Weekend Roundup: September 29 – October 5, 2012

by An Hertogen

This week, there was no escaping the second oral argument in the Kiobel case that kicked off the US Supreme Court’s term on Monday. If you are not familiar with this case, it concerns the enigmatic Alien Tort Statute which, as part of the Judiciary Act 1789, holds that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” SCOTUSblog provides more background on the case here and here.

First of the mark here at Opinio Juris was Deborah Pearlstein posting on the early consensus about how oral argument was going. Peter Spiro posted a link to the transcript of the oral argument, and argued that things did not go that well for Shell, but stopped short of making predictions about the final outcome. Roger Alford predicted that the Supreme Court will limit application of the ATS to claims by foreign plaintiffs against foreign corporations for conduct on foreign soil. In a later post, Deborah discussed three possible readings of an exchange between Justice Scalia and the US Solicitor General on whether the Court should give deference to the views of the State Department.

During our special Kiobel Roundtable, Curtis Bradley argued that the presumption against extraterritorial application is a better fit than the stronger presumption against extraterritoriality to limit the scope of the ATS. In his post, William Dodge also pointed out that suggestions by respondents to apply the presumption against extraterritoriality did not appear to gain traction with the justices. He also touched on the questions of the availability of alternative fora and of corporate liability for human rights violations. Chimène Keitner focused on transitory torts, rejected Shell’s claims that federal courts should not consider any claims arising outside the US and discussed how much deference should be given to the political branches to avoid offending foreign countries.

A few contributors raised the issue of the purpose of the ATS. Julian Ku expressed disappointment that the parties did not offer a persuasive theory of the purpose of the ATS. Meir Feder asked whether the ATS addresses national or universal interests. In a similar vein, Beth Stephens discussed how to define a coherent limit on ATS cases, and argued that the devil is in the details. Thomas Lee argued that the real purpose of the ATS was about protecting safe conducts and not about piracy or ambassadorial infringements, as is often assumed.

Doug Cassel argued that the Supreme Court should only require the prior exhaustion of foreign and international remedies “in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies”. He added that any exhaustion requirement should respect the exceptions recognized by international law.

Aside from our Kiobel posts, Kevin wrote about the passing of historian Eric Hobsbawn. Ken Anderson reposted part of Gary Bass’ review of John Witt’s book “Lincoln’s Code“, discussed Aryeh Neier’s call for a no-fly zone over Syria, and examined the differences between the targeted killing of Anwar al-Awlaki and the landmark case of Reid v CovertJulian discussed reports that the US is preparing a retaliatory military strike into Libya over the killing of Ambassador Stevens, and posted about the refusal by the Japanese PM to submit the Senkaku/Diaoyu dispute to the ICJ. Finally, Duncan Hollis posted about a recent decision by the Nevada Supreme Court to implement the ICJ’s Avena judgment, despite there being no requirement to do so, as the US Supreme Court held in Medellin v. Texas.

As always, we also brought you a list of upcoming events and our weekday news wraps.

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

Weekend Roundup: September 22-28, 2012

by An Hertogen

This week on Opinio Juris, one of us was facing a legal challenge of his own. You can read Kevin Jon Heller’s account of Chevron’s subpoena for 9 years of IP-logs for his gmail-account here.

Ken Anderson is back to blogging, and discussed the leading issues at this week’s opening of the UN General Assembly in a post that also reflected on whether a sitting US President has anything to gain from a meaningful UN speech during an election year. In a different post, Ken reproduced the text of Obama’s speech as prepared for delivery. Further on UN appearances, Kevin wondered whether Benjamin Netanyahu’s “red line” about Iran’s nuclear bomb could still be taken seriously.

Other posts also dealt with Iran. Kevin asked why progressive bloggers were so willing to overlook the MEK’s involvement in the assassination of Iranian scientists when claiming that the organization has not been involved in terrorist attacks for years, and Deborah Pearlstein wrote about new drone technology reportedly developed by Iran.

In a guest post, Chantal Meloni argued why the Palestine-ICC saga is far from over, despite the April 3, 2012 update by the OTP. Another guest post, by Polina Levina and Kaveri Vaid, argued that the allegations of torture in a recent Human Rights Watch report qualify as war crimes under the Rome Statute, and are thus relevant for the OTP’s preliminary investigation into the situation in Afghanistan.

Our journal symposia are also back after the Northern Hemisphere summer break. The Harvard International Law Journal kicked off with a symposium on “The Democratic Coup d’Etat“, an article by Ozan Varol. The article argues that not all military coups are alike from an anti-democracy perspective. Joel Colón-Ríos’s response advanced on a more restricted concept of a democratic coup that focuses not only on the end result but also on the process through which the change came about. David Landau argued how the article illustrates the absence of an accurate vocabulary about military coups and how it raises further questions about the constitutional implications of various models of military entrenchment in post-coup constitutions. William Partlett provided a pragmatist response, and Brad Roth criticized the article’s reduction of democracy to “a narrow set of institutions and procedures”. Ozan Varol’s response to the comments can be found here.

In other announcements, Jessica welcomed Armed Groups and International Law to the blogosphere, and we posted about upcoming events and wrapped up the news. 

Many thanks to all our guest posters and have a nice weekend!

Weekend Roundup: September 15-21, 2012

by An Hertogen

This week on Opinio Juris, we posted Harold Koh’s speech on international law in cyberspace, delivered earlier this week, as part of our efforts to make important international law speeches more readily available.

The decision by the Obama administration to requalify the tragic events in Libya on September 11 as a terrorist attack rather than a spontaneous reaction provides a further basis, according to Julian Ku, for the legality of any US retaliation using armed force, including on the basis of the UAMF.

Julian also followed up on last week’s post on articles 22 and 29 of the Vienna Convention of Diplomatic Relations, which confirms the inviolability of embassy premisses and of the person of the diplomatic agent. This time the issue arose in China where protesters attacked the car of US ambassador Gary Locke and “egged” the Japanese embassy. In further posts, Julian addressed the controversy over the Senkaku/Diaoyu islands that triggered the egging incident. He speculated that Japan is probably not interested in bringing the sovereignty dispute before the ICJ because it already possesses the disputed islands. He pointed out how the US, despite its official stance of neutrality, may still be dragged into the dispute based on article V of the US-Japan Treaty of Mutual Cooperation and Security which applies to any territory under the administration of Japan.

Kevin Jon Heller reported on the trial of Buzeid Dorda, a senior intelligence officer in the Gaddhafi regime, which has been suspended multiple times now after constitutionality challenges by the defence based on due process violations by the prosecution. Kevin argued that this could give support for the ICC Pre-Trial Chamber to reject Libya’s admissibility challenge against Saif, because his domestic case has seen more systematic due process violations.

Kevin was critical of the Obama administration’s decision to no longer list the MEK, aka the People’s Mujahideen Organization of Iran, as a terrorist organisation, noting that the group was found to be involved in plots to assassinate Iranian nuclear scientists only recently.

Peter Spiro pointed to the ground-breaking creation of three privatized cities in Honduras, and Robyn Curnow contributed a guest post on the Pussy Riot sentencing, in which she shone a light on how the charge of hooliganism may have increased the appeal of the case in the West due to the different connotations of this term in different jurisdictions.

Finally, as every week, we posted a listing of upcoming events and our weekday news wrap.

Have a nice weekend!

Weekend Roundup: September 8 – 14, 2012

by An Hertogen

The attacks on US embassies in the Arab world did not escape our bloggers’ attention this week. Duncan Hollis posted about host states’ duties to protect diplomatic and consular premises, and questioned whether Libya and Egypt could be held responsible for the attacks. Julian Ku asked which responses to the death of ambassador Christopher Stevens would be legal under US constitutional and international law.  In another post, Julian referred to news reports that the US sent two navy destroyers, marines, investigators and intelligence personnel to Libya to find those responsible for the attack.

The anti-Muslim video that stoked the unrest prompted Peter Spiro to explore the boundaries of free speech. In a post that attracted many comments, he argued that the killing bolsters the case for banning hate speech. He also asked whether those opposed to banning hate speech are equally opposed to Google’s decision to block access to the offensive video in Libya and Egypt.

In other posts, Chris Borgen wrote about the case of Ramil Safarov, described in more detail in this post by his St John’s colleague Mark Movsesian. Chris also posted about the decision of the NYU Journal of International Law and Policy – one of Opinio Juris’ journal symposia partners – to become a peer-reviewed journal, with José E. Alvarez as managing editor.

Kevin Jon Heller referred us to Mark Kersten’s scoop that Libya obtained custody of Al-Senussi by allegedly paying Mauretania $200 million, more than the ICC’s yearly operating budget. Following news that Adnan Farhan Abdul Latif, the Guantanamo detainee who was passed away last week, had been cleared for release three years ago, Kevin predicted that “fifty years from now, Gitmo will be a the top of the list of things the Texas Board of Education wants banned from students’ history books”.

Duncan Hollis posted an abstract of the first chapter of his new book The Oxford Guide to Treaties. The entire chapter can now be downloaded from SSRN.

Finally, Mel O’Brien contributed a guest post about trafficking in women and girls discussed during the 52nd session of the Committee on the Elimination of the Discrimination Against Women.

As always, we also provided you with a listing of upcoming events and our daily compilations of international law news.

Have a nice weekend!

Weekend Roundup: August 25 – September 7, 2012

by An Hertogen

At the start of the US academic year, Peggy welcomed Stephen Walt’s recommendation, though not his reasons, that wannabe foreign policy wonks study international law, and Roger Alford posted about James Phillips and John Yoo’s analysis of international and comparative law all-stars at the top 16 US law schools.

The Republican and Democratic conventions also caught our bloggers’ attention. Julian Ku posted about the strong language in the draft republican platform on protecting American sovereignty and opposing agreements such as UNCLOS, and Peter Spiro doubted whether the idea of citizenship, pressed in Obama’s speech, would stick given the hollow meaning of the rights and responsibilities of citizenship nowadays.

Congratulations are in order for Duncan Hollis, whose edited volume The Oxford Guide to Treaties is now available in Europe and can be ordered in the US.

Roger Alford posted on the legislative fixes to the problem of executing damages claims against Iran, and provided background to the case that prompted the fix.

Following the revelations in “No Easy Day“, Kevin Jon Heller felt compelled to revise his earlier position that Osama Bin Laden’s killing was legal, and, in a follow-up post, discussed what it means for a combatant to be hors de combat.

In ICL news, Kevin posted about Mauritania’s surprise decision to extradite al-Senussi to Libya, increasing the chances of Libya’s admissibility challenge at the ICC succeeding. Kevin was also baffled by Justice Sow’s agreement to testify in the appeal brought by Charles Taylor’s defense team against his conviction by the Special Court for Sierra Leone, in support of his allegations when the original judgment was read that there had been no deliberations.

If you want to follow Kevin more, he is now on Twitter, as are a few of his co-bloggers, and Opinio Juris itself.

Finally, we also posted some upcoming events and provided you with our weekday compilations of international news.

Have a nice weekend!