Course Notes – IL: Universal Jurisdiction

We are also discussing universal jurisdiction this week, albeit briefly. At Erga Omnes there is an interesting post about Yemen’s amnesty law that is intended to grant President Saleh immunity for any crimes he may be complicit in. This issue underscores the tension between the objectives of peace and stability (giving a President a way out might enable an easier transition), versus justice. A separate issue is whether or not Yemen’s parliament’s grant of amnesty can have any real effect outside of Yemen.

Course Notes – IL: ATS and Corporate Persons

As I mentioned in class on Monday, the Supreme Court is hearing arguments this week on two cases Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. These cases concern the Alien Tort Statute, an almost-forgotten law that allows foreigners who violate serious international legal rules and norms to be held accountable in the US.

Kiobel involves Shell’s complicity in the torture of Nigerian nationals. Mohamad involves complaints against the Palestinian Authority and the PLO for torture of Mohamad’s father, a naturalized American who was in the West Bank at the time.

Here are some of the big themes in the case:

1. Are corporations people?

As Peter Weiss (NY Times h/t my student, Micky Capper) notes, the Supreme Court is faced with an interesting dilemma. On the one hand, in Citizens United it granted corporations certain rights as corporate persons. On the other hand, the Second District Court has said–in essence–that corporations are not individual persons when it comes to the Alien Tort Statute. How will they reconcile these two positions? Will they?

2. The human rights angle.

Over at Erga Omnes, the human rights dimension of the case is front and center. Kiobel involves claims against Royal Dutch Shell for its role in the torture of activists in the Niger Delta (or at least helping the Nigerian government in this).

3. Comparative Foreign Law and the Risk of Political Tensions

Following the excerpts in John Bellinger’s post at Lawfare, it is clear that the issue of extraterritorial application of the ATS is of great interest to the justices. Kennedy seems concerned that the ATS is giving the US jurisdiction that no other country attempts to exercise. Alito is concerned about how this might exacerbate international tensions.

I think the petitioner’s attorney, Hoffman, makes a great – if perhaps not original – point when he states:

“I think one of the most important principles in this case is that international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law.”

Indeed, if international law is going to matter, it does rely on mechanisms such as the ATS.

The Obama Administration is in favor of corporate liability in these cases, reports Reuters.

For more on these cases, see:


Sunday’s Political Pressures in West Africa

  • Senegal did not fall apart after the elections yesterday, but the presidential race is still unresolved. Unofficially, incumbent President Wade will have to square off with former PM Macky Sall (BBC News).
  • Also on Sunday, French Foreign Minister Alain Juppe was in Mali, admonishing them to negotiate with Tuareg rebels (Reuters).
  • Finally, Niger’s government warned its people they could be targeted if they travel to Libya. Niger is refusing to extradite Gaddafi’s son Saadi. Some of the same instability with rebels that Mali is experiencing may also be a problem for Niger. (Reuters).

New feeds I’ve started monitoring recently (only the first one of these is really “new”)

Africa and Development

International Relations

International Law

  • Erga Omnes: This is a blog by Sonia Cardenas, Director of Trinity College’s Human Rights Program. (h/t Kevin Heller at Opinio Juris).

Africa Notes

  • Senegal is at a “critical historical juncture” today, writes Alpha Diedhiou. President Wade’s “unfortunate” (that was the U.S. Ambassador’s word for it, according to NPR this morning) decision to stand for reelection has challenged the peace of this otherwise stable and solid democracy. The poll is on Sunday.
  • “The BRICS want a BRIC Bank”. The proposal is said to originate with India. Also significant is that South Africa is part of this. It can been be seen in light of the BRICS’ desire to counter the weight of the West in the IMF and World Bank.
  • On Somalia:

Course Notes – IL: Medellín and Self-Executing Treaties,

Opinio Juris has had a nice discussion this week on the exact subject we discussed yesterday and will continue to discuss next week: the relationship between international law and US law. The symposium is all online:

Opinio Juris/Yale Journal of International Law Symposium: Hathaway, McElroy, and Solow on International at Home

Some highlights:

1. This begins with a discussion by Oona Hathaway, Sabria McElroy, and Sara Solow about their article: “International Law at Home: Enforcing Treaties in U.S. Courts.” Much of that discussion focusses on the Medellín case we read about. Specifically, they aim to understand how that decision impacts the enforcement of international law in U.S. courts and they offer proposals for strengthening enforcement of international law.

2. Sloss argues for a different interpretation of Medellin, and in particular the sentence in the decision that says there is a “background presumption…that [treaties] … do not create private rights or provide a private cause of action in domestic courts.” He summarizes his argument:

“In sum, it appears that very little has changed since Medellín. Before Medellín, US courts vigorously enforced transnational treaty provisions, but they were hesitant to enforce vertical treaty provisions. After Medellín, US courts are arguably more reluctant to enforce vertical treaty provisions, but their enthusiastic enforcement of transnational treaty provisions continues unabated.”

3. John Bellinger, part of the Secretary of State’s Advisory Committee on International Law, makes an interesting comment on how the Medellín decision surprised him:

“ does not make much sense to me that the President [Bush] would order compliance with an ICJ decision knowing his order would be struck down. His order was decidedly unpopular in Texas and with conservatives, and he received little credit in the international community for his effort to comply with international law. To my knowledge, the President made his decision, based on the recommendation of his Secretary of State, because the U.S. is required under the U.N. Charter to comply with decisions of the ICJ and because demonstrating commitment to the Vienna Convention on Consular Relations (VCCR) would help protect Americans who are arrested in other countries”

4. Finally, and most recently,Vladek blogged on “Self-Execution Beyond Treaties”: Enforcement of both domestic and international obligations is becoming more problematic.

Noted: African Summits, Direct democracy, and Jeremy Lin

African Summits
I meant to write up a summary of the recent summit activity on the continent but never got around to it. Fortunately, Alex Thurston at the Sahel Blog, did it for me: “Summits around the Continent”.
More reasons not to like direct democracy
I have thought for some time that California’s proposition system is once of the worse things that happened to that state. When I lived there my general rule was to vote against all propositions because the system is plain bad. The propositions themselves are written poorly, unnecessarily tie the hands of the state legislature (making them increasingly dysfunctional), and are decided by an electorate that really has no clue what they are voting on. Representative democracy is a much better (albeit imperfect) way to make law as it enables individuals to specialize. Unfortunately, California is not the only place that has such a system…

Jeremy Lin
I’m still following the incredible arrival of Jeremy Lin into the NBA.  But some crazy stuff has been going on around him. Here SNL tackles the hypocrisy of the stereotyping surrounding Jeremy Lin.:
SNL: Linsanity (requires Flash)
– Thanks, Kathy for the link!

Fighting Somali Piracy In London

David Leonard, writing for African Arguments, has an interesting take on the need to combat the international roots of the Somali piracy problem:

The real solution to Somali piracy lies with a partnership between NATO navies and European commercial interests. NATO needs to prevent international exploitation of Somali fishing waters while also patrolling defined maritime corridors. Higher insurance rates would induce international vessels to stay within these corridors. Ships should also employ self-protections, such as safe lock-in rooms for the crew, so that NATO patrol vessels can reach them before pirates force them to surrender. Finally, the focus should be on capturing those who plan and fund piracy, more than on the young-men who board the ships. Finding the organisers could start with tracking how piracy is financed and how ransoms are distributed. These solutions suggest that it is indeed in the financial hub of London, not just along the coasts of Puntland, that Somali piracy must be tackled.