expense. Moreover, the APB is an opaque bureaucratic tool, within which members rely on confidential briefings to make confidential reports. While the APB might be executing an American moral principal against mass atrocities, its model of operations avoids public attention. In doing so, however, the APB does bypass the opportunity to establish a strong reputation and develop domestic support for its work beyond Washington.

The APB is one of many ways the U.S. government designs human rights policy. Its efforts to bring together the interagency through a coherent, less reactive method will be interesting to watch as the ABP matures.

This Week in Review

European Union Top Court Strikes Down Data-Retention Law

On Tuesday, the European Court struck down a law that required telecommunication providers to retain user mobile data for two years for law enforcement purposes. The Court emphasized that while holding onto data to “fight crime” was compliant with European Union (EU) law, the overbroad scope of the law as well as the lack of clear boundaries violated EU citizens’ “fundamental rights to respect for private life and to the protection of personal data.”

United Nations May Approve Deployment of Peacekeeping Forces in the Central African Republic

The United Nations (UN)’s Security Council unanimously approved the deployment of nearly 10,000 UN soldiers and 1,1800 policemen to the Central African Republic (CAR). This peacekeeping force will take over from the current African Union force of 5,000 soldiers on September 15th. For the past year, Christian and Muslim militiamen have been fighting after the Muslim forces staged a coup and briefly retained power of the CAR government. The resolution cites a number of human rights violations both groups committed, including killings, torture and sexual violence against women and children. and seeks to identify and prosecute specific perpetrators.

Citigroup under federal investigation after disclosure of fraudulent loans in Mexico

The Federal Bureau of Investigation and federal prosecutors have opened a criminal investigation after Citigroup disclosed their discovery of a fraudulent loan in its Mexican subsidiary Banamex. Oceanografía, a Mexican oil services contractor for Mexico’s state-owned Pemex, took out the $400 million loan using false invoices. Authorities are investigating if Citigroup was a victim or an enabler.

US Trade Report Points to US-Korea Tensions Regarding Bilateral Treaty

The annual US Trade Report on trade barriers claims that an allegedly government-funded Korean business group has been restricting the growth of US restaurant chains in South Korea for the past year. The National Commission for Corporate Partnerships (NCCP) gave US chains a choice of opening only 5 branches per year in Korea or opening only in certain geographic zones. The NCCP claims that its funding comes from private business donations, not from the government.

Bipartisan Bill Banning Iran’s United Nations Envoy From Entering The United States Passes Senate Unanimously

The Ted Cruz and Charles Schumer-sponsored bill (I think “A bill sponsored by Senators Ted Cruz and Charles Schumer” sounds better) aims to keep Hamid Aboutalebi, recently appointed United Nations (UN) representative to Iran, from taking his post at the New York UN headquarters. Aboutalebi allegedly belonged to the student group that led the seizure of the US embassy in Tehran in 1979. The US State Department mentioned they have voiced their concerns with the nomination to the Iranian government.

This Week in Review

Goldman Sachs Fined for Price-Fixing

The European Union fined Goldman Sachs and a group of major high-voltage power cable makers $412 million for operating a price-fixing cartel. The move follows a recent $1.3 billion penalty for car-parts manufacturers, and a record $2.34 billion last year for banks that rigged interest-rate benchmarks.

http://www.bloomberg.com/news/2014-04-02/goldman-sachs-to-nexans-fined-by-eu-for-power-cable-cartel.html

World Bank Announces Increase in Lending Ability to Middle-Income Countries

Speaking at the Council on Foreign Relations (CFR) in Washington, World Bank Group President Jim Yong Kim announced that the bank will nearly double its lending to middle-income countries, from $15 billion to a maximum of $28 billion, increasing its lending capacity to $300 billion over the next ten years.

http://www.worldbank.org/en/news/press-release/2014/04/01/world-president-100-billion-increase-lending-poverty

Middle East Peace Talks in Crisis

Palestinian officials have submitted letters of accession to fifteen international conventions and treaties, complicating the Obama administration’s Middle East peace negotiation efforts. The move follows the Palestinian Authority announcement that it will unilaterally seek further UN recognition unless Israel agrees to release Palestinian prisoners.

http://www.reuters.com/article/2014/04/02/us-palestinian-israel-usa-idUSBREA301ZE20140402

Samsung Chairman Ordered to Appear in India Case

India’s Supreme Court ordered Samsung Group’s Chairman Lee Kun-Hee to appear before judges in a dispute over a $1.4 million payment. The dispute stems from a complaint by an Indian consultancy firm that a Samsung subsidiary in Dubai failed to make the payment. If found guilty, Mr. Lee could face two years in prison and fines.

http://online.wsj.com/news/articles/SB10001424052702303847804579476810891801186?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052702303847804579476810891801186.html 

UNCTD Hosts Meeting on Green Economy

The second meeting on green economy and trade will be held at the Palais des Nations April 3-4. The meeting, organized by United Nations Conference on Trade and Development, will address issues related to the use and effects of trade remedies on renewable energy goods

http://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=716&Sitemap_x0020_Taxonomy=UNCTAD%20Home;#1865;%23Green%20Economy;%231637;%23Trade,%20Environment%20and%20Development;%231385;%23International%20Trade%20and%20Commodities

This Week in Review

NATO Chief: Crimea a “Wake Up Call”

NATO Secretary General Rasmussen said NATO is concerned by Russia’s annexation of Crimea and wary Russia might also invade eastern Ukraine. Rasmussen described Russia as increasingly aggressive and land-hungry, and said two NATO surveillance planes have begun flying over Poland and Romania to help the two countries better monitor their airspace and borders.

Push for Reform in War Reparation Law

Alain Monteagle and his family have launched an “unprecedented” effort to amend Swiss law and compel the restitution of a John Constable painting taken from their home in Nice, France during World War II. It hangs in the Musée des Beaux-Arts, where museum administrators acknowledge the painting was looted. The Monteagle family has already recovered eight other looted paintings from a private owner and museums, including the Louvre and the Kimbell Art Museum in Fort Worth.

African Court on Human and Peoples’ Rights to Hear Freedom of Expression Trial

Starting March 20, the case Lohé Issa Konaté v. Burkina Faso will take up the alleged violation of Mr Konaté’s rights under Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights. Courts in Burkina Faso convicted Mr Konaté, Chief Editor of the weekly newspaper L’Ouragan, for defamation, public insult, and insulting a magistrate due to two articles he published in his paper in August 2012.

Jamaican Aid for Crime Reduction

The World Bank announced a new, $42 million initiative to improve services and crime prevention in Jamaican urban centers. The effort is part of a collaboration with the Kenyan government to counter rising homicide and youth unemployment rates. In Kingston, poverty doubled from seven percent in 2008 to more than fourteen percent in 2010.

Japan Trade Deficit Greater than Expected

The news comes just before the start of a scheduled April sales-tax increase that likely will affect domestic demand. The $7.9 million trade deficit reflects an increase in imports by nine percent, while exports rose approximately ten percent.