Law of (on) nations

Transnational judging is on the rise, but it is not a uniform or one-directional process, as a few recent developments confirm.

First up, Spain. For decades, Spanish judges have been on the forefront of what is known as “universal jurisdiction.” Under this doctrine, according to the New York Times, Spanish judges can “prosecute individuals outside their territory for crimes of “international character,” such as genocide, torture, war crimes and crimes against humanity.” Now, the ruling Popular Party is seeking to roll this back, claiming it hurts diplomatic and commercial relationships. The Times offers up a few potential motivations for these changes:

Human rights advocates argue that a double standard has emerged — where it is acceptable to prosecute abuses in weak countries but not in global powers. And they argue that the changes now proposed by the Popular Party would effectively end the use of universal jurisdiction: In cases of genocide, crimes against humanity and war crimes, Spanish judges could investigate only if the suspect is a Spanish national, a foreigner living in Spain or a foreigner in Spain whose extradition has been denied by Spanish authorities. Similar restrictions would also be applied to torture cases.

“They are trying to eliminate universal jurisdiction,” said Judge Garzón, whose aggressive use of the doctrine later led to his suspension from the Spanish bench in 2010. “That is their goal. They have never believed in it.”

Indeed, Spain is now on the receiving end of such international litigation, as a judge in Argentina is investigating war crimes committed during the era of the Spanish dictator Franco. Popular Party leaders are chafing at that case, and some analysts say that the pressure from China has provided an excuse for the government to dilute a legal doctrine that has brought diplomatic headaches.

Second stop, the United States. For a few decades, there has been a move to increase the global or extra-territorial reach of the justice provided by American courts. Under federal laws like the Alien Tort Claims Act, and similar state tort doctrines, individuals anywhere in the world had the possibility of using US courts to get remedies for alleged wrongdoing by US corporations. But, as I write here for UNCTAD, the US Supreme Court has limited the use of the federal law, and state courts have been hobbled by US deference to another channel of legal globalization: investor-state treaty arbitration.

One tangle of cases I briefly discuss in that article – Renco v. Peru –  involves the multi-layered conflict between executive branches, judicial branches (at the national and subnational level), communities, corporations, international judicial organizations  and (whew, out of breath) transnational arbitration.

A quick summary: as part of the 1997 privatization of a metal smelter in the town of La Oroya, the government of Peru and the purchasing US investor (Doe Run, a subsidiary of the Renco Group) each agreed to some environmental remediation obligations, meant to improve the health of local citizens, who suffer from elevated levels of environmental health problems. Ten years later, neither the company nor the Peruvian government had fulfilled their obligations (with each pointing to extenuating circumstances I won’t get into here).

What followed was a huge international legal cluster: Environmental NGOs sued the Peruvian government on the La Oroya community’s behalf at the Inter-American Commission on Human Rights, members of the La Oroya community sued Missouri-based Doe Run in Missouri courts (under state tort laws that allow such things), Renco sued the Peruvian government pursuant to a US-Peru investment treaty/trade agreement, and some in Peru even pushed for legal action in Peru against Renco.

Lots of potential globalization of justice, but are they evenly matched?

The IACHR process, if and when it concludes, has limited enforcement potential. The investment treaty case, in contrast, could produce a monetary award in favor of Renco that the company could then ask US courts to help enforce. The Missouri case was scuttled by the investment treaty case, and has been removed to the arguably less plaintiff-favorable US federal courts. And the Peruvian courts don’t seem to be pursuing further action against Renco, perhaps influenced by the Peruvian government’s eagerness to get the smelter workers back to work, at whatever the cost.

What investment treaties, Spanish universal jurisdiction, IACHR, the Alien Torts Claim Act and the Missouri state court proceedings have in common is the potential to offer up new (or relatively unused until now) types of justice for a globalizing era. But the shake out from the Popular Party and Renco kerfuffles show that these experiments in legal globalization may not be all created equal. Indeed, some may have more staying power than others.

In a future post, I’ll discuss how different legal globalizing efforts within the same group of countries have come into even more direct confrontation, as shown by a recent arbitration involving Romania, Swedish investors and the conflicting obligations Romania had when joining the European Union (of which Sweden was already a member) whilst being party to a Romania-Sweden investment treaty.