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26 Oct

This week on Opinio Juris, Ken contributed a post on legally distinct corporate entities and agency theory in Bauman v Daimler AG, Chris wrote about Russia's Realpolitik towards former USSR members that are seeking closer contact with the EU, and Deborah wrote about due process in targeting. Julian noticed how Russia had taken a leaf out of China's book by walking out of an...

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26 Oct

Wim Muller, an associate fellow in international law at Chatham House, takes issue with my observation that China's rejection of Annex VII UNCLOS Arbitration may have influenced Russia's similar rejection of UNCLOS proceedings in the Greenpeace arbitration.  Other commenters take issue with my further claim that Russia's rejection is another "body blow" to ITLOS dispute settlement. I offer my ("typically...

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25 Oct

It has been an eventful news week in the universe of U.S. targeting debates. Amnesty and Human Rights Watch released their reports detailing some of the civilian costs of drone strikes. A bit earlier, UN Special Rapporteur on human rights and countering terrorism, Ben Emmerson, issued an interim report on his findings thus far about targeted killing (though I think...

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24 Oct

Your weekly selection of international law and international relations headlines from around the world: Middle East Yemen has taken control over hundreds of al-Qaeda inmates who tried to escape after they staged a mutiny in Sanaa prison. The Friends of Syria group of Western and Arab foreign ministers are meeting in London hoping to persuade opposition leaders to attend a peace conference in...

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23 Oct

Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR.  Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting...

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23 Oct

[Update below] It looks like China has started a trend. In a surprising statement (at least to me), Russia has announced it will not participate in the ITLOS arbitration brought by the Netherlands related to the detention of Greenpeace activists last month. “The Russian side has informed the Netherlands and the International Tribunal for the Law of the Sea that it...

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22 Oct

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken '71 Research Professor at the University of Virginia School of Law.] I applaud Anupam Chander for picking a great subject for his book. New communications technologies have transformed the way we deliver services by radically lowering the cost of dematerialized, long-distance transactions. The resulting explosive growth of cross-border sales of services is one of the most significant aspects of the modern global economy. There are, of course, a host of books about the Web, some silly cheerleading and some exceptionally good (my favorite is Who Controls the Internet? by my sometimes colleagues Jack Goldsmith and Tim Wu). What Chander seeks to do is bring international law, and especially international economic law, into the mix. He explores how a body of rules developed three decades ago in a pre-Web world (the General Agreement on Trade in Services started in the Uruguay Round, born in 1986) can be brought to bear in the new, radically changed environment. Much of the book describes the new face of international services. These accounts are apt and vivid. As a legal academic, however, I want more. In general I expect a careful study of a complex set of social relations either to propose a positive theory that links legal developments to social conditions with more or less rigor, or a normative vision of the world that will inspire us to correct unseen problems and cash out unrealized opportunities. I realize these categories are messy. The development of a positive analysis rests on certain normative choices, beginning with the decision to concentrate on one set of phenomena rather than another. A normative vision is incomplete without at least a rudimentary account of how we might get from here to there. But they provide a start. I take Chander’s project to be at its heart more normative than positive. He reports on the fascinating growth of the information sector in the global economy, but he does not have a more general story about what explains this growth or how one might predict the next transformation. Rather, he wants to manage the transformation, to promote human flourishing, to expand the range of choices people can freely make, to respect local diversity, and to fight tyranny.
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21 Oct

[Chris Jenks is an assistant professor of law and directs the criminal justice clinic at the SMU Dedman School of Law. He previously served as Chief of the U.S. Army’s International Law Branch, where he was responsible for the Department of Defense’s foreign criminal jurisdiction program. This post expands and revises  comments published by Al Jazeera America.] Beware the U.S. expressing “great respect” for a State’s sovereignty.  You’re likely to find what follows more akin to the opposite -- of both respect and sovereignty. Such is the case with U.S. Secretary of State John Kerry and his recent misstatements on foreign criminal jurisdiction over U.S. service members and the US Afghan Bilateral Security Agreement (BSA).  Under the terms of the BSA, the U.S. would retain exclusive jurisdiction over any and all criminal offenses U.S. service members commit in Afghanistan. Secretary Kerry claimed on more than occasion that this is the same jurisdictional framework utilized wherever U.S. forces operate. It is not. On October 12th, Sec Kerry, at a press conference in Afghanistan and while standing next to President Karzai, made a series of statements concerning the BSA’s criminal jurisdiction.  Among them,
[w]ith respect to the jurisdiction issue, we have great respect for Afghan sovereignty. And we will respect it, completely. And that is laid out in this agreement. But where we have forces in any part of the world, and we unfortunately have them in a number of places in the world – in Japan, in Korea, in Europe, in other parts of the world, Africa. Wherever our forces are found, they operate under the same standard. We are not singling out Afghanistan for any separate standard. We are defending exactly what the constitutional laws of the United States require.
Despite valiant Department of State attempts to “clarify” the Secretary’s remarks, the Washington Post initially awarded Sec Kerry “two Pinocchios”, meaning his statements at the Afghanistan press conference contained significant omissions and/or exaggerations. Kerry then stripped away language which could be mistaken for accurate in an October 17th National Public Radio interview, claiming that “[There] is the question of who maintains jurisdiction over those Americans who would be [in Afghanistan]. Needless to say, we are adamant it has to be the United States of America. That’s the way it is everywhere else in the world.”  This  streamlined version of untruth prompted the Post to elevate Sec Kerry to a  “three Pinocchios” award for “significant factual errors and/or obvious contradictions.”

Why Sec Kerry’s misstatements matter

  1. Sec Kerry’s false jurisdictional equivalency claims undermine his, and the U.S’. credibility, as well as Afghan President Hamid Karzai’s ability to explain the BSA to an upcoming Loya Jirga, whose approval is needed if U.S. troops are to remain in Afghanistan after 2014. Successfully concluding the BSA now depends on the Loya Jirga not realizing that any reliance on representations by the U.S. Secretary of State is misplaced. This bodes poorly for the agreement, and the strategic partnership between the two countries.

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19 Oct

This week on Opinio Juris, Tomer Broude completed his trilogy on behavioral international law. Also continuing from last week was Carsten Stahn's rejoinder to Harold Koh on intervention and the use of force, and Jens Iverson's guest post highlighting the underlying commitments of Professors Stahn and Koh. We also published guests posts by Faiza Patel on the OPCW and by Adam Steinman on this week's SCOTUS oral...

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18 Oct

[Adam N. Steinman is Professor of Law and Michael J. Zimmer Fellow at Seton Hall Law] Cross-posted at Civil Procedure & Federal Courts Blog This week the Supreme Court heard oral argument in Daimler AG v. Bauman (covered earlier here and here). Daimler resembles last Term's Kiobel case, in that it involves claims against a foreign defendant (Daimler) for human rights and other violations committed abroad (in Argentina, during the "dirty war" of the 1970s and 1980s) under the Alien Tort Statute (ATS). But the question for which the Court granted certiorari in Daimler involves personal jurisdiction and is not limited to ATS cases: "whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State." During the argument, plaintiffs' counsel acknowledged that their ATS claims faced an "uphill struggle" in light of Kiobel, but they are also pursuing state law and foreign law claims – for which personal jurisdiction would remain a live issue. Given the question presented, the more significant SCOTUS precursor may be the 2011 Goodyear decision, not Kiobel. Writing for a unanimous Court, Justice Ginsburg wrote in Goodyear that general jurisdiction over corporations is proper "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." She cited (1) a corporation's principal place of business and (2) its state or country of incorporation as "paradigms" for general jurisdiction; but it remains unclear what else could render a corporation "essentially at home" in a particular forum. In particular, Goodyear acknowledged – but did not address – the argument that distinct corporate entities might be treated as a "single enterprise" for jurisdictional purposes. In Daimler, the Ninth Circuit found that California had general jurisdiction over Daimler based on the activities its American subsidiary, Mercedes Benz USA (MBUSA). The most common reaction to this week's oral argument has been that the Justices were quite skeptical of the idea that Daimler was subject to general jurisdiction in California. That may be so, but several interesting issues came up during the argument, and there are still a number of different ways the Court could ultimately dispose of the case (some of them quite narrow). One topic of discussion was whether state law or federal law governed the extent to which MBUSA's contacts could be attributed to Daimler. Under Federal Rule of Civil Procedure 4(k)(1)(A) –the basis for personal jurisdiction in this case – a California federal district court can exercise personal jurisdiction if a California state court could exercise personal jurisdiction. Thus, jurisdictional restrictions in state long-arm statutes can confine federal courts as well. California's long-arm statute, however, extends as far as the 14th Amendment allows. It would seem, then, that personal jurisdiction ultimately hinges on the federal question of whether, on these facts, the 14th Amendment permits a state court to assert general jurisdiction over a foreign parent based on the activities of its subsidiary. Questions by Justices Sotomayor and Alito suggested that this was indeed a federal issue. Justices Scalia and Breyer, however, inquired repeatedly about state law. One line of questioning by Justice Breyer suggested the view that, just as state corporations law defines when a parent company can be liable for a subsidiary's conduct, so too would state corporations law define when a parent can be subject to jurisdiction based on a subsidiary's activities. Another significant issue in Daimler is whether Daimler waived or forfeited certain arguments against personal jurisdiction.
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