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Judge Bruno Simma of the Iran-U.S. Claims Tribunal moderated the New Voices panel. The panelists discussed jurisdictional issues relating to the International Court of Justice (ICJ), incidental questions in international proceedings, computer hacking for purposes of national security and law enforcement, and cross-border claims in U.S. federal courts.
Brian McGarry, Lecturer at the Geneva Graduate Institute of International and Development Studies, launched the discussion by presenting jurisdictional issues pertaining to the ICJ. Art. 36 (2) of the Statute of the ICJ – commonly called the ‘Optional Clause’ – which permits parties to the Statute to make unilateral declarations recognizing the jurisdiction of the ICJ as binding with respect to any other state also accepting it as binding. Thus, states that make such a declaration could bring claims against other such states before the ICJ. The U.S. filed a declaration pursuant to the Optional Clause in 1946 but terminated its participation in 1985.
McGarry argued that the Trump administration should reenter the Optional Clause system of ICJ jurisdiction. The supposed disincentives and risks of doing so are paper tigers, McGarry noted, because unilateral ICJ proceedings do not necessarily lead to non-compliance with judgments and the U.S. could still use its Security Council veto to prevent enforcement of an ICJ judgment against U.S. interest. On the other hand, the U.S. has incentives to reenter the Optional Clause system. For instance, if the U.S. participated in the system, the U.S. would be a more credible actor on the world stage and could use its participation to help develop judicial interpretations of international law. McGarry concluded his presentation with substantive recommendations for a potential U.S. declaration to reenter the Optional Clause system.
Ben Love, Senior Associate at Freshfields Bruckhaus Deringer LLP, discussed jurisdiction over incidental questions in international law. Incidental questions involve questions of fact or law that do not ordinarily fall within the jurisdiction of a court but which the court must decide to resolve a primary question over which the court has jurisdiction.
Love expounded on decisions by international courts and tribunals affirming their jurisdiction to decide incidental questions, including the Permanent Court of International Justice, tribunals hearing the Chagos and the South China Sea disputes, and tribunals constituted under investment treaties. Love pointed out that these courts and tribunals apply incongruous rationale and approaches to incidental questions. For instance, some of these courts and tribunals affirm their competence to decide incidental questions independently from other courts and tribunals bestowed with primary jurisdiction over these questions; other courts and tribunals stay their decisions until the court or tribunal with primary jurisdiction over such questions resolves the questions. Love remarked that such inconsistency can cause uncertainty in international proceedings and undermine the value of decisions that rest on incidental questions. Since it is difficult to prescribe a solution of general application to this problem, Love posed a number of probing questions to help guide efforts to address the problem.
Ahmed Ghappour, Visiting Assistant Professor at the University of California – Hastings College of Law, presented on jurisdictional issues that can arise in instances of FBI computer hacking. The FBI and other law enforcement agencies often hack into computers in locations unknown to the FBI to conduct seizures in pursuit of criminal suspects who have veiled their communications on the dark web. The dark web is a network of computers that allows users to communicate in such a way that users are able to conduct anonymous transactions without revealing any trace of their location.
Ghappour’s central claim was that law enforcement’s use of hacking techniques to search computers in unknown locations will necessarily result in cross-border cyber operations that may encroach upon the sovereignty of other nations. This presents a number of foreign policy and national security risks that Ghappour contended law enforcement agencies – particularly the rank and file within – lack the expertise or experience to address. These risks include the likelihood of misattributing a crime, running afoul of diplomatic norms or international law (which would degrade U.S. moral authority and impair its soft power capabilities), facing prosecution in a foreign criminal justice system, and countermeasures and escalation. To minimize these risks, Ghappour recommended regulatory adjustments aimed at placing key foreign policy decisions with the institutional actors best suited to make them.
Maggie Gardner, Climenko Fellow and Lecturer on Law at the Harvard Law School, discussed cross-border claims within the U.S. federal court system. There is a widespread sense, Gardner said, that U.S. judges are too parochial in their approach to cases involving cross-border claims. U.S. jurisprudence broadly favors comity, a willingness to try to accommodate the sovereign interests of other countries in hopes of reciprocity in the long term. One tool U.S. federal judges have to promote comity is forum non conveniens, a discretionary power to decline to exercise the court’s jurisdiction if the court believes a case would be more appropriately heard in a foreign court.
Gardner pinpointed forum non conveniens as a source of parochialism in U.S. federal courts and proposed that the federal court system should retire and replace the doctrine. Forum non conveniens is ill-designed to promote comity because it is a Byzantine test, Gardner observed. Gardner favored simpler comity-enhancing tests. In this regard, Gardner supported refining recent progressive developments such as narrowing the scope of personal jurisdiction (thereby limiting the circumstances in which foreign defendants can be held subject to U.S. courts), the resurrection of the presumption against extraterritoriality, and the presumptively enforceable nature of forum selection clauses in private contracts.
Orga Cadet is a 2016-17 ASIL Arthur C. Helton Fellow with the Public International Law & Policy Group.