International Human Rights Litigation in the United States

Paul Hoffman reviews the position in the United States regarding the imposition of liability on multinationals for human rights abuses occurring overseas. He focuses on corporate complicity cases brought under the Alien Tort Statute over the past 25 years. By reference to key decisions, he charts the development of the law which had had initially held out considerable promise for human rights victims but which has been gradually whittled away by decisions such as Kiobel in 2012 and Jesner in 2018. The scope of the statute and the concepts of aiding and abetting liability, the presumption against extraterritoriality, ‘touch and concern test’ and ‘foreign sovereign immunity’ are explained. The decision in Doe v. Nestle has resolved many of the uncertainties. Potential liability under various statutes to protect victims of torture, trafficking, terrorism, and corruption are outlined as is the experience of common law tort claims and forum non conveniens.

Why do Sovereign Borrowers Post Collateral? Evidence from the 19th Century

This paper explores the reasons why sovereign borrowers post collateral. Such behavior is paradoxical because conventional interpretations of collateral stress repossession of the assets pledged as the key to securing lenders against information asymmetries and moral hazard. However, repossession is generally difficult in the case of sovereign debt and in some cases impossible. Nevertheless, such sovereign “hypothecations” have a long history and are again becoming very popular today in developing countries. To explain sovereign collateralization, we emphasize an informational channel. Posting collateral produces information on opaque borrowers by displaying borrowers’ behavior and resources. We support this interpretation by examining the hypothecation “mania” of 1849-1875, when sovereigns borrowing in the London Stock Exchange pledged all kinds of intangible revenues. Yet, at that time, sovereign immunity fully protected both sovereigns and their assets and possessions. Still, we show that hypothecations significantly decreased the cost of sovereign debt. To explain how, we stress the pledges’ role in documenting sovereigns’ wealth and the management of revenue streams. Based on an exhaustive library of bond prospectuses collected from primary sources, matched with a panel of sovereign bond yields and an innovative measure of sovereign fiscal transparency, we show that collateral minutely described in debt covenants served to document and monitor sovereign resources and development prospects. Encasing this information in contracts written by lawyers served to certify the quality of the resulting data disclosure process, explaining investors’ readiness to pay a premium.

THE STATUS AND POSITION OF THE VATICAN AND THE POPE AT INTERNATIONAL LAW: TRYING TO FIT A RELIGIOUS SQUARE PEG INTO A LEGAL CIRCLE?

The final word has not been spoken on the position and status of the Vatican; nor have the intricacies and complexities of its relationship with the Holy See been exhaustively ventilated. In the present writer’s view, the debate as to whether the Vatican, or the Holy See, meets the requirements for statehood will rage on into the future. However, this article does not pretend to be definitive. It merely seeks to demonstrate how international-law concepts and phenomena are being stretched (sometimes beyond their limit) in order to accommodate the Vatican. The Vatican does not meet the minimum requirements for statehood; but it continues to be accorded, by the community of nations, the kind of recognition that more deserving entities such as Taiwan, the Palestine and Somaliland are being denied. Its officials and functionaries enjoy sovereign immunity in the courts of fully-fledged nation states which those of the aforementioned nascent states do not enjoy.

Defining Sovereign Assets for Immunity from Execution: International Rule of Law Versus International Law - Based Rule of Law

Sovereign assets receive restrictive sovereign immunity based on their purpose and/or use for execution of States’ commercial liabilities. The forum States’ courts decide the question of immunity of these assets. Due to lack of effective international conventions, these judgements result at inconsistent outcomes. Rule of law can be applied to mitigate this inconsistency. However, the objectives of rule of law vary for the national and the international legal order. Moreover, the divergence in group-interests of States and mandate of international organizations have failed to agree on a uniform definition of international rule of law. Thereby, this paper suggests international law-based rule of law as an alternative approach. International law-based rule of law aims at achieving the same objectives as domestic legal order, but, by the tools of international laws. Finally, it proposes to develop an inter-States consensus-based model law to have uniform principles of sovereign assets’ immunity in international law.

Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case

The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.

The Law of State Immunity before the Brazilian Supreme Court: what is at stake with the “Changri-La” case?

It was 1943 when the Changri-La fishing boat and its ten fishermen crew disappeared near Cabo Frio, Rio de Janeiro. But only in 2001 the Tribunal Marítimo da Marinha do Brasil recognized that the vessel had been sunk by a German submarine. The relatives of the victims sought compensation at the Brazilian courts for its material damages and non-pecuniary losses. However, they stumbled upon a customary norm of Public International Law: the rule prescribing that a State is entitled to immunity in respect of acta jure imperii before the domestic courts of another State. After a long journey within the Brazilian courts, the case reached the Supremo Tribunal Federal (STF) – the Brazilian Supreme Court, which blends functions of constitutional review and court of last appeal – and in March 2021, the trial finally started. In the Extraordinary Appeal with Interlocutory Appeal (ARE) 954858 – currently suspended after Justice Alexandre de Moraes’ request to see the records –, it is discussed whether human rights violations are an exception to the rule of States’ sovereign immunity. While the case has not yet reached a conclusion, some Justices have already expressed their legal views – their votes, as they are called in the Brazilian Supreme Court – offering potential outcomes for the discussion. In this essay, we analyze two issues present in some of the votes: absence of proper engagement with international legal arguments, revealing a detachment from international law, and the possible consequences of the thesis proposed by the reporting Justice, Edson Fachin. Our endeavor is both to comment and to explain what is at stake with the Changri-la case.