A look at the legislative history does not support the notion of a subjective, political exemption for politically-motivated pirates. Kevin Jon Heller’s argument that political motives are excluded from piracy rests less on the Law of the Sea Treaty itself than on its intellectual predecessors, the League of Nations Report of 1927 and the Harvard […]
Tag Archives | ATS
What the Definition of Piracy Means for UNCLOS & ATS
By Eugene Kontorovich on February 28, 2013 1:05 pm in Alien Tort Statute, Criminal Law, International Law, Terrorism, War and Armed Conflict
Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have […]
Yes, Sea Shepherd Engages in Piracy Under International Law
The Ninth Circuit was right to reverse the district court in the Sea Shepherd Case. The district court erroneously read “private ends” as excluding political ends like saving the whales. But the “private ends” requirement has never been understood to inject a subjective element to the piracy inquiry. It does not turn on whether the […]
The Sea Shepherd Decision: Sailing Ahead of Kiobel
The Ninth Circuit’s reversal of a district court decision ruling that actions by Sea Shepherd against Japanese whaling vessels could not constitute piracy because they did not satisfy the “private ends” requirement is obviously correct. (Institute of Cetacean Research v. Sea Shepard Conservation Society.) The district court’s analysis always struck me as strange and disconnected […]
Evolving International Law and Defining Offenses
By Eugene Kontorovich on May 24, 2012 11:58 am in Alien Tort Statute, Constitutional Law, International Law
The Fourth Circuit’s noteworthy decision in U.S. v. Dire is probably the first court of appeals decision in a piracy prosecution in nearly 200 years. The Fourth Circuit decision is important not only for some novel pending piracy cases, but for the Alien Tort Statute and broader questions about the interplay of U.S. and international […]
The Cross-Cutting Politics of the ATS and Universal Jurisdiction
By Eugene Kontorovich on April 6, 2012 11:45 am in Alien Tort Statute, Constitutional Law, International Human Rights Law, International Law
In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests. These points are only […]
Precedent-setting Dutch Civil Universal Juris. Case
By Eugene Kontorovich on March 28, 2012 11:38 am in Alien Tort Statute, International Human Rights Law, International Law, Uncategorized
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 […]
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 […]
The Alien Tort Statute Returns to the Supreme Court: International Law versus Law of the Hegemon?
As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability. The Supreme Court presumably took the case because of a circuit split that has arisen over the […]