This week on Opinio Juris, drone strikes unsurprisingly took center stage. In anticipation of President Obama’s speech, Jonathan Horowitz contributed a guest post on their human rights impact and Ken pointed to his new essay arguing the case for drone strikes. Deborah linked to the transcript of the speech here, and pointed to two things she liked about it. Deborah also discussed the White House Fact Sheet on Use of Force Procedures, and summed it all up with a post on what the newly released documents on targeted killing tell us compared to the leaked DOJ White Paper a few months ago. Kevin considered the requirement of “near certainty” of no civilian casualties a blatant lie that made him distrustful of all claims made in the speech.  He followed this up with a post outlining two problems with the “near certainty” standard and another arguing that the standards for the use of force in the fact sheet are a retreat from IHL. In a guest post Michael W. Lewis argued that Obama got it right. 

In other posts, Kevin posted a must-see link to a report visualizing international criminal justice and recommended an article by one of his students on the Kapo trials. 

We also revisited our discussion of Samantar, with Ingrid Wuerth’s guest post on foreign official immunity, and of the Philippines-China UNCLOS arbitration, with a post by Julian who wasn’t convinced by Professor Stefan Talmon’s argument that all of the Philippines’ claims against China fall outside of the tribunal’s jurisdiction. Julian also asked whether we should care about the upcoming hearings by the US Senate Foreign Relations Committee on ratification of the Convention on the Rights of Persons with Disabilities.

Speaking of international conventions, Duncan got inspired by Jennifer Lawrence to draft a petition to the White House to ratify the VCLTIO.

Finally, as always we provided you with a list of events and announcements and with weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!

This week on Opinio Juris, Kevin was surprised by an unexpected dissenter in Kenya’s request to the Security Council to terminate the ICC’s Kenya cases. He also analysed whether the ICC has jurisdiction over Israel’s attack on the Mavi Marmara and particularly whether the flotilla attack qualifies as a “situation”. He followed up with a post asking why the Comoros are represented by Turkish lawyers in their referral request and why the referral request was only filed now. He also examined whether the PTC could review an OTP decision not to investigate a situation referred to it.

Kevin called on the ICC to keep its website updated, and listed four errors in the description of NBC’s upcoming series Crossing Lines on the ICC Police Unit, poignantly illustrating why outreach by the ICC itself is important to avoid a distorted public understanding of the ICC.

Peter asked whether the Bangladesh Factory Safety Accord was a watershed moment in global governance, while Roger pointed out problems with the Accord’s arbitration clause.

Julian put the spotlight on the confusing legal background of the Senkaku/Diaoyu Islands dispute, and discussed whether California’s Armenian Genocide Law can be struck down on the basis of “field pre-emption”.

Bill Dodge provided another guest post on Yousef v Samantar, in response to last week’s post by Ingrid Wuerth.

Finally, we listed events and announcements and Jessica provided her weekday news wraps.

Have a nice weekend!

This week on Opinio Juris, the discussion of Kiobel continued with guest posts by Jordan Wells asking whether corporate liability is jurisdictional, and Anthony Colangelo arguing that Kiobel actually contradicts Morrison – the case on which it is supposedly based. Kevin asked whether the Al Shimari  v. CACI case could be a model for post-Kiobel ATS cases.

We also returned to last week‘s discussion of the decision by the Court of Appeals in Versailles on corporate liability for involvement in the construction of Jerusalem Light Rail, with an assessment of the case by Milena Sterio.

Another guest post this week was by Ingrid Wuerth on Yousuf v Samantar.

Peter argued that Ted Cruz’ birthplace isn’t a reason to oppose his nascent candidacy for the US Presidency and pointed out another Obama speech trying to reinvigorate the notion of citizenship.

Kevin discussed the finding of the Commission of Inquiry on Syria that the rebels, rather than the government, may have been responsible for deploying chemical weapons against civilians. Despite his past forays in reality TV, Kevin was still surprised by The President – a Palestinian TV show to (mock-)pick a new President.

Kristen discussed the transformation of the Permanent Court of Arbitration. She also drew our attention to a new case filed at the European Court of Human Rights, alleging that Poland violated its human rights obligations due to its involvement in the CIA’s black sites and the extraordinary rendition of Abu Zubaydah.

Ken predicted that autonomous cars could force us to dust off the 1949 Geneva Convention on Road Traffic, and discussed a new bill to be introduced to increase congressional oversight over kill-or-capture missions conducted by the US military outside of Afghanistan. Further on the war on terror, Chris recommended reading Harold Koh’s speech at Oxford Union.

Julian worried that China was playing a dangerous game floating claims about sovereignty over Okinawa.

Kristen posted a call for papers for the 2013 ASIL Research Forum, which she co-organizes. Other calls for papers can be found in our events and announcements. Finally, Jessica also provided you with weekday news wraps.

Have a nice weekend!

This week on Opinio Juris, the debate on Kiobel continued. Katherine Florey pointed out how the decision will deepen the divide between state and federal approaches to extraterritoriality issues. Ken Anderson argued that the ATS should be understood as the “law of the hegemon”. Peter agreed with Samuel Moyn that more attention to corporate social responsibility regulation could potentially have a broader impact in improving human rights than high profile ATS cases. Corporate social responsibility was also central to Peter’s post on the impact of recent tragedies in the Bangladesh garment industry on voluntary corporate codes.

Eugene Kontorovich wrote a guest post on the recent decision of a French Court of Appeals rejecting claims that the contract between Alstom Transport and the State of Israel for the construction of the Jerusalem Light Rail was illegal due to a violation of international law. Disagreeing with Eugene, Kevin pointed out that the Court of Appeal is silent about the possibility of a war crime under the Rome Statute.

On another controversial dispute involving a big corporation, Roger wrote about an Ontario Court’s decision to dismiss the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada.

In news from international courts, Julian was surprised by reports about the ICJ Registrar calling the Bolivia’s application against Colombia “impeccable“, since he thought Bolivia’s case was ridiculously weak. Should the case reach the merits and go against Colombia, chances are though that we’ll end up with Colombian complaints about biased judges after the conclusion of the case, as it did for the recent decision in its case against Nicaragua.

Turning to the ICC, Kevin was troubled by Judge van den Wyngaert’s decision to withdraw from the ICC’s Uhuru Kenyatta case, and followed up with further thoughts. He also congratulated Leiden for winning the ICC Moot Court.

In other posts, Julian pointed out how China is now also pushing the boundary with India, and  asked whether force feeding of detainees on a hunger strike is always illegal. Kevin noted with horror a quote from Ari Fleischer on the difference between Nazis and terrorists, and recommended Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists

As always, we provided news wraps and a list of events and announcements. Many thanks to all our “younger” readers for the many New Voices abstracts. It’s wonderful to see such a great response! Jessica and I are working through the submissions and plan to finalize the selection by mid-May.

Have a nice weekend!

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!

This week on Opinio Juris, it was hard to miss our insta-symposium on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. Ken beat Julian to the punch to break the news and link to the opinions.

The core part of Chief Justice Roberts’ opinion for the Court, on the insufficiency of “mere corporate presence” to displace the presumption against extraterritoriality, can be found in this post by Julian. Roger read this to require that the ATS can only apply to conduct that at least partly takes place within the United States. Julian concluded that instances of corporate civil liability under the ATS are now restricted to very specific, and very unlikely, situations.

A recurring theme in the comments were the many questions that the majority opinion left unanswered, a point that was also raised in Justice Kennedy’s one paragraph concurrence, which Deborah would like to have identified those questions in more details. Thomas Lee and Marty Lederman had a go at developing scenarios in which the presumption against extra-territoriality could be rebutted.

Although Chimène Keitner welcomed how the majority’s opinion may have made the ATS more robust by clearing up some issues, she agreed with other commentators that Justice Breyer’s concurrence took the better conceptual approach. Anthony Colangelo criticised the majority opinion for extending the presumption against extraterritoriality to causes of action, which as part of lex fori are by definition not extraterritorial. Also favouring the Breyer concurrence was John Knox, who was happy to see the presumption against extrajurisdictionality resurfacing. Alex Mills pointed out that by applying a presumption against total extraterritoriality, i.e. in foreign cubed cases, the majority opinion failed to answer conclusively whether the ATS applies when there is some form of territorial hook, and argued that the Breyer concurrence may end up being the more influential one.

Julian pointed out how Justice Breyer’s concurrence essentially read the ATS as an expression of the protective principle used to allocate prescriptive jurisdiction, and expressed surprise that Justice Breyer’s concurrence took a narrower stance than his 2004 concurrence in Sosa.

So, where does this leaves human rights litigation against corporations?  Peter argued how Kiobel does not spell the end for corporate compliance with international human rights obligations while Roger saw a big future in transnational tort litigation and listed seven advantages this approach has over its alternatives. Chris Whytock agreed that human rights litigation in state courts could increase, but pointed to a few barriers to this approach.

Mike Koehler discussed the impact of Kiobel on enforcement of the Foreign Corrupt Practices Act, and Ishai Mooreville discussed why questions of personal jurisdiction would become more important, and why they were only lurking beneath the surface during the Kiobel litigation.

It wasn’t all about Kiobel this week though! Ken wrote about new scholarship, including some of his own, on law and ethics for autonomous weapons systems. Julian discussed reports that Japan is considering to take its dispute with China over the Diaoyu/Senkaku islands to the ICJ, and attracted a lot of comments with his argument that the US could legally bomb North Korea’s missile before it is deployed.

In ICC news, Kevin wrote about comments by Fatou Bensouda about retroactivity when Palestine decides to ratify the Rome Statute and about the start of the construction of the ICC’s permanent home, set to be completed in 2015.

Finally, as always, we listed upcoming events and announcements and provided you with weekday news wraps.

Have a nice weekend!

• As North Korea celebrated the 101st birthday of the country’s founder, the US has said it is ready to “reach out” if Pyongyang gives up its nuclear aspirations after warning North Korea that a nuclear missile launch would be a “huge mistake.” 
• Foreign Policy offers a way to solve the North Korea nuke problem, opining that the road to Pyongyang goes through Helsinki.
• Foreign Policy also points out that while a lot of focus has been on North Korean missiles, there were two other countries busy this week with testing their launch capabilities: India and Pakistan.
• Guards at Guantanamo are trying to end the hunger strike of 43 inmates that began in February; some 11 inmates are being force-fed through tubes inserted into their noses and mouths, a practice considered torture by some. One detainee, through his lawyers, has an op-ed in the New York Times describing his experience on hunger strike since February 10.
• Reports from Syria say that children and other civilians have been killed in the latest round of government bombing campaigns in Damascus and Hadad.
• The melting of Antarctic ice is currently the worst it has been in more than 1,000 years.
• Professor William Schabas offers some thoughts on the recent General Assembly meeting about international justice, an event we covered here in our News Wrap.
• UN Special Rapporteur on Human Rights in Counterterrorism, Ben Emmerson, has called on countries to protect Burkina Faso from terrorism, given its vulnerability especially with respect to the current conflict in Mali.
• After a first round of negotiations, the WTO has narrowed down the list of candidates for the position of Director-General to five: Ms Mari Elka Pangestu (Indonesia), Mr Tim Groser (New Zealand), Mr Herminio Blanco (Mexico), Mr Taeho Bark (Republic of Korea) and Mr Roberto Carvalho de Azevêdo (Brazil).
• Figures released by the Stockholm International Peace Research Institute show that global military expenditure has decreased in the past year, although this masks a shift in spending globally, with the US and Western and Central Europe spending less and other states, particularly China and Russia, spending more.
• Suicide bombs have killed at least 20 in Mogadishu, Somalia, and at least as many in a series of car bombs around Iraq.

This week on Opinio Juris, we hosted a symposium on the latest issues of the Leiden Journal of International Law, introduced here by Dov Jacobs. The first article, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority by Armin von Bogdandy and Ingo Venzke, discussed the functions of international courts in the international legal order beyond their traditional dispute settlement role. In his comments, Andreas Føllesdal asked how a “function” is defined and whether the various functions of international courts contribute to our assessment of their effectiveness and legitimacy. Ruti Teitel suggested to open up the question of legitimacy. The authors’ response can be found here.

The second article in the symposium was by Darryl Robinson, entitled A Cosmopolitan Liberal Account of International Criminal Law. Jens Ohlin commented how the article had made him take a step back. Mark Drumbl raised points on moral agency and how ICL can understate responsibility in mass atrocity. Darryl’s response is here.

Another series of guest posts was by Jonathan Horowitz and Naz Modirzadeh who provided two posts (1, 2) discussing how international law could work in transnational non-international armed conflicts.

If writing a guest post for Opinio Juris is on your wish list, check out the call for papers for our upcoming New Voices symposium, aimed at international law students and early career professionals.

In our regular posts, Julian shared his impressions about the ASIL Panel on China and international law, discussing in particular the importance of sovereignty to China as a fundamental principle of international law. Julian also pointed out Judge Leval’s article in Foreign Affairs defending the ATS and agreed with his suggestions of how a modern legislator could limit civil jurisdiction for the enforcement of universal norms.

Kristen brought a request for an advisory opinion to the International Tribunal on the Law of the Sea to our attention and wondered about the background of this request.

Deborah considered the McClatchy report that most drone strikes do not target senior al-Qaeda leaders, and speculated about what could the domestic and international legal basis for these strikes could be.

Chris posted about a conference this week at St John’s on the topic of Cyberconflicts. For more on upcoming conferences, see our events and announcements post.

Finally, as always, we provided you with our weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!

This week on Opinio Juris, we brought you the latest round in the Goodman-Heller debate on capture v kill, in which Ryan Goodman responded to Kevin’s comments on this blog a few weeks ago.

Kevin started his week by pointing to turmoil in Sweden’s prosecution of Julian Assange, following the resignation of the prosecutor and the decision by one of his accusers to fire her lawyer. He also addressed the ICC’s Pre-Trial Chamber’s decision to refer Chad to the Security Council over its non-cooperation in the execution of the ICC’s arrest warrant of Sudan’s President’s Omar al-Bashir. Kevin saw this as a risky move that can threaten the Court’s legitimacy if the Security Council does not act. Kevin also recommended a new casebook on international humanitarian law.

Julian criticized the glacial pace of progress of the ICJ proceedings, arguing that in the case between Australia and Japan on whaling it did nothing to cool the dispute. He also urged the NRA to hold its fire over the Arms Trade Treaty, arguing that the treaty is too weak to affect the right to bear arms.

Deborah hailed new guidelines for Armed Private Security Companies doing business with the UN as significant, and asked our readers for their opinions.

At the end of the week, we hosted a symposium by the NYU Journal of International Law and Politics on Professor Jenia Iontcheva Turner’s article Policing International Prosecutors.  In her comment, Professor deGuzman provided two reasons why international criminal courts should err on the side of the defendant when balancing his right to a fair trial with the rights of victims and the broader international community. Sonja Starr argued that the fairness of the trial is not just one factor in the analysis but rather the threshold question. Kevin likewise argued that the accuracy of the trial is essential, and expressed concerns about the article’s rhetoric. Alex Whiting in turn feared that a balancing approach might make the courts too willing to find procedural misconduct, particularly when their are differences in litigation culture between the judges and the defence counsel. These cultural differences were also raised by James Stewart who credited the article with changing his mind about prosecutorial misconduct.  Professor Turner’s response to the comments can be found here.

One of the commentators in the symposium, James Stewart, also provided a guest post in two parts (1, 2) over the ICTY’s approach to complicity in the Perišić judgment.

Many of you are probably at ASIL’s Annual Meeting. In preparation, Jessica highlighted some of the main events. Chris posted about the newly establish Space Law Interest Group of which he is the co-chair and Deborah shared her notes on the discussion on targeted killing.

Finally, as always, we listed upcoming events and announcements and summarized international law related news in our weekday news wraps

Many thanks to our guest contributors and have a nice weekend!

This week on Opinio Juris, Peter wrote about the unlikely advocates of international law in amicus briefs submitted in the gay marriage cases before the Supreme Court this week.

Julian was disappointed that despite all the reporting on the Amanda Knox retrial, nobody in the media had bothered to read the US-Italy extradition treaty. Kevin also took aim at the media’s lack of knowledge of international law. He argued that recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare grossly overestimates the likelihood that a hacker can legally be killed.

Further on cybersecurity, Roger argued that new restrictions on US federal agencies’ purchase of IT equipment produced in China by companies affiliated to the Chinese government are compatible with the US’ WTO obligations, because of the self-judging nature of the national security exceptions in the GATT and the GPA.

We also hosted a book symposium on Economic Foundations of International Law by Eric Posner and Alan Sykes. In his comment, Andrew Guzman focused on why states should accept more delegation to international institutions. Emilie Hafner-Burton and David Victor discussed how the book helps to identify new areas of international law open to empirical research. Rachel Brewster asked whether a liability rule is always the best option to operate remedies under international law, and Steve Charnovitz disagreed with some of the book’s analysis of the WTO. The authors response to the comments can be found here.

In other posts, Julian updated us on the appointment of a second arbitrator in the Philippines-China arbitration under UNCLOS, and James Hathaway’s  guest post announced the Summary Conclusions of the Roundtable on the Future of Refugee Convention Supervision, proposing the establishment of a Special Committee of Experts to oversee compliance with states’ obligations under the Refugee Convention.

If you’re keen to read more over what for many of you will be the long Easter weekend, check out Deborah’s post about her Foreign Policy article, co-authored with Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, on the use of criminal courts in counter-terrorism efforts. Ken also recommended the series on contemporary issues of IHL over at the ICRC’s blog Intercross. And, as usual, we had our weekday news wraps, which celebrated its first birthday this week.

Finally, we also listed upcoming events and announcements, and Anupam Chander provided a guest post on the newly established ASIL Interest Group on International Law and Technology that will meet after next week’s ASIL Annual Meeting.

Many thanks to our guest contributors and enjoy your (long) weekend!

This week on Opinio Juris, CIA drone strikes remained in the spotlight. Continuing on last week’s post, Kevin tried to get to the bottom of the CIA’s involvement in drone strikes and whether it is sufficient to trigger criminal liability, which sparked a long discussion in the comments with John C. Dehn. Deborah welcomed news reports about a possible transfer of the CIA’s programme to the Defense Department, whose targeting authority she argued is better constrained. She added, though, that the organizational shift would not solve all problems unless transparency improves to ensure political accountability.

We also kept you up-to-date with recent developments in international law. Kristen reported on the decision of the parties to the Convention on International Trade in Endangered Species to expand the scope of the Convention, and Kevin wrote about the latest episode in the battle between Libya and the ICC over al-Senussi. And of course, there were our daily weekday news wraps.

In other posts, Duncan wondered whether high school cyberwar teams include legal advisors; Ken upheld his yearly tradition of posting Joan of Arc’s Declaration of War in 1429; and Roger posted the Google rankings of the most influential international law journals.

If you need inspiration on topics for articles to submit to these journals, check out our events and announcements for a collection of conferences and calls for papers.

Have a nice weekend!

Our main event this week was a book symposium on Curtis Bradley’s new book “International Law in the US Legal System“. On the first day, the symposium focused on treaties with comments by David Moore and Jean Galbraith.  Attention turned to international delegations on day two. Julian welcomed the book’s attention to questions of constitutional structure, but disagreed that accession to the International Criminal Court would not create delegation problems. Kristina Daugirdas asked whether the presumption of non-self-execution as a solution to questions of delegation could make it harder for the US to comply with its international obligations. On day three, Bill Dodge and Mark Weisburd discussed the position of customary international law in the US legal system. Finally, Mike Ramsey and Ingrid Wuerth discussed war powers and international law, and Curtis Bradley responded to all comments.

All commentators wholeheartedly recommended the book, so maybe it can follow in the footsteps of Duncan’s book “The Oxford Guide to Treaties“, about which we had a symposium late last year, and win an ASIL Certificate of Merit.

Deborah asked whether the US needs a new authorization to use force against the new jihadist groups in North Africa and the Middle East that are only distantly related to the “original” Al Qaeda, or whether other options that are already legally available would be sufficient.

Our bloggers have been active lately: Kristen Boon posted the abstract to her essay on lex specialis and the responsibility of international organizations, while Roger’s teaching took him to the Philippines where he witnessed first hand how microfinance had helped transform a mountain village.

Speaking of affecting change,  if this post on Lawfare, pointed out by Ken, is correct, Kevin may have achieved every academic’s dream of our work (a blog post even!) affecting government policy. In a follow-up post, Kevin argued why a CIA drone operator cannot invoke the public authority defense. In other posts, Kevin continued the debate on the power to capture or kill  with his response to Ryan Goodman’s rebuttal over at Lawfare. Kevin also posted about Philippe Sands’ decision to quit the LibDems over their support to the UK’s new justice and security bill, counted the legal errors in an article in the Jerusalem Post reporting about the request by an Israeli law firm to the ICC Prosecutor to open an investigation against the Palestinian President Abbas and nine Hamas members, and updated us on Libya’s latest procedural steps in slowing down the admissibility challenge.

As every week, we listed events and announcements  and provided you with daily weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!