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14 May

UN Special Rapporteur Richard Falk urged Israel to stop construction of a highway that would cut off the local roads of Palestinian community Beit Safafa. A Swiss court is trying Belgians and Czechs in one of the biggest money laundering scandals dating back to central Europe's post-communist privatization boom. Major U.S. retailers including Gap Inc. declined to endorse an accord on Bangladesh building and fire...

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13 May

The ICC's website is its public face. Scholars, activists, and interested laypeople -- many who live in the situations under investigation -- rely on it as their primary source of information about the Court's activities. So it is imperative that the Court update its website in a timely fashion. Time and again, however, it does not. Case in point: three new...

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13 May

Former Guatemalan dictator Efrain Rios Montt was found guilty of genocide, torture and rape of 1,771 indigenous Ixil Mayans during his rule in 1982-1983. Bangladeshi authorities have arrested Jamaat-e-Islami party leader AKM Yusuf on charges of crimes against humanity allegedly committed during the 1971 Bangladesh Liberation War. Taiwan's government has issued a 72-hour ultimatum to the Philippines' government, demanding an apology over the...

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12 May

Ever since my friends at Wronging Rights flagged the upcoming NBC series Crossing Lines, which is about an ICC police unit, I've been scouring the internet for more information about what will no doubt be an absolute train-wreck of a TV show. Tonight I found this: Set in exotic locations around Europe, “Crossing Lines” follows a disgraced New York cop, played...

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12 May

The WSJ Saturday edition has a long review essay by distinguished historian Ian Buruma providing some historical perspective on the close to hot Chinese-Japanese conflict over the Senkaku Islands. It is a fascinating essay, and I was particularly struck by his argument that the Senkaku issue was essentially ignored by Mao Zedong and Deng Xiaopoing, whereas today's comparatively weaker Chinese...

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11 May

The Kenyan government has asked the Security Council to pass a resolution deferring the prosecution of Uhuru Kenyatta and William Ruto, the newly-elected President and Deputy President of Kenya. That's not surprising; the Kenyan government has been doing everything in its power to undermine the ICC. What is surprising, though, is that Ruto has explicitly disavowed the request: Through lawyer Karim Khan, Ruto...

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11 May

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...

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10 May

I am delighted to announce that Tim Meyer and I will be co-chairing the 2013 ASIL Research forum.   I hope many of our readers will send in abstracts for this terrific conference.  The deadline for proposals is June 14.  Here is the call: The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research...

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10 May

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.] I explained in a previous post why I think extending the presumption against extraterritoriality to causes of action crafted by forum law is strange. But there may be another (bigger?) problem with Kiobel’s application of the presumption to the Alien Tort Statute—namely, it appears to contradict Morrison v. National Australia Bank—the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. As readers will recall, Morrison applied the presumption against extraterritoriality to the principal antifraud provision of the Securities Exchange Act. As the Court in Kiobel itself, as well as many commentators (myself included) have observed, the presumption against extraterritoriality has traditionally applied only to what are generally referred to as “conduct-regulating” rules. These are rules that govern primary conduct and are easily classified under the category of jurisdiction to prescribe or prescriptive jurisdiction. Yet as the Court in Kiobel also explained, the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Indeed the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the conduct-regulating rule under the statute comes from international law. And since international law applies everywhere, the presumption against extraterritoriality has no application to conduct-regulating rules of decision under the ATS. The Court appeared to accept this view, noted that the ATS was “strictly jurisdictional,” and then decided to apply the presumption anyway. In so doing, the Court explained that “to rebut the presumption, the ATS would need to evince a clear indication of extraterritoriality,” which the ATS failed to do. Here’s the problem.  
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