In association with the International Commission of Jurists

Search: extraterritorial sanctions

20 Apr

...the Quasi-War and Seminole War.” But Kent notes that simply because the Constitution does not govern extraterritorial uses of coercive force, it does not mean that the Founders considered such actions extra-legal. The law of nations constrained the U.S. government’s actions abroad. If you will recall this exchange between the Solicitor General Paul Clement and Justice Souter in the recent oral argument in Hamdan v. Rumsfeld, you understand the gravity of Kent’s position. The modern application of Kent’s argument is that if the writ cannot be suspended, it does not...
20.04.06 | |

16 Oct

...Richard Lazarus helpfully commented to us during the inaugural Harvard-Boalt-UCLA Junior Environmental Scholar workshop that he has seen variations of this before – that this lawsuit would be an attempt to change the “default position” in an unresolved environmental conflict. I think that is true, although we did not articulate that as directly or elegantly as Professor Lazarus did. Our paper presents a melding of two different conflicting perspectives. Austen Parrish, the international scholar, generally laments the extraterritorial application of domestic law, while I, the environmentalist, look for ways to...
16.10.07 | |

20 May

...greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.) These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories. This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal...
20.05.13 | |

18 Feb

...over who crosses U.S. borders, it’s not for the courts to decide otherwise absent some very clear authorization. So “what law authorized the district court to order the government to bring petitioners to the United States and release them here?” Not the Due Process Clause, says the D.C. Circuit. Immigration cases have always held that the Constitution doesn’t extend to non-citizens held beyond the “sovereign territory” of the United States. (Never mind, I suppose, that Justice Kennedy’s Boumediene majority no longer thinks sovereignty is the touchstone for the extraterritorial extension...
18.02.09 | |

31 May

...long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here. Responses to that question produced an interesting exchange on and off-line between Gabor Rona and Marty Lederman. With the relevant permission...
31.05.11 | |

31 Oct

...Juris, David Glazier (Loyola, LA), Detlev Vagts (Harvard), Roger Clark (Rutgers-Camden), Devin Pendas (Boston College) and Lawrence Douglas (Amherst). The discussion will start with a cross-posted introduction by Kevin today, and end with his reply to the discussants on Friday. Both the discussants and our readers are of course welcome to join in in the comments. Following discussion of Kevin’s book, Opinio Juris and EJIL:Talk! will host a joint discussion of Marko Milanovic’s book, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford UP). Cross-posted at EJIL: Talk!...
31.10.11 | |

16 Oct

...from the inside I “actually advised the Obama administration to change its interpretation and to recognize the extraterritorial application of the ICCPR;” I then argued with greater success both internally and externally for the view that the Convention Against Torture applies extraterritorially, a view that the Obama administration eventually adopted after I left. Given Eviatar’s recognition that I fought internally—with admittedly mixed success—for the United States to actually comply with international human rights law, I am bit puzzled by her suggestion that “prominent lawyers and legal scholars like [my]self could...
16.10.18 | |

26 Mar

...the context of NIAC, Article 42 detention authority even in the more constrained context of IAC is dramatically limited, permitting only that detention as is “absolutely necessary” for the security of the detaining power. Is it “absolutely necessary” for the security of the United States that it be able to detain terrorist suspects picked up anywhere in the world under a legal authority that goes beyond its own sweepingly extraterritorial and often preventively focused criminal law? Guess we’ll find out if the administration advances the Art. 42 theory in court....
26.03.09 | |

22 Jul

...the exercise of well recognized forms of extraterritorial jurisdiction, sometimes notwithstanding treaty obligations to enable themselves so to act. National legislation may be illuminating as to the issue of universal jurisdiction, but not conclusive as to its legality. Moreover, while none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and...
22.07.09 | |

11 Apr

...of the key features of my forthcoming book — The Oxford Guide to Treaties is a new set of treaty clauses. The volume includes 350 clauses taken from an array of existing treaties on 23 different treaty issues, such as the various ways treaty clauses may define a treaty’s object and purpose, delineate territorial and extraterritorial application, identify a treaty’s relationship to other treaties, or authorize simplified amendment procedures. I found some of these clauses the old fashioned way, using multi-volume hard-bound sets of books like those edited by Bevans...
11.04.12 | |

24 Jan

...think that the text of Article 17 supports such efforts, but the efforts are there nonetheless. So one of the basic goals of my Article is to demonstrate that it may well be counterproductive to insist that states prosecute international crimes as international crimes, given their legal and evidentiary complexity. Second, although Carsten seems to concede that international crimes are more difficult to prosecute domestically than ordinary crimes, he points out that they have their advantages, such as to offer ‘”a broader basis for jurisdiction (i.e. prosecution of extraterritorial acts),...
24.01.12 | |

10 Jan

...the possible destruction of North Korea’s army as permissible defensive action, coupled with the self-defense justifications advanced for the US’s wide-scale extraterritorial drone program since 2010, may reflect serious attempts to reinterpret and loosen the well-accepted rules on the principle of proportionality to the point of irrelevance. These expansive readings of self-defense, however, have never been endorsed by the rest of the international community or even the majority of them. On the contrary, the requirement of halting and repelling an armed attack still represents the only primary benchmark for the...
10.01.18 | |