Panel 1 of the NYU JILP Vol. 44:2 Online Symposium Sarah Hinger is a Marvin M. Karpatkin Fellow at the ACLU Racial Justice Program and previously worked at the New Jersey Institute for Social Justice. Ms. Hinger is a 2009 graduate of Columbia Law School, where her note, Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims,...
Scott Peterson has a fantastic timeline at the Christian Science Monitor that catalogs all the times Western countries have predicted Iran's imminent entry into the nuclear club. Some highlights: 1984: Soon after West German engineers visit the unfinished Bushehr nuclear reactor, Jane's Defence Weekly quotes West German intelligence sources saying that Iran's production of a bomb "is entering its...
Alan Kaufman, a career national security lawyer and retired Navy JAG, has a fine review-essay of Stephen C. Neff's Justice in Blue and Gray: A Legal History of the Civil War over at Lawfare. Alan, who is a former student of mine a really long time ago at Harvard Law School as well as an occasional commenter here at OJ,...
"No, there is no well-founded fear of exogenous harms, such as prosecution or beatings, where a gay man would in fact opt for seclusion to escape such threats. But, given the traumatic effects that normally follow from self-repression (anxiety, paranoia, disassociation, or worse) there is an alternative and solid basis, grounded in the traditional link between persecution and risk to core norms of human rights law, to affirm refugee status. Because the risk of severe psychological harm has been authoritatively interpreted to contravene the right to protection against cruel, inhuman or degrading treatment, this is the persecutory risk that is most likely to be well-founded in such cases."Participants:
I am teaching IHL in Jericho this week, so I don't have as much time as I'd like to weigh in on the increasingly surreal debate over whether the right of self-defense in Article 51 of the UN Charter permits the U.S. or Israel to attack a country that does not have nuclear weapons, could not build a nuclear weapon...
David French and Jay Sekulow respond to Bruce Ackerman's legal argument about the use of force against Iran with a factual claim: Iran has already attacked the U.S. There has, in fact, been an “armed attack” against the United States. Iran has been waging a low-intensity war against America and Israel — both directly and by proxy — for more than...
Much to say on Attorney General Eric Holder’s much anticipated speech yesterday on the U.S. Government’s approach to targeted killing. It should be said that it is good and right for the AG to make such a speech, and it should be welcomed for its effort. Combined with previous addresses in the past year+ by DOD General Counsel Jeh...
[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law] I suspect the extraterritoriality issue has taken on renewed significance after the Supreme Court’s decision in Morrison v. Nat’l Aust. Bank, which, as many readers know, addressed the extraterritorial reach of the Securities Exchange Act. According to the Court in Morrison, “When a statute gives no...
The Court’s order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed in other countries, rather than on the narrower issue of corporate liability, and that other justices want to have more briefing on the issue, which was not addressed by the Second Circuit. As I noted in my post about last week’s oral argument, Justices Kennedy, Roberts, and Alito focused almost all of their questions on the diplomatic tensions and problems under international law caused by extraterritorial application of the ATS. This was also the issue that I addressed in my own amicus brief, and that was the focus of the amicus briefs of the Netherlands, Britain, and Germany …. This development will put the Obama Administration in a difficult position. In its original amicus brief in support of the petitioners, the Administration argued in favor of corporate liability, but made no mention of the numerous diplomatic complaints about the ATS filed by other countries. Assuming that the Administration files a new amicus brief, it will face a dilemma. It will either have to argue against extraterritorial application, contrary to the position of human rights groups and undercutting its prior argument in favor of corporate liability. Or it will have to argue in favor of extraterritorial application of the ATS (at least in some circumstances), which is contrary to the position of many foreign governments and inconsistent with international law principles of jurisdiction. As three members of the International Court of Justice said in the Congo Arrest Warrant case, “[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.” Moreover, the Obama Administration would have to reverse the arguments against extraterritorial application of the ATS made by the Bush Administration in its brief to the Supreme Court in 2008 in the Apartheid case (which the Solicitor General may be reluctant to do). This may be one reason why the Administration asked the Supreme Court not to address the issue of extraterritoriality in its original amicus brief.One might also add that the amicus brief drafted by Jack Goldsmith in support of defendant corporation Shell seems to have had an effect; Goldsmith and his amicus brief were mentioned by name in the oral argument. The Goldsmith brief was not primarily about extraterritoriality – it was much more about whether this was international law as such, or instead some kind of well-intentioned but nonetheless faux-international law committed to the hands of US courts. (I have sometimes referred to it here at Opinio Juris as the “law of the hegemon” which US district courts have been persuaded by ATS plaintiffs’ lawyers, mistakenly in my view, to regard as “international law.”) This then combines with a general worry on the part of Justice Alito – but not he alone – that particularly the alien-to-alien cases taking place in an alien land simply have no reason to be in US courts, and that what little can be gleaned about the history and purpose of the statute does not support extraterritorial application, at least in the territory of another sovereign. Piracy on the high seas, yes – and hence presumably the importance of the qualifier in the Court’s briefing instructions to address not extraterritoriality as such, but instead territory of another sovereign. (But see Jordan Paust and Eugene Kontorovich each commenting separately on the piracy issue, below.)
[Donald "Trey" Childress is Associate Professor of Law at Pepperdine Law School.] Let me begin by thanking my dear friend Roger Alford for inviting me to post on Opinio Juris. As Roger noted here Chris Whytock, Mike Ramsey, and I co-hosted a symposium on Human Rights Litigation in State Courts and Under State Law at UC-Irvine last Friday, March...
I leave it to Ken and others to weigh in on US Attorney General Holder's speech today at Northwestern. I did want to point out one early reaction from Professor Mary Ellen O'Connell of Notre Dame, who didn't exactly pull punches in her assessment of the Obama Administration's legal arguments. University of Notre Dame international law expert Mary Ellen O'Connell also...
