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Search: extraterritorial sanctions

06 Mar

...federal law may complicate the pleading of such cases under state law. As to choice of law, the conflicts scholars observed that in most cases the law of the state of injury will be applied, which might lead to forum non conveniens dismissals. However, to the extent U.S. domiciliaries are involved, there is some likelihood that U.S. state law might be applicable, which raises issue of due process, extraterritoriality, and preemption. In short, there were lots of new and interesting observations with the conclusion that articles remain to be written...
06.03.12 | |

25 Aug

...to international crimes experienced by the Rohingya – this formal complaint puts the assertion to the test. So far, the complete lack of response to Setara’s complaint confirms that justice for the Rohingya is not possible. In other parts of the world, initiatives utilising universal and extraterritorial jurisdiction are also underway, in which Rohingya women and in particular, survivors of sexual violence play a critical role. In November 2021, a court in Argentina decided to open investigations into crimes committed in Myanmar, under the principle of universal jurisdiction. Prior to...
25.08.22 | |

05 Oct

...as originally understood, article 51 did not permit extraterritorial force against non-state actors without the consent of the territorial State. The real question, therefore, is whether state practice, whether as a constituent element of customary international law, or as subsequent practice for the purposes of interpreting the UN Charter, could have modified this original state-centric reading of the Charter. This question is at the heart of a forthcoming book, The Trialogue on the Use of Force against Non-State Actors (Mary Ellen O’Connell, Christian Tams, Dire Tladi). In my view, an...
05.10.18 | |

05 Dec

Douglas Burgess, Jr., has an editorial in today’s New York Times arguing that piracy should be considered terrorism in order to facilitate its prosecution. It’s an interesting piece, but I have to take issue with the basic premise of his argument: Are pirates a species of terrorist? In short, yes. The same definition of pirates as hostis humani generis could also be applied to international organized terrorism. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts...
05.12.08 | |

18 Apr

...fundamental problems with how lower courts have approached these suits. These problems center on five key issues: First, whether the ATS applies extraterritorially – that is, whether a U.S. court can properly apply U.S. federal common law under the ATS to conduct that occurred entirely in the territory of a foreign State. Second, even if such a cause of action could properly be recognized, whether exhaustion of adequate and available local remedies in that foreign country should be a prerequisite to bringing an ATS suit. Third, whether corporations or other...
18.04.08 | |

17 Sep

...which the court reserved on ways in which it might be curtailed still further – in passing, the court noted but declined to take a view on whether the ATS might have no extraterritorial application, limiting it to conduct within the United States. Once corporations were understood as targets, once everyone understood that neither plaintiff nor defendant required any traditional connection to the United States, as parties, in conduct, nothing, and once the plaintiffs bar saw opportunities to join forces with the NGOs and activists, the trend of the ATS...
17.09.10 | |

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 | |

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 | |

04 Dec

...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...
04.12.14 | |

03 Jun

...post on the irreducible categories of international and non-international armed conflict and why they are the “residual” forms of armed conflict, rather than a category called armed conflict that is then further subdivided. It has bearing on this question of where an armed conflict is underway.) Meaning, Marko starts from two points – one is extraterritorial application of the ICCPR. I don’t buy that, the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded. If one disagrees not just as to the view, but also...
03.06.10 | |

25 Nov

...the ATS—both involve the “discovery” of a latent legal framework waiting to be employed; Ratner argues that “it is not clear how switching to the ICL model eliminates… the very problem that Kiobel addressed. i.e., the extraterritorial reach of domestic law.” Although I acknowledge not addressing extraterritoriality in depth in my introduction, I do cite evidence from a comparative survey which concluded that 11 of 16 states surveyed have jurisdiction over international crimes perpetrated by their nationals overseas. Ratner also objects that “if we think… diversity of criminal law accomplice...
25.11.14 | |

01 Jun

...the point yet where there’s a sense that there’s anything that could replace that,” the second military official said of the drone attacks. From the legal side, however, I wonder if the Obama administration is cognizant of the kind of pushback that the soft-law community is gearing up to offer. The position of the human rights community continues to harden, in the sense of treating targeted killing as extrajudicial execution under human rights law, and to pushing that conclusion onto the United States through four legal premises: Extraterritorial application of...
01.06.09 | |