Weekend Roundup: April 20 – 26, 2013

by An Hertogen

This week on Opinio Juris, we continued last week‘s Kiobel Insta-Symposium. Quoting from his and John Yoo’s Forbes contribution, Julian argued that the rejection of universal civil jurisdiction is common sense because it leaves the decision on foreign policy consequences of extraterritoriality to the political branches. He also drew our attention to two positive assessments of the opinion, by John Bellinger and Eugene Kontorovich. Austen Parrish offered an alternative narrative about the meaning of Kiobel, seeing it as a welcome retreat from US unilateralism towards more multilateralism.

The many unanswered questions in Kiobel continued to invite commentary. Roger listed various activities with some link to US territory that may still be subject of future ATS litigation. Beth Stephens also predicted many years of continuing litigation, and preferred the world pre-Kiobel. Examples of upcoming cases were also discussed. Roger pointed out how the Supreme Court has already granted certiorari in DaimlerChrysler AG v Bauman, a human rights case involving jurisdiction over foreign corporations, and Roger Phillips discussed two piracy cases with mixed loci delicti that will soon arrive at the Supreme Court.

Bill Dodge argued that because of the unanswered questions, Kiobel is only a Pyrrhic victory for the position on extraterritoriality first pushed by the Bush administration and urged the human rights and business communities to reach a compromise on a statute that would end the litigation. Milan Markovich argued that it could also turn out to be a Pyrrhic victory for corporate defendants and could lead to more settlements to avoid discovery proceedings into whether claims “touch and concern” the US territory.

Accusations about the use of chemical weapons against civilians in Syria, as reported in our weekday news wraps, raised the question whether Obama’s “red line” had been crossed. Julian was sceptical as to why Assad’s use of chemical weapons would justify an intervention in Syria under US and international law, and Deborah similarly explored whether there is a legal basis for intervention.

Other recent events that prompted posts were the Boston bombings, which Kevin argued fall within at least one definition of terrorism that does not require acts to be politically or ideologically motivated, and the collapse of a garment factory in Bangladesh, which Roger hoped would provide an incentive to sign up to agreements, such as the Bangladesh Fire and Building Safety Agreement, that include a binding arbitration clause to ensure better protection of human rights.

In news from international courts, Julian updated us on the appointment of the final arbitrators for the UNCLOS arbitration lodged by the Philippines against China, and assessed China’s “talking points” on the case. He also urged the Supreme Court to follow the ICJ’s lead and release video recordings of oral hearings.  On the US-ICC relationship, Julian ventured that a cultural change is required if it is to blossom into a love affair. More news from the ICC came from Kevin, who worried that a funding crisis was behind the OPCD’s request to withdraw from the Saif Gaddafi case, and the Pre-Trial Chamber’s approval of a new lawyer.

Finally, Kevin corrected an old post on whether Bill Keller of the NYTimes can be charged with aiding and abetting the enemy like Bradley Manning.

As always, we listed events and announcements that may be of interest to our readers. And remember, there is still time for grad students and recent grads out there to submit an abstract for our New Voices symposium!

Have a nice weekend!


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