The brokerage firm, E.F. Hutton, used to have a tagline that went, “When E.F. Hutton speaks, people listen.” On climate change, the Pope has spoken, but will people listen? And should they? The first question is empirical; the second, normative.

The papal encyclical, Laudato Si’, was released in May 2015 to much acclaim. It is an extraordinarily wideranging document. Although I will focus, in particular, on its discussion of climate change, it is worth noting that the encyclical addresses virtually the entire litany of environmental problems—loss of biodiversity, hazardous chemicals and wastes, marine pollution, replacement of virgin forests with monoculture plantations, and lack of access to clean drinking water, among others—as well as related social problems such as extreme poverty and urban overcrowding.

What follows is a private international lawyer’s response to the thought-provoking ideas put forward by Professor Svantesson on international jurisdiction from a criminal law perspective. This stance may in itself seem (and certainly feels!) paradoxical, since much contemporary academic effort (my own included) has been directed towards a rejection of the public/private distinction in international law. This rejection has been championed both as a normative matter, because so much would be gained from reaching ‘beyond the schism” to overcome the personality split from which the discipline has suffered for over a century, as well as a descriptive matter, since multiple issues, debates, myths and concepts straddle the divide, even if they give rise to specific disciplinary understandings on either side. Both of these observations apply to jurisdiction in all the forms mentioned by Professor Svantesson. Moreover, the need for an intradisciplinary conversation is particularly acute in respect of international limits on criminal jurisdiction, which, as Professor Svantesson’s paper seems to demonstrate, fall somewhere in-between the public and the private models (perhaps seen as logically public, but considered private in France!).

The preceding contributions to this Agora investigate the discernible trend in Supreme Court decisions of citing international legal materials in support of a conclusion about domestic constitutional law. Discussion of this rather limited use of international law—far short of the notion that “[i] nternational law is part of our law”—implicates a deeper set of questions about democracy, sovereignty, and sources of law: Is recourse to international sources a fundamental affront to notions of democratic self-rule, or is it the natural development of a maturing legal system—one moving toward new understandings of sovereignty and popular sovereignty appropriate to an increasingly interconnected web of transnational legal relations? I will argue here for the latter position, and from this perspective the occasional illustrative citation to international norms in the course of a conventional constitutional law opinion is an invitation to broader thought more than a fire bell in the night.

Metalclad Corporation v. Mexico. ICSID Case No. ARB(AF)/97/l. 40 ILM 36 (2001), available at <http://www.worldbank.org/icsid/cases/awards.htm>.

NAFTA Chapter 11 Arbitral Tribunal, August 30, 2000.

Mexico v. Metalclad Corporation. 2001 B.C.S.C. 664, available, at <http://www.courts.gov.be.ca>.

Supreme Court of British Columbia, May 2, 2001.

In 1993, Metalclad Corporation purchased the Mexican company Confinamiento Tecnico de Residuos Industriales, S.A. de C.V. (COTERIN) in order to build and operate a hazardous-waste transfer station and landfill in Guadalcazar, San Luis Potosi. Although the federal government of Mexico and the state government of San Luis Potosi had granted COTERIN permits to construct and operate the landfill, the municipality of Guadalcazar denied a municipal construction permit, and the governor of San Luis Potosi subsequently declared an area encompassing the landfill to be an ecological reserve.

A Justice of the Supreme Court of the United States, who has inherited a taste for epigrammatic expression, made a notable statement on a public occasion not long ago.

The confusion and lack of information about trials of war criminals continues. In 1945 one of our most highly talented observers on international relations made the egregious error of telling a large and intelligent body of readers that, as regards Germans who had ordered or condoned acts of brutality toward the people of conquered countries, “there is no international law in existence” under which most of them could be brought to trial.

In the October, 1947, number of this Journal there was printed the judgment, or as we should say in the United States, the opinion, of the Court of Appeal of England in Szalatnay-Stacho v. Fink. In the following number, that for January, 1948, there appeared an editorial comment on that case by Mr. Arthur K. Kuhn. The present writer begs leave to present certain additional reasons and precedents bearing upon the problem arising in the Fink case, namely, whether and to what degree an official of, or person working under, a government in exile, or an officer or employee of any foreign government, exercising his functions in another country with its consent, is liable to prosecution or suit in the courts of that country on account of his official acts. Though the governments in exile have returned home or ceased to operate, in the event of another war the phenomenon may recur. In any event, the increasing volume and complexity of international relations and the constantly closer ties between friendly nations make probable an increase in the number of officials of one country functioning permanently or temporarily in another with the latter's permission. Among these may be economic, financial, scientific, and military representatives, and all sorts of officers conferring or working with their “opposite numbers” in the host country. A detailed examination of the subject therefore seems timely.