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29 Apr

[Katherine Florey is Professor of Law at UC Davis] I come late to this discussion. Professors Alford and Whytock have adeptly explored the question of whether international human rights litigation might be reframed under state tort law. To their observations, I would add the following: Because state choice-of-law methodology is incredibly diverse, it is difficult to make predictions or generalizations about the overall prospects for human rights cases in state court. Regardless of what the general landscape might hold, however, it is easy to imagine scenarios in which...
29.04.13 | |

25 Mar

Thanks to Marty for his pointer on the decision and his instant analysis (which despite being instant, is also still quite interesting). Throughout the day today and into tomorrow, Opinio Juris will post thoughts and comments on the Medellin decision from leading commentators and scholars, in addition to (of course, our substantial “in-blog” expertise. Stay tuned!...
25.03.08 | |

24 Apr

[Milan Markovic is an Associate Professor of Law at Texas Wesleyan University School of Law.] When the Supreme Court originally granted certiorari in Kiobel, many feared that it would bar ATS suits against corporations entirely. The Supreme Court’s actual decision bars ATS claims that do not “touch and concern” United States territory. I tend to agree with Marty Lederman that there are at least three categories of ATS cases that might survive Kiobel, but even if Kiobel requires substantial conduct on U.S. territory, the decision should not alter...
24.04.13 | |

06 Mar

...(despite the fact that some textwriters use the wrong test for imputation re: self-defense). Aurel Sari Jordan, thanks for the comments. I don't think that the limitation 'in contravention of the Charter' adds much for our purposes. The point of that qualification is simply to recognize that there could be instances where the first use of armed force does not qualify as an act of aggression because it is in accordance with the Charter, as in the case of force used or authorized by the Security Council. Since aggression is...
06.03.14 | |

07 Mar

...act of a regional power that simply lacks the array of international legal actors, tools and institutions to pressure its most critical neighbor in more internationally acceptable ways. In fact, Russia’s attempts to internationalize its neighborhood revisionism have found few overseas backers, as Syrian President Assad’s current lone supportive voice underscores. In the wake of the 2008 Georgia War Moscow’s vigorous diplomatic efforts to secure international recognitions for Abkhazia and South Ossetia yielded few successes- just Nicaragua, Venezuela and three small Pacific island states, one of which embarrassingly revoked. By...
07.03.14 | |

09 Mar

...against premature recognition and foreign-installed regimes) — the internationally authoritative criterion for an apparatus’s standing as the State’s government (Roth, at 30). First, it should be noted that the “effective control” doctrine conforms to the Montevideo criteria, according to which international personality is found in a territorially coherent political community under the long-term effective control of an independent government (Roth, at 7). Moreover, granting the effective government the legitimacy to act in the international arena stems from the effective government’s capability to fulfill its international obligations (UN Doc. S/1466). Accordingly,...
09.03.14 | |

18 Apr

...policy concerns is the basis for the presumption against extraterritorial application of the ATS in the first instance, then presumably such risk also ought to inform the Court’s judgment — and that of lower courts, as well — in deciding when, if ever, the presumption should be “displaced” in the categories of cases described above. If this is correct, then the cases most amenable to such displacement would be those in which a U.S. person or corporation is responsible for the violation–that is to say, cases in which U.S. foreign...
18.04.13 | |

22 Apr

“[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” That is the operative language in Kiobel. Which raises the question, if mere corporate presence is not enough, what kind and how much territorial activity within the United States is enough? After Kiobel, that will be a critical question for future...
22.04.13 | |

19 Apr

[Ishai Mooreville is an attorney at Baker & Miller PLLC, Washington, DC. His forthcoming article on the 1795 Bradford Opinion regarding the Alien Tort Statute can be found here.] The opinions expressed in this article belong to the author alone, and the author has not received any compensation from any party for writing this article. The question of personal jurisdiction over the defendant in Kiobel, which was raised during oral argument and mentioned in passing in Justice Breyer’s concurrence, may have had a significant effect on the outcome...
19.04.13 | |

19 Apr

A few posts yesterday suggest that the reports of the death of the ATS have been greatly exaggerated. Oona Hathaway argues that “[t]hose celebrating the demise of the ATS may thus find themselves surprised to discover that the end result of the Supreme Court’s decision yesterday may not be the end of the ATS after all, but instead a renewed focus of ATS litigation on U.S. corporations.” Marty Lederman argues that “the language and history of the ATS provide no basis for wholly rebutting the presumption against extraterritoriality;...
19.04.13 | |

13 Mar

...are any more submissions for potential posts, we need to receive them by 3:00 pm Friday (US Eastern Time) so that those selected can be posted this weekend. Although this symposium is drawing to a close, we at Opinio Juris will continue writing about the ongoing issues in Ukraine. Once again, thank you, everyone, for participating in this discussion and contributing to our understanding of the situation in Ukraine. We hope you will continue to participate as we continue exploring the international legal issues in the conflict over Ukraine’s future....
13.03.14 | |

12 Mar

...and Crimea stand out. Both share historical antecedents in Imperial Russia and strategic geographical locations. Both are also home to local majority populations separated by a political border from their ethno-linguistic kin-states (Sweden and Russia), and distinguished by location from “kin-nationalities”, e.g. the Swedish and Russian-speakers that constitute minorities in mainland Finland and Ukraine proper. Strong secessionist urges in both communities were curbed with autonomy regimes, albeit more recently and less successfully in Crimea. Finally, the Åland case, like today’s Crimea, presented a rare opportunity to resolve a thorny geopolitical...
12.03.14 | |