Search: extraterritorial sanctions
18 Feb Constitutional Right, No Gitmo Remedy
...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...01 Oct Kiobel Argument Goes Badly for Shell (FWIW)
...well, allowing for the possible interposition of procedural bars to the making of Alien Tort claims (as pushed by Sotomayor). He got in an effective IG Farben analogy and even a little human rights speechifying (see p. 55). Breyer gets the award for zinger of the day: “if Hitler isn’t a pirate, who is?” (Anyone want to do the legal math on that one?) So predictions of the ATS (extraterritorial) demise may be premature. On the other hand, recent experience demonstrates that predictions based on oral arguments are not especially...
07 Dec Advancing Human Rights in Pandemic Treaty Debates
...“solidarity” – that is, “national, international, multilateral, bilateral, and multisectoral collaboration, coordination and cooperation in order to achieve a fairer, more equitable and better prepared world” (art. 4). Other experts of international law and relations argue that global solidarity encompasses not only pandemic preparedness, but espouses broader obligations, including the notion of common but differentiated responsibility, the denouncing of charitable assistance, and intergenerational equity – providing for manifestations of solidarity in pandemic prevention, preparedness, response, and recovery. Aligning this clear commitment to global solidarity with extraterritorial human rights obligations of...04 Dec Did the Supreme Court Implicitly Reverse Kiobel’s Corporate Liability Holding?
...Chief Justice Roberts stated that ““[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices [to displace the presumption against extraterritorial application].” The argument here is that although “mere corporate presence” is not enough, corporations with other, deeper connections might displace the presumption against extraterritoriality. (Since the Court in other places explicitly stated it was not reaching the corporate liability question, I am skeptical of this argument). Second, and more persuasively, you might argue that because the Supreme Court dismissed...26 Dec Another Round in the Amnesty-Goodman-Heller Debate over Universal Jurisdiction
...proposition that the Rome Statute obligates state parties to enact universal jurisdiction for ICC crimes Step 2: the decision to code a state as having enacted universal jurisdiction if it (a) is a party to the Rome Statute and (b) its domestic law provides for jurisdiction over crimes obligated by international treaty As I explained in my original post, Step 1 is flawed. The Rome Statute does not include universal jurisdiction, and has no obligation whatsoever for state parties to provide (extraterritorial) jurisdiction for ICC crimes. I suspect that the...08 Jan Estrada Redux: Mexico’s stance on the Venezuela Crisis and Latin America’s evolving understanding of non-intervention
...to the exigencies of Latin America’s strong commitment to human rights and democratic values. This is why non-intervention now coexists with the Inter-American Democratic Charter, as seen above. The Lima Group’s statement and Mexico’s opposition to it, take place in the context of one such particularly hot-topic discussion: economic sanctions. Every year, the Human Rights Council approves a Resolution on “unilateral coercive measures and human rights”. This resolution calls upon states to stop adopting unilateral measures “of a coercive nature with extraterritorial effects, which create obstacles to trade relations among...20 Apr Andrew Kent on the Case Against a Global Constitution
...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...16 Oct Canadian Provinces Suing Americans for Transboundary Harm
...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...26 Mar It’s Official – and a Word on GCIV Art. 42
...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....
23 Jun Digital Clarity: Why International Law Needs Clearer Application in the Digital Space
...control over territory. Furthermore, States must ensure their cyber capabilities and operations comply with existing international obligations, including human rights law, international humanitarian law, and treaty commitments. The extraterritorial application of human rights obligations takes on new dimensions when State surveillance technologies can monitor individuals globally or when State cyber operations affect critical infrastructure providing essential services. In December 2018, the UN General Assembly adopted the Eleven Norms of Responsible State behaviour in cyberspace. Although these norms are voluntary, they are based on international law obligations. However, it is concerning...