Search: extraterritorial sanctions
13 Sep Al-Bahlul, Conspiracy and the Subject Matter Jurisdiction of Military Commissions
...any other way contribute to the commission or attempted commission” of a war crime. Article 25(d) (emphasis mine). For these reasons, there appears to be an open question regarding whether international law permits the use of the other domestic modes of inchoate criminal liability to punish non-nationals for extraterritorial violations of the law of war. Exploring this rather complex issue requires retracing the origins of law of war violations and their punishment. States have punished law of war violations by adversaries and their sympathizers since long before there were international...27 Jul Does It Matter Whether the Constitution Follows the Flag?
...Take the dramatically expanded level of extraterritorial law enforcement activity nicely documented in the book. To the extent the courts haven’t found the Constitution to apply to such activity (see Verdugo-Urquidez), the doctrine looks like a reflection and an enabler of US hegemony. If the DEA wants to break someone’s door down overseas without any procedural protections, the domestic courts won’t stand in the way. Through this optic, it looks like open season for cops across borders. But international law is catching up to US-style rights on this score as...15 Oct BU Law School’s “Ten Years In” Conference
...States does not accept the extraterritorial application of the canonical human rights treaties with respect to its own conduct and those of its agents outside of the territorial United States, so from the US point of view, that distinction is legally neither here nor there. In order to give the geographical distinction content, Koh’s argument says not that human rights law applies with respect to the US, but instead that the requirements of self-defense independently require an imminence of threat analysis even within an armed conflict that includes AQAP as...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...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...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,...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...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...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...02 Jun Case of the Month: United States v. Juvenile Male 1
...documents and the court granted the juvenile’s application for subpoenas duces tecum. But the Navajo nation refused to provide the documents. Why? Navajo lawyers argued that the subpoena would be ignored because “the Navajo Nation is a separate sovereign nation, and as a matter of public policy, foreign subpoenas issued from neighboring sovereigns are not honored.” Instead of complying with this foreign order the juvenile should follow a “routine procedure for domestication of extra-territorial subpoenas through the Navajo Nation courts.” The court granted a second motion to compel, but the...