Search: extraterritorial sanctions
05 Feb The African Union (Rightly) Endorses Pure Sovereignty in Cyberspace
...States.” The most important consequence of pure sovereignty is that it prohibits states from engaging in extraterritorial cyber-espionage. The Tallinn Manual 2.0 claims that because international law does not regulate such espionage in the physical realm, it does not regulate it in the cyber one. Most scholars take the same position. Russell Buchan and I, however, have argued precisely the opposite — that international law prohibits extraterritorial espionage in both the physical and cyber realms. We now have 55 more states that agree with us. The African Union’s communique is...28 Jan Guest Post: Dodge–The Presumption Against Extraterritoriality Does Not Apply to Jurisdictional Statutes
...reach. The Supreme Court’s decision in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), confirms the distinction between substantive statutes to which the presumption against extraterritoriality applies and jurisdictional statutes to which it does not. In Morrison, the Court used the presumption to limit a substantive provision of the Securities Exchange Act, finding “no affirmative indication in the Exchange Act that § 10(b) applies extraterritorially.” Id. at 2883. But notably, the Court did not apply the presumption against extraterritoriality to the Exchange Act’s jurisdictional provision. To the contrary,...16 Jun Function Over Form
Many thanks to the Opinio Juris team for hosting this conversation, and to colleagues who have already offered such interesting and insightful posts. In this spirit of exchange, I’ve crafted comments that I hope will challenge and extend some of their observations, as we all continue to digest this momentous opinion on- and off-line. The benefit of continued reflection will no doubt reveal shortcomings in my preliminary reactions. My current research takes a comparative look at the application of constitutional protections to non-citizens when a government acts extraterritorially, so stay...03 Apr The Unattractive Question is Back: SCOTUS (Again) Considers Corporate Liability Under the Alien Tort Statute
...the Alien Tort Statute has extraterritorial reach needed to be resolved first, and sent the case back for re-argument the next term. That re-argued case eventually became the 2013 Kiobel decision sharply limiting the extraterritorial scope of lawsuits brought under the ATS to cases that “touch and concern” the territory of the U.S. The corporate liability issue was left fully argued and untouched. To be sure, since 2013, several other circuit courts have issued opinions on the corporate liability issue and all have split from the original Second Circuit Kiobel...17 Oct What Congress Should Take From Hamdan
...Post Facto Clause of the U.S. Constitution that it prohibits prosecutions for actions that were not criminal at the time they were taken. The application of the Ex Post Facto Clause is especially noteworthy here because it had been something of a question whether the U.S. Constitution (other than the Suspension Clause the Supreme Court recognized guaranteed the Guantanamo Bay detainees a constitutional right to seek a writ of habeas corpus) applied to non-citizens held at Guantanamo Bay. While stopping short of answering the question of extraterritorial application directly, the...22 May DRAM chips and the puzzling persistence of extraterritoriality
Administrative lawyers think that international antitrust is a particularly interesting form of bureaucratic cooperation. We see a world where antitrust has changed from a focus of international dissention – see the anger over the US assertion of extraterritorial jurisdiction and the effects test after WWII; note that it is the most cited American case in international law – to one where competition regulators meet their foreign counterparts and arguably conform their conduct to international norms, devised, for better or worse, by the regulators themselves. The constraints created by the international...05 Dec Morality Play at the WTO
...public ethic of that community. As Howse and Langille put it, “public morals” may be justified either as “instrumental regulation designed to counter certain social ills, or as expressive regulation designed to express or give force to intrinsic moral intuitions or shared values.” The fact that there is not universal concern for seal welfare, or that Canada and Norway do not share EU’s concerns, is irrelevant for WTO purposes. Second, the public moral concerns may derive from conduct that is wholly extraterritorial to the Member State. Under this reasoning, a...10 Oct More SCSL Hypocrisy Concerning Customary International Law
...to substantive criminal law. Contrast what it says about the principal/accessory distinction with what it says about extraterritoriality as an aggravating factor, which the defence (correctly) alleged in its appeal brief lacks any foundation whatsoever in customary international law (and has never been applied by any international tribunal): The Appeals Chamber considers that it was unnecessary for the Trial Chamber to refer to public international law in order to take into consideration the extraterritorial nature and consequences of Taylor‘s acts and conduct. The Appeals Chamber accepts the Trial Chamber‘s finding...
04 Feb ICC and Palestine Symposium: Mind the Gap– The ‘Palestine Situation’ before the ICC
...acquiesce lightly to the extraterritorial jurisdiction of Israeli military and civilian courts in the West Bank. Against the backdrop of the current Israeli administration’s intention to annex large swathes of the West Bank and East Jerusalem, the de facto exercise of Israel’s extraterritorial jurisdiction is gradually absorbing Palestinian land within the Israeli state; if this remains unchallenged, the process of conquest through an expansion of jurisdiction could become irreversible, clearly contravening international law. Taking the example of Israeli settlements in occupied Palestine (which are a “flagrant violation under international...
21 Apr Symposium: On the Promise and Potential of R2P
...for example, the difficulty in stretching the meaning of the Geneva Conventions’ Common Article 1 to cover an extraterritorial State obligation to react to all war crimes, including those not derived from the Conventions. It exposes the issue with resorting to Article 41 of the Articles on State Responsibility, which lacks formal legal standing, to try to establish a State responsibility to react to atrocity crimes as violations of jus cogens norms. And it demonstrates the glaring absence of a multilateral convention on crimes against humanity, creating enormous gaps in...