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02 Oct

Oral arguments were heard yesterday for the second time before the US Supreme Court in Kiobel v. Royal Dutch Petroleum; the transcript can be found here. You can already read the preliminary thoughts from a few of our regulars Roger, Deborah and Peter, and as Julian mentioned, starting today, we will have a roundtable discussion from a variety of guest...

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01 Oct

I am still digesting the transcript of the Kiobel reargument today, although I can say that nothing in the argument today has changed my view that this brief (which both Ken and I signed) represents the best approach to resolving the case.  I will say, however,  that nothing in the argument suggested that any member of the Court is considering...

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01 Oct

The transcript in the Kiobel case has been posted here. Shell counsel/former Stanford dean Kathleen Sullivan seems to have been on her heels for much of her argument time. Big sticking point on her claim that the ATS was not intended to cover piracy or a "reverse Marbois." (No, that is not a wrestling move; it's the counterfactual in which the...

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01 Oct

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States,...

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01 Oct

I am very sad to report that the eminent British historian has passed away at 95.  He lived an amazing life, as recounted in the Guardian's lengthy obituary today.  Here is a snippet: If Eric Hobsbawm had died 25 years ago, the obituaries would have described him as Britain's most distinguished Marxist historian and would have left it more or less...

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01 Oct

The US Supreme Court begins its new term today and will hear re-argumentation in Kiobel v. Royal Dutch Petroleum. SCOTUS Blog offers insight into what is at stake and for whom in this case. After 10 years’ imprisonment at Guantanamo Bay, Omar Khadr was repatriated to Canada, where he will serve the rest of his sentence. At the UN General Assembly, several leaders of the Muslim...

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29 Sep

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...

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28 Sep

According to a Kenyan military spokesman, Kenyan forces have captured the Somali port city of Kismayo, a bastion for Al-Shabbab fighters. At the UN General Assembly, China's foreign minister accused Japan of stealing the disputed Senkaku/Diaoyu islands. Palestinian president Mahmoud Abbas has said he will seek a vote on an upgraded status for Palestine to non-member state, like The Vatican, from the UN General Assembly. At...

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27 Sep

[Polina Levina is a masters in international law candidate at the School of Oriental and African Studies and Kaveri Vaid is an Institute for International Law and Justice Scholar at New York University School of Law.] Overview Recently, Human Rights Watch released a report detailing systematic practices of capture, torture, and rendition of members of the Libyan opposition by the United States Central Intelligence Agency.  At least...

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27 Sep

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. I would like to thank David Landau, William Partlett, Brad Roth, and Joel Colón-Ríos for their kind words and insightful comments about my article, The Democratic Coup d’Etat, 53 Harv. Int’l L.J. 291 (2012). These scholars have been instrumental in enhancing our knowledge of constitutional transitions, and I very much appreciate the time they have taken to share their thoughts on my article. In this reply, I will first provide a brief summary of the article’s central claims and then respond individually to the comments. The article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy. This article challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.
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27 Sep

[William Partlett is an Associate-in-Law at Columbia Law School and a Nonresident Fellow at the Brookings Institution.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. The Democratic Coup d’Etat is an important article. First, and most obviously, this Article carries significant policy implications. The political transformations sweeping the Middle East and North Africa - known as the “Arab Spring” - have presented a wide range of conceptual challenges to policymakers and political scientists. Varol’s counter-intuitive argument that self-interested militaries might facilitate democratic transition in order to preserve their own position within the political system provides an important perspective on Egypt’s transformation. Although it is far too early to tell if the Egyptian military will remain an agent of democracy, Varol’s article puts the military’s actions in sharp focus. Recent developments have also added additional texture to Varol’s concept of the “democratic coup d’état.” Most relevant is the alliance between the military and judiciary that was on show in June when the Supreme Constitutional Court disbanded Egypt’s Muslim Brotherhood-dominated Parliament. Reporting from this event suggests that the military was not simply using legal institutions to pursue its own interests. Instead, key members of the Supreme Constitutional Court had been in close contact with the Egyptian military from the very beginning of Egypt’s political transformation to address how they will handle the risk that the broad popularity of the Muslim Brotherhood will allow it to unilaterally shape the Egyptian state. Tahani el-Gebal, Egypt’s deputy president of the Supreme Constitutional Court, justified this alliance with the military based on the argument that “[d]emocracy isn’t only about casting votes; it’s about building a democratic infrastructure.” This burgeoning relationship helps us better understand the dynamics behind what Varol calls “institutional entrenchment.” In particular, it might suggest that institutional entrenchment is the product of a shared counter-majoritarian interest in curbing any rising electoral tide of political Islam.
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27 Sep

Japan has promised that it will not compromise on the dispute over the Senkaku/Diaoyu islands, calling them an integral part to the country's territory. It did not take very long for China to react. The High Court of England and Wales issued an injunction against the extradition to the United States of Islamic cleric Abu Hamza al-Masri and Saudi-born Khaled al-Fawwaz...

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