At JustSecurity, Ryan Goodman challenges the methodology of Amnesty International’s updated report of universal jurisdiction, which finds the vast majority of nations implement UJ in their legislation. Prof. Goodman argues Amnesty over-counts (see Kevin Jon Heller’s dissent). Yet even if Amnesty’s numbers are accurate, they may actually paint a dismal picture of UJ. The broader […]
Tag Archives | Kiobel
New Paper: “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends”
By Eugene Kontorovich on November 12, 2013 2:54 pm in Alien Tort Statute, Federal Jurisdiction, International Law, Law Reviews, Legal Scholarship, Supreme Court
My article on Kiobel v. Royal Dutch Petroleum is up on SSRN. It is forthcoming in the Notre Dame Law Review‘s Federal Courts Issue. Here is the abstract; comments on the article are welcome: The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious […]
France’s Kiobel
By Eugene Kontorovich on May 2, 2013 3:19 pm in Alien Tort Statute, Corporations and Corporate Law, Global Governance/World Government, International Human Rights Law, International Law, Israel, Supreme Court
I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967. The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s […]
Kiobel and Academic Fallability
By Eugene Kontorovich on April 17, 2013 12:54 pm in Alien Tort Statute, International Human Rights Law, International Law
Alongside the Health Care Act decision, Kiobel is an example of the professoriate failing to predict the issues that would be taken seriously by the Court both on substance and style. When the Second and Ninth Circuit began questioning “foreign cubed” suits a few years ago, the great majority of scholars dismissed such claims as […]
Defining “High Seas Felonies” in Another Country
By Eugene Kontorovich on March 18, 2013 9:00 am in Constitutional Law, Criminal Law, Foreign and Religious Law in American Courts, Global Governance/World Government, International Law, National Security, Uncategorized, War on Drugs
A district court recently ruled that Congress’s power to “Define and Punish… Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013). The Maritime Drug Law Enforcement Act (MDLEA) […]
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 […]
Can Congress Mandate the Japanese to Buy Detroit Cars? – The Commerce Clause and Foreign Commerce
By Eugene Kontorovich on April 4, 2012 3:09 pm in Alien Tort Statute, Federalism, Health Care, Individual Mandate, International Human Rights Law, International Law, Supreme Court
One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard […]
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 […]
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 […]