[Joost Pauwelyn is Professor of Law at Duke Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at the International Economic Law and Policy Blog]



“Noncompliance is necessary to the effective functioning and the continued relevance of the international legal system”. That is Jacob Cogan’s main thesis. Applied to the United States – for whose State Department Cogan used to work – it translates as follows: “international lawyers should acknowledge … the special responsibilities of the powerful in shaping and enforcing international law and not just abiding by it”.



Cogan goes both too far and not far enough. He goes too far by underestimating the flexibilities and exit options that exist within the system of international law. Indeed, most of the examples he gives of “operational noncompliance” are not breach or noncompliance at all. Cogan’s two core reasons for “operational noncompliance” are: (i) the difficulty of adapting international law to “changing community politics”, thus “civil disobedience” or noncompliance to “update” international law must be tolerated; (ii) the absence of effective enforcement of international law by a “community mechanism of control”, thus “vigilantism” or noncompliance to give effect to international law must be tolerated, even promoted.



Yet, the fact that antiquated custom can be changed by deviating state practice (Cogan’s first example of “operational noncompliance”) and the fact that most international law is enforced by self-help or countermeasures (Cogan’s second example of “operational noncompliance”) are proof of the flexibility inherent in international law; not proof that noncompliance with international law is needed because of its rigidity or defects. Put differently, countermeasures (including, according to many, collective countermeasures) are fully legal within the system of international law; there is no need to go outside the system. Equally, the fluidity of custom, based as it is on state practice, enables and inherently permits gradual changes; there is no need to go outside the system. This may mean that international law is too flexible (custom is inherently unstable, enforcement is primitive and rules, even those on the use of force, are vague and subject to contrasting interpretations); it offers no excuse for what are genuine acts of noncompliance (Cogan himself refers to the use of force in Kosovo and may have in mind also the US invasion of Iraq).



This may be a matter of semantics: What I see as flexibilities and exit options perfectly permitted and accepted within international law, Cogan defines as “noncompliance” (mainly because his benchmark is domestic law). To that extent, Cogan is absolutely right to stress the importance of flexibility and exit options in international law. Even in the WTO, harder law is not always better law. For international law to attract participation, support and legitimacy (“voice”) it needs to provide balancing flexibilities (“exit”).



At the same time, Cogan does not go far enough. He simple takes it for granted that ideally “compliance” should always be the goal, if only international law had the enforcement tools to get there. As much as he criticizes the traditionalists’ view that “compliance is sacrosanct”, he ultimately supports their prescriptive or normative goal: “compliance, of course, is and should be the norm … otherwise what does it mean to be a law? … Nor is there doubt that many, if not most, instances of operational noncompliance are unlawful and undesirable”. But that is exactly the problem. Even domestic law does not require “compliance” (broadly defined as Cogan does) or “specific performance” of all of its rules. Domestic law comes in degrees (think of contracts, statutes and constitutions) and is protected and enforced at various levels (think of liability rules, property rules and inalienability; compensation, fines and imprisonment). International law should be no different. Yes, as Cogan argues, international law must give up the “myth” that “compliance is sacrosanct”, that international law must always be complied with, if not, it risks not being law. But it must give up this “myth”, not because of its weaknesses or defects, but because the same happens in any legal system, without claims being raised there that, as a result, US law, for example, is not “law”.



Put differently, the choice is not a binary one, as Cogan seems to think, between compliance and noncompliance, abiding by the law and civil disobedience or vigilantism, between “real law” and “international law”. Rather, it is a choice between varying degrees of normativity, different levels of protection and enforcement of different types of norms, of marrying flexibility and commitment within the law.



As international law matures, it must, indeed, give up the myth of “harder law is better law” and “compliance is sacrosanct” not to replace it with non-law or noncompliance, but with a calibrated system of law where some norms are, for example, best and most effectively protected by a property rule (most treaties), others by a liability rule (some economic and environmental obligations), yet others as inalienable (many human rights).

[Jacob Cogan is Assitant Professor of Law at the University of Cincinnati and a contributor to the Opinio Juris On-line Symposium]



My thanks to Professor Joost Pauwelyn for his thoughtful comments, to Opinio Juris for inviting me to participate in this online symposium, and to the Yale Journal of International Law for publishing my essay on Noncompliance and the International Rule of Law.



In the essay, I argue that noncompliance is a necessary component of the international legal system. In so doing, I take issue with the majority view of international lawyers, “who, well aware of the weaknesses of the international legal system and eager to bolster the international rule of law and its substantive legal prescriptions, are inclined . . . to take a reflexively hard line with noncompliant acts.” The essay’s particular focus is on “operational noncompliance,” or “noncompliance that keeps a partially effective system, such as international law, operational by reconciling formal legal prescriptions with changing community policies or by bridging the enforcement gap created by inadequate community mechanisms of control.” I acknowledge that there are other forms of noncompliance that may be beneficial, but I do not consider them at length.



Professor Pauwelyn first claims that I go “too far by underestimating the flexibilities and exit options that exist within the system of international law.” What I describe as noncompliance, he sees as “flexibilities and exit options perfectly permitted and accepted within international law.” I wish more people thought along those lines, and I wish it were that international law were more like what Professor Pauwelyn describes. Unfortunately, international law and international legal scholars appear to be trending the opposite direction, and this is precisely the lament of my essay. The law regarding countermeasures – at least if one assumes the International Law Commission’s Draft Articles on State Responsibility as a benchmark – is not flexible but restrictive. And the idea that custom might be changed by violation is now widely condemned. As Brigitte Stern wrote a few years ago, “the deficiencies of international law are no excuse for its violation.” Thus, while international law certainly has some flexibilities, I think Professor Pauwelyn overestimates them (which leads him to conclude that I underestimate them).



Professor Pauwelyn’s second claim is that I don’t “go far enough” because I “take[] it for granted that ideally ‘compliance’ should always be the goal.” Here he notes that “[d]omestic law comes in degrees (think of contracts, statutes and constitutions) and is protected and enforced at various levels (think of liability rules, property rules and inalienability; compensation, fines and imprisonment).” But even domestic law divides the world dichotomously between violation, breach, and guilt (that is, whether an act is in accordance with one’s obligations, be they public or private, and not otherwise excused) and the consequences that result therefrom. In most legal systems, compliance is the goal, and indeed that is the myth that sustains the law. What varies is how legal systems treat noncompliance. There is a difference, in other words, between the idealized goal and whether and how that goal is enforced. I see it as no vice, then, to suggest that compliance should be the norm, so long as one doesn’t assume that norms are sacrosanct, that acts that violate norms are per se illegal, or that illegal acts should always be condemned. Because the international legal system is only partially effective, we should be particularly aware of and acknowledge “the key role operational noncompliance plays in maintaining the efficiency and relevance of the international legal system.” (This doesn’t make international law any less “real law,” which contrary view Professor Pauwelyn mistakenly attributes to me.) Far from binary thinking, this approach recognizes the complex ways in which we should appraise acts, including formally illegal acts, in international law.

[Gregory Gordon is Assistant Professor of Law at the University of North Dakota Law School and a conbributor to the Opinio Juris On-Line Symposium]



I think Professor Mark Drumbl’s perceptive comments highlight some of the serious tensions underlying the creation of an inclusive, internally coherent international due process that dispenses justice efficiently while upholding the human rights principles on which it is premised. By no means do I think the United States criminal procedure model, or the adversarial model in general, is without flaws (other systems tend to protect speedy trial rights more effectively, for example). But as observed by Professors Cassese and Zappalà, the adversarial system is designed to be more rights protective than the inquisitorial model. It also tends to be more rights protective than the traditional forms of indigenous justice, such as gacaca, referred to by Professor Drumbl.



But Professor Drumbl questions whether a system offering the highest levels of due process, as arguably embodied in the adversarial system, “should be the normative baseline in terms of its suitability for redressing atrocity.” He fears it might not, given its alien character and its imposition of “externalized justice” on victim societies. While I appreciate Professor Drumbl’s concerns for cultural authenticity and local integration, I would point out that mass victim societies are often trapped in cycles of violence that have culminated in atrocity and will likely perpetuate themselves absent external intervention. Part of that intervention, I submit, involves instituting systems of justice that respect the dignity of all human beings and heightened levels of due process for atrocity defendants are an integral part of that. In any event, such standards are not necessarily “alien.” Most of them are embodied in the International Covenant on Civil and Political Rights, to which most of the nations of the world are parties.



While it is true that the ICCPR does not include all of the due process rights to which I allude in my article, I advocate for a process of “hybridization.” The right to a jury trial, which incorporates notions of local peer review that Professor Drumbl seems to prefer, is a perfect example. Appropriately modified, it could be suitable (or indeed preferable) for international criminal adjudication. In this sense, I could not agree more with Professor Drumbl’s calls for incorporation of indigenous and traditional systems of justice into the international model.



I would caution, however, that to the extent the wells of traditional, indigenous justice have been poisoned by a culture of impunity, we should always keep our focus on the due process features mandated by bedrock principles of human rights. In my article, I point out that experts have generally classified justice systems into three separate categories: domestic legal justice, international criminal justice, and “hybrid” criminal justice, a term used to describe newly emerging forms of mixed national-international criminal adjudication as found in, for example, the Sierra Leone and proposed Cambodia tribunals. As specific domestic structures are grafted onto “hybrid” criminal procedure, my article does not include analysis of them within its scope. For purposes of my article, the term “international criminal procedure” is meant to encompass the rules developed by truly international courts (i.e., in addition to having multinational traits, not being moored to one specific domestic tradition), including the International Military Tribunal at Nuremberg, the ad hoc tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court.



While Professor Drumbl’s suggestions are clearly essential in considering the appropriate scope and nature of “hybrid” criminal justice, they may not always be suitable for “international” criminal justice. The latter is geared more toward the prosecution of “big fish” and is often better suited for adjudication outside the immediate zone of the crime scene. In that regard, the removal of Charles Taylor’s trial to the Hague is illustrative. The alternate sanctioning mechanisms suggested by Professor Drumbl – such as restitution, community service, re-integrative shaming, and reparations – may be appropriate for the legions of foot soldiers that will return to post-conflict society, but I submit they will not do for the Adolph Hitlers and the Théoneste Bagosoras. For such architects of genocide, I believe we should reject diluted “modalities of accountability that transcend the criminal trial” and eschew any proposals that dispense with “the correctional preference for sequestered incarceration.” And with respect to such criminal masterminds, in war-torn countries such as post-Nazi Germany or post-Interahamwe Rwanda, I submit that there can be no peace without justice.



By the same token, “local bottom-up justice approaches,” even for the foot soldiers, could lead to the Orwellian excesses of the Military Commissions Act of 2006 (MCA), which Professor Drumbl rightly condemns as inconsistent with the system of due process that governs penal adjudication in the United States. The MCA, which does away with such fundamental protections as habeas corpus, has created a no-man’s land of adjudication that adheres neither to the criminal nor to the traditional military paradigm of justice. We should be careful not to condemn atrocity adjudication in post-conflict societies to the same kind of twilight zone. In that sense, meaningful and robust due process is essential.



That said, we must, as Professor Drumbl persuasively argues, find ways to incorporate the best due process features of the different and varying indigenous systems into the international model. His wise suggestions will surely be part of molding the world’s disparate systems into an effective, inclusive, and lasting international criminal procedure.

[Mark Drumbl is the Class of 1975 Alumni Professor of Law at Washington & Lee Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at AIDP Blog.]



In Toward an International Criminal Procedure: Due Process Aspirations and Limitations, Professor Gregory Gordon inquires why international criminal procedure “has failed to achieve the level of due process offered by the most rights-protective countries, such as the United States.” He posits that a number of factors explain this perceived due process shortfall. Factors include the need to harmonize civil law and common law methodologies, the sheer gravity of the crimes being prosecuted, and fragmentation of enforcement. Prof. Gordon concludes that, despite the importance of due process, there are many obstacles to its full actualization in international criminal procedure.



Might Prof. Gordon overestimate the amplitude of due process in domestic criminal proceedings in the United States? Frankly, I’m not convinced of the proposition that “[i]n the United States [*] first-degree murderers get a fair shake at every stage of criminal proceedings * in capital cases the system bends over backwards to extend every due process consideration possible.” It is unclear whether, in ordinary criminal cases, the U.S. actually offers such a deeply “rights-protective” criminal prosecution and sentencing system. The assumption of rights-protection becomes even more frail when one compares the treatment the U.S. accords to defendants who more closely resemble the types of defendants in which international criminal tribunals claim an interest: those pariahs who stand accused of atrocity crimes (in which I would include suspects associated with the 9/11 attacks and subsequent wide-scale terrorist attacks against civilian populations). How much due process does the U.S. presently accord to such suspects, including persons currently detained at Guantanamo? Very little. Were it not for the Hamdan judgment, and its extension of the barebones of Common Article 3 to the non-international conflict against al-Qaeda, hardly any at all. The barebones of CA3, and the due process provisions of the Military Commissions Act (which just survived scrutiny by the D.C. Court of Appeals), look pretty skimpy when compared to the rights-protection provided by international criminal procedure. Furthermore, the U.S. Regime Crimes Liaison Office strongly backed the Iraqi High Tribunal, whose level of due process falls short of that of international institutions and which, just a few months ago, conducted grisly executions.



The content of a truly international criminal procedure should extend beyond the technical integration of “common law” and “civil law.” There is much more out there. Prof. Gordon speaks of the need to integrate rules into a cohesive system that will satisfy all concerned. He is absolutely correct. But what about the people who actually live in the societies whose atrocities have become judicialized? Are they satisfied by harmonization among “civil law” and “common law” criminal procedure methodologies? Do they care that the ICC’s pretrial procedure is largely born of the civil law and trial procedure of the common law? As I contend in my forthcoming book, Atrocity, Punishment, and International Law, a pressing challenge for international criminal procedure is for it to come to terms with modalities of accountability that transcend the criminal trial and correctional preference for sequestered incarceration. These alternate modalities often have greater meaning to people actually living in post-conflict societies. Such modalities include local bottom-up justice approaches * with their attendant benefits and inequities * such as mato oput in Uganda, biti bot in Timor-Leste, and gacaca in Rwanda. Another challenge for international criminal procedure is for it to engage with alternate sanctioning mechanisms such as restitution, community service, reintegrative shaming, and reparations. To the extent that international lawyers can move beyond Western liberal legalism, of which both civil law and common law criminal procedure are variants, they can better actualize a truly cosmopolitan vision of justice.



By taking common law adversarialism as the normative baseline, it seems inevitable that other methods of justice will fall short. Prof. Gordon’s position would be strengthened by a more fulsome justification why common law adversarialism, contoured by due process rights, actually should be the normative baseline in terms of its suitability for redressing atrocity. Prof. Gordon also might consider more robustly why certain entitlements that he rues are missing from international criminal process, such as juries, necessarily protect the due process rights of defendants accused of genocide, war crimes, and crimes against humanity.



In all likelihood, due process serves certain expressive purposes. It protects the dignity of those doing the prosecuting and lends authoritativeness to the judicial record. Expressivism is probably the most plausible justification for international criminal punishment. It is more plausible than deterrence or retribution. But too much due process, particularly in cultural contexts where such process may be perceived as alien, also may generate credibility concerns. Distant courtroom trials may lead to an externalization of justice from the communities whose tragedies are being adjudicated. What is neutral to international lawyers may seem partisan to victim communities.



Prof. Gordon is wise to underscore that “international criminal procedure will have to forge its own identity.” That is a valuable learning lesson from his impressive work. He offers a sophisticated analysis of the interface between common law and civil law methodologies. However, I do hope some space is created in this integrative process for international criminal procedure to engage in a truly comparative, and cross-cultural, interface with socio-legal systems outside of Western traditions.

[Sean Murphy is Professor of Law at George Washington University Law School and a discussant in the Opinio Juris On-Line Symposium]



For decades now, the global community has recognized that the proliferation of weapons of mass destruction (WMD) and their delivery systems constitutes a major threat to international peace and security. Since the attacks of 9/11, there is broad recognition that the threat is compounded by the possibility of terrorists acquiring and using WMD. If one contemplates the extraordinary events that were unleashed by the attacks of 9/11—wars, detentions without trial, reorganization of national governments and laws—and then considers that such attacks might someday occur using WMD, it takes little imagination to see that the entire foundation of international law and order might be shaken in a flash, accelerating change in directions that may or may not be optimal.



International lawyers must play a role in avoiding any such Armageddon, by assisting policy-makers in identifying effective strategies for preventing proliferation of WMD. In his paper “The Legislator of Last Resort,” Vik Kanwar tackles this problem by focusing on the role of the Security Council in handling the proliferation of WMD, a topic most salient given last week’s Security Council Resolution 1747 (Mar. 24, 2007) on Iran.



About half of the paper is devoted to explaining the sources of the Security Council’s power in this area, which arise not just from the express and implied powers anchored in the U.N. Charter, but also from multilateral treaty regimes relating to WMD that envisage a role for the Council in monitoring and enforcing compliance with the regime. Another third of the paper sets forth the principal course of action typically taken by the Council when confronting proliferation threats, which Kanwar breaks down into a four-level process: (1) referral/provisional measures; (2) promotion of negotiation/declaration/censure; (3) economic sanctions; and (4) the use of force. There is value in these sections of the paper in that Kanwar is exclusively focused on the nexus of WMD and the Security Council, and those unfamiliar with that nexus will benefit from his overview and insights. Thus, Kanwar usefully reminds us of important interplay among the relevant actors, such as having the IAEA as a relatively “neutral” organization for identifying a threat, which can then be referred to the “less-neutral” but more powerful Security Council to address it (pp. 17-18).



For those familiar with the Security Council and its conduct relating to WMD, however, the first part of the paper will not be new, and there are several statements that would likely elicit objection. Thus, most commentators would not characterize Chapter VI of the Charter as containing provisions on collective security (p. 3), nor view the Security Council as having “exclusive” powers (as opposed to “primary responsibility”) in determining violations of international peace and security (p. 4), nor accept that legal disputes over the meaning of the U.N. Charter should generally be referred to the International Court of Justice (p. 13), since non-adjudicatory dispute resolution is (and should be) the far more dominant approach. Likewise, the characterization of “censure” or “provisional measures” as being within the province of Chapter VI, while economic sanctions and the use of force are the province of Chapter VII (p. 20), does not comport with the terms of, or practice, under the Charter. Perhaps most striking is the assertion that Chapter VII sanctions have never been applied to a non-proliferation crisis(p. 21), since most observers would likely view Security Council Resolution 687 (imposing economic sanctions on Iraq pending the destruction, removal or rendering harmless of WMD) as just that. And though the organization and writing of the paper are fairly clear, some parts are hard to follow, such as: “Key findings failures and breaches will oblige the board triggering sending the matter referral to the UN Security Council; this provides objective architecture based on breach of obligations.” (p. 10).



The most intriguing part of the paper comes at the end, where Kanwar argues that the current “unidirectional strategy of censure, sanctions and force” is inadequate. Instead, Kanwar favors more “lateral strategies,” by which is meant Security Council action that seeks to impose constraints broadly upon all states rather than targeting one or miscreants. He lauds various proposals advanced by Mohamed El Baradei, Pierre Goldschmidt, and George Perkovich that would move away from a reactive posture on the part of the Security Council and toward more “creative and durable resolutions aimed at developing long term legal and operational capacity, and supporting the non-proliferation framework” (p. 27). While others have lamented the recent trend by the Security Council to engage in “legislation”—meaning enactment of norms that bind states broadly for broad purposes, rather than targeting a specific threat—Kanwar celebrates the possibilities for getting ahead of the non-proliferation curve and of bolstering existing WMD treaty regimes. Indeed, he sees the possibilities for synergy between the Security Council and multilateral treaty regimes as one means for countering concerns about the legitimacy of Security Council “legislation.”



Perhaps in his future work, Kanwar will wrestle more deeply with problems attendant to this approach. He recognizes that by ramping up Security Council involvement in these multilateral treaty regimes, we should not undercut them (p. 28), but does not explain how that is to be done. If the door is opened, why wouldn’t the major powers use the Security Council to advance their security objectives in situations where multilateral negotiations would be lengthy and perhaps unsuccessful? He recognizes that a “lateral” strategy might end up imposing obligations on states that have always been good citizens, while the rogue states remain recalcitrant, calling into question the utility of the lateral approach (p.29). If so, then why is a lateral strategy superior to a reactive strategy? And if the contemporary problem of proliferation of WMD has been especially aggravated by the threat posed by non-state actors, does a lateral strategy do anything special for addressing that threat? If our concerns on certain weapons (e.g., nuclear weapons) is really focused on just a few states (Iran, North Korea, Pakistan), is a lateral strategy really what is needed or will it distract us from the real threats, or from the real long-term solutions (Mideast Peace, regime change, promotion of democracy)?



These are not easy issues. Vik Kanwar has boldly plunged into an area that is extremely important and should be thought and re-thought by international lawyers in the years to come. As such, his contribution is very welcome.

[Vik Kanwar is a JSD candidate at NYU, a Westerfield Fellow at Loyola New Orleans College of Law and a contributor to the Opinio Juris On-line Symposium]



My sincere thanks to Professor Sean D. Murphy for his careful reading of my paper, for his clear exposition of the challenging context in which it is written, and for confirming in my mind the need for further (and more critical) study on this topic. His comments are especially helpful in separating what might be valuable and worth retaining from what might be either misleading or misconceived. I must also thank the organizers of the Opinio Juris Symposium— particularly Professors Peggy McGuiness and Chris Borgen— for the opportunity to receive these comments in this energetic and increasingly influential forum.



I appreciate both his notes on the finer points of law and the broader brush of policy (his closing suggestion that “wrestle more deeply with problems attendant to this approach”). To better reply to Prof. Murphy’s comments, however, I must begin by (1) explaining the genesis of this project, before proceeding to (2) potential disagreements on law and fact, and (3) his normative challenges to the proposal that the UNSC should pursue “lateral” rather than “reactive” strategies.



Background



The initial research for this paper was completed while I was working at the Center on International Cooperation (CIC) in the Fall of 2005. As the lone lawyer on a policy project entitled “Strengthening Multilateral Approaches to Nuclear and Biological Weapons,” I will admit that the idea that international norms and practices should be developed at a pace “ahead of the non-proliferation curve” began as a background assumption rather than as a legal conclusion. In this light, readers are entitled to be skeptical of the convenient synergy between my particular legal analysis and a broader policy agenda. If academic lawyers set out to perfect a kingdom of means, policy analysts are focused on the attainment of desirable ends through imperfect means, and any collaboration between these disciplines runs the risk of blurring the complex distinctions between different kinds of legitimacy and capacity (e.g. the Security Council “should because it can”). After leaving the project for academia, however, this material sat on the shelf, and I have approached it carefully for two reasons: (1) In light of the above concerns, I needed some critical distance (perhaps even self-critical, in the mode of one of my longtime mentors, David Kennedy). More pragmatically, (2) since the initial research took place in 2005 before the referral of either North Korea or Iran to the Security Council, each SC Resolution has necessitated my removing a section of predictive analysis (sometimes with satisfaction, sometimes with disappointment), and adding to my descriptive account. (As Prof. Murphy notes, I will soon have to take account of Resolution 1747 of Mar. 24, 2007) as well).



At present, there are two versions of this paper: (1) the 30-page “clean draft” (we can call it “LLR1”) is a thumbnail of the policy research and legal analysis from 2005-2006, which has remained relatively untouched since then. This is the one I am presenting to this Symposium and commented on by Prof. Murphy. This version is intentionally skeletal, and though I mention critical perspectives, they are not integrated, but only represented as “balance sheets” of competing values. (2) I have also written a more theoretical 90-page version (“LLR2”) in which I start to develop the critical and theoretical aspects of the paper, and take up more directly some of Prof. Murphy’s concerns. though it has less critical bite and relatively unrevised my decision to present the shorter version, Because of its brevity and adaptability version seems best to revise into a scholarly article and to respect the limits on size of submissions for this Symposium.; this is the version reader should read to follow the pagination of points made by Professor Murphy. I have also posted the longer version at SSRN to amplify some of the points I hope to make eventually, and it is possible that some of the ways I develop these ideas address some of Professor Murphy’s suggestions.



On the finer points (Questions on Legal Characterization):

• In light of Security Council Resolution 687 (Iraq 1991), how can I claim Chapter VII sanctions have never been applied to a non-proliferation crisis (p. 21)? I will concede on this point for a couple of reasons. First, the argument I should have made there was not about Chapter VII, but the application of the “peace and security” mandate to enforce pre-existing treaty obligations of a particular proliferant. Secondly, in light of recent resolutions, neither claim is really sustainable anymore. Moreover, both at the time I wrote LLR1 and in LLR2, I have tended to view the 687 regime as sui generis, but for different reasons. My previous view was that 687 simply imposed a thoroughly traditional disarmament of conventional weapons on a defeated state in an armed conflict, and though it represented a significant stride in the “threat to peace and security” by WMDs, peace and security in “the area” (the region of the Middle East) and did not define proliferation in itself as such a threat. My current view is that an analysis of 687 is absolutely crucial to the study I am undertaking, but precisely because of its unusual structural features: (1) As a “mixed” resolution, adopted under Chapter VII but aimed at the resolution of disputes, including “legal disputes” (others would say it is yet another sub-category of the erosion of the distinction between VI and VII); (2) As a peculiar instance of “law-making,” creating new legal obligations on a particular state by its standing authority (and delegating these to IAEA and USCOM). These points are made briefly but clearly by Jose Alvarez in his new book International Organizations as Law-makers (OUP 2006) at pp. 420-21. I haven’t taken up a case study yet, but I think do think the lessons of 687 deserves attention here.






• How can I characterize Chapter VI of the Charter as containing provisions on of “censure” or “provisional measures (or any collective security aspects), or economic sanctions and the use of force are the province of Chapter VII (p. 20)? When I was setting up the “escalation” model, it was not meant to be a mirror image of the Charter, but the rougher use of “Chapter VI-type” and “Chapter VII-type” language in the narrative of escalation, and these aspects seemed to enter that narrative in an order that did not map onto the Charter. I could make this clearer, though I might have abandoned it altogether in the later draft. In a related point, hybridization of VI and VII is not unusual in practice. Often the SC will no longer identify what Chapter they are acting under in the text of a resolution. This practice (studied ambiguity?) cuts in two ways: (1) a continuing erosion between the two Chapters, but still (2) the continuing performative power of invoking “Chapter VII” for the purposes of an escalation narrative.






• Why do I say Security Council as having “exclusive” powers (as opposed to “primary responsibility”) in determining violations of international peace and security (p. 4)? I concede that this difference in language is important, since “exclusive” leaves out both the GA and states themselves, two controversies I do not wish to take part in. I do wish to go further, however, and say in addition to it being the SC’s “primary responsibility,” it is also the “core mandate.”






• Why do I say that legal disputes over the meaning of the U.N. Charter “should generally” be referred to the International Court of Justice (p. 13), “non-adjudicatory dispute resolution is (and should be) the far more dominant approach”?” I am not sure if this is another disagreement about wording, or the surface of a more substantive difference. When I say these disputes should “generally” be referred by the parties to the International Court of Justice, I am not concerned with the desirability of a “dominant” approach but the “authoritative” approach. This statement arises as a corollary to the Council may interpret the meaning of “dispute” under Chapter VI, which draws a line between its own competence in dispute settlement “situations” and that of the ICJ, and is intended as a paraphrase of Article 36(3) under Chapter VI: “In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.” However, even if I were to change “generally” to “as a general rule” I suspect what accompanies this particular comment is Prof. Murphy’s own normative vision of dispute resolution, which extends to “legal disputes” and even “legal disputes over the meaning of the U.N. Charter.” I would go as far as to say the canons of treaty interpretation or even arbitration agreements have their place, and this probably does dominate practice interpretation of terms, and obligations. In my view, however, disputes over the meaning of the Charter are directed to the ICJ’s competence, not least of all because the Charter must be interpreted not simply as an ordinary treaty, but also as general international law.

The Broader Brush (Objections to Lateral/Legislative Strategies):



Professor Murphy makes some raises some fair concerns challenge my suggestion for lateral strategies, hinting at deeper issues of international jurisprudence and political theory:



Concern 1: While I gesture often to “rule of law” arguments, recognizing a broader scope for the SC’s legislative capacity through doomed to sacrifice existing sources of law (e.g. multilateral treaty regimes). As a general matter, I can’t deny that any margin of deference given to the SC might very well strike the wrong balance. I do hope to resist any suggestion that idea that general statements of the collective good (whether “peace and security” or “salus populi”) should be taken as a higher law than any positive law. The analysis in LLR1 in particular is based primarily on the Charter itself. In LLR2, I am taking greater care in explaining how these powers are limited by application of general principles of international law (e.g., jus cogens and the principle of ultra vires) to international organizations, and I hope in the latter draft it is evident that this project has traveled some distance from its policy-based origins, and attends to the more principled connections between the generality of “legislation” and demands for equal treatment in the field of non-proliferation. Thus when I mention “creative and durable resolutions aimed at developing long term legal and operational capacity, and supporting the non-proliferation framework,” the primary model should not be El Baradei’s proposal, which is arguably a bad faith use of a legislative “mask” for a targeted measure. A better model is UNSC 1540, which requires states to prohibit the transfer of WMD-related materials to non-state actors, and approaches these as collective burdens.



Concern 2: Let us not underestimate the virtues of a crisis-driven, targeted, and reactive strategies over blunt and over-broad lateral strategies. This perspective might be overly influenced by my doctoral research on states of emergency, but I tend to believe that unlike dictatorships or whirlwind romances in Hollywood blockbusters, the development of legal capacity cannot survive being exclusively “crisis-driven.” Hillary Charlesworth has written a well known article on this (“crisis” not Hollywood romance”!). I think standing legislative powers are supportable in the Charter and a better idea overall for both principled and pragmatic reasons, and I hope to make clear that referring to legislation is a “last resort” is not to signal an “emergency” or “exceptional” power, and certainly not the revolutionary usurpation of state sovereignty or the Charter framework by a latent Leviathan. (Though if we are skeptical of the institution in the first place, we will want to grapple with the problem of auto-interpretation, which might border on self-vesting prerogative). Leaving aside this drama, we are simply discussing an emerging option, internalized within the normal order, which might not usually be politically possible. Again, the extant model is Res. 1540, which (for American readers) might deserve an analogy with model gun control legislation.



Concern 3: For similar reasons, lateral strategies aimed at general binding obligations on states have little (or nothing) do with non-state actors we actually fear. International lawyers are concerned in our vocation with both (1) the integrity of international law as a system of rules and institutions, and (2) the substantive values these are supposed to protect. Professor Murphy addresses both in his comments, and rightly detects that the topic of this paper was motivated by the consciousness that both of these concerns could be “shaken in a flash” if what strategists are calling the “Nightmare Scenario” (terrorists acquiring WMDs) were to occur. The salient images that have woven into our imaginations are of mobile networks, small WMDs and apocalyptic ideologies resulting in a “one-off” bomb that multiplies both the immediate effects of 9/11 and also the international fallout. If a weapon smaller than a jet-liner could destroy not only a city block but an entire metropolis with millions of inhabitants, it could also lead to the deformalization of protective rules and brutal sacrificial wars and emergency measures. Even more than the era of “mutually assured destruction” certain death has lost its universality, but it has become imaginable. But, as Professor Murphy notes, when salient threats shape the imagination, our priorities are conditioned by the threats we imagine. This “nightmare scenario” (or even the salience of non-state actors) should not form the sole criterion by which we explore lateral options. More than anything, Res. 1540 is an attempt to disrupt a supply chain. The critical link is between states and non-state actors (and in the future we might not be able to exclude NGOs and IGOs), the supply of nuclear material will only increase through the peaceful uses of the technology, and so will all kinds of less manageable demands.



My thanks again to Professor Murphy (I’m not at ASIL this weekend, but someone at Opinio Juris buy him a drink for me!). With his comments and those of the readers, I hope we can look forward to “LLR3” or something better.

[Andrew Guzman is Professor of Law at UC Berkeley, Boalt Hall and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at the International Economic Law and Policy Blog]



Eugene Kontorovich’s paper, Inefficient Customs in International Law is a welcome contribution to the growing analytical literature on customary international law (CIL). The question asked here is of obvious importance: are rules of CIL likely to be efficient? If the rules are efficient they improve overall welfare (however measured) and if not they reduce it. There remains a question of how the conclusion that international law rules (such as those governing the formation of CIL) affect outcomes given that there is no institution capable of changing those basic rules. This is an awkward question here, but it is similarly awkward with respect to a great deal of international law scholarship that includes a normative component.



Rather than attempting to determine if CIL in its entirety yields some form of net efficiency gain, Eugene remains agnostic about the desirability of CIL as a single general category. The key thrust of the article is a call to evaluate individual instances of CIL in an attempt to determine if they are likely to be efficient. This evaluation is to be done using a multifactor test that includes the number of states involved, the extent to which relevant transactions are repeated over time, the homogeneity of the group, the presence of reciprocity, and whether the rules govern insiders only or also affects outsiders. As with any multifactor test application here is a challenge. There is no metric to evaluate any one of these categories (e.g., how many states count a “a lot?” Ten? Twenty? Fifty? Two hundred?) and no way to know how much weight should be given to each. This difficulty is apparent when Eugene attempts to apply the criteria to specific categories of CIL (diplomatic relations, war, and human rights). The analysis is necessarily ad hoc and one wonders if there is any way to separate the multi-factor test from a direct and subjective assessment of whether the substantive rule seems efficient or not. That may not be so bad, however, as this sort of direct assessment may be a good way to evaluate the efficiency of CIL rules.



Eugene proposes that CIL rules be subjected to “structural adjudication,” a process in which customs would “only be given legal status when they arose in an environment conducive to the production of efficient norms.” Whatever else one thinks of this proposal, it can only apply to that very narrow slice of CIL that comes to be adjudicated before an international tribunal (it could be done before a domestic tribunal, but the question of bias in such a context would outweigh the gains from the structural analysis the Eugene calls for). It would be helpful to consider the bulk of CIL norms – those that do not get adjudicated – could be evaluated.



Something else should be said about comparing the doctrine of CIL to some notion of efficiency. As is clear to anyone observing CIL (and as Eugene clearly recognizes) some rules of CIL exist despite the fact that the supposed requirements of opinio juris and general practice are absent. CIL rules of human rights are the most conspicuous of these. Whatever makes a CIL rule against torture exist, it is not the combination of opinio juris and general practice. Because Eugene’s project asks whether CIL rules that arise under the standard doctrinal test are efficient, his analysis does not speak as directly to the efficiency of human rights norms that arise in some other way. This does not undermine the claims Eugene makes, but it narrows them. To be fair to Eugene, whatever process leads to the adoption of rules of CIL outside of the classic definition is quite likely to be an even less efficient process.



I have tried to raise a couple questions about the discussion in this paper, but the bottom line is that this is a good and valuable paper. There are aspects of it that could be contested, but the question, method, and analysis strikes me as basically right. Academic papers are worthwhile if they affect the way we think about significant questions, and Eugene’s paper on the efficiency of CIL does exactly this.

[Eugene Kontorovich is a Visiting Professor at Northwestern University Law School and a contributor to the Opinio Juris On-line Symposium]



I would like the thank Peggy and the rest of the Opinio Jurists for providing this forum for the discussion of new work. I’m grateful to Andrew Guzman for providing comments, and even more grateful for providing charitable ones.



Andrew’s comments raise several important issues about the paper and its limitations.



1. Multifactor tests.



I never thought I’d be guilty of multi-factor tests, but Andrew has caught me red-handed. The kinds of social context that lead welfare maximizing norms can be described, but reduced to an algorithm. Rather than an open-ended multi-part test, what the article may suggest is a flipped presumption. International law is based on strong presumption that customary practices of states lead to desirable norms. Without this presumption, we have no reason to reflexively adopt custom across the board. Once this presumption is dismissed and we are considering whether to adopt particular customs a la carte, we are already in a whole different world. That choice is difficult, but the very notion that such choice makes sense is what I hoped to get at.



Finally, perhaps the most important component of efficient-custom situations is the most easy to get a handle one – the question of whether states are likely to be on both sides of an issue over time.



2. Structural adjudication and the alternatives to custom.



The biggest question this paper runs in to is what the alternative to custom is and whether it is likely to be any better. In private law, custom is selectively incorporated by courts, based on something like the multifactor test just mentioned. If a court rejects a customary norm, it provides its own alternate rule. Of course, international law does not generally get made through courts.



Still, there may be some room for structural “adjudication” with the latter term broadly defined. The way I conceptualize customary international law – and this is going far outside the scope of the article – is that in IL “case” is a situation that arises between nations that is understood to be potentially within the scope of international law. The “original ruling” is made by the states themselves through their choice of action; and whether that ruling is subsequently followed or overruled depends on the reactions of other states. In this model, structural adjudication can be done by the states when choosing to follow a customary norm or not. There is an obvious self-judging problem here, but it is endemic to international law and perhaps offset by reputational or other sanctions.



3. Other grounds for international norms.



The argument of custom is that something should be done because everyone does it. On its face, this seems like childish mimicry. But Hayek and others have shown how in certain circumstances, the thing which winds up over time as the custom is welfare maximizing, though none of the participants in the process may see why or how.



This is the structure of an argument based on custom:

1. Everyone/lots of others have stopped doing x; it seems not doing x is a new custom.

2. Customary behaviors are generally efficient [thus we should not be deterred by an impression that not doing x is unwise].

3. Thus we should stop doing x.

If the major proposition (#2) is false, then arguments to adopt a norm because everyone else has loose much of their force. And such arguments are often made in relation many humanitarian norms, such as the death penalty, to take a prominent example.



Does this mean international humanitarian norms should be disregarded? Not at all. They just require a justification not rooted in practice, but in absolute notions of justice. Indeed, this may help humanitarian law. One need not be embarrassed by the disconnect between practice and theory with such well-established norms like torture, because “custom” was never an adequate basis for them in the first place. Thus those who wish to convince a state to adopt a norm should make a substantive case for the norm itself, rather than point to its customary status.

[John Knox is Professor of Law at Wake Forest University Law School and a discussant in the Opinio Juris Symposium]



Hari’s paper describes the contributions law-and-geography and legal pluralism can make to understanding climate change litigation and, by extension, other important international problems. She contrasts this pluralist vision to a traditional view of international law, which is much more state-centric. Just how state-centric she sees it I found a bit unclear, but the gist seems to be that under the traditional approach, “formal nation-state consent” is necessary for the creation of international law, and that, perhaps, states are the only subjects of international law. Hari also refers, more approvingly, to a “modified Westphalian” approach, which seems to differ from traditional law in recognizing that non-states can be subjects, too.



Almost no one today believes that only states can be subjects of international law. To believe that, one has to close one’s eyes to fairly large areas of the law, like human rights law and international investment law. The modified Westphalian view, however, is very much alive and well, and in fact I think nearly every international lawyer is a modified Westphalian. I am, at least (although I prefer post-Westphalian, because that sounds cooler), since I believe both that state consent is the basis of international law and that non-states can and do have rights and duties under international law. (Actually, I have a human-rights vision of international law, according to which the true basis of international law is popular support, but I’m pragmatic enough to accept the existing system’s reliance on national-government decisions as proxies for the will of the people until and unless better proxies can be developed.)



The question, then, is how the pluralist approach is different from the modified Westphalian approach to international law. If I understand Hari correctly, she considers but rejects a version of the pluralist approach that would expand the concept of “international law” to include non-state actors in its creation, as too radical a change; instead, she would leave “international law” unchanged, but build (or recognize) a larger structure of “international lawmaking” around it. The idea is that non-states like California (in its climate change cases) and the Inuit (in their petition to the Inter-American Human Rights Commission), could be considered international lawmakers, even if the end-result of their activities wouldn’t be formal international law. For me, several of these terms call for greater specificity. It’s unclear, for example, whether under the pluralist approach the end-result of California’s and the Inuit’s actions could be considered law, but not international law; or international law, but not formal international law. Putting that aside, however, Hari’s main point is that the traditional approach is too constrained, and “seems to fit poorly how international law is actually made.” The pluralist approach, in contrast, provides an “expanded vision of how those relationships [e.g., between formal and informal dialogue”] might count as law.”



This argument seems to depend on the premise that there is an underlying reality that legal pluralism recognizes and that the traditional and modified Westphalian approaches don’t. But Hari sees the modified Westphalian position too clearly to claim that it doesn’t recognize a role for non-state actors; in fact, she describes how it does recognize such a role. The real difference therefore seems to be only in what we call what’s going on. And this is the nub of the problem, for me: I don’t see how merely calling California and the Inuit international law-makers “has the potential to be more effective than the existing, limited treaty regimes,” as Hari claims. She correctly says that international law as it exists today hasn’t solved the climate-change problem, but how would the pluralist approach be any better?



I could understand an argument for expanding the sources of binding international law, so that (for example) the IAHRC could issue legally binding decisions on governments (and, presumably, on the Inuit, too – why leave them out?) to do something about climate change. I could understand that argument, but not necessarily agree with it – I’m not sure I would trust the IAHRC, as much as I respect it, to do a better job than the existing system, with all of its problems. (For one thing, if the IAHRC had that kind of power, you’d start to see very different people appointed – by governments, naturally – to the IAHRC. Out with the Reismans, in with the Rehnquists.) But, as noted above, Hari doesn’t seem to be arguing for this change. Instead, she seems to be saying that enormous benefits would follow from merely calling California and the Inuit law-makers, even though the law they’re making isn’t what we would necessarily consider binding international law, or binding at all.



But why would that make such a difference? Again, the modified Westphalian approach can and does take into account what non-state actors do. And just because it doesn’t call bringing domestic cases, or petitions to expert bodies without the authority to make binding judgments, law-making doesn’t mean that it ignores the effects of those actions. More importantly, the modified Westphalian approach doesn’t deny that non-state actors can make international law. It recognizes, for example, that a differently empowered IAHRC could make binding decisions in cases originally brought by non-state actors. And hey presto, there’s already an IAHRC that does! The American Convention on Human Rights allows the other IAHRC – the Inter-American Human Rights Court – to issue decisions binding on parties to the Convention, and those decisions can arise in cases brought by the Commission in response to petitions like the one brought by the Inuit. Of course, the Europeans, more internationally minded here as elsewhere, have done away with the middle-commission and now allow non-state actors to bring cases directly to the European Court of Human Rights, which can issue binding decisions. I don’t think any competent international lawyer would deny that those decisions are international law, and that bringing cases to that court is part of a process of making international law, even though the petitioners are not states.



My point is that international law is already plenty diverse. It has many entry-points for non-state actors not only to influence the creation of international law, but to cause the creation of international law through institutions like international tribunals, treaty bodies, etc. I don’t see how the pluralist approach better captures what’s going on, or will necessarily accelerate the creation of such entry-points.



So what’s the problem? You call it tomato, I call it tomahto . . . . If Hari and other pluralists think their description is more accurate, what difference does it make? I see one possible adverse collateral effect. Despite Hari’s efforts to say California and the Inuit can be international law-makers even though they’re not resulting in (formal) international law, it seems to me that if you have an international law-maker, what they produce is by definition international law. And if we start calling non-binding decisions and norms “international law,” then we will cheapen the term. It’s completely understandable that Hari and others (including me, actually) want to make sure that groups like the Inuit have ways of entering the big tent of international law-makers. But we have to be careful not to devalue the very thing that they’re trying to get access to: the bindingness of international law.



The main benefit of international law – its raison d’être – is that it is binding, and that in particular it constrains governments. Governments aren’t the center of the international law universe for no good reason; they’re the center because they’re the loci of greatest power. Governments are the ones with the armies and the police forces, the courts and the prosecutors, the prisons and the interrogators. Creating a body of international law that constrains governments, even to the relatively small, inadequate degree that it does, has taken an immense amount of effort, and even that effort is under constant assault from those who argue that international law is meaningless. If the meaning of “international law” is expanded to include non-binding norms, then the effect will be that eventually all international law will be treated as non-binding. If everything is international law, then nothing is . . . which is exactly what the realist and “fortress America” critics of international law have argued all along.

[Hari Osofsky is Assistant Professor of Law at University of Oregon and a contributor to the Opinio Juris On-Line Symposium. She blogs regularly at IntLawGrrls]



I would like to begin by thanking the Opinio Juris bloggers for their hard work in conceptualizing and organizing their inaugural on-line symposium. I very much appreciate the opportunity to participate in it, as well as John Knox’s thoughtful reaction to my piece. This dialogue is a wonderful opportunity for junior scholars to get feedback on their work, and I am certain that my piece will improve greatly through the interchange. I also am grateful for helpful exchanges about legal pluralism over the past few days with Elena Baylis, Paul Berman, Joshua Gitelson, Rebecca Hardin, Janet Levit, and Michelle McKinley, which have contributed to my thinking in this response.



John’s comments on the piece primarily focus on two issues. First, he questions the distinction between pluralist and modified Westphalian approaches. Second, he raises concerns about whether a pluralist approach provides too much of an opening for those who seek to limit international law. I address each of these points in some detail below. At the core of my response, though is an argument that pluralist approaches have the potential to provide more effective protection of “international law” than Westphalian approaches because they allow for fuller acknowledgment of international lawmaking that does not rest on the coercive force of the nation-state. Or, as Janet Levit has aptly titled a recent piece, “International Law Happens (Whether the Executive Likes It Or Not).”



In discussing the first issue, a contextualizing of this piece is in order. I am in the process of writing a trilogy of articles on the geography of climate change litigation. The first article in the trilogy, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789 (2005), describes this litigation as a modified Westphalian phenomenon and explores the implications of its geography for approaches to transnational regulatory governance. The second article, The Geography of Climate Change Litigation Part 2: Narratives of Nation-States and Thirdspace—which is currently in preliminary draft form—explores how a law and geography analysis might help to address the interrelated crises facing international law and climate change regulation. Most relevant to my response to John, that piece draws from geography to propose a taxonomy of international legal theory approaches based on how they view nation-state spaces: Westphalian, modified Westphalian, pluralist, and critical. I define each of those terms in detail in that piece, and will focus my discussion here on the terms most relevant to John’s and my interchange.



The thought piece included in this symposium, Climate Change as Legal Pluralist Dialogue? (which will be published in final form in STANFORD ENV. L.J. & STANFORD J. INT’L L. __ (forthcoming 2007)), is an effort to play with the third approach in that taxonomy, a pluralist one, in more detail than the focus of that second article allows. In particular, drawing from the scholarly literature on law and geography, judicial dialogue, and legal pluralism, I consider two main examples—California’s role in climate change litigation and the informal role of supranational petitions—to explore how a pluralist perspective on them might differ from a modified Westphalian one. In so doing, I am not necessarily assuming the pluralist mantle, but rather asking what insights that conceptual approach might bring to an understanding of the climate change litigation’s regulatory role.



John’s discussion helped me to recognize that I need to use my terms more precisely in the final version of this piece. In particular, I need to dispense with the term “traditional”—which I used to make the piece more accessible—in favor of more consistent use of “Westphalian” and “modified Westphalian,” which both have particular definitions. John and I agree—as I have discussed explicitly in other pieces and should make more explicit in my final version of this piece—that very few scholars are Westphalians. Where he and I part ways somewhat is that I do not think that almost all international legal scholars and lawyers are modified Westphalians. Rather, I think that most range from modified Wesphalian to pluralist, and that there is a significant body of important critical international legal scholarship too often ignored in “mainstream” international legal debates.



John points out accurately that, in this piece, I take a less radical pluralist approach that focuses on international lawmaking without disturbing the formal category of international law. The difficulty of such approach—as I acknowledge in the draft—is that the term “international lawmaking” is far mushier than the term “international law,” which leaves the analysis open to exactly the kinds of questions that John asks. But I choose it as the more practically viable approach to global (or more accurately, multiscalar) legal pluralism. In this version of a pluralist model, international lawmakers are those who make law relevant at an international level, whether or not that law would be included in the formal category of international law.



In my view, the core difference between modified Westphalian and pluralist approaches has to do with the extent to which they decenter the nation-state. A modified Westphalian looks inside the nation-state to consider the range of relevant actors and behaviors, but still views the nation-state as the primary international lawmaker. In contrast, a pluralist, after a similar inquiry, views the nation-state as just one international lawmaker among many. Michael Reisman—whom John would prefer “in” over Rehnquist—and other New Haven School proponents, for instance, provide a model of interpenetrating communities engaged in authoritative decisionmaking. Modified Westphalians are thus more pluralist than Westphalians, but do not take that further step of moving the nation-state out of center stage and into the cacophonous chorus line.



As I note in this piece and in my more detailed discussion of the taxonomy in The Geography of Climate Change Litigation Part 2, the distinction between the two approaches is often quite a fine one. For example, some aspects of Anne-Marie Slaughter’s theoretical work appear to be quite pluralist, but she also acknowledges the nation-state as the most important lawmaker. However, as the specific examples of subnational actors and supranational petitions illustrate, those ambiguities of categorization should not be used to mask a real difference in worldview between the two approaches. Modified Westphalians would treat those examples as relevant to the international law story primarily through the ways in which they contribute to a state-centered lawmaking process. In contrast, the pluralist narrative, which deemphasizes the importance of the formal category of international law and describes a hybrid lawmaking space, explores a broader range of ways in which climate change litigation matters.



The relevance of this distinction becomes clearer when one turns to the second issue that John raises and that Part V of the paper explores in depth. Namely, how does one’s understanding of climate change litigation evolve if one moves from a modified Westphalian to pluralist worldview and what are the implications of that choice? In the paper, I grapple with the distinction by imagining a series of dialogues between modified Westphalians and pluralists, which I’ll only discuss briefly in this short response when they are relevant to John’s comments.



The limitation of modified Westphalian approaches is their fixation with formal, binding international law created by nation-states, a difficulty exemplified in the concern that John raises at the end of his comments. Much energy is spent in the current polarized discourse debating the boundaries of that category. A more pluralist approach would not, as John suggests, lend support to those who criticize international law. Rather, it would likely claim that the narrow focus of this debate causes it to miss important parts of the story. Paul Berman’s book review critiquing The Limits of International Law, serves as an excellent example of how a pluralist approach can be used to highlight the assumptions of “the realist and ‘fortress America’ critics of international law.”



The pluralist model that I rely upon on this piece does not enter the fray over what should count as part of formal international law, but instead tells the story differently. Its concern is over the bigger picture of the regulation of global climate change and what is lost when the formal international law piece of the narrative becomes too privileged. In so doing, it provides a way out of the encampment over international law because it suggests that this formal, binding quality that John so values is a much smaller piece of what matters than any version of the Westphalian model presumes. John’s concern about pluralist analysis being used as a tool by those wishing to constrain international law further, while worth engaging in the current political climate, thus seems somewhat misplaced. Modified Westphalians’ emphasis on a different part of the story makes it unlikely that a pluralist approach could cause formal international law to be further constrained other than by the realities of hybridity.



In the specific context of climate change, a pluralist approach has the potential to help respond to arguments seeking to constrain the use of international legal protections. For instance, Eric Posner’s working paper, Climate Change and International Human Rights Litigation: A Critical Appraisal —which I have criticized in The Geography of Climate Change Litigation Part 2, and plan to critique in depth in a book review, Climate Change, Environmental Justice, and Human Rights: A Response to Professor Posner, that I am in the process of drafting—provides a normative argument against climate-change-based human rights claims under the Alien Tort Claims Act. This paper’s argument, like The Limits of International Law, is grounded in a number of explicit and implicit assumptions that an acknowledgment of multiple normative communities can help unpack.



Furthermore, the difference between modified Westphalians and pluralists is more fundamental than the Gershwinian variations in pronunciation to which John compares them because how we narrate has consequences for how we approach lawmaking. When the ultimate question is what binds formally—which is where John, like most modified Westphalians, ends up—the implications of climate change litigation that have little to do with inter-nation-state lawmaking become comparatively less important. As a result, we may miss norm-creating dimensions of the litigation that contribute minimally to formal international law. For example, I recently heard a presentation at the Stanford Law School symposium on climate change regulation for which I have prepared this piece that proposed what future treaties on climate change should include in terms of liability provisions. The analysis focused almost entirely on what would be politically viable in nation-states and issues of nation-state behavior. As I noted in my presentation there, a more pluralist approach would contextualize that treaty further and frame it as lawmaking behavior situated among many other types of relevant lawmaking. I grant John’s point that the difference is subtle—something that I also acknowledge in the paper itself—and that modified Westphalians could and sometimes do formulate contextualized treaties. But the focus on formal, nation-state lawmaking versus a hybrid system influences what gets factored into the analysis. Pluralist perspectives are helpful because they push towards a more inclusive approach.



In the final analysis, as I note in my conclusion, pluralist analysis is more difficult to translate into practical legal structures than are Westphalian approaches. Pluralism is messy and rife with internal questions. It is hard to expansively define relevance and then come up with a manageable set of relevant actors and legal behaviors. However, I think that the value of attempting pluralist analysis outweighs these difficulties and the potential dangers that John outlines. In a time of contestation over core values, pluralism provides a mechanism for approaching international legal problems more holistically and creatively than the Westphalian obsession with nation-states and formality allows. Although I am not sure that I am a pluralist, I see great value in considering the lawmaking value of what Judith Resnik as termed “multiple ports of entry,” even when their direct relevance to binding international law is limited.

Several months back, Opinio Juris put out a call for papers for our inaugural on-line symposium to junior scholars. The theme was described as follows:

As long as people have been writing about public international law, commentators have suggested that it is a system in crisis or somehow under stress. After a moment of optimism at the end of the Cold War, scholarship has returned to the challenges of international law. Opinio Juris is convening an on-line symposium to carefully consider just what these challenges may be: Terrorism? Hegemony? Illegitimacy? Or other topics that have not yet been fully explained? Is the problem that international law is too weak to make a difference or that its institutions are invasive to the point of being undemocratic?

We are pleased to announce the following participants and papers (abstracts and links to the full texts of the paper are below), along with the commentator for each paper:

Jacob Cogan, Assistant Professor, University of Cincinnati Law School
Non-Compliance and the International Rule of Law

Commentator: Joost Pauwelyn, Professor of Law and Director of JD/LLM program at Duke Law School

Gregory Gordon, Assistant Professor of Law, University of North Dakota Law School
Toward an International Criminal Procedure: Due Process Aspirations and Limitations

Commentator: Mark Drumbl, Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee Law School.

Vik Kanwar, JSD candidate, NYU, visiting fellow, Loyola New Orleans Law School
The Legislator of Last Resort: Security Council’s Emerging Role in WMD Proliferation Crises

Commentator: Sean Murphy, Professor of Law, George Washington University Law School

Eugene Kontorovich, Visiting Professor, Northwestern University Law School Inefficient Customs in International Law

Commentator: Andrew Guzman, Professor of Law, UC Berkeley, Boalt Hall

Hari Osofsky, Assistant Professor, University of Oregon Law School
Climate Change Litigation as Pluralist Legal Dialogue

Commentator: John Knox, Professor of Law, Wake Forest University Law School

The Symposium papers address a range of issues at the top of the international law agenda (regulation of WMDs, climate change, international criminal law, the problems of custom and compliance) and employ diverse methodological and theoretical approaches. Jacob Cogan’s paper challenges the assumption that compliance with international law is a necessary normative goal. Eugene Kontorovich addresses the puzzle of custom, taking a rational choice approach to the question of efficiency of customary international law. Vik Kanwar sheds light on the role of the Security Council by examining its political and law-making power through the lens of WMD non-proliferation. Greg Gordon examines and explains what he describes as a due process shortfall in international criminal procedure. Hari Osofosky views the multiplicity of climate change litigation from the perspective of legal pluralism.

Each paper grapples with the “relevance” of international law and challenges, in one way or another, the traditional Westphalian order — that international law is simply inter-State agreements and compliance results from coercion (legal or political). At least since the creation of the League of Nations, the project of explaining and predicting a “new” post-Westphalian international order seems to renew itself with each new generation of scholars. Exemplified by the papers in the symposium, this generation brings to the table a fresh perspective, not only challenging the traditional order, but also thoughtfully re-evaluating the extent to which the traditional order and its rules endure.

This symposium itself is evidence of shifting traditions in international law. Not unlike diplomats, we still value coming together in a formal space at a preordained time to exchange ideas and inform ourselves about the developments in the law – as we are doing in Washington at the ASIL Annual Meeting. But new technologies permit the creation of non-traditional networks and the dissemination of knowledge in new forms. This blog enables us, at very little cost, to bring together participants from around the country (and the globe) in a way that a symposium in a conference room cannot. Just as international law is increasingly made by non-traditional actors through non-traditional methods, scholarly exchanges are no longer limited to formal conferences, regulated by an institutional host. Perhaps most important, it enables readers to access scholarship free from subscription or membership fees. The lowering of barriers to knowledge is, perhaps, the greatest and most enduring contribution of this new medium.

We would like to give special thanks to our stellar group of outside commentators — all international legal scholars of the highest caliber and reputation. Without their generosity of time and expertise, the symposium could not have happened. We look forward to their insights on the papers and to a lively interchange with our general readership.

The symposium will proceed as follows: Paper abstracts and links to the full text of the papers are posted below. Tomorrow, the comments from our outside discussants will be posted, along with replies from the authors. These posts will be open to comments – by the authors, the outside commentators and the general Opinio Juris readership.

Abstract



In an effort to elevate the international rule of law, international law scholars, especially since the end of the Cold War, have endeavored to determine how best to induce compliance, that is, how to encourage nations to obey international law. For all its advantages, this focus on compliance obscures the role of noncompliance in the international legal system. In the absence of effective mechanisms for decision and control, States sometimes feel obliged to take actions that formally violate existing norms but may nevertheless reflect current or developing expectations of lawfulness or make existing law effective. This is “operational noncompliance” - noncompliance that keeps an imperfectly effective system, such as international law, operational. Though compliance is and should be the norm, those who discount operational noncompliance disregard the tension, which is acute in the international arena, between the necessity in a legal system of maintaining the principle that the law is to be complied with - because otherwise what does it mean to be a law? - and the role of noncompliance in developing new law and in enforcing current law. This Essay explores that tension, arguing that we should recognize that operational noncompliance is and must be a part of the international legal system, as it is currently constituted, and that, in some cases, acts of operational noncompliance are legitimate. The failure to acknowledge the functions of operational noncompliance mythologizes contemporary international law, limits our ability to achieve community policies, and risks making international law irrelevant. Unless and until we have more effective international institutions, we will need to come to terms with noncompliance’s role in the international legal system.



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The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.

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The questions asked by the organizers of this symposium on recent challenges facing public international law—whether international law is “too weak to make a difference” or whether its institutions are “invasive to the point of being undemocratic”— and the specific challenges mentioned by way of example (“terrorism, hegemony, illegitimacy”) all converge in the topic of this paper: an inquiry into the proper role of the Security Council in addressing ongoing nuclear, biological, and chemical proliferation crises. Put simply, the challenge of bringing WMD proliferation under control is complicated by the on-going task of bringing the Security Council itself under the rule of law. In this paper, I will contrast two conceptions of the Security Council’s role in non-proliferation, referred to here as “enforcement” and “legislation.” I ask which approach increases the legitimacy and capacity of the Security Council, and conclude that although the Security Council is more assured in its legitimacy as a law-governed “enforcer” than as a “legislator,” two arguments urge Security Council to pursue non-proliferation as an the appropriate subject of general legislation: (1) non-proliferation is a carefully defined and delimited area of legislation closely linked to the peace and security mandate. (2) that uniformity is consistent with the demand of states is sensitivity to formal equality a principled general obligations non-proliferation. Even so, insofar as the Security Council’s legislation entails legal effects and justifications, and promotes respect for general rules of international law, it should also be bound to respect UN Charter norms general principles of international law (e.g., jus cogens and the principle of ultra vires) as applied to international organizations.

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This Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply.



The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one. International custom is customary international law. This reification of custom is in marked contrast to the treatment of custom in private law. No one doubts that customary behaviors exist in various societal subgroups, but tort law does not assume that customs are normatively desirable, and does not automatically transform customs into legally binding obligations. Thus tort law does not take custom to dictate the standard of care; the fact-finder must independently determine whether the practice is efficient, though its customary status has some positive evidentiary value.



Law and economics scholars have varied views about whether custom is presumptively efficient in the private law context. The most optimistic view holds that private custom will generally be welfare enhancing, and thus courts should give legal recognition to such practices. Yet even the optimistic view holds that efficient custom would only arise in certain circumstances: when there are thickly repeated dealings between members of an insular, homogenous group whose members play reciprocal roles.



The Article takes these earmarks of efficient custom and examines whether they apply to international custom. It finds that much of international custom should not be expected to be efficient even in the most optimistic view of custom. Some areas of CIL, like diplomatic privileges, might satisfy efficient custom criteria. This suggests that, contrary to current practice, CIL should not be treated as one undifferentiated phenomenon. Rather, the standards for establishing a CIL norm should vary across different substantive contexts and different groups of states.



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This thought piece will focus on the following question: What are the implications of conceptualizing of climate change litigation as pluralist legal dialogue? Part II provides the conceptual framework of the article by introducing and interweaving law and geography, judicial dialogue, and legal pluralism. Part III of the paper uses the example of California’s role in climate change litigation to explore the idea of substate actors as international lawmakers. Part IV of the paper considers the example of supranational climate change petitions to engage the complex informal role that these petitions play in making law. Part V of the paper draws from these examples to analyze how a pluralist approach might address issues of scale and formality, and the implications of a hybrid model of international lawmaking for the regulation of anthropogenic climate change. The paper concludes with reflections on the significance of how legal boundaries are drawn for the development of more effective approaches to transnational regulatory governance.



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As we get closer to the ASIL Annual Meeting, I would like to provoke some discussion about the future of international law, which is the theme of the conference.

As noted in my Tuesday post, significant resources have been devoted to thinking about the future. Some of these efforts include the use of trends analysis and scenario building. Scenarios are stories about the future, or better stated, about possible futures. They are not predictions or forecasts. Rather, these stories are designed to encourage reflection about the future in a systematic manner.

Scenarios are valuable for several reasons. They help identify key trends and can suggest how these trends may shape the future. By offering different visions of the future, they offer a laboratory for testing how different policies – political, economic, social, and legal – might respond to these different futures. At a more fundamental level, scenarios are designed to promote critical thinking about the future in a manner that influences and informs the present.

Let me offer a brief example from the National Intelligence Council’s 2020 Project, which developed four scenarios of possible futures in 2020.

• Davos World provides an illustration of how robust economic growth, led by China and India, over the next 15 years could reshape the globalization process—giving it a more non-Western face and transforming the political playing field as well.
• Pax Americana takes a look at how US predominance may survive the radical changes to the global political landscape and serve to fashion a new and inclusive global order.
• A New Caliphate provides an example of how a global movement fueled by radical religious identity politics could constitute a challenge to Western norms and values as the foundation of the global system.
• Cycle of Fear provides an example of how concerns about proliferation might increase to the point that large-scale intrusive security measures are taken to prevent outbreaks of deadly attacks, possibly introducing an Orwellian world.

According to the National Intelligence Council, “these scenarios illustrate just a few of the possible futures that may develop over the next 15 years, but the wide range of possibilities we can imagine suggests that this period will be characterized by increased flux, particularly in contrast to the relative stasis of the Cold War era. The scenarios are not mutually exclusive: we may see two or three of these scenarios unfold in some combination or a wide range of other scenarios.”

At the Friday evening Annual Dinner, Philip Bobbitt will provide his own scenarios for the next 30 years. These possible futures – provocatively labeled “American Buffalo,” “The Real Thing,” “The Spanish Prisoner,” and “Otherwise Engaged,” – address WMD proliferation, multipolarity, and increasing civilian vulnerability to catastrophe. Not surprisingly, each of these issues will be addressed at this year’s Annual Meeting.

Is any of this useful? Yes! Scenario building is valuable because it encourages policy analysts (and scholars) to identify long-term trends and to consider the implications of these trends on the international system. Such studies may reveal that certain areas of international law are undeveloped or underdeveloped.

The 101st Annual Meeting is designed to “generate and inform ideas about the future of international law and the role of international lawyers.” As ASIL President Jose Alvarez noted, the Annual Meeting “is a perfect place to examine The Future of International Law.” We hope to see you there.

Let me begin by thanking Opinio Juris for inviting the Co-Chairs for this year’s ASIL Annual Meeting to guest blog this week. As they say: long time reader, first time blogger.

This year’s Annual Meeting theme is The Future of International Law. While it is easy to disregard theme statements when organizing a conference, this year’s Program Committee took its mandate seriously. Accordingly, we put together a conference with a noticeable emphasis on thinking about the future.

One of the biggest challenges in getting people to think about the future is to convince them that this does not involve astrology, numerology, fortune-telling, or discussions about the merits of The Matrix, Star Trek, or Star Wars (not that there’s anything wrong with this). In fact, there is an extraordinary amount of scholarship that offers interesting and innovative reflections about the future. Scholars from diverse disciplines - from political science and economics to history and law - have thought about the future and have done so in a rigorous and systematic fashion. A few examples come to mind.

In his monumental study, The Anarchical Society, Hedley Bull explored the question of “order” in world politics. As part of his study, Professor Bull inquired into alternative paths to world order. He identified several variations on the existing state system. While Bull acknowledged the existence of multiple paths to world order, he also recognized the need to proceed with caution in such analysis. “The fact is that while there is a great desire to know what the future of world politics will bring, and also to know how we should behave in it, we have to grope about in the dark with respect to the one as much as with respect to the other. It is better to recognize that we are in darkness than to pretend that we can see the light.”

While historians study the past, some use their understanding of history to contemplate the future. In The Rise and Fall of the Great Powers, Paul Kennedy examined the relationship between economic power and military power and the influence of this relationship on the rise and fall of empires. While offering some predictions into the future, Kennedy acknowledged the conjectural nature of his study. History is based on events that have already occurred whereas predictive studies are based on events that have yet to occur (or may never occur). Archival research is thus replaced by “economic forecasts and political projections.” As a result, “nothing one can say about the future has that certainty. Unforeseen happenings, sheer accidents, the halting of a trend, can ruin the most plausible of forecasts; if they do not, then the forecaster is merely lucky.”

Even legal scholars have thought about the future in a systematic manner. In The Shield of Achilles, constitutional law scholar Philip Bobbitt examined the history and future of the state system. Because of the fundamental changes taking place in the constitutional order of states, Bobbitt did not offer predictions of the future. He found there is too much uncertainty to engage in even simple forecasting. Rather, Bobbitt offered a set of scenarios, which provide different narratives of what the future might look like. (I’m delighted that Professor Bobbitt will be speaking at the Annual Meeting on Friday evening. Appropriately, the Opinio Juris reception on International Law blogging precedes his talk.)

Thinking about the future is not exclusively an academic exercise. Significant resources have been devoted to this work by groups in the public and private sectors, and their research has produced fascinating studies, from the famous Shell scenarios to the National Intelligence Estimates.

This year’s Annual Meeting offers many panels on the future of international law. We hope the meeting will encourage scholars to undertake similar efforts.

The Spanish philosopher George Santayana wrote that “those who cannot remember the past are condemned to repeat it.” We live in an era of extraordinary challenges, of threats both natural and man-made. And so, we simply cannot afford to disregard the future. As I noted in my 2005 article, Predicting Chaos?, which was published in the Virginia Journal of International Law, those who do not learn from the future are condemned to live it.

We look forward to seeing you at this year’s Annual Meeting, which takes place at The Fairmont Hotel in Washington, D.C. from March 28 – March 31, 2007. To register, click here.

[Greg Castanias and Victoria Dorfman are attorneys with the law firm of Jones Day in Washington, D.C. They represented Sinochem before the Supreme Court, which last week ruled unanimously in favor of Sinochem.]

We’re grateful to have the opportunity to give you some preliminary views on the Sinochem decision issued last week—Sinochem International Co., Ltd. v. Malaysia International Shipping Corp., 127 S. Ct. 1184 (2007). Since we are lawyers, after all, we need to start with a disclaimer: These are our views alone—not those of our law firm, our partners, or our other colleagues; and not those of our client in this case (indeed, not those of any of our clients, past, present, or future).

Obviously, we are pleased about the result in the case, and about the central holding in the case, which embraced the argument we made to the Court: a district court has the power (which is to say the discretion) to dismiss a lawsuit on forum non conveniens grounds before making a conclusive determination of its own jurisdiction (either subject-matter jurisdiction, which is the power of the court itself, or personal jurisdiction, which is the power of the court over a defendant). As your readers probably know, this resolved a split in the circuits on this issue which, somewhat to our surprise at first, was four-to-two against our position (after we filed our merits brief in the case, the Seventh Circuit, in a case called Intec USA, LLC v. Engle, 467 F.3d 1038 (7th Cir. 2006), switched sides on the split, distinguished its prior decision in Kamel v. Hill-Rom Co., 108 F.3d 799 (7th Cir. 1997), and the Supreme Court ended up quoting from Intec several times in its opinion).

But the longer-term contribution of the Sinochem decision may not be as much in the narrow area of forum non conveniens, but more broadly in its clarification of what Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) means. Steel Co. had held that “[w]ithout jurisdiction the court cannot proceed at all in any cause,” and further held that a federal court may not assume jurisdiction for the purposes of deciding the merits of the case. Only one Term later, the Court in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), held that there is no mandatory “sequencing of jurisdictional issues,” and thus, a court may dismiss for lack of personal jurisdiction without first establishing subject-matter jurisdiction.

This left quite a bit of confusion in the lower courts, and it was that confusion that led to the split on the forum non conveniens issue. As one law-review article we quoted in the Petition put it, the Supreme Court’s “failure to categorically redefine the limits of the Steel rule has effectively opened Pandora’s box to the speculating minds of courts and legal scholars.” What ended up happening in the forum non conveniens area is that the Third Circuit (and the Fifth, Seventh—at least at the time—and Ninth Circuits) had read the Steel Co. bar on “hypothetical jurisdiction” as requiring courts to resolve personal and subject-matter jurisdiction both (even though Ruhrgas told them they could take those two in whatever order they chose) before taking up any other issue.

So we urged the Supreme Court that taking up our Petition would not only allow it to resolve the split that had emerged on the forum non conveniens issue, but would also provide a golden opportunity to clarify what the Steel Co. bar on hypothetical jurisdiction meant—that is, it meant that courts had to decide jurisdiction before reaching the merits, but not before reaching another “threshold, non-merits issue”—like forum non conveniens. The Court agreed with us, stating its holding as: “[A] district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection,” including subject-matter and personal jurisdiction. The Court further explained that forum non conveniens is a “threshold, non-merits issue” because “[r]esolving a forum non conveniens motion does not entail any assumption by the court of substantive law-declaring power.”

We think it’s a fair reading of the Sinochem decision that the Court clarified, for all contexts, and not just forum non conveniens, that the Steel Co. ban on hypothetical jurisdiction is only a ban on merits determinations. As the Court put it, quoting the Intec decision from the Seventh Circuit, “Jurisdiction is vital only if the court proposes to issue a judgment on the merits.” Certainly, this understanding harmonizes the Court’s rulings—both before and after Steel Co.—in a wide variety of contexts, e.g., declining to adjudicate state-law claims on discretionary grounds without first determining whether the court has pendent jurisdiction over those claims, Moor v. Alameda County, 411 U.S. 693 (1973); abstaining under Younger v. Harris, 401 U.S. 37 (1971), without first determining whether the case presented an Article III case or controversy, Ellis v. Dyson, 421 U.S. 426 (1975); or dismissing under Totten v. United States, 92 U.S. 105 (1876), which prohibits suits against the Government based on covert espionage agreements, before addressing jurisdiction, Tenet v. Doe, 544 U.S. 1 (2005).

The logic of the Court’s decision also suggests that suits involving international interests may be properly dismissed at the outset on other non-merits grounds, such as international comity, or exhaustion, or the political-question doctrine. In fact, the D. C. Circuit has already held that the political-question doctrine can be addressed before subject-matter jurisdiction under the Foreign Sovereign Immunities Act because the political question doctrine is itself a “jurisdictional limitation.” Hwang Geum Joo v. Japan, 413 F.3d 45, 48 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).

But at the same time, it’s important to understand the limits of the Court’s holding. For one, the Court’s decision does not say that courts ordinarily should dismiss a suit on forum non conveniens grounds at the outset. Quite the contrary: The Court emphasized that “[i]n the mine run of cases, jurisdiction will involve no arduous inquiry and both judicial economy and the consideration ordinarily accorded the plaintiff’s choice of forum should impel the federal court to dispose of those issues first.” (Emphasis added.) The only issue here was a federal court’s power to do that in appropriate cases—as the Court said, “when considerations of convenience, fairness, and judicial economy so warrant,” “[a] district court . . . may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction.”

For another, there’s the lurking issue of conditional dismissals for forum non conveniens. (In our case, the dismissal was unconditional, because Sinochem itself had initiated a now-fully-completed suit in China’s admiralty court, so there was no need for the district court to impose a condition that Sinochem agree to jurisdiction in China, or that Chinese courts accept jurisdiction.) While the Court technically left open the conditional-dismissal question, the logic of the opinion suggests that even a conditional forum non conveniens dismissal issued prior to ascertaining jurisdiction would be permissible—that, too, would be a non-merits ruling, and the court would not be “propos[ing] to issue a judgment on the merits.” Furthermore, as Doug Hallward-Driemeier, the Assistant to the Solicitor General (who was supporting us as amicus curiae), said at oral argument, when a court conditionally dismisses a case, it bases its ruling on its understanding of the facts as they bear on the analysis, such as that defendant agrees to waive any objection to jurisdiction; that “understanding of fact is a condition of the dismissal.”

As our economy (and hence litigation) becomes more global (Greg will add that that’s been a major change that he has seen over his 17 years of practicing law—the shift in his U.S. practice from mostly domestic disputes to mostly disputes having some international flavor), there are greater chances for foreign defendants to be haled into U.S. courts over mostly or entirely foreign disputes. So to what classes of cases might this ruling be particularly applicable? Obviously, where the asserted ground for federal jurisdiction is the Foreign Sovereign Immunities Act, the defendant is almost always a foreign individual or company, and the jurisdictional analyses can be lengthy and complicated: The Solicitor General noted in his brief that it would have been particularly convenient to dismiss on forum non conveniens grounds a suit against the Republic of Austria to obtain allegedly stolen Gustav Klimt paintings, see Republic of Austria v. Altmann, 541 U.S. 677 (2004), because it would have avoided years of litigation over Austria’s sovereign immunity under the FSIA, and the parties also noted the recent decision in Turedi v. Coca Cola Co., 2006 WL 3187156 (S.D.N.Y. Nov. 2, 2006), which allowed the district court to avoid resolving “immensely complex” questions of subject matter and personal jurisdiction in a suit brought by Turkish citizens alleging that they had been attacked and tortured by Turkish police at the direction of a Coca-Cola bottling joint venture in Istanbul. Another jurisdictional ground that comes to mind as bringing essentially foreign disputes into U.S. courts is the Alien Tort Claims Act, an ancient statute which has been the subject of some recent controversy and litigation, and which provides federal jurisdiction over tort claims made by aliens, alleging that the tort was “committed in violation of the law of nations or a treaty of the United States.” Finally, of course, there are admiralty-jurisdiction cases like the Sinochem case itself. Here, it bears noting that, at least in the earliest days of forum non conveniens in the United States, that doctrine applied mostly in admiralty cases.

We have joked to one another that this is “the sort of case that only federal-jurisdiction dorks like us could love.” And certainly it was a stealth decision the day it came out—the press covered some of the denials of certiorari issued that day with far more interest and enthusiasm. But we also think that this decision is going to play out over time as a profoundly important one in the way that litigation is pursued in the federal courts of the United States. On a personal note, the case was a lot of fun for both of us; we were proud to represent Sinochem in what we believe to be one of the first cases where a Chinese company came before the U.S. Supreme Court; and we are grateful to Opinio Juris for giving us an opportunity to relive this great experience.

[Chris Whytock is a Ph.D. candidate at Duke University and will join the faculty of the University of Utah S.J. Quinney College of Law in the fall. He has kindly agreed to lend his timely analysis of the Sinochem opinion to Opinio Juris readers]



On March 5, 2007, the U.S. Supreme Court announced one of its rare decisions on the doctrine of forum non conveniens. The decision has a somewhat narrow scope, and therefore is unlikely to give observers of transnational litigation quite as much to talk about as the court’s last major statement on the doctrine. Nevertheless, the decision is an interesting one, for it resolved a significant circuit split and, because of both what it addressed and what it failed to address, it may have broader implications for forum non conveniens practice.



The case, Sinochem International Co. Ltd. v. Malaysia International Shipping Corp., arose from a dispute over a bill of lading. Petitioner Sinochem, a Chinese state-owned company, ordered steel coils from Triorient Trading, Inc., an American manufacturer, pursuant to a contract requiring shipment by April 30, 2003. Triorient had the coils shipped on a vessel subchartered from respondent Malaysia International. Upon arrival in China, Malaysia International’s vessel was arrested by order of a Chinese admiralty court, based on a petition filed by Sinochem alleging that Malaysia International had falsely backdated the bill of lading to indicate an April 30 shipment, when in fact the shipment was not loaded until May. Malaysia International then sued Sinochem in the U.S. District Court for the Eastern District of Pennsylvania, alleging that Sinochem made misrepresentations to the Chinese admiralty court, leading to the vessel’s arrest.



Sinochem moved to dismiss the U.S. action. The U.S. district court determined that it had subject matter jurisdiction, but that discovery would be needed before it could determine whether it had personal jurisdiction over Sinochem. However, the court dismissed the case without resolving the personal jurisdiction question, reasoning that even if, hypothetically, it did have personal jurisdiction, dismissal was appropriate under the forum non conveniens doctrine.



Malaysia International appealed to the Court of Appeals for the Third Circuit, presenting the following issue: Whether a district court must determine that it has jurisdiction before dismissing a suit on forum non conveniens grounds? Noting a split among circuits (with the D.C. and Second Circuits, but not the Fifth, Seventh and Ninth Circuits, allowing forum non conveniens dismissals without prior resolution of jurisdictional issues), the circuit court held that forum non conveniens is a non-merits ground for dismissal, but that the district court nevertheless should have concluded its jurisdictional inquiry before dismissing under the doctrine. It therefore reversed. The circuit court’s logic was simple and formalistic. The essence of the forum non conveniens doctrine is the discretion it gives a court to abstain from exercising jurisdiction when there is a more appropriate foreign court. “As a court can only abstain from jurisdiction it already has, if it has no jurisdiction ipso facto it cannot abstain from the exercise of it.” 436 F.3d 349, 363. Thus, “the very nature and definition of forum non conveniens presumes that the court deciding this issue has valid jurisdiction.” Id. at 361. The circuit court also pointed to language from the Supreme Court’s opinion in one of its seminal forum non conveniens decisions, Gulf Oil Corp. v. Gilbert, stating that “[t]he doctrine . . . can never apply if there is absence of jurisdiction . . . .” Id.



In a unanimous decision, the Supreme Court reversed the Court of Appeals. The Supreme Court began by emphasizing the principle underlying its 1998 decision in Steel Co. v. Citizens for Better Environment and its 1999 decision in Ruhrgas AG v. Marathon Oil Co.: that jurisdiction is essential only when a court makes a decision on the merits of a case (slip op. at 7-8). It then characterized forum non conveniens dismissal as a determination denying the plaintiff a decision on the merits because the merits should be decided elsewhere—a determination that “does not entail any assumption by the court of a substantive law-declaring power” (slip op. at 8-9). Therefore, the Supreme Court concluded, forum non conveniens is a non-merits ground for dismissal for which jurisdiction need not be established. This means that “[a] district court . . . may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction . . .” (slip op. at 8). Because Gilbert did not address the issue before the court in Sinochem—whether a court may dismiss on forum non conveniens grounds before deciding on jurisdiction—the Supreme Court argued that the language from Gilbert quoted by the circuit court was “no hindrance to the decision we reach today,” particularly when understood in context.



The decision strikes me as a small but significant victory for pragmatism in transnational litigation. As the Supreme Court argued, to require the district court to resolve the jurisdictional issue would have led to burden and delay—“[a]nd all to scant purpose: The District Court inevitably would dismiss the case without reaching the merits, given its . . . forum non conveniens appraisal.” Such an outcome also would disserve judicial economy and be in tension with one of the stated purposes of forum non conveniens: to reduce inconvenience. The circuit court acknowledged these concerns in its opinion, but concluded that its hands were tied by doctrine: “precedent, logic, and the very terms of the forum non conveniens doctrine dictate this result.” At the risk of reading too much into the Supreme Court’s interpretive methodology in the case, I would suggest that the decision may indicate a rejection of highly formalistic analysis of the rules of transnational litigation, and an embrace of a more purposive and functionally-oriented approach.