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International Law in U.S. Courts

Should the U.S. Use “Lawfare” Against Russia?

by Julian Ku

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism.   As they defined it then:

The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

So it is somewhat surprising that the duo, both very influential commentators among U.S. conservatives, is advocating a lawfareish approach to combatting Russia’s annexation of Crimea and its threats against Ukraine. Here is some of their advice in today’s WSJ.

As a start, the Obama administration should seek a U.N. General Assembly resolution requesting the International Court of Justice’s opinion on the legality of the Russian annexation of Crimea.

The U.S. and its allies should also challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or international.

Nongovernmental organizations, which cast themselves as guardians of the international order, have a role to play in condemning and challenging in courts of law and in public opinion Russia’s actions against Ukraine

In other words, the authors want to use “lawfare” against Russia.  I agree that the US has good legal arguments against Russia on this issue, and that the US also had good (but not unassailable) legal arguments for its war on terrorism policies. But I don’t think that the US invocation of international law, nor its employment of “lawfare” to highlight international law, will be very successful against Russia.  Lawfare’s main impact against the U.S. was to tie up many of its policies in domestic U.S. litigation. I don’t see that as an avenue against Russia.

Moreover, the employment of lawfareish pressure tactics could easily be used as an excuse to avoid taking more strenuous or effective actions (e.g. tougher sanctions, increased military aid, etc.).  I am not sure US conservatives should be eager to jump on this lawfare bandwagon, no matter how good the cause.

YLS Sale Symposium: A Salvage Operation–Refugee Rights Advocacy in the United States after Sale

by Bill Frelick

[Bill Frelick is the director of Human Rights Watch’s Refugee Rights Program. See part one of his post here.]

Since Sale v. Haitian Centers Council judgment in 1993 settled the issue of extraterritorial application of the principle of nonrefoulement in US domestic law, US-based refugee rights advocates after 1993 were left without recourse to US courts. But, writing for the Sale majority, Justice Stevens had said, “The wisdom of the policy choices by Presidents Reagan, Bush, and Clinton is not a matter for our consideration.”

Accordingly, US advocates turned their attention to the policy choices of the executive branch and tried to push the US president to limit US actions, even if he was not required to do so under US law. Secondarily, they targeted the legislative branch, although the US Congress in the mid-90s had taken a restrictionist turn with respect to asylum and immigration. The stark political reality was that there was no prospect of reversing Sale through legislation. Finally, as discussed in a companion essay, US-based advocates worked with UNHCR and international NGO partners to isolate the US interpretation of the nonrefoulement principle in international fora and to limit the damage of the US precedent in other jurisdictions.

This essay will discuss the first two of these three avenues of post-Sale advocacy in which NGOs tried:  (1) to convince the Clinton Administration (and later administrations) as a matter of policy, if not of law, to adhere to international refugee protection principles, and (2) to prevent Congress from taking even more regressive steps and, if possible, to introduce language into legislation that would ameliorate the worst elements of Sale.

Advocacy with the US Executive

First, refugee advocates engaged with the Clinton Administration to convince the president to refrain, as a matter of policy, from availing himself of the Supreme Court’s free pass to refoule maritime asylum seekers. This effort involved direct meetings with Clinton Administration officials, media outreach, and enlisting the support of influential voices. Human rights organizations, including Human Rights Watch/Americas Watch, the National Coalition for Haitian Refugees, Caribbean Rights, the Lawyers Committee for Human Rights, Amnesty International, and Physicians for Human Rights, worked to document human rights abuses of Haitians who had been returned by the United States. Advocates also argued with Clinton Administration figures that the US interdiction practice was likely to be very damaging to refugee rights if widely adopted by other states.

To some extent this advocacy succeeded. The Clinton Administration tested a number of alternatives to direct, summary repatriation of Haitians—short of admitting interdicted Haitians to the United States to pursue asylum claims on US soil. Among these was an in-country refugee processing procedure, modeled to some degree on the Orderly Departure Program that was being used at the same time to bring Vietnamese boat departures to an end. Although NGOs were divided on in-country processing from Haiti, and some were involved in the processing, other advocates, this writer included, sharply criticized in-country processing as deeply flawed based, in part, on rights violations Haitians experienced while waiting in the queue, and rejected it as a rationalization for summary returns (see here).

About a year after Sale, on May 8, 1994, President Clinton announced that his administration would not directly repatriate interdicted Haitians without giving them an opportunity to present refugee claims. In July 1994, the Clinton Administration announced that the US naval base at Guantánamo Bay, Cuba (GTMO) would be used as a safe haven for Haitians, the same day that the UN Security Council agreed to a resolution calling for all necessary measures to restore democracy to Haiti. Within six months, President Bertrand Aristide had been restored to power and most of the Haitians at GTMO returned voluntarily.  Refugee rights advocates, this writer included, were highly critical of the treatment of Haitians (and Cubans) at GTMO, but for all its faults  it was a vast improvement over having US Coast Guard cutters taking interdicted Haitians directly back to Port-au-Prince.

Policies not grounded in law are subject to change according to political circumstance, however. When Aristide was deposed a second time, in February 2004, the new US president, George W. Bush, announced, “I have made it abundantly clear to the Coast Guard that we will turn back any refugee that attempts to reach our shore,” and US policy had swung back to that of the GHW Bush years, and post-Sale his actions were not amenable to legal challenge.

Advocacy with the US Congress

On the second front, with the US Congress in the mid-1990s, there was considerably less sympathy for Haitian refugees than in the White House. The Congress was in the process of enacting the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), legislation that introduced a host of draconian restrictions on the ability of asylum seekers to lodge claims in the United States. This left US advocates to pursue rearguard actions on the margins of IIRAIRA that might provide some relief to asylum seekers interdicted on the high seas. Refugee rights advocates could not stop Congress from introducing expedited removal as part of IIRAIRA, but were able to convince legislators to include in the category of aliens who were to be treated as applicants for admission in INA §235, the new statutory provision for expedited removal, people who had been “brought to the United States after having been interdicted in international or United States waters.”

Refugee advocates reasoned that although expedited removal was a step backward in procedural protections for arriving aliens, it at least would provide some procedure, however truncated and accelerated, that would provide a higher measure of protection than was being provided to asylum seekers interdicted at sea and summarily returned to Haiti.

There have been more ambitious legislative initiatives in the 20 years since Sale to try to counter the damage, but none has been enacted into law. The most comprehensive, the Refugee Protection Act (RPA), championed by Senator Patrick Leahy (D-VT), would amend INA §241(b)(3) by including language that specifically addresses protection for aliens interdicted at sea. The RPA would add reference not only to the principle of nonrefoulement in refugee law, but in human rights law as well and would prohibit the return of people interdicted in international or US waters who express a fear of return until they have had the opportunity to be interviewed by an asylum officer to determine whether they have a well-founded fear of persecution or would be subjected to torture. The RPA also outlines procedures applicable for interdicted asylum seekers and indicates how the US should treat those found to be in need of international protection, saying such people should be given the opportunity to seek protection in another country, which could include the United States.

The earliest iteration of the RPA was introduced in the 106th Congress in 1999-2001 at the end of the Clinton administration. Over the years, the RPA has gained widespread NGO support, including from leading refugee and human rights organizations including Human Rights First and Human Rights Watch, the ACLU, the ABA, and many faith-based and secular refugee service and advocacy organizations. Introduced again in the 113th Congress, it is now pending before the Senate Judiciary Committee.

Conclusion

Refugee rights advocates in the United States had some success in convincing the Clinton Administration not to refrain from interdicting Haitians on the high seas and summarily repatriating them as a matter of policy, even though the Sale decision authorized it to do so. However, advocates failed to convince the US Congress to change the law to require the executive branch to honor the principle of nonrefoulement where it exercises jurisdiction or control outside US territory. Therefore, the George W. Bush Administration was able to revert to the practice of high seas interdiction and summary return of Haitians to a place where they were likely to face threats to their lives and freedom.

YLS Sale Symposium: Immigration Detention and Status Determinations in Guantánamo Bay, Cuba

by Azadeh Dastyari

[Azadeh Dastyari is a Lecturer in the Faculty of Law at Monash University and an Associate of the Castan Centre for Human Rights Law.]

US President Barack Obama has stated that Guantánamo Bay is “a symbol around the world for an America that flouts the rule of law”. He was referring to the imprisonment of non-citizens in the ‘war on terror’ in the US Naval base that has garnered unprecedented international attention and has been the subject of much scholarship. The same quotation is also applicable to the much less known detention of refugees in the US Naval base in Guantánamo Bay, Cuba.

Under its Migrant Interdiction Program, the US intercepts sea vessels outside US waters and returns home individuals who are not authorized to enter the US. A very small percentage (less than 0.6% between 1996 and 2013) of the individuals intercepted at sea are identified by the US Coast Guard as having a credible fear of persecution or torture, and are transferred to Guantánamo Bay for further processing. In Guantánamo Bay, they are interviewed by a US Asylum Officer to determine if they have a well-founded fear of persecution (are refugees) or are more likely than not to be tortured if repatriated.

There are significant shortcomings with status determinations in Guantánamo Bay that place the US at risk of violating its non-refoulement obligations under Article 33(1) of the Convention Relating to the Status of Refugees (Refugee Convention) and Article 3 of the Convention gainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The US does not provide individuals being interviewed access to legal counsel, the UNHCR or any other group or NGO. This may leave protection seekers unable to articulate their protection needs and thus fail to have their protected status recognized. The US also fails to provide any independent review of status determinations. Such a review would provide an additional safeguard against mistakes and assist in ensuring that no refugee or individual owed protection under Article 3 of the CAT is wrongly repatriated.

All individuals transferred to Guantánamo Bay under the US interdiction program are detained at the Migrant Operation Center. Detainees are separated into three categories: (i) individuals who are found not to have protection needs are labelled ‘non-protect migrants’ and are repatriated; (ii) asylum seekers whose status has not yet been determined are labelled ‘undetermined migrants’; and (iii) asylum seekers who have had their refugee status recognized by an Asylum Officer are labelled ‘protected migrants’ (as are individuals who are assessed as being more likely than not to be tortured if repatriated).

Individuals in the ‘protected migrants’ category remain in Guantánamo Bay until a third country can be found for their resettlement, which may take months or even years.  It is also worth noting the US government’s insistence on using the term ‘migrants’ when referring to people it has recognised as refugees in Guantánamo Bay. This stems in part from the US’ denial that its obligations under the Refugee Convention extend to its exercise of jurisdiction in Guantánamo Bay. The US views any protection it offers against refoulement to individuals at the Migrant Operation Center a gratuitous humanitarian act rather than what it truly is: the fulfilment of the US’ international legal obligations.

Immigration detention in Guantánamo Bay violates the US’ obligation to refrain from arbitrary detention under Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). In A v Australia, the Human Rights Committee considered the legality of Australia’s policy of mandatory immigration detention and stated that the factors necessitating detention must be ‘particular to the individual’ in order for it not to be characterized as arbitrary. In A v Australia Australia’s policy of mandatory immigration detention was found to be arbitrary because the reasons given for the detention (unlawful entry and fears of the detainee absconding if free) were not particular to the detainee in question. As with Australia’s policy of mandatory immigration detention, individuals transferred to Guantánamo Bay under the US interdiction program are subject to arbitrary detention because no assessment is made of the individual circumstances of each detainee and no alternatives to detention are considered.

Closely related to Article 9(1) of the ICCPR is Article 9(4) of the ICCPR. The Human Rights Committee has interpreted Article 9(4) to mean that detainees must have a right to appeal their detention in a court to determine the legality of the detention. Furthermore, a court reviewing detention must be empowered to order the release of the detainee if there is a violation of Article 9(1) of the ICCPR. The Committee has found that review of detention which is ‘limited to mere compliance of the detention with domestic law’ does not satisfy the requirements of Article 9(4) of the ICCPR.

The US Supreme Court has recently confirmed that non-citizens held in Guantánamo Bay must have access to the writ of habeas corpus. As such, immigration detainees should now have a right to appeal their detention in a US court to determine the legality of their detention. However, any review of detention in US courts is “limited to mere compliance of the detention with domestic law”  in violation of Article 9(4) of the ICCPR.

Despite diplomatic efforts, the US has little control over how long it may take to find a third country willing to resettle immigration detainees from Guantánamo Bay. As such, the most viable means of releasing detainees who cannot be repatriated (because they are owed protection from refoulement, are stateless or for some other reason) from arbitrary detention in Guantánamo Bay would be to transfer the detainees to the US mainland. However, despite access to habeas corpus, detainees are unlikely to be brought into the US mainland under any court challenge. The US Supreme Court has determined that it “is not within the province of any court, unless expressly authorized by [municipal] law, to review the determination of the political branch of the Government to exclude a given alien”. US courts have also construed restraints on the freedom of movement of non-citizens resulting from their denial of entry into the US not as unlawful detention, but as a permissible exercise of the executive’s plenary power to deny non-citizens entry. That is, the executive retains the right to decide if and when detainees in immigration detention in Guantánamo Bay can be released from their detention by being brought into the US. As such, the use of Guantánamo Bay as an element of the US’ interdiction program is likely to continue despite violations of the US’ international obligations. 

YLS Sale Symposium: Haitian Democracy, the Sale Decision and Haitian Refugees

by Ira Kurzban

[Ira Kurzban was counsel for the government of Haiti between 1991 until 2004 and was counsel of record in HRC v. Baker and over 10 other class action lawsuits involving Haitian refugees in the United States. Mr. Kurzban continues to serve  as personal counsel for Jean Bertrand Aristide, Haiti’s first democratically elected president.]

On September 30, 1991, the Haitian military, with the help of the Haitian elite, overthrew the democratically elected government of Jean Bertrand Aristide. President Aristide had won Haiti’s first free, fair and open election by 67% of the vote in a field of 17 candidates.

The violence of September 30, 1991 and its aftermath are well known. Estimates range from 1,000 to 3,000 military and paramilitary executions within the first 48 hours of the coup, many in front of the National Palace where supporters of Haitian democracy went to protest the overthrow of their President. Beyond the immediate executions were tens of thousands more over the next several years by DIA/CIA sponsored paramilitary organizations such as the Front for the Advancement and Progress of Haiti (FRAPH). Many of this is documented in trials such as the Raboteau trial where human rights violators were tried in a court of law and brought to justice for the first time in Haitian history.

A second coup, again with the funds and organization of the elite, but also the  support of the United States, French, and Canadian governments, occurred on February 29, 2004 during the second democratically-elected term of Jean Bertrand Aristide.  By the second coup, the Haitian army had been demobilized. One might call this coup, documented in detail in such works as Hallward’s Damming the Flood: Haiti, Aristide and the Politics of Containment  and Sprague, Paramilitarism and the Assault of Democracy in Haiti, as a slow-motion performance where a military wing went from town to town executing police and supporters of democracy while the elites simultaneously financially supported such executions while proclaimed their rights were being violated. The U.S., French and Canadian government contributed at a minimum to the finance and support of  gross disinformation campaigns, anti-democratic organizations, paramilitary groups and covert operations in the second coup.

The decision in Sale v. Haitian Centers Council, a travesty of international and domestic law, and basic human decency, had a significant effect on how Haitian refugees fleeing these two coups were treated. Pre-Sale the U.S. government’s actions were hesitant, unsure, chaotic and erratic. Post-Sale they were ruthless.

In October, 1991, almost  immediately after the coup, Haitians who supported democracy and supported President Aristide began fleeing Haiti in fear of their lives. By mid-October, Haitians were aboard vessels trying to get out of Haiti. By December there were more than 5,000 Haitians who had fled Haiti. At one point in the crisis there were more than 10,000 Haitians in the Guantanamo camps.

The initial response of the U.S post-September 30, 1991 was to decline to return Haitians to the imminent danger they faced. They were taken aboard Coast Guard cutters. The U.S. held them in the cutters and sought to obtain clearance for their trip to the U.S. or their return home.  The U.S. had signed a 1981 interdiction treaty with Haiti that required our country to at least provide  facial compliance with international law by granting “ asylum interviews” aboard Coast Guard cutters prior to forcibly returning refugees to Haiti. The numbers of Haitians on the cutters began to build up. Given the public executions in front of Haiti’s national palace the foreign policy establishment in the U.S. was too embarrassed pre –Sale to immediately return Haitians fleeing the country. By November hundreds of Haitians were simply sitting on the decks of cutters in the Caribbean.  The numbers became too large and by November 18, 1991 the Bush Administration directed the Coast Guard to take the refugees back to Haiti and ignore our 1981 Accords.

The next day the Haitian Refugee Center filed an action for declaratory and injunctive relief in the United States District Court in the Southern District of Florida. They also filed an application for a  temporary restraining order that would prevent the Coast Guard and the U.S. government from removing Haitians on the high seas from being returned. (more…)

Lozano v. Montoya Alvarez: The Latest Supreme Court Treaty Interpretation Case

by Duncan Hollis

I’m a bit pressed for time, but wanted to offer a brief post calling readers’ attention to a US Supreme Court case that came down today — Lozano v. Montoya Alvarez.  In it, a unanimous Court interprets the Hague Convention on the Civil Aspects of International Child Abduction to not allow equitable tolling of the requirement that a child be automatically returned to the country from which s/he was abducted in the one year period after the child is taken.  The case involved two Colombian nationals living in England in 2008 when the mother leaves with her child for France and then New York (via a shelter for victims of domestic violence).  The father was unaware where his child had been abducted to, and thus could not file for the return remedy provided for by Article 12 of the treaty.  After much searching, he located her in the United States in November 2010.  At that point, however, the near automatic-right of return for one year provided via Article 12 no longer applied and the Convention imposes a different standard – wherein courts must order the return of the child ‘unless it is demonstrated that the child is now settled in its new environment’ (emphasis added).  Lower courts found that the child had become settled and thus she remained in the United States pending the outcome of this litigation.

In its opinion, the Court interpreted Article 12 not to contain any equitable tolling possibility with respect to the one year period for the automatic right of return.  In doing so, it declined to apply the equitable tolling doctrine available for federal statutes to treaties, offering in the process some general statements on its approach to treaty interpretation:

For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas,  552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.

It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996). Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling….

I don’t see anything too dramatically different in this reasoning than the Court’s earlier pronouncements.  More interesting, perhaps, is the Court’s unwillingness to let the existence of implementing legislation via federal statute impact its interpretative analysis:

It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.

There’s more later in the opinion offering views on the negotiators’ intent as well as the object and purpose of the Hague Convention itself.  But, I’ll leave that for readers to comment on if anyone is inclined to do so.

Japan and Korea Take Their (History) Wars to U.S. State and Local Legislatures

by Julian Ku

A lawsuit filed yesterday in California federal court seeks the removal of a statue in a Glendale, California public park honoring women victimized by the Japanese military during World War II.  The placement of the statue was approved by the local city council with the strong support of Korean and Korean-Americans who want to recognize the suffering of the “comfort women”. The lawsuit appears to claim as one of its arguments that the local city council is interfering in national foreign affairs in violation of the US Constitution.

This lawsuit is only the latest front in a spreading battle between Korean and Korean-American groups and the Japanese government in various state and local legislatures.  In Virginia, the state legislature (again with strong Korean-American voters support) passed legislation requiring textbooks in public schools to note that the Sea of Japan is also called the “East Sea.”  New Jersey is considering similar legislation, and already has its own “comfort women” memorial.

As a legal matter, I can say with high confidence there is no serious argument that the placement of a statue in a public park, or the rewording of textbooks, violates the federal government’s foreign affairs authority under the Constitution.  No legal rights of foreign nationals are involved, nor is this a matter traditionally handled by the national government, nor does the US-Japan Treaty of Peace preempt this action.  So this aspect of the anti-memorial folks’ lawsuit seems pretty hopeless and borderline frivolous.

I am less sure about the policy benefits of this type of activity.  For US legislators this is just a cheap and easy way to get support from a growing voter population.  China’s government has tried a similar strategy to garner Korean friendship on a much grander scale when it put up a huge memorial to a early-twentieth-century Korean anti-Japanese revolutionary.  But those actions are purely out of self-interest.

On the other hand, all of this seems like a relatively gentle way to prod the Japanese on these issues.   In any event, expect to see more action at the state and local level in the U.S. One hopes (although this seems a vain hope) that this activity might even spark some useful Korean-Japanese debate on matters that they can’t seem to talk about much back in Asia.

A Few Thoughts on Eugene Kontorovich’s Response to My Post

by Kevin Jon Heller

Eugene has graciously responded to my earlier post; you can find his new post here. It’s well worth a read. I just want to offer a few  thoughts on Eugene’s response, because I think it fails to address the core of my critique: that it is incorrect to claim, as Eugene did in his first post, that Europe’s opposition to the juvenile death penalty is based on the idea that “minors are not really responsible for their actions.” I argued that, on the contrary, Europe’s opposition to the juvenile death penalty is part and parcel of its opposition to the death penalty itself.

Eugene’s new post provides no support for his original thesis. Here is what he argues, in order:

The EU’s position is that the death penalty is wrong under any circumstances; however, the juvenile death penalty is even wronger. And this distinction could presumably only be due to the reduced decision-making capacity of juveniles.

Thus in their amicus brief in Roper, the EU did not argue that the death penalty was unconstitutional – though they stated their opposition – rather, they argued the juvenile death penalty was unconstitutional even if the death penalty itself were constitutional. (As amici, they were in no way limited to the facts of the case, and could have submitted a much broader argument.) The EU’s opposition to the juvenile death penalty repeatedly points to an “international consensus” against it, reflected in various treaties and U.N. documents. These instruments specifically do not bar the death penalty, but do prohibit the juvenile death penalty. Thus the consensus which the EU pointed to is itself based on a belief in a fundamental distinction between juvenile and adult death penalties.

It is true that there is an international consensus against the juvenile death penalty. And it is highly likely that some of the states that are part of the international consensus oppose the juvenile death penalty because they believe juveniles have a “reduced decision-making capacity.” But nothing in the EU amicus brief suggests that European states oppose the juvenile death penalty because of the diminished moral capacity of juveniles. As I noted in my earlier post, Europe opposes the death penalty for everyone, adult and juvenile, because — in the words of the Council of Europe — “everyone’s right to life is a basic value and that the abolition of the death penalty is essential to the protection of this right and for the full recognition of the inherent dignity of all human beings.” Yes, Europe would be more than willing to argue that “the juvenile death penalty was unconstitutional even if the death penalty itself were constitutional.” But that is because the international consensus against the juvenile death penalty is much stronger, not because Europe believes juveniles “are not really responsible for their actions.” In other words, the EU’s amicus brief does not care why some states permit the adult penalty but permit the juvenile death penalty (which may well reflect a view of juvenile moral capacity); it simply cares that even those states still reject the juvenile death penalty.

To be sure, if the EU thinks the juvenile DP to be even worse, it will not be reflected in its internal policies – but it would be reflected in its external ones. An indeed, in dealing with third countries, the EU makes a fundamental distinction between the juvenile and adult death penalty. As spelled out in the EU Guidelines on the Death Penalty, Europe will provide aid and have good relations with countries that practice the death penalty, Europe’s position is that where the death penalty exists, it should always be subject to certain “minimum standards”:

Where states insist on maintaining the death penalty, the EU considers it important that the following minimum standards should be met: … iii) capital punishment may not be imposed on … Persons below 18 years of age at the time of the commission of their crime;

Eugene does not quote the EU’s minimum standards in full, and the text he does not quote complicates his argument that Europe views the juvenile death penalty as “worse” than the adult death penalty because of the “reduced decision-making capacity of juveniles.” Here is the paragraph in full, with the omitted text in bold:

Capital punishment may not be imposed on:
• Persons below 18 years of age at the time of the commission of their crime;
• Pregnant women or new mothers;
• Persons who have become insane.

The EU’s suggested ban on executing the insane clearly does reflect the idea that insane persons have a “reduced decision-making capacity.” But the ban on executing “pregnant women or new mothers” doesn’t. Their decision-making capacity is not reduced — yet the EU insists that death-penalty states not execute them, either. So which category are juveniles closest to — the insane (who should not be executed because they are not responsible for their actions) or pregnant women and new mothers (who shouldn’t be executed because it’s inherently wrong to execute them)? There is no way of knowing from the EU’s Guidelines on the Death Penalty — which means that the Guidelines don’t support Eugene’s argument that Europe views the juvenile death penalty as worse than the adult death penalty because “minors are not really responsible for their actions.”

Let me add another point of Belgian inconsistency. Allowing minors to take their lives, or have them been taken, necessarily makes assumptions about their capacity that is at odds with many liberal features of international law. International treaties, including the Rome Statute of the ICC, make the recruitment of child soldiers a crime, and European countries have been active in promoting the expansion of these norms.

Being a child soldier (under 15) is not a crime, only enlisting them. Crucially, the consent of the child, her parents or any psychologists is not a defense. Indeed, consent is presumed, as the crime covers accepting voluntary enlistees. As the Special Court for Sierra Leone put it:

The act of enlisting presupposes that the individual in question voluntarily consented to be part of the armed force or group. However, where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.

But is this still a far cry from euthanasia? Not if the underlying issue is one of capacity to make life-imperiling decisions. And it is important to point out 15 year old may join armed conflict in when the defeat of their side would lead to the massacre or oppression of them and their families and the destruction of their way of life. Yet international law still prohibits their recruitment. This does not mean it can never be rational for a child to join armed forces, but rather that we make a categorical judgement that even if it is sometimes rational, they lack the judgement to make decisions that imperil their lives.

The emphasis is mine — because I think Eugene’s argument actually proves my point, not his. Eugene’s claim is that the prohibition on the recruitment of child soldiers, which European states have enthusiastically supported, reflects Europe’s view that juveniles have a “reduced decision-making capacity.” But the bolded text, which I completely agree with, indicates that, on the contrary, international law prohibits the recruitment of child soldiers because it is wrong to let juveniles engage in combat, even if they are capable of making a rational decision to do so. Differently put, international law presumes that child soldiers consent to recruitment because recruiting child soldiers is wrong even when consensual, not because juveniles can never rationally decide to become child soldiers.

The bottom line is this: there is nothing inconsistent about Belgium’s legalizing juvenile euthanasia while rejecting the juvenile death penalty and opposing the recruitment of child soldiers. Belgium simply believes that executing juveniles and recruiting child soldiers is inherently wrong, while permitting terminally ill children to make an informed decision to end their own lives is not. Those are normative positions, and Eugene is free to think they are unwise. But they are not based on an inconsistent view of whether juveniles are responsible for their actions.

Eugene Kontorovich’s Problematic Attack on Roper v. Simmons

by Kevin Jon Heller

I’m currently in Belgium, teaching an intensive course on international criminal law at Katholieke University Leuven. So I was struck by Eugene Kontorovich’s most recent post at the Volokh Conspiracy, in which he uses a new Belgian law permitting euthanasia for minors to criticize the Supreme Court’s abolition of the juvenile death penalty in Roper v. Simmons. Here is the crux of his argument (emphasis mine):

Aside from its inherent significance, Belgium’s move requires us to revisit Roper v. Simmons, the 2005 Supreme Court case that ruled it inherently unconstitutional to apply the death penalty to anyone under 18. European nations had long waged a moral campaign against America’s allowance of the death penalty for 16-18 year olds, which they called barbaric and savage. After all, minors are not really responsible for their actions. America was labelled a human rights violator, an international outlier.

Finally, in Roper, the Court caved in to this pressure. Indeed, it cited the European position as support for its conclusion – other countries do not allow for such a thing.

Why can a 17 year-old rapist-murderer not face capital punishment? Because, as Justice Kennedy wrote in a 5-4 decision, science has shown that minors, even 17-year-olds, are too immature to truly understand the consequences of their decisions, or the meaning of life and death. Juveniles are prone to “impetuous and ill-considered actions” that they should not be made to lose their life for, even if the action involved taking the life of another.” Moreover, juveniles are susceptible to peer pressure, Kennedy wrote. (Of course, one of the concerns in allowing euthanasia is external pressure from doctors, parents and others.)

Yet now we see Belgium thinks kids are responsible enough; the Netherlands similarly allows euthanasia as young as 12. These countries may be the way of the future, as they have been in other areas of progressive mores. Roper misread their belief system. It is not one of paternalistic concern for youth.

Eugene does not provide a link for his assertion that Europe opposes the juvenile death penalty because “minors are not really responsible for their actions.” But I don’t think that’s surprising, because Europe’s opposition to the juvenile death penalty is not based on that idea. Europe has abolished the juvenile death penalty because it rejects the very idea of the death penalty itself, not because it believe minors are not responsible for their actions. After all, no European state other than Belarus permits the death penalty for anyoneIt is thus irrelevant for Roper‘s purposes that Belgium and the Netherlands believe that minors are capable of making an informed decision to end their own lives; that in no way undermines their opposition to the juvenile death penalty. To sustain Eugene’s argument, he would have to identify a state that (1) permits the death penalty for adults while prohibiting it for juveniles on the ground that juveniles, unlike adults, are not responsible for their actions, but (2) allows juveniles to take their own lives on the ground that they are capable of making an informed decision to do so. Belgium and the Netherlands don’t qualify.

It’s also worth noting that, in his zeal to level a “gotcha” at Roper, Eugene misstates Belgian criminal law. Here is what he says about Belgium’s rejection of the juvenile death penalty (emphasis mine):

It is not one of paternalistic concern for youth. Rather, a system that permits the euthanasia of innocent 12 year-olds but not the punishment of guilty 17-year-olds is one that exalts autonomy without culpability.

Of course, with the juvenile death penalty, only a small fraction of minors who committed capital crimes would be sentenced to death. On a case by case basis, hosts of psychologists, jurors, and judges would have to be convinced that the particular defendant truly knew what they were doing.

So it comes out that the juveniles cannot really make accountable decisions when it comes to killing people, unless it is themselves. Or to put it differently, Belgium will not hold children responsible when they hurt others, but gives them free license to hurt themselves. Perversely, in Belgium, the youths who are considered grown up enough to be euthanized have not done anything wrong at all, unlike Simmons, who tied up his victim and thew him off a bridge.

This is simply false. Belgium most certainly holds juveniles criminally responsible for their actions — it simply doesn’t permit executing them. In Belgium, children between the ages of 12 and 15 can be prosecuted in juvenile court and imprisoned until they are 20. And children who are 16 and 17 — the latter being the age that Eugene singles out — can be prosecuted for murder in the Court of Assize and sentenced to a maximum of 30 years in adult prison. Eugene may think a 30-year sentence for a 17-year-old who commits murder is too lenient, but he cannot seriously contend that Belgian criminal law does not permit “the punishment of guilty 17-year-olds,” that it is based on the idea that “juveniles cannot really make accountable decisions when it comes to killing people,” or that it “will not hold children responsible when they hurt others.”

I often agree with Eugene on issues other than Israel (piracy and universal jurisdiction in particular). But his attempt to use Belgian criminal law to attack Roper is fatally flawed.

So How’s the Media Doing on Amanda Knox Reporting? Much Better Once They Started Quoting Me

by Julian Ku

Last March, I took the world media (and Alan Dershowitz) to task for some pretty poor reporting on the extradition issues raised in the Amanda Knox case.  Based on the reporting from yesterday’s conviction (again) of Amanda Knox in an Italian appeals court in Florence, I’m glad to report that the news coverage of the extradition issue (as well as Dershowitz’s analysis of it) has improved a great deal. I’ll admit I’ve been co-opted by the media a little, since I have given quotes to several publications about the case (click here for obnoxious self promotion).

What bothered me about the reporting last year was the insistence by news outlets and even several legal commentators that Amanda Knox was facing double jeopardy because she was facing a conviction for the same crime for which she was previously acquitted (see this quote here from CNN’s legal analyst Sonny Hostin as an example of this confusion).   There are three problems with this argument:

1) The US Italy Extradition Treaty does not actually bar extradition for double jeopardy in the U.S. Constitutional sense. All it does is bar extradition if the person being extradited has already been charged for the same crime in the state doing the extraditing.  For instance, the treaty would bar extradition to Italy for Knox only if the U.S. had prosecuted her for the Kerchner* murder.  Judge Friendly’s discussion in the 1980 Sindona v. Grant case of a similar provision in an earlier US-Italy Extradition treaty focuses solely on whether the US charges were the same as the Italian charges.  See also Matter of Extradition of Sidali (1995) which interpreted an identical provision of the US-Turkey extradition treaty.

2) The US Constitution’s double jeopardy bar does not apply to prosecutions by the Italian government (or any foreign government).  This seems pretty unobjectionable as a matter of common sense, but many commentators keep talking about the Fifth Amendment as if it constrained Italy somehow.  For obvious reasons, the fact that the Italian trial does not conform in every respect to US constitutionally-required criminal procedure can’t be a bar to extradition because that would pretty much bar every extradition from the U.S.  The U.S. Supreme Court decision in US v. Balsys seems to have settled this question with respect to the Fifth Amendment self-incrimination rule, and it should apply to double jeopardy as well.

3) In any event, the conviction, acquittal, and then conviction again is almost certainly not double jeopardy anyways.  Knox was convicted in the first instance, than that conviction was thrown out on appeal.  That appellate proceeding (unlike a US proceeding) actually re-opened all of the facts and is essentially a new trial.  But it is still an appellate proceeding and in the US we would not treat an appellate proceeding that reversed a conviction as an acquittal for purposes of double jeopardy.  Moreover, it would essentially punish the Italian legal system for giving defendants extraordinary rights of appeal and tons more due process than they would get in the U.S.  If Knox had been convicted in the U.S, she could not have re-opened all of the evidence the way she did in Italy, and probably would have had a harder time getting her original conviction overturned.  So it seems crazy to call “unfair” a legal system which actually gave Knox a completely new chance to challenge her conviction.

Most media coverage seems to get these points (sort of).  I think they have done so because folks like Alan Dershowitz have finally read the treaty and done a little research (he now agrees with this analysis of the treaty above, more or less), and because the magic of the Internet allowed my blog post from last March to be found by reporters doing their Google searches.  So kudos to the Opinio Juris!    Improving media coverage of international legal issues since 2005!

One final note:  the only way this “double jeopardy” argument matters is if this gets to the US Secretary of State, who has final say on whether to extradite.  He might conclude that the trial here was so unfair (because it dragged out so long) that he will exercise his discretion not to extradite.  But this would be a political judgment, not a legal one, more akin to giving Knox a form of clemency than an acquittal.  I would be surprised if the State Department refuses to extradite Knox, given the strong interest the U.S. has in convincing foreign states to cooperate on extradition.  But Knox appears to have lots of popular support in the US. This may matter (even if it shouldn’t).

 *The original post incorrectly called the murder victim “Kirchner”.

Guest Post: Colangelo–Kiobel and Conflicts of Law

by Anthony Colangelo

[Anthony Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

As my comment to Roger’s initial post noted and my forthcoming piece in the Cornell Law Review explains, like Bill Dodge I view the presumption against extraterritoriality’s operation in Kiobel as going principally to the cause of action allowed by the ATS as opposed to the ATS proper. Though as Roger points out, the Supreme Court did find itself construing the ATS in order to discern whether the presumption applied to the cause of action, making an already messy area of law incoherent in light of the Court’s own most recent precedent, as I noted in an OJ Insta-Symposium contribution last spring.

What I’d like to explore now is another question raised by this terrific series of posts: the extent to which state law incorporating international law may authorize suits for causes of action arising abroad after Kiobel. This question is both especially urgent because it involves a potential alternative avenue for litigating human rights abuses abroad in U.S. courts, and especially vexing because it juxtaposes different doctrinal and jurisprudential conceptualizations of the ability of forum law to reach inside foreign territory. On the one hand, the question can be framed as whether forum law applies extraterritorially; on the other, it can be framed as a choice of law among multiple laws, of which forum law is one. These different ways of framing the question are not necessarily mutually exclusive, yet they can lead to radically different results. Namely, Supreme Court jurisprudence stringently applying a presumption against extraterritoriality to knock out claims with foreign elements stands in stark contrast to a flexible cadre of state choice-of-law methodologies that liberally apply state law whenever the forum has any interest in the dispute.

The result is a counterintuitive disparity: state law enjoys potentially greater extraterritorial reach than federal law. The disparity is counterintuitive because the federal government, not the states, is generally considered the primary actor in foreign affairs. Indeed, the presumption against extraterritoriality springs directly from foreign affairs concerns: its main purpose is to avoid unintended discord with other nations that might result from extraterritorial applications of U.S. law. If the federal government is the primary actor in foreign affairs, and if the presumption operates to limit the reach of federal law on a foreign affairs rationale, it follows that state law should have no more extraterritorial reach than federal law.

Yet at the same time there is a long and robust history stretching back to the founding of state law providing relief in suits with foreign elements through choice-of-law analysis. Hence, not only does the disparity between the reach of federal and state law bring into conflict federal versus state capacities to apply law abroad (or entertain suits arising abroad), it also brings into conflict the broader fields that delineate those respective capacities: foreign affairs and federal supremacy on the one hand, which argue in favor of narrowing the reach of state law to U.S. territory, and private international law and conflict of laws on the other hand, which argue in favor of allowing suits with foreign elements to proceed in state court under state law. (more…)

Guest Post: Dodge–The Presumption Against Extraterritoriality Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

The Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), that the presumption against extraterritoriality applies to suits brought under the Alien Tort Statute (ATS). In a recent post, Roger Alford asks whether a federal court sitting in diversity or a state court of general jurisdiction may still hear the federal common law claims for torts in violation of the law of nations that the Court recognized in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The answer depends on whether Kiobel applied the presumption against extraterritoriality to the ATS itself or to Sosa’s federal common law cause of action.

As a general matter, the presumption against extraterritoriality does not apply to jurisdictional statutes. Putting Kiobel to one side for the moment, I know of only two cases in which the Supreme Court has used the presumption to interpret statutes that might be characterized as jurisdictional. In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440-41 (1989), the Court applied the presumption to the Foreign Sovereign Immunities Act, and in Smith v. United States, 507 U.S. 197, 203-04 (1993), it applied the presumption to the Federal Tort Claims Act. But both the FSIA and the FTCA codify rules of immunity, which the Court has characterized as substantive, and so neither statute is purely jurisdictional. No one suggests that the presumption against extraterritoriality limits 28 U.S.C. § 1331 (the federal question statute), or 28 U.S.C. § 1332 (the diversity and alienage jurisdiction statute), or 18 U.S.C. § 3231 (the subject matter jurisdiction statute for federal criminal offenses). Yet none of these jurisdictional provisions contain the clear indication of extraterritoriality that would be necessary to rebut the presumption. To take one example, if the presumption against extraterritoriality were applied to 18 U.S.C. § 3231, a federal court would have to dismiss for lack of subject matter jurisdiction a federal prosecution for bombing U.S. government facilities abroad despite the fact that the substantive criminal statute (18 U.S.C. § 2332f) expressly applies when “the offense takes place outside the United States.” That makes no sense, and is not a result that any sensible court would reach.

The Supreme Court’s decision in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), confirms the distinction between substantive statutes to which the presumption against extraterritoriality applies and jurisdictional statutes to which it does not. In Morrison, the Court used the presumption to limit a substantive provision of the Securities Exchange Act, finding “no affirmative indication in the Exchange Act that § 10(b) applies extraterritorially.” Id. at 2883. But notably, the Court did not apply the presumption against extraterritoriality to the Exchange Act’s jurisdictional provision. To the contrary, the Court specifically held in Part II of its opinion that “[t]he District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate the question whether § 10(b) applies to National’s conduct,” id. at 2877, despite the fact that § 78aa contains no clear indication of extraterritoriality, which would be needed to rebut the presumption if it applied.

Kiobel is consistent with the distinction that courts applying the presumption against extraterritoriality have long drawn between jurisdictional and substantive statutes. “We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad,” the Court noted. 133 S. Ct. at 1664 (emphasis added). The ATS was not such a statute; the Sosa Court had held that it was “strictly jurisdictional.” But Sosa also held that the ATS authorized courts to recognize federal common law causes of action for torts in violation of the law of nations, and it was to those causes of action that the Supreme Court applied the presumption in Kiobel. “[W]e think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.” Id. (emphasis added). Thus, after reviewing the text and history of the ATS, the Court concluded “that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Id. at 1669 (emphasis added).

To be clear, (more…)

Does the Presumption against Extraterritoriality Apply to the ATS or the Underlying Federal Common Law Claims?

by Roger Alford

I just completed a draft essay on Kiobel for the Notre Dame Law Review (the symposium will include luminaries such as A.J. Bellia, Doug Cassel, William Castro, Bradford Clark, Bill Dodge, Eugene Kontorovich, Thomas Lee, Michael Ramsey, Ralph Steinhardt, Beth Stephens, and Carlos M. Vázquez). To my surprise after careful reflection there remains an important question that I have not seen discussed anywhere thus far: Does the presumption against extraterritoriality apply to the statute only or also to the underlying federal common law claims recognized in Sosa? If it only applies to the ATS, then does it follow that the underlying federal common law claims can be pursued elsewhere, such as in federal courts exercising diversity jurisdiction or in state courts exercising general jurisdiction?

To test the hypothesis, let’s assume that following Kiobel Congress immediately amended the ATS to make it clear that the statute applied extraterritorially. The amendment made no mention of the underlying common law claims one way or another. What impact would that amendment have on the extraterritorial application of the federal common law claims? If the jurisdictional statute suddenly applied extraterritorially by congressional mandate, would the underlying federal common law claims be cognizable for extraterritorial conduct and injury?

If the answer to that question is yes, then does it also follow that the only extraterritorial limitation that Kiobel recognized was with respect to the statute, not the underlying federal common law claims? Reading Kiobel in light of Sosa presents the following possible syllogism: if (1) there is a limited category of federal common law claims actionable for violations of the law of nations; and (2) the statutory canon limits the extraterritorial reach of the ATS, not the underlying common law claims; then (3) the common law claims may be pursued in federal courts exercising diversity jurisdiction or state courts exercising general jurisdiction.

The first uncontroversial premise is that the ATS does not create a cause of action for violations of the law of nations, the common law does. In Sosa the Court held that the ATS, although only a jurisdictional statute, was “enacted on the understanding that that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability….” It then held that “no development in the two centuries from the enactment of § 1350 … has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law. Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute.” For such a common law claim to be actionable, however, it must be “based on the present-day law of nations” and “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” The Court in Kiobel reinforced this understanding of a “modest number” of “federal common law claims” actionable for violations of the law of nations. In other words, both Sosa and Kiobel confirm that the ATS is not the source or the limit for common law claims involving international law violations.

The second more controversial premise is that the ATS is a jurisdictional statute and that the presumption against extraterritoriality applies only to the statute, not to the underlying federal common law claims. In Kiobel the Court declared that “the presumption against extraterritoriality constrains courts exercising power under the ATS.” That presumption, the Court said, is “a canon of statutory interpretation” that assumes “when a statute has no clear indication of an extraterritorial application, it has none.” The purpose of the canon is to avoid unintended clashes between our laws and those of other nations by requiring Congress to manifest a clear intent to regulate conduct abroad. Although the ATS “does not directly regulate conduct or afford relief” the Court concluded that “we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.” The Court then looked to the text, history and purpose of the ATS to determine whether Congress intended for the ATS to apply abroad, and found “nothing in the statute to rebut the presumption.” Had there been such evidence, the jurisdictional statute would apply extraterritorially without altering the content or reach of the underlying common law claims. Likewise, as noted above, should Congress amend the ATS so that it applies extraterritorially, this too would not alter the content or reach of the underlying common law claims. Thus, the presumption against extraterritoriality applies to limit Congress’ grant of jurisdictional authority to adjudicate federal common law claims for violations of the law of nations.

The surprising conclusion one draws from these two premises is that federal common law claims actionable for violations of the law of nations still may be pursued in federal courts exercising foreign diversity jurisdiction or state courts exercising general jurisdiction. As for the former, foreign diversity jurisdiction pursuant to 28 U.S.C. § 1332 requires a $75,000 amount in controversy and the inclusion of a U.S. citizen either as a plaintiff or defendant. The typical “foreign-cubed” facts pursued in ATS claims would be foreclosed under this grant of jurisdiction. However, where a U.S. citizen is involved in a diversity action, the federal common law claims recognized in Sosa may survive Kiobel’s presumption against extraterritoriality. The presumption against extraterritoriality will apply to the diversity jurisdiction statute as well, but as Anthony Bellia and Bradford Clark argue in their forthcoming essay “[i]t is uncontroversial that federal courts may exercise foreign diversity jurisdiction over tort claims by aliens against U.S. citizens for acts occurring outside the United States.”

This conclusion also means that state courts sitting as courts of general jurisdiction may resolve the federal common law claims recognized in Sosa. Unless one interprets the presumption against extraterritoriality articulated in Kiobel as limiting the underlying common law claims rather than the jurisdictional statute, the international law claims that heretofore were pursued in federal court under the ATS still could be pursued in state court as federal common law claims. There is nothing unusual in suggesting that federal common law claims may be adjudicated in state courts. State courts routinely apply and make federal common law, including claims involving admiralty and implicating the rights and obligations of the United States.

But let’s assume that this syllogism is wrong. If the Court’s application of the presumption against extraterritoriality applies both to the ATS and the underlying federal common law claims, there remains the possibility that state courts could fashion state common law claims based on the criteria established in Sosa. State law routinely mirrors comparable federal law. There is nothing in Sosa or Kiobel that prevents a state court from recognizing a state cause of action for violations of “a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,” such as piracy, violations of safe conducts, or offenses against ambassadors. Courts applying the common law already have established gradations of torts that embrace negligence, gross negligence, intentional torts and strict liability. There is no logical reason that an international law violation could not be a state common law cause of action, or at a minimum a critical factor in the determination of liability or damages under state law.

To suggest that the statutory presumption against extraterritoriality does not apply to federal common law claims (or similar state common law claims) is not to suggest the absence of territorial limits. As with the extraterritorial application of state laws, the constitutional limits of the Due Process Clause set forth in Allstate Ins. Co. v. Hague prevent state courts from applying common law claims in the absence of any “significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.” Nor is there any reason to think courts resolving common law claims for international law violations would go so far as to violate international limits of prescriptive jurisdiction. Both constitutional and international law impose obligations of a territorial nexus separate and apart from the statutory presumption against extraterritoriality. The territorial limits of common law claims for international law violations are derived from constitutional and international law, not canons of statutory interpretation.

I’m not convinced that all of this reasoning is correct, and even less convinced that lower courts will buy these arguments. But I thought it was important enough to flag for our readers.