One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has […]
Archive | International Law
Kiobel (III): Universality as a Constitutional Question
By Eugene Kontorovich on March 27, 2012 9:00 am in Alien Tort Statute, Constitutional Law, International Human Rights Law, International Law, Uncategorized
Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case. Yesterday I talked about how the ATS extraterritoriality at issue in […]
Kiobel (II): Universality, Not More Extraterritoriality
By Eugene Kontorovich on March 26, 2012 9:32 am in Alien Tort Statute, Constitutional Law, International Human Rights Law, International Law
[Cross-posted on OpinioJuris] The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the […]
ObamaCare and the ATS: Can the Feds Regulate the Whole World?
By Eugene Kontorovich on March 26, 2012 8:35 am in Alien Tort Statute, Constitutional Law, Global Governance/World Government, International Human Rights Law, International Law
Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an […]
The First Amendment and International Agreements
An interesting opinion in In re Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price (D. Mass. Dec. 16), involving a subpoena by the UK government pursuant […]
The Law of Cyberwar: What FDR, Hitler, and the Blitz Can Teach Us
By Stewart Baker on September 30, 2011 9:41 pm in Computer Crime Law, Computer Fraud and Abuse Act, International Law, Uncategorized
I’ve just finished a longish piece on cyberwar and the role of lawyers, published in Foreign Policy magazine. Here’s how it begins: Lawyers don’t win wars. But can they lose one? We’re likely to find out, and soon. Lawyers across the U.S. government have raised so many show-stopping legal questions about cyberwar that they’ve left […]
“Plausibility” and Legal Claims about the Gaza Blockade
By David Bernstein on September 3, 2011 2:07 pm in Gaza Ship Incident, International Human Rights Law, International Law, Israel
Kevin Jon Heller of University of Melbourne and Opinio Juris: “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas” (and thus the blockade of Gaza is unlawful). U.N.’s Palmer Committee Report on the Mavi Marmara incident (and […]
Debate on Libya and the War Powers Act
By David Kopel on June 9, 2011 12:56 am in Constitutional Law, Global Governance/World Government, International Human Rights Law, International Law, Russia
Featuring British NGO representative Leslie Vinjamuri (pro-intervention, sees no legal problem), American peace activist Robert Naiman (anti-intervention, considers the intervention unconstitutional), and me (pro-intervention, but opposed to Obama doing it in violation of the Constitution and the War Powers Act). On the RT (formerly, “Russia Today”) television program “Crosstalk.” 27 minutes.
Free Speech Limits Justified by International Law
I know of only one case in which some Supreme Court Justices (in dissent) took the view that international law justified certain speech restrictions. And they didn’t just cite some foreign precedents, or statements by international bodies or international law experts, as tangential support in an opinion that focused predominantly on domestic precedents and purely […]
International Law and Bin Laden
Some common sense from Yale Professor Jed Rubenfeld. I’d pick out an excerpt, but it’s too good. Read the whole thing. H/T: Instapundit.
Ken Roth of Human Rights Watch on Bin Laden: “Not Justice”
The Cult of International Law Revisited
Back in 2006, I wrote: “I’ve noticed in a variety of contexts that there are some rather well-educated, articulate individuals out there who have what seems to me to be a fanatical, quasi-religious belief in ‘international law’, and the idea that it should trump any other conflicting consideration.” This analysis from Der Speigel, with the […]
The Death of Bin Laden and the Morality of Targeted Killings
There is not much I can say about the death of Bin Laden that will not be better said by others with greater eloquence or expertise, including the President in his speech last night, which I thought hit all the right notes. Obviously, it is a great day for the US and all who are […]
The Libyan intervention is not wholly legal
That’s my argument in a new article for The Daily Caller. As I’ve previously explained, I strongly support the use of force against the Gaddafi tyranny. Indeed, I wish that President Obama were not so half-hearted in taking action to remove Gaddafi. However, the war against the Libyan dictator still needs to be voted on […]
Human Rights Watch (and Amnesty International) on Goldstone Retraction
By David Bernstein on April 6, 2011 8:17 pm in International Human Rights Law, International Law, Israel
As I noted a few days ago, Justice Richard Goldstone wrote a Washington Post op-ed last week in which he states that contrary to the implications of his eponymous report, Israel did not deliberately target civilians in Gaza during Operation Cast Lead. Human Rights Watch contributed heavily to the content of the Goldstone Report, and […]