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Search: extraterritorial sanctions

03 Oct

...ATS claims arising in the territory of foreign states would require rejecting thirty years of ATS litigation, including the holding of Filártiga v. Peña-Irala. As Justice Kagan explained, it would also require abandoning the reasoning of the Court’s 2004 decision in Sosa v. Alvarez-Machain. Justice Scalia pointed out that applying the presumption against extraterritoriality would bar claims arising on the high seas as well as those arising in the territory of a foreign state, despite Sosa’s indication that the ATS was intended to apply to piracy, an international crime that...
03.10.12 | |

30 Oct

...criteria for statehood (Montevideo Convention, 1933), which requires (a) permanent population; (b) a defined territory; (c) government; and (d) the capacity to enter into relations with other states. Yet, it has been recognized (ICRC Commentary of 2016) that NIACs can involve extraterritorial aspects, when a foreign State – District 13 – joins one party to the conflict – the rebel groups from the other Districts, rendering the conflict non-international in nature, as long as the State does not exercise effective control of the groups, which is not the case. Having...
30.10.24 | |

26 Mar

...on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister. Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The following two posts will draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles here....
26.03.12 | |

28 Jul

In reading Kal’s description of territoriality’s ebb and flow, I was particularly interested in the evolution in judicial thinking with regard to constitutional scope or domain. His description of the path from In re Ross, which stated emphatically that the Constitution does not follow the flag, to Reid and Boumediene, which give some extra-territorial force to the Bill of Rights and other constitutional guarantees, is excellent. The evolution has obviously been gradual, even glacial. Within this narrative, there are some fascinating examples of courts dramatically pushing constitutional boundaries outward, including...
28.07.09 | |

25 Jul

...investigations into international crimes in Ukraine” (p. 10), Trial international notes more generally the “increasing use of the principles of universal and extraterritorial jurisdiction to curb impunity for international crimes” (see here). But, how can a State prosecute efficiently persons accused of war crimes, crimes against humanity or other serious international crimes in cases when the relevant conduct took place in the territory of one State, (some of) the victims and witnesses have found refuge in the territory of another, and the author is present in the territory of yet...
25.07.23 | |

13 Apr

...allow them to provide further guidance in such cases. Kiobel was something of an outlier—a class action against a foreign parent corporation (Royal Dutch Shell) based entirely on its foreign subsidiary’s activities in a foreign country (Nigeria), in which the foreign parent’s home countries (the Netherlands and the United Kingdom) objected that their own courts were more appropriate forums for the plaintiffs’ claims. The Supreme Court held that the principles underlying the presumption against extraterritoriality limit the causes of action that may be brought under the ATS, but it did...
13.04.15 | |

16 Oct

...crime of torture. FF argued therefore that prosecution of Prince Nasser for torture committed in Bahrain would be possible in UK courts pursuant to the extraterritorial criminal jurisdiction under Section 134 of the Criminal Justice Act 1988. In January 2013 FF was granted judicial review permission. As mentioned above, the matter was due to be heard in the High Court of England and Wales on 7 October 2014, roughly one year and 10 months after permission for judicial review was granted. However shortly before, the DPP appears to have accepted...
16.10.14 | |

17 Mar

...exalted the so-called statutory “presumption against extraterritoriality,” a trend the current Court strengthened in its recent Kiobel decision. Justice Blackmun’s compelling dissent skewered the majority, underscoring not only that the text and meaning of the INA and Refugee Convention were simple and crystalline—“Vulnerable refugees shall not be returned”—but also that that object and purpose would be entirely thwarted if those legal obligations did not apply extraterritoriality to protect fleeing refugees. Looking back, Justice Stevens’ decision is most striking for its frank and admirable acknowledgement of the “moral weight “ of...
17.03.14 | |

07 Mar

...annex East Jerusalem (paras. 14–16); (ii) the establishment of settlements and outposts in the West Bank, and the associated exploitation of natural resources, building of settler-only roads and infrastructures, demographic engineering measures, and extraterritorial application of Israeli domestic law to settlements and settlers (paras. 24–47); and (iii) the unequivocal statements by Israeli officials of the intent to appropriate permanently portions of the West Bank (paras. 48–53). The importance of the COI’s report is that it considered Israel’s violation of binding rules of international law not in isolation, but in the...
07.03.23 | |

20 Oct

...is that the role of judicial review over extraterritorial targeting decisions is highly limited, at most, even when US citizens are involved. The accountability as such is between the political branches. Many people, including me, have urged the USG to greater transparency as to legal review and standards, not as some supposed legal obligation, but as an important tool for political accountability and legitimacy. (3) The CIA has been given an important diplomatic and political task in conducting operations in Pakistan that, up until recently and perhaps even still today,...
20.10.11 | |

25 Nov

...limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.” The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?) It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body. I think the law’s backers are correct that it does not violate US treaty obligations. All...
25.11.15 | |

29 Jul

...the Joint Chiefs of Staff, is quoted as saying: “How do you understand sovereignty in the cyberdomain? It doesn’t tend to pay a lot of attention to geographic boundaries.” Putting aside what may be the fundamental territorial misunderstanding in the quote, I wonder what the evolution of territoriality suggests with regard to this national security initiative. Kal’s book details the various extraterritorial options. Conquering and controlling “cyberterritories” is obviously out of the question. But assuming soverign borders are still operative in this context, Kal’s book suggests several other options. Will...
29.07.09 | |