Weekend Roundup: April 27 – May 3, 2013

by An Hertogen

This week on Opinio Juris, the debate on Kiobel continued. Katherine Florey pointed out how the decision will deepen the divide between state and federal approaches to extraterritoriality issues. Ken Anderson argued that the ATS should be understood as the “law of the hegemon”. Peter agreed with Samuel Moyn that more attention to corporate social responsibility regulation could potentially have a broader impact in improving human rights than high profile ATS cases. Corporate social responsibility was also central to Peter’s post on the impact of recent tragedies in the Bangladesh garment industry on voluntary corporate codes.

Eugene Kontorovich wrote a guest post on the recent decision of a French Court of Appeals rejecting claims that the contract between Alstom Transport and the State of Israel for the construction of the Jerusalem Light Rail was illegal due to a violation of international law. Disagreeing with Eugene, Kevin pointed out that the Court of Appeal is silent about the possibility of a war crime under the Rome Statute.

On another controversial dispute involving a big corporation, Roger wrote about an Ontario Court’s decision to dismiss the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada.

In news from international courts, Julian was surprised by reports about the ICJ Registrar calling the Bolivia’s application against Colombia “impeccable“, since he thought Bolivia’s case was ridiculously weak. Should the case reach the merits and go against Colombia, chances are though that we’ll end up with Colombian complaints about biased judges after the conclusion of the case, as it did for the recent decision in its case against Nicaragua.

Turning to the ICC, Kevin was troubled by Judge van den Wyngaert’s decision to withdraw from the ICC’s Uhuru Kenyatta case, and followed up with further thoughts. He also congratulated Leiden for winning the ICC Moot Court.

In other posts, Julian pointed out how China is now also pushing the boundary with India, and  asked whether force feeding of detainees on a hunger strike is always illegal. Kevin noted with horror a quote from Ari Fleischer on the difference between Nazis and terrorists, and recommended Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists

As always, we provided news wraps and a list of events and announcements. Many thanks to all our “younger” readers for the many New Voices abstracts. It’s wonderful to see such a great response! Jessica and I are working through the submissions and plan to finalize the selection by mid-May.

Have a nice weekend!

Weekend Roundup: April 20 – 26, 2013

by An Hertogen

This week on Opinio Juris, we continued last week‘s Kiobel Insta-Symposium. Quoting from his and John Yoo’s Forbes contribution, Julian argued that the rejection of universal civil jurisdiction is common sense because it leaves the decision on foreign policy consequences of extraterritoriality to the political branches. He also drew our attention to two positive assessments of the opinion, by John Bellinger and Eugene Kontorovich. Austen Parrish offered an alternative narrative about the meaning of Kiobel, seeing it as a welcome retreat from US unilateralism towards more multilateralism.

The many unanswered questions in Kiobel continued to invite commentary. Roger listed various activities with some link to US territory that may still be subject of future ATS litigation. Beth Stephens also predicted many years of continuing litigation, and preferred the world pre-Kiobel. Examples of upcoming cases were also discussed. Roger pointed out how the Supreme Court has already granted certiorari in DaimlerChrysler AG v Bauman, a human rights case involving jurisdiction over foreign corporations, and Roger Phillips discussed two piracy cases with mixed loci delicti that will soon arrive at the Supreme Court.

Bill Dodge argued that because of the unanswered questions, Kiobel is only a Pyrrhic victory for the position on extraterritoriality first pushed by the Bush administration and urged the human rights and business communities to reach a compromise on a statute that would end the litigation. Milan Markovich argued that it could also turn out to be a Pyrrhic victory for corporate defendants and could lead to more settlements to avoid discovery proceedings into whether claims “touch and concern” the US territory.

Accusations about the use of chemical weapons against civilians in Syria, as reported in our weekday news wraps, raised the question whether Obama’s “red line” had been crossed. Julian was sceptical as to why Assad’s use of chemical weapons would justify an intervention in Syria under US and international law, and Deborah similarly explored whether there is a legal basis for intervention.

Other recent events that prompted posts were the Boston bombings, which Kevin argued fall within at least one definition of terrorism that does not require acts to be politically or ideologically motivated, and the collapse of a garment factory in Bangladesh, which Roger hoped would provide an incentive to sign up to agreements, such as the Bangladesh Fire and Building Safety Agreement, that include a binding arbitration clause to ensure better protection of human rights.

In news from international courts, Julian updated us on the appointment of the final arbitrators for the UNCLOS arbitration lodged by the Philippines against China, and assessed China’s “talking points” on the case. He also urged the Supreme Court to follow the ICJ’s lead and release video recordings of oral hearings.  On the US-ICC relationship, Julian ventured that a cultural change is required if it is to blossom into a love affair. More news from the ICC came from Kevin, who worried that a funding crisis was behind the OPCD’s request to withdraw from the Saif Gaddafi case, and the Pre-Trial Chamber’s approval of a new lawyer.

Finally, Kevin corrected an old post on whether Bill Keller of the NYTimes can be charged with aiding and abetting the enemy like Bradley Manning.

As always, we listed events and announcements that may be of interest to our readers. And remember, there is still time for grad students and recent grads out there to submit an abstract for our New Voices symposium!

Have a nice weekend!

Weekend Roundup: April 13 – 19, 2013

by An Hertogen

This week on Opinio Juris, it was hard to miss our insta-symposium on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. Ken beat Julian to the punch to break the news and link to the opinions.

The core part of Chief Justice Roberts’ opinion for the Court, on the insufficiency of “mere corporate presence” to displace the presumption against extraterritoriality, can be found in this post by Julian. Roger read this to require that the ATS can only apply to conduct that at least partly takes place within the United States. Julian concluded that instances of corporate civil liability under the ATS are now restricted to very specific, and very unlikely, situations.

A recurring theme in the comments were the many questions that the majority opinion left unanswered, a point that was also raised in Justice Kennedy’s one paragraph concurrence, which Deborah would like to have identified those questions in more detailsThomas Lee and Marty Lederman had a go at developing scenarios in which the presumption against extra-territoriality could be rebutted.

Although Chimène Keitner welcomed how the majority’s opinion may have made the ATS more robust by clearing up some issues, she agreed with other commentators that Justice Breyer’s concurrence took the better conceptual approach. Anthony Colangelo criticised the majority opinion for extending the presumption against extraterritoriality to causes of action, which as part of lex fori are by definition not extraterritorial. Also favouring the Breyer concurrence was John Knox, who was happy to see the presumption against extrajurisdictionality resurfacing. Alex Mills pointed out that by applying a presumption against total extraterritoriality, i.e. in foreign cubed cases, the majority opinion failed to answer conclusively whether the ATS applies when there is some form of territorial hook, and argued that the Breyer concurrence may end up being the more influential one.

Julian pointed out how Justice Breyer’s concurrence essentially read the ATS as an expression of the protective principle used to allocate prescriptive jurisdiction, and expressed surprise that Justice Breyer’s concurrence took a narrower stance than his 2004 concurrence in Sosa.

So, where does this leaves human rights litigation against corporations?  Peter argued how Kiobel does not spell the end for corporate compliance with international human rights obligations while Roger saw a big future in transnational tort litigation and listed seven advantages this approach has over its alternatives. Chris Whytock agreed that human rights litigation in state courts could increase, but pointed to a few barriers to this approach.

Mike Koehler discussed the impact of Kiobel on enforcement of the Foreign Corrupt Practices Act, and Ishai Mooreville discussed why questions of personal jurisdiction would become more important, and why they were only lurking beneath the surface during the Kiobel litigation.

It wasn’t all about Kiobel this week though! Ken wrote about new scholarship, including some of his own, on law and ethics for autonomous weapons systems. Julian discussed reports that Japan is considering to take its dispute with China over the Diaoyu/Senkaku islands to the ICJ, and attracted a lot of comments with his argument that the US could legally bomb North Korea’s missile before it is deployed.

In ICC news, Kevin wrote about comments by Fatou Bensouda about retroactivity when Palestine decides to ratify the Rome Statute and about the start of the construction of the ICC’s permanent home, set to be completed in 2015.

Finally, as always, we listed upcoming events and announcements and provided you with weekday news wraps.

Have a nice weekend!

Weekend Roundup: April 6-12, 2013

by An Hertogen

This week on Opinio Juris, we hosted a symposium on the latest issues of the Leiden Journal of International Law, introduced here by Dov Jacobs. The first article, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority by Armin von Bogdandy and Ingo Venzke, discussed the functions of international courts in the international legal order beyond their traditional dispute settlement role. In his comments, Andreas Føllesdal asked how a “function” is defined and whether the various functions of international courts contribute to our assessment of their effectiveness and legitimacy. Ruti Teitel suggested to open up the question of legitimacy. The authors’ response can be found here.

The second article in the symposium was by Darryl Robinson, entitled A Cosmopolitan Liberal Account of International Criminal LawJens Ohlin commented how the article had made him take a step back. Mark Drumbl raised points on moral agency and how ICL can understate responsibility in mass atrocity. Darryl’s response is here.

Another series of guest posts was by Jonathan Horowitz and Naz Modirzadeh who provided two posts (1, 2) discussing how international law could work in transnational non-international armed conflicts.

If writing a guest post for Opinio Juris is on your wish list, check out the call for papers for our upcoming New Voices symposium, aimed at international law students and early career professionals.

In our regular posts, Julian shared his impressions about the ASIL Panel on China and international law, discussing in particular the importance of sovereignty to China as a fundamental principle of international law. Julian also pointed out Judge Leval’s article in Foreign Affairs defending the ATS and agreed with his suggestions of how a modern legislator could limit civil jurisdiction for the enforcement of universal norms.

Kristen brought a request for an advisory opinion to the International Tribunal on the Law of the Sea to our attention and wondered about the background of this request.

Deborah considered the McClatchy report that most drone strikes do not target senior al-Qaeda leaders, and speculated about what could the domestic and international legal basis for these strikes could be.

Chris posted about a conference this week at St John’s on the topic of Cyberconflicts. For more on upcoming conferences, see our events and announcements post.

Finally, as always, we provided you with our weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!

 

Weekend Roundup: March 30 – April 5, 2013

by An Hertogen

This week on Opinio Juris, we brought you the latest round in the Goodman-Heller debate on capture v kill, in which Ryan Goodman responded to Kevin’s comments on this blog a few weeks ago.

Kevin started his week by pointing to turmoil in Sweden’s prosecution of Julian Assange, following the resignation of the prosecutor and the decision by one of his accusers to fire her lawyer. He also addressed the ICC’s Pre-Trial Chamber’s decision to refer Chad to the Security Council over its non-cooperation in the execution of the ICC’s arrest warrant of Sudan’s President’s Omar al-Bashir. Kevin saw this as a risky move that can threaten the Court’s legitimacy if the Security Council does not act. Kevin also recommended a new casebook on international humanitarian law.

Julian criticized the glacial pace of progress of the ICJ proceedings, arguing that in the case between Australia and Japan on whaling it did nothing to cool the dispute. He also urged the NRA to hold its fire over the Arms Trade Treaty, arguing that the treaty is too weak to affect the right to bear arms.

Deborah hailed new guidelines for Armed Private Security Companies doing business with the UN as significant, and asked our readers for their opinions.

At the end of the week, we hosted a symposium by the NYU Journal of International Law and Politics on Professor Jenia Iontcheva Turner’s article Policing International Prosecutors.  In her comment, Professor deGuzman provided two reasons why international criminal courts should err on the side of the defendant when balancing his right to a fair trial with the rights of victims and the broader international community. Sonja Starr argued that the fairness of the trial is not just one factor in the analysis but rather the threshold question. Kevin likewise argued that the accuracy of the trial is essential, and expressed concerns about the article’s rhetoric. Alex Whiting in turn feared that a balancing approach might make the courts too willing to find procedural misconduct, particularly when their are differences in litigation culture between the judges and the defence counsel. These cultural differences were also raised by James Stewart who credited the article with changing his mind about prosecutorial misconduct.  Professor Turner’s response to the comments can be found here.

One of the commentators in the symposium, James Stewart, also provided a guest post in two parts (12) over the ICTY’s approach to complicity in the Perišić judgment.

Many of you are probably at ASIL’s Annual Meeting. In preparation, Jessica highlighted some of the main events. Chris posted about the newly establish Space Law Interest Group of which he is the co-chair and Deborah shared her notes on the discussion on targeted killing.

Finally, as always, we listed upcoming events and announcements and summarized international law related news in our weekday news wraps

Many thanks to our guest contributors and have a nice weekend!