Opinio Juris

[1] Even the most ‘absolutist’ or tyrannical sovereigns have understood themselves to be both responsible and answerable to someone or something –Hitler to future Aryan historians, the Stuarts to God…. Some contemporary thinkers like John Rawls argue that the crucial and sufficient check on political power, both internally and externally, is juridical law: the rule of constitutional or public law domestically, the rule of international law internationally, is sufficient to ensure the just exercise of sovereign power. One of the many things about such positions that I find troubling … is that international law and international institutions are frequently expected to play an overarching political and moral role as political and moral ‘overseers’, one that far exceeds claims made in the name of Christendom by the most … absolutist of Popes.

[2] Augustine has things to say, of course, about the governance of emperors and princes, etc.... His interest lies always, however, with the ‘rightness’ of their rule and not with the mechanics of it. He offers no theory of how to rule because no human model of politics can be normative. The normative model is the City of God. All earthly cities are deficient in their administration of justice…. If we must use the word in the context of Augustine’s theology, the only thing to say is that there is no ‘rightness’ (iustitia) in earthly sovereignty. Robber kings may have disciplines of peace that enable their kingdoms to function cooperatively. The role of the Church is to teach what is and is not praiseworthy against the model of the City of God….

[3] Internal sovereignty does not give states the freedom to act toward their own citizens in whatever way they choose, nor does external sovereignty mean that states abusive toward their own citizens are immune from interference by outside agents. Both forms of independence are challenged by the notions of “sovereignty as responsibility’ and by its corollary, the “responsibility to protect.” These responsibilities also challenge the notion that states have duties only toward the well being of their own citizens. Responsibility reaches across borders.

[4] Responsibility must be taken within a country for the overall discharge of the proper tasks of government in that country …. [But] responsibility [also] must be taken for the overall discharge of the proper tasks of governance in the world at large, including governing relations between the entities that are taking responsibility for discharging the proper tasks of government in each particular country.

[5] Perhaps one of the reasons it is difficult to think of international institutions having attributes of sovereignty is that they rarely impose duties on individuals. It is difficult to render unto Caesar that which is Caesar’s if the emperor never asks for anything…. Even the granting of rights is not commonly among the delegated duties assigned to international institutions…. The idea of international institutions “governing over us” by conferring rights does not resonate with the general public…. So if international institutions do not impose duties or guarantee rights, what do they do that is “sovereign”? The answer, if there is one, is that they perform sovereign functions. The best way to think of international institutions is that they are entities that “we the people” through our governments delegate tasks that cannot be achieved without international coordination.

[6] Few would now question the responsibility of governments to their citizens in terms of the basic rights and opportunities…. A government that fails in these purposes lacks legitimacy, and its sovereign authority is clearly at risk from a people whose obedience it can no longer claim as a matter of right. With respect to internal sovereignty, we appear to have gradually returned from the unquestioned sovereignty of Hobbes to the kind of de facto sovereignty that Thomas Aquinas conferred on tyrannical princes. Obedience is due as long as the ruler is oriented to the common good. Where that orientation is lacking, obedience rests on a calculation of relative costs and benefits.

[7] Theories of absolute sovereignty and theories of international law limiting it to the positive agreements or practices of states have supported the unrestricted use of force. The primary scholarly response to such theories has been to argue, in line with Augustine and Aquinas, that all human action must be subject to higher principle. One of the fundamental reasons behind the evolution of legal systems in communities was the desire to subject force, both military and individual, to law. Law exists wherever human beings strive to live together in peace and this is true of the international community as of any national or local community. Certain limited use of force for the enforcement of the law is consistent with a well-functioning legal system; force to promote the ambitions of leaders free of legal restraint is not. Thus, the history of ideas about enforcement in international law is blended with this teaching of restraint on the use of force and the superiority of law to leadership.

Because the Court lacks a quorum, 28 U.S.C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. § 2109, which provides that under these circumstances the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court. The Chief Justice, Justice Kennedy, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

In 1986, while the U.S.-Canada Convention was in force, Congress amended the AMT imposed on noncorporate taxpayers by section 55 and added section 59 to the Code.... [Thereafter] the U.S.-Canada Convention was amended.... The revised Protocol Amending the Convention... made changes to Article XXIV affecting credits for Social Security tax, corporate tax exemptions, and the tax treatment of dividends, interest, and royalties,... but did not alter the general rule found in article XXIV, paragraph 1. Neither the Third nor the Fourth Protocol references section 59 [the earlier conflicting statutory provision].

It is well established that, where a statute and a treaty pertain to the same subject matter, they must be read so as to give effect to both if at all possible.... If, however, the statute and the treaty conflict, the last-in-time rule requires that “the last expression of the sovereign will ... [controls].”...

Applying the last-in-time rule, we hold that section 59(a)(2) is the last expression of the sovereign will and that it takes precedence over the U.S.-Canada Convention to the extent there is a conflict between them. [The statute] makes it very clear that Congress intended the limitation of section 59(a)(2) to supersede existing treaty provisions prohibiting double taxation. The U.S.-Canada Convention was one of those treaties. Neither the Third nor the Fourth Protocol contains any provision clearly indicating that Congress's intention to ensure that taxpayers with sufficient means should contribute a minimum amount of tax to the United States had been superseded.

[O]ne question that interests me but is a little divorced from the terms of the arguments so far. I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply. They suggest that as a matter of international law, there's sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It's kind of a one-way rachet, we look at trends in one direction but we don't look to see if you suddenly have changed gears and go in the other direction. Could you just comment on that argument?... I just use[] that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a — one way direction in which these cases go. Do you think it's appropriate — are you aware of any case saying we can turn around and go in another direction?

International authorities have long agreed that nations that retain the death penalty must refrain from expanding the death penalty to crimes to which it currenlty does not apply--a principle that has been codified in a regional convention and reaffirmed by the jurisprudence of human rights bodies. There is an equally strong global consensus that nations should gradually narrow the categories of offenses for which the death penalty may be imposed.

158. It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB….

160. Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system … implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.

161. In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play…. The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU….

162. We are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel's approach has serious implications for the proper functioning of the WTO dispute settlement system ….

You really, really should follow prior Appellate Body decisions. It would be quite bad for the system if you do not. But if you've got what you think are compelling reasons for not doing so, we understand if you feel you have to go your own way. Bearing in mind, of course, that if you do, we will almost certainly reverse you on appeal. You may think your reasons are pretty good, but if they were really that persuasive we would have gone that way ourselves, hence they are not, in fact, "cogent".

This course introduces students to core principles of public and private international law, comparative law, foreign law, cross-border legal process and deal-making, transboundary dispute resolution, and elements of U.S. law that have international effect.

The overall goal of a first year Transnational Law course is to introduce students, early in their legal education, to the effects of globalization on the formulation, content, and practice of law and regulation in the modern world. Such a course will also usefully serve to place more traditional domestic law offerings into a larger legal context and thereby broaden our students' vantage points on existing courses. We think the Transnational Law course would be an excellent small section writing course, especially with our cadre of expert international law faculty. The opportunity not only to interpret, reason about, and study the methodology of transnational law, but also to write extensively in the area, promises to distinguish our first year course from those being inaugurated at other schools.

The plaintiffs in this case allege they were injured as a result of an accident that occurred on an up escalator as they exited an area the parties describe as a “bus depot,” located one level below Main Concourse E at the airport, when Mrs. Ferguson, Mrs. Deleveaux's eighty-eight-year-old mother, apparently fell backward onto both Ms. Bowe and Mrs. Deleveaux, resulting in all three suffering personal injuries. The complaint alleges the defendants were negligent by failing to fulfill a request for wheelchair assistance made for Mrs. Ferguson, which caused the plaintiffs to fend for themselves and hence, the escalator accident.

The record reflects the accident in this case occurred on July 29, 2001. Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson had just arrived in Miami on an American Eagle commuter aircraft from Nassau. The aircraft arrived at a freestanding building, separate from the main concourse. In accordance with practice for aircraft arriving at that location, Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson departed the aircraft and boarded an American Airlines bus for the short trip to the main terminal. The bus brought them to the bus depot. Although it appears from the record the bus depot is served by two escalators and an elevator, at best the record is murky concerning ingress, egress, and the extent to which the general passenger populace on the concourses is free to enter the depot area….

The preemptive effect of the Convention on local law extends no further than the Convention's own substantive scope. In this regard, it is clear from the text of the Convention it applies only to a “carrier.” Warsaw Convention, art. 17. In addition, the Convention applies only to injuries occurring either on board an aircraft or “in the course of any operations of embarking or disembarking.” Warsaw Convention, art. 17. These requirements constitute the initial inquiries we must make to determine whether the Convention is applicable to the claims being made and those we must consider here….

The Warsaw Convention also does not define or elucidate upon the phrase “operations of embarking or disembarking.” See Warsaw Convention, art. 17. However, it is clear the term does not automatically exclude events transpiring, as is the case here, within an airline terminal building. Rather than impose location-based or other rigid criteria to delimit these periods of liability under the Warsaw Convention, courts employ a three-prong test or guide to determine whether a passenger is entitled to seek the benefits of the Convention by considering: (1) the passenger's activity at the time of the accident; (2) the passenger's whereabouts at the time of the accident; and (3) the amount of control being exercised by the carrier at the time of the injury. In addition, when considering these factors, these same courts have made clear that no single factor is dispositive. Instead, “the three factors form a ‘single, unitary [analytical] base.'"

A relatively straight line runs from the positions on the ICC taken by our Congress in 1990, to those of U.S. negotiators in Rome, to President Clinton’s decision not to seek Senate ratification of the Rome Statute and to recommend the same to his successor, and to the current position of the Bush Administration.

Even if a future President were to advocate U.S. accession to the Rome Statute, he or she could very well face a skeptical reaction in the U.S. Senate. It’s worth bearing in mind that the American Servicemembers’ Protection Act – legislation that was not sought by the Bush Administration and that includes a range of restrictions on U.S. support for the ICC – passed the Senate in 2002 by a vote of 75-19, including the affirmative votes of Senators Clinton and McCain, as well as those of the current Senate Majority and Minority Leaders, Senators Reid and McConnell.

The core concerns of the United States about the Rome Statute have not been resolved during the past decade, and are unlikely to be resolved in the next decade, unless the Statute is changed. Accordingly, as we look forward, the United States will very likely remain outside the Rome Statute regime. This is a reality that ICC supporters should accept. Agreeing to disagree about the ICC is the essential first step toward developing a more mature and productive relationship that can effectively advance our shared goal of promoting international criminal justice. This will involve seizing opportunities for cooperative efforts where they exist and avoiding pitfalls that risk reigniting past tensions. We should be guided in our efforts by the premise that the ends we seek are far more important than the means by which we seek them. The United States and ICC supporters can do more to prevent impunity for serious crimes by working together than either can achieve on their own, and it is in our mutual interest to develop a relationship that recognizes this.

It is important that we put aside our differences on these issues because the next decade poses challenges that will require our collective efforts as well as pitfalls that risk further inflaming tensions over ICC issues. Let me now discuss a few issues that I think will shape the relationship between the United States and the ICC in the coming years.

A first area relates to the response to large scale and horrific crimes in Darfur. Absent a decision by the ICC to pursue an investigation or prosecution against a U.S. person, the outcome of the ICC’s Darfur work is likely to do more than any other factor in the near term to shape U.S. perceptions of the role and impact of the ICC…. Darfur is … a good example of an area where, with respect and goodwill on all sides, there may be opportunities for constructive cooperation….

A second more general area that will shape U.S. views and policy toward the ICC in the coming years will be the impact of the ICC’s work on the UN Security Council…. Now that the ICC is a reality, it will be important to the United States to ensure that the work of the ICC complements the work of the Council to maintain international peace and security…. As the ICC proceeds to investigate and prosecute cases under the Rome Statute, the Security Council must be prepared to act if and when necessary to ensure harmony between the ICC’s work and the Council’s broader efforts....

A final area that will shape U.S. views and policy toward the ICC is the outcome of the upcoming Rome Statute review conference, now scheduled for 2010. If Rome Statute parties were interested in trying to address the core U.S. concerns about the ICC, the Review Conference could provide an opportunity to do so. These issues aside, a principal focus of work of the conference will likely relate to proposals to define a crime of aggression over which the ICC could exercise jurisdiction…. Efforts to design an aggression regime for the ICC will also need to address the regime’s applicability to countries that are not parties to the Rome Statute. As I have noted, a core principle of our ICC policy is that, as we acknowledge the decisions of other states to join the Rome Statute and to submit to its jurisdiction, we ask that other states accept our decision not to do so. In this context, should Rome Statute parties seek to make an aggression regime they adopt applicable to non-parties, they will almost certainly provoke a serious new crisis in the ICC’s relationship with a new U.S. Administration.

One has a nagging suspicion that human rights litigation against corporations is a proxy fight in which the accomplice is pursued while the principal evades punishment. Indeed, if a corporation is accused of "aiding and abetting" human rights abuses, this is all but a concession that the corporate actor is not the principal wrongdoer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about corporate abuse of power. But more likely it reflects an abiding frustration that the primary perpetrators-sovereigns-are beyond the reach of most victims. If victims cannot pursue claims against the principal, they will resign themselves to pursue claims against those who aid and abet.

How have we come to this state of affairs, in which the corporation is pursued while the sovereign evades punishment? Why should the corporate accomplice alone be found liable if the sovereign is the primary malfeasor? For the first time in scholarly literature, this Article suggests an alternative approach, a solution to this conundrum. It suggests that corporations have existing tools to remedy the situation, drawing on principles derived from human rights, contract law, and arbitration. The essential idea is that if a corporation is found liable for aiding and abetting human rights abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not pursue the sovereign, there is no impediment for a corporation that is found liable to pursue the sovereign in arbitration to secure its share of liability, either in the form of contribution or indemnification. In short, human rights litigation against the corporation could lead to "who pays" arbitration against the sovereign….

The purpose of this Article is not to affirm or disaffirm this trend of holding corporations liable under international law. Rather its purpose is to recognize an observable trend in human rights litigation patterns and consider its ramifications. If corporations increasingly are subject to international responsibility, then this portends new avenues for holding sovereigns responsible for their share of the liability….

Human rights litigation followed by "who pays" arbitration is a two-step process that overcomes the traditional immunity that sovereigns enjoy in human rights litigation. Thus far, human rights litigants have attempted to scale an impregnable wall of sovereign immunity by relying on awkward FSIA tools such as commercial activity or implied waivers. But corporations have no such difficulties. They can invoke provisions in their contracts that were specifically drafted to fulfill the relatively straightforward FSIA exceptions of express waiver and arbitration. Corporations typically cannot implead and crossclaim against the sovereign in the underlying litigation. But they can do the next best thing by arbitrating the question of who pays for the human rights abuses. Effectively, the arbitration procedure operates as a second-tier cross-claim by one malfeasor against the other.

What is particularly important about this paradigm shift is that heretofore human rights abuse has been a relatively cost-free enterprise for perpetrators, particularly sovereigns…. But with corporate liability that equation changes dramatically. To use Guido Calabresi's scheme of cost avoidance, monetary incentives are placed on corporations to change their conduct so as to reduce the number and severity of human rights violations…. And by imposing a cost on corporations that aid and abet sovereign abuse, those corporations will become cost avoiders…. Holding corporations liable and then arbitrating who pays is a mechanism of imposing costs and then spreading the costs, resulting in the corporation and the sovereign becoming cost avoiders. By imposing and spreading costs to the secondary and primary perpetrators, greater fairness between the malfeasors is achieved and deterrence from human rights abuse is enhanced. Contractual arbitration between the corporation and the sovereign over who pays transfers costs imposed on the corporation and creates shared incentives to implement and enforce human rights obligations.