In association with the International Commission of Jurists

Search: Syria Insta-Symposium

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 | |

12 Mar

[Ilya Nuzov is an Assistant Researcher with the Geneva Academy of International Humanitarian Law and Human Rights and a PhD student in International Law at the University of Geneva. His main research area concerns transitional justice in Eastern Europe.] Much has been said in recent discussions on the Ukraine crisis in an attempt to qualify the ongoing Russian intervention as one kind of violation of international law or another and to ascertain possible legal and political repercussions for either state. (See previous posts in this symposium by Robert McCorquodale, Greg...
12.03.14 | |

18 Apr

[Christopher A. Whytock is a Professor of Law and Political Science at UC Irvine School of Law] I do not think the Court’s opinion in Kiobel means that ATS litigation in federal courts is going away any time soon. First, make no mistake, the “presumption against extraterritoriality” applied by the Court in Kiobel is a new creation that is likely to give rise to further litigation. In at least three ways, the new presumption is different from the Morrison-style presumption used by the Court to determine whether a...
18.04.13 | |

18 Apr

...DOJ or in the SEC context to be charged by the company’s primary government regulator. The impact on the company’s market capitalization upon indictment or civil charging is likely to be much greater than the FCPA fines or penalties the DOJ and/or SEC are seeking. Indeed, in the FCPA’s 35 year history only two companies have put the DOJ to its burden of proof at trial and both companies ultimately prevailed. The first instance, involving an issuer occurred in 1991, and the second instance, involving a private company, occurred in...
18.04.13 | |

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 | |

18 Apr

...this OJ symposium. The majority’s “narrow approach” leaves a number of specific questions open, but it also resolves a few broader issues that are likely to arise in future cases. Under the majority’s reasoning, there should be no Article III problem with remaining ATS suits, because the ATS applies (and thus “arises under”) federal law. It follows that U.S. law will govern various aspects of the claim, including the standard for accomplice liability (i.e., knowledge), and the availability of corporate liability and punitive damages. In that sense, the Kiobel decision...
18.04.13 | |

17 Apr

[John H. Knox is Henry C. Lauerman Professor of International Law at Wake Forest University School of Law] As Anthony Colangelo has already noted, the fundamental difference between the majority and the Breyer concurrence in Kiobel is that the majority opinion applies a presumption against extraterritoriality, and the Breyer concurrence a presumption against extrajurisdictionality. Kiobel illustrates how stark the difference can be. The majority’s refusal to allow ATS suits for torts beyond U.S. territory is likely to result in the dismissal of most ATS litigation. The concurrence’s approach...
17.04.13 | |

17 Apr

...options is transnational tort litigation. As I discuss in a forthcoming article (now more relevant than ever) and as Trey Childress discusses here and a recent Irvine Law Review symposium features here, the future of human rights in domestic courts is transnational tort litigation. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional...
17.04.13 | |

17 Apr

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.] I’ll start with a few brief points about why I believe Justice Breyer’s opinion provides a sounder approach and is more legally accurate than the Court’s opinion. Then I will critique the Court’s opinion and, in particular, its extension of a presumption against extraterritoriality to causes of action (as opposed to conduct regulating rules). First, I must say I’m sorry to see Justice Breyer’s view that “just as we have looked to established international...
17.04.13 | |

17 Apr

...Another might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory. Finally, perhaps, as with piracy on the high seas, ATS claims may be possible in terra nullius circumstances, such as where acts have occurred in failed states....
17.04.13 | |