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08 May

[Jordan Wells is a third-year law student at New York University School of Law.] The discussion up to this point naturally has centered on the “touch and concern” language of the majority opinion and what that opinion and the concurrences mean for ATS cases involving law of nations violations that occur abroad. Relatively little analysis has focused on the original questions on which the Supreme Court granted certiorari—namely, whether corporations are immune from suit under the ATS and whether that immunity is an issue of subject matter jurisdiction...
08.05.13 | |

02 Jun

[We are pleased to share comments on the U.S. Supreme Court’s decision yesterday in Samantar v. Yousuf from Professor Curtis Bradley , who has written a great deal on the issue considered by the Court yesterday. We hope to share comments from other informed observers on the decision over the next couple of days ]. As I bask in the glow of not having a single Justice in Samantar accept the theory of the FSIA that Jack Goldsmith and I had proposed, the following thoughts occur to...
02.06.10 | |

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 | |

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 | |

09 Mar

[Remy Jorritsma (LL.M.) is a lecturer and teacher at the Department of International and European Law of Maastricht University.] This contribution intends to demonstrate that Ukraine and Russia are involved in an international armed conflict, triggering the application of International Humanitarian Law (IHL). In particular, this post explores two relevant issues: the question of valid consent, and the legal qualification of the recent military hostilities. In the Security Council meeting of 1 March 2014 the representative of Russia asserted that [the Prime Minister of Crimea] went to the...
09.03.14 | |

09 Mar

...protect its citizens allegedly at risk in those states. However, US actions in all the above instances received harsh criticism from the community of states, partly because the actions were disproportionate self-defense (The Yearbook of the United Nations (1965) 142; UN SCOR, 2491st mtg, UN Docs S/PV. 2491(27 October 1983) 5, paragraphs 38-9; Louis Henkin, “The Invasion of Panama Under International Law: A Gross Violation” (1991) 29 Columbia Journal of Transnational Law 293, 306, 308-9; Judith Gardam, Necessity, Proportionality and the Use of Force by States, 166-7), seeking to overthrow...
09.03.14 | |

23 Apr

[Roger L. Phillips is an international criminal law practitioner. He also maintains Communis Hostis Omnium , a blog about maritime piracy. This post is cross-posted there.] The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of...
23.04.13 | |

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 | |