Natalie R. Davidson Phd Candidate Buchman Faculty of Law, Tel Aviv University

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1 Natalie R. Davidson Phd Candidate Buchman Faculty of Law, Tel Aviv University Research Proposal for Category 3 Grant (Support of Research Proposal) from Minerva Center for the Study of the Rule of Law Under Extreme Conditions 1. Research Description and Goals: A Case Study of the Global Rule of Law s Impact on Transitional Politics: The Marcos Class Action The research project for which I seek funding forms part of my Phd dissertation, and consists of a case study of the political implications of transnational human rights litigation for the countries in which the litigated human rights abuses occurred. As interpreted since 1980, the Alien Tort Statute (ATS) 1 enabled foreigners to sue, in U.S. courts, perpetrators of grave human rights violations that occurred abroad, creating a form of universal jurisdiction in civil cases. Even though the U.S. Supreme Court has recently restricted the applicability of the ATS, 2 litigation under that statute remains a source of inspiration for designing transnational modes of human rights accountability, and has been hailed as a symbol of the emerging global rule of law. 3 Scholars focus on the way the ATS promotes international norms and accountability at a global level has created a number of blind spots. In particular, despite the heated debates and extensive scholarship on the ATS, very little attention has been given to the litigation s meaning for the very communities in the global South whose political violence has been litigated, communities which at the time of litigation are often torn by conflict, repression, and/or economic collapse. My dissertation attempts to shed light on this sorely neglected aspect of transnational human rights litigation by examining ATS litigation from a socio-legal perspective. It explores how ATS litigation has interacted with post-dictatorship reconstruction in the global South, in particular with processes of deliberation about resource distribution U.S.C. 1350, which grants U.S. federal courts jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. 2 Kiobel v Royal Dutch Petroleum Co.,133 S. Ct (2013). 3 Ruti Teitel, The Alien Tort and the Global Rule of Law, 185 International Social Science Journal 551 (2005). 4 The institutional practices by which countries address the violence of predecessor regimes are usually grouped under the heading transitional justice. I do not fully adopt that framework, as it is limited to short and medium-term legal and political reform. Instead, I examine the implications of ATS litigation 1

2 In my dissertation, I explore this question through two in-depth case studies. The present case study investigates how the class action against former Filipino dictator Ferdinand Marcos brought by 10,000 victims of human rights abuses in U.S. courts under the ATS has affected reconstruction in the Philippines. Upon the Philippines transition to democracy in 1986, a class representing all civilian citizens of the Philippines, who, between 1972 and 1986, were tortured, summarily executed or disappeared by Philippine military or paramilitary groups 5 sued Marcos in U.S. federal courts. In 1992, a U.S. jury found the defendant (now represented by his estate) liable, and in 1994 and 1995, following complex damage evaluation proceedings, the plaintiffs were awarded a total of nearly $2 billion dollars in exemplary and compensatory damages. While international human rights lawyers have praised the finding of liability and the high damage awards, these stages do not mark the end of the legal proceedings. In their attempts to enforce their damage award (which has now risen to $4 billion with accrued interest) against assets owned by the Marcos estate around the world, the plaintiffs have not only battled the estate. The democratic Philippine government, which initially supported the litigation, has turned into one of the plaintiffs' fiercest opponents to execution of the judgment, as it claims that the assets plundered by Marcos should be returned to the state to fund agrarian reform and should not be reserved to a limited number of victims of the worst abuses. In a country marked by extreme poverty, highly unequal land distribution and continued insurgencies in the countryside, agrarian reform appears as a welcome attempt to make profound socio-economic change. As summarized by political scientist Albert Celoza, during the martial law regime of , Marcos satisfied the demands of a relatively small group of people using the resources of the Philippines as a whole so the small groups benefited while most citizens saw their wages lessen and the infrastructure of the nation slowly deteriorate. 6 By recognizing the class action plaintiffs right to compensation for the most egregious human rights abuses, the U.S. for what I call transitional politics : political discourse, governmental policies and deliberation in the course of democratization. 5 In re Estate of Marcos Litigation, D.C. No. MDL 840, Order Granting Class Certification (D. Haw. April 8, 1991). 6 Albert F. Celoza, Ferdinand Marcos and the Philippines: The Political Economy of Authoritarianism (Westport, Conn: Praeger, 1997), 5. 2

3 courts can be seen as enforcing a universal or global rule of law. Yet from the perspective of the reconstruction of the Philippines, the plaintiffs claims are reminiscent of the private appropriation of public resources experienced under Marcos. We therefore appear to have a conflict between the global rule of law and local needs, between victims of extreme physical violence and victims of more mundane but deep-seated structural injustice, and between the class action plaintiffs trump-like right to compensation and the polity s deliberations about the distribution of scarce resources under conditions of extreme poverty and instability. My project takes these ongoing legal battles as a starting point to investigate the implications of the ATS class action for politics in the Philippines. Have the plaintiffs claims impeded agrarian reform and created intractable conflict, or have they triggered new avenues of contestation and deliberation? How was the litigation interpreted in public discourse in the Philippines? How has it contributed to collective memory of the Marcos era, and to public understandings of the causes and consequences of political violence? Does this case suggest that the international human rights discourse necessarily stands in tension with political deliberation and distributional decisions, as the leftist critics suggest, 7 or can human rights be reinterpreted locally in a way that contributes to political reconstruction? 2. Methodology: Qualitative, In-Depth Case Study In order to answer these questions, I adopt the methodology of the qualitative, in-depth case study. I have been studying the Marcos class action and Philippine politics and history as well as gathering data for the past year. I plan to conduct fieldwork in the Philippines in the summer of There, I will gather documents, including a sample of press coverage of the case from 1986 to the present from at least two widely-read newspapers, transcripts of parliamentary debates, court rulings and collective memory texts discussing the case. I will interview victims, members of 7 David Kennedy, The International Human Rights Movement: Part of the Problem? 15 Harvard Human Rights Journal 101 (2002), 113 (describing human rights as a form of queue jumping ). 3

4 human rights organizations, politicians, lawyers, judges, journalists and government officials. The above data will be analyzed in two manners: first, I will use the information obtained from these various sources to reconstruct the impact of the case on specific transitional policies (eg. agrarian reform, judicial reform, the enactment of victim reparation legislation). Second, I will engage in critical discourse analysis of public texts about the case (namely the press, parliamentary debates, court rulings and collective memory texts) in order to understand how the litigation, its participants and the violence under the Marcos regime came to be interpreted and conceptualized in the shadow of the ATS lawsuit. This will help me understand the implications of the lawsuit for Philippine political discourse. By combining these two levels of analysis, factual and discourse-oriented, I hope to achieve a more profound understanding of the litigation s meaning for the Philippine polity. 3. Innovation: A Socio-Legal, Political Community Perspective on the ATS My project will be one of the first studies to analyze ATS litigation from the perspective of the political community whose violence is being litigated, and to conceptualize this mechanism in terms of a conflict between the global rule of law and the state of profound economic and political instability in the South. It has implications beyond the ATS, and should shed light on some of the potential implications of universal civil jurisdiction, human rights class actions, and universalist legal mechanisms more generally. Though the recent U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum has significantly restricted the applicability of the ATS, cases similar to Marcos could be brought in the future in U.S. courts under the Torture Victim Protection Act, and there have been attempts to enable this type of litigation in other jurisdictions. My project also has repercussions for pressing contemporary debates in international law, such as the question of sovereign immunity in cases of violations of jus cogens norms. Indeed, Marcos offers a real-world example of the deemed conflict between national reconstruction and human rights, a conflict invoked by the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy) in par. 102, where the Court reasoned against creating a human rights exception to immunity to avoid impeding state plans for reconstruction. By exploring this type of conflict and the solutions found in the case of the Philippines, I seek to enrich current debates on human rights and 4

5 international law. Because my project offers a sociological inquiry into transnational human rights litigation, it will also contribute a much-needed window onto the actual uses and implications of the international human rights project Budget Estimated travel costs (Round trip flight Tel Aviv-Manila): US$ 1,500 Lodging (one month in Manila): US$ 1,000 Total daily personal expenses: US$ 600 Other research costs (photocopies, coffee for interviewees, public transportation to interviews and archives): US$ 500 Total estimated project costs: US$ 3,600 8 Frédéric Mégret, Where Does the Critique of International Human Rights Stand? An Exploration in 18 Vignettes, in New Approaches to International Law: The European and the American Experiences (David Kennedy and José Maria Beneyto ed. 2012), 32 (pointing out that both mainstream and critical scholars of human rights have tended to operate at the level of the ideological superstructure, or of elite discourses about human rights at the expense of work more rooted in an observation of the actual uses of human rights. ). 5

6 Natalie R. Davidson Simtat Struma Zichron Yaakov, Israel Born December 14, 1975 in Rennes, France Nationalities: American, French, and Israeli EDUCATION TEL AVIV UNIVERSITY BUCHMANN FACULTY OF LAW 2010 to present Phd. Student Dissertation title: Between Individual and Community Justice: Assessing Transnational Tort Human Rights Litigation, under the supervision of Prof. Leora Bilsky and Dr. Avihay Dorfman LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE LLM Procedural Law obtained with Merit Thesis title: Judicial Mediation in England and France, under the supervision of Prof. Simon Roberts. KING S COLLEGE LONDON AND UNIVERSITÉ PARIS I PANTHÉON-SORBONNE LLB and Maîtrise, both obtained with Honors. This challenging joint program forms bilingual jurists in both English and French law, through four years of intensive study divided equally between the two universities. LYCEE INTERNATIONAL, SAINT-GERMAIN-EN-LAYE, FRANCE Bilingual Franco-American education in international school Bilingual version of the French Baccalauréat, mention très bien (highest honors). Specialization in philosophy, literature and languages. EXPERIENCE TEL AVIV UNIVERSITY BUCHMANN FACULTY OF LAW 2010 to present Research Assistant to Prof. Leora Bilsky in the areas of international criminal law, Holocaust trials, transnational tort litigation, and transitional justice. BANK LEUMI HEADQUARTERS, TEL AVIV Attorney, International Team, Legal Division Negotiation and drafting of agreements in international banking transactions. Research on English and American banking, contract and corporate law. Coordination with outside counsel on legal status of representative offices outside Israel. Day-to-day legal advice to branches and divisions of the Bank on international legal matters. GOLDFARB, LEVY, ERAN, MEIRI & CO LAW FIRM, TEL AVIV Associate attorney, Corporate Department Jan 2005-Jan 2006 Trainee attorney, Corporate Department Negotiation and drafting of agreements in large international M&A transactions. Research of Israeli contract, corporate and intellectual property law and preparation of legal opinions. Due diligence reviews of Israeli and foreign companies. Day-to-day legal advice to Israeli companies. 1

7 UNIVERSITY OF MICHIGAN, ANN ARBOR Adjunct Lecturer, Department of Romance Languages and Literatures Instruction of French language and francophone culture and history Mentoring of new lecturers PUBLICATIONS Natalie R. Davidson, From Political Repression to Torturer Impunity: The Narrowing of Filártiga v. Peña-Irala, in Karen Engle, Dennis Davis and Zinaida Miller (eds.) Anti-impunity and the Human Rights Agenda (Cambridge University Press, forthcoming). Leora Bilsky, Rodger Citron and Natalie R. Davidson, From Kiobel back to Structural Reform: The Hidden Legacy of Holocaust Restitution Litigation, Stanford Journal of Complex Litigation (forthcoming, 2014). Leora Bilsky and Natalie R. Davidson, A Process-Oriented Approach to Corporate Liability for Human Rights Violations, 4 Transnational Legal Theory 1 (2013). Natalie R. Cohn and Amandine Garde, Mutual Influences of English and French Legal Cultures Through Legal Education/ L interaction des Cultures Juridiques Française et Anglaise à l Université, 3 European Review of Private Law 381 (1999). AWARDS AND SCHOLARSHIPS Zvi Meitar Center for Advanced Legal Studies TAU Buchmann Faculty of Law Fellowship , , , and Raul Wallenberg Prize in Human Rights and Holocaust Studies, Minerva Center for Human Rights TAU Buchmann Faculty of Law 2012 and 2013 micro-grant on Law, Globalization and the Transnational Sphere. David Berg Foundation for Law and History TAU Buchmann Faculty of Law research grant, 2013 and Barlow Lyde & Gilbert 1995 award for having written the second best final examination in Tort Law at King s College London. ACTIVE PARTICIPATION IN SCIENTIFIC MEETINGS Representations of Political Violence in the Shadow of Alien Tort Statute Litigation: The Filártiga Case, presented at the conference Judging Human Rights Violations: Pondering Past and Future After Kiobel, Tel Aviv University, December 16, Representations of Political Violence in the Shadow of Alien Tort Statute Litigation: The Filártiga Case, presented at the annual meeting of the Israeli Law and History Association, Jerusalem, September 30, La Competencia Universal Civil, invited lecture, law faculty of the Universidad Columbia, Asuncion, Paraguay, May 2, Representations of Political Violence in the Shadow of Alien Tort Statute Litigation: The Filártiga Case, presented at Impunity, Justice and the Human Rights Agenda Annual Conference of the Rapoport Center for Human Rights and Justice, University of Texas Austin School of Law, February 7-8, A Process-Oriented Approach to Corporate Liability for Human Rights Violations, paper coauthored with Prof. Leora Bilsky and presented at the conference Corporate Liability for Human 2

8 Rights Violations, Tel Aviv University Buchmann Faculty of Law, December The Swiss and German Holocaust Litigation: Two Processual Models for Corporate Liability for Human Rights Violations, paper co-authored with Prof. Leora Bilsky and presented at the European Society for Comparative Legal History s biennial conference, July 9-10, 2012, Faculty of Law, VU University Amsterdam. Between Individual and Community Justice: Assessing Transnational Tort Human Rights Litigation, Phd dissertation proposal presented at the 2012 Workshop of the Institute for Global Law and Policy, Harvard Law School, June 3-9, The United States as Moral Witness: The Alien Tort Statute and the Construction of American Identity paper presented at Human Rights Beyond Borders: Challenges and Opportunities in the Contemporary Globalisation Era, an Interdisciplinary Human Rights Conference at the University of Leicester, Friday 26th November PROFESSIONAL MEMBERSHIP Israel Bar (since November 2001) New York Bar (since June 2003) Research Committee on Sociology of Law LANGUAGES English and French: native languages Hebrew: fluent Spanish and Italian: advanced 3