An annotation by James Janison, Staff Editor PDF version available here. I. Introduction Substantive law has a way of creeping into federal courts’ statutory interpretation techniques, and international law is no exception. The presumption against extraterritoriality is an interpretive principle whereby federal…
Essay by Ashley S. Kinseth
On the heels of the Holocaust, the then-nascent United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide—its first-ever international human rights treaty. As such, the Convention is arguably the most sacred text in modern international law—but also the most disregarded. The reasons for this indifference are largely political, yet typically explained away under the guise of law: governments routinely argue that it is impossible to know whether mass atrocities were intentional, as is required in the legal definition of genocide. The present Rohingya crisis, for which ample evidence of genocidal intent has emerged, provides a clear example of this blatant disregard for international law. As one of the worst genocides in the past century continues to unfold in Myanmar, nearly all states sit on their hands.
Foreign Policy of the European Union—Assessing Europe’s Role in the World sets out to treat the foreign relations of the EU in a holistic, all-encompassing manner. For this purpose the book is divided into five parts, each of which develops a different perspective on the EU’s external actions.
By: Celeste Marie R. Cruz[*]
Peace and economic development have long remained elusive to the conflict-torn region of Muslim Mindanao in the Philippines. Since the late 1960s, the Conflict in Mindanao, led by a secessionist independence movement of the Islamic minority in a predominantly Catholic country, has led to an enormous loss of life and suffering, claiming an estimated 120,000 lives and displacing more than 2 million people. The ongoing peace process between the Government of the Republic of the Philippines (GPH), under President Benigno Aquino III, and the Moro Islamic Liberation Front (MILF) reached a significant milestone with the signing of the Framework Agreement on the Bangsamoro (Framework) last October 15, 2012. The Framework seeks to establish a “federal” type of sub-state in the said region that is currently under the jurisdiction of the Autonomous Region in Muslim Mindano (ARMM).
By: Professor Burt Neuborne [*]
The hope that the ATS would permit entrepreneurial lawyers to choreograph international human rights cases involving: (1) alien plaintiffs; (2) alien corporate defendants; and (3) acts wholly occurring abroad into an American court in an effort to take advantage of American discovery rules, Rule 23 class actions, and an independent judiciary is now history. All nine Justices in Kiobel slammed that door, which was probably a pipe dream in the first place. Chief Justice Roberts, writing for five Justices, including the maddeningly vague Justice Kennedy, ruled that the presumption against extraterritorial legislation blocked use of the ATS as a source of federal jurisdiction when neither the plaintiffs, nor the defendants, nor the operative facts had a significant link with the territorial United States. Mere corporate presence for the purposes of general jurisdiction over the defendant could not, ruled the Chief Justice, constitute the significant link to the territorial United States needed to rebut the presumption against extraterritorial legislation.
By: Carey Shenkman[*]
Wednesday, the U.S. Supreme Court set a deeply alarming precedent in its decision in Kiobel v. Royal Dutch Petroleum, holding in substance 5-4 that the presumption against extraterritoriality defends corporations from being held accountable for human rights abuses like torture, rape, and murder committed in other countries. For years, U.S. courts were the only recourse for victims from countries with powerless, dysfunctional, or corrupt judicial systems. Their cases were a rare check on the conduct of our companies and their subsidiaries abroad.
This morning, the Supreme Court dismissed the human rights claims of a group of Nigerian nationals against Royal Dutch Petroleum (Shell) under the Alien Tort Statute (A.T.S.) in a 9-0 decision, though the justices split 5-4 as to the reasoning. For the original opinion, see: Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ___ (2013)
Justice Roberts delivered the opinion of the Court on behalf of 5 justices. First, the Court held that the presumption against extraterritoriality, explained with force in Morrison v. National Australia Bank, 561 U.S. ___ (2010), applies to the statute and the federal common law cause of action under the statute. Second, the court found nothing in the statute’s language or history to rebut the presumption. Third, there are no facts to rebut the presumption in the instant case. Fourth and finally, the Court justifies its solution as preventing the ‘diplomatic strife’ that may arise from judicial interference in foreign policy, an area that is traditionally reserved to the political branches. The Court implied that even if the primary norm that created the cause of action might not cause strife, the judicial search for secondary rules (such as corporate liability) may still do so.
By: Yelena E. Archiyan[*]
For years, arbitration courts in Russia have upheld over and over again the validity of the so called unilateral option clause (“UOC”). But everything changed on June 19, 2012, when the Presidium of the highest arbitration court of the Russian Federation held in Russian Telephone Company v. Sony Ericsson Mobile Communications Rus that such clauses are invalid and unenforceable. In 2009, Russian Telephone Company (“RTC”) entered into an agreement with the Russian subsidiary of Sony Ericsson, Sony Ericsson Mobile Communications Rus (“Sony Ericsson”) for the distribution of Sony Ericsson phones.
The NYU Journal of International Law and Politics is proud to once again partner with Opinio Juris for an online symposium around Jenia Iontcheva Turner’s article, Policing International Prosecutors. Over the next two days, a number of scholars will be responding to Professor Turner’s article that was published in our Volume 45, No. 1 issue.
To follow that dialogue, please visit to Opinio Juris.
Our fall issue, Vol. 45, No. 1, is now available to view online. This issue includes pieces by Arnulf Becker Lorca on the global war on terror, Pammela Quinn Saunders on enforcing human rights, and Jenia Iontcheva Turner on the regulation and policing…