In association with the International Commission of Jurists

Recent Posts

27 Mar

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status. Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time. Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime. Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”
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27 Mar

Amnesty International reports that fewer nations are applying the death penalty, but that those who do are making more use of it. The increase is particularly noticeable in the Middle East. Amnesty International urges EU states to renew their commitment to examine their involvement in CIA secret flights Associated Press reports that the White House offered key concessions, such as advance notice...

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26 Mar

The Brits are looking to strip Asma al-Assad of her UK citizenship, this in the wake of the imposition of various sanctions on her and family members of other Assad associates.  Familial sanctions are an increasingly common practice, on the theory that you really get at the bad guys when you deprive their spouses of shopping trips to world capitals.  (In...

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26 Mar

Greg Miller has a fascinating front-page story in the Washington Post yesterday (Sunday; it appears to be behind a free registration wall) profiling "Roger," the mysterious head of the Counterterrorism Center at the CIA, a key figure in the pursuit of Bin Laden, and a principal architect of the drones program. Here’s the money quote, borrowing from Lawfare: Roger, which is the first...

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26 Mar

Opinions here, with an eight-Justice majority for the result, with the case kicked back downstairs for resolution on the merits.  In the long run, this could prove a watershed decision.  The Court rejects the "textual commitment" and "no manageable standards" bases for applying the political question doctrine.  Neither has ever made a lot of sense to me on their own...

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26 Mar

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS....

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26 Mar

[Eugene Kontorovich is Professor of Law at Northwestern School of Law] Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch...

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26 Mar

US President Barack Obama spoke in Seoul today, promising to pursue nuclear cuts, an issue he will push in a May meeting slated with incoming Russian President Vladimir Putin. Pakistan’s legislators are debating ties with the US, specifically with respect to re-opening NATO supply routes that have been closed since a US attack killed 24 soldiers in Pakistan last November. Iranian President Mahmoud...

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26 Mar

Lawfare has published a very interesting guest post by Haridimos Thravalos on whether conspiracy is a war crime.  The whole thing is worth a read; here is the intro: In June 2006, the U.S. Supreme Court struck down President George W. Bush’s use of military commissions to try suspected members of al-Qaeda in Hamdan v. Rumsfeld, 548 U.S. 557...

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26 Mar

I returned ten days ago from a week of teaching international humanitarian law in Jericho. It was my first time in the West Bank, and I won't soon forget it. I was particularly struck, not surprisingly, by the limitations on Palestinian life and movement -- the endless checkpoints, the hideous wall, the massive illegal settlements dotting the landscape....

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25 Mar

That’s the title of a new paper in the Stanford Law Review by Columbia Law School’s Matthew Waxman (link is to SSRN).  One highly topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups.  It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy or other Constitutional values – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman’s new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too:  What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring?  (Below the fold, the abstract from SSRN.)
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24 Mar

My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website.  I have a copy in hand and I’m delighted to be holding it.  It’s not quite like holding your new baby – but for an inanimate object, it’s closer than you might have thought.  (Julian - feel free to weigh in here: I'm thinking having one's new book in hand is kind of like holding one of those Japanese roboticized teddy bears for soothing the elderly with dementia, but maybe that's just me.) It will be a couple of weeks – April 17 – before it's available through Amazon, Barnes & Noble, and other online sellers.  A Kindle edition will be released on April 17 as well.  Over the next couple of months, I will be talking about various themes in the book – UN-US relations, the nature of the UN, the different ways in which the US should engage (or not) with different parts and functions of the UN.  Julian will be doing the same with his and John Yoo's provocative new book, Taming Globalization, so expect to hear a lot at OJ about themes in our books (we have, btw, covertly set up an algorithm in which the more OJ readers buy our books, the less we will talk about them!).  To start with, however, I wanted to go to a very different topic – this one about publishing, choosing a publisher, and why I chose the Hoover Institution Press.  This follows on some excellent guest posts by senior academic press editors in the past here at OJ - I'm really extending my take on those past discussions. I'm hoping that my thinking here will be useful to some OJ readers thinking about publishing. This is a policy essay, not a “scholarly” book – it has about twenty footnotes for the whole thing, and a bibliography of secondary sources aimed to be accessible to those without a university research library or knowledge of how the UN online archives work.  My interest in this case is dissemination of the ideas in the book, not staking out academic turf.  So my general choices were three: One, find a commercial trade publisher, which seemed improbable given the subject matter, the way it is written, and my lack of trade press publishing in the past.  Two, find a university or academic press; this seemed like the obvious thing, and in fact there were several options that direction, notwithstanding that this is something like the opposite of the dense academic monograph.  Third, go with a think tank policy press in which case, given the history of the project and my affiliations, it would be Hoover. The Hoover publishing folks have been marvelous.  They have been fabulous on production values, editing and copy editing, all the professional production elements.  They have been patient to a fault in waiting for the manuscript and letting me make later changes.  And they have excellent marketing staff and have a commitment to getting the book out there in a way that is only sometimes true of academic presses whose primary audiences are academics and university libraries.  But several academic presses are great in all these ways, too, so one has to ask, why consider a think tank press?  After all, isn’t a think tank press – even one associated with a university, like Hoover, and moreover a conservative think tank – taking a hit in academic prestige and respectability?
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