Jurisdiction Commons^™

Extraterritorial Criminal Jurisdiction: Bigger Picture Or Smaller Frame?, Robert Currie, Steve Coughlan

Articles, Book Chapters, & Popular Press

The authors review extensively Canadian law and practice on the exercise of extraterritorial criminal jurisdiction, and the extent to which that may have changed in recent years. They conclude that, while there are now many more instances of Canada asserting extraterritorial jurisdiction, any change in policy is more apparent than real. What has changed is how often the situations that prompt extraterritorial jurisdiction arise, particularly in that there are now many international treaties requiring Canada to exercise jurisdiction in this way. The authors also argue that this policy of cautious expansion and constructive engagement with international practice is desirable and …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Enforcing The Avena Decision In U.S. Courts, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Legal Limits Of Universal Jurisdiction, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

Despite all the attention it receives from both its supporters and critics, universal jurisdiction remains one of the more confused doctrines of international law. Indeed, while commentary has focused largely and unevenly on policy and normative arguments either favoring or undercutting the desirability of its exercise, a straightforward legal analysis breaking down critical aspects of this extraordinary form of jurisdiction remains conspicuously missing. Yet universal jurisdiction's increased practice by states calls out for such a clear descriptive understanding. This Essay engages this under-treated area. It offers to explicate a basic, but overlooked, feature of the law of universal jurisdiction: If …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

A Positive Theory Of Universal Jurisdiction, Eugene Kontorovich

ExpressO

Academic discussions of universal jurisdiction (“UJ”) have been almost entirely normative, focusing on what UJ “should” be in an ideal world. This Article breaks with the normative approach and analyzes UJ from a positive perspective, drawing on historical evidence and rational choice models to understand what UJ has in fact been and what it can be.

Piracy was for centuries the only UJ offense. This Article begins by isolating the characteristics of piracy that made it uniquely suitable for UJ. While these characteristics show why UJ over piracy would cause fewer problems than UJ over other crimes, they still fail …

Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley

Scholarly Works

To cope more effectively with the changed landscape of child exploitation, it is necessary for laws to expand their extraterritorial reach. Some statutes in the “child exploitation arena” have already been ruled to apply extraterritorially. The prime example of this is 18 U.S.C. § 2252 (2004) (certain activities relating to the material involving the sexual exploitation of minors). Two of the more useful statutes in combating online pedophiles are 18 U.S.C. § 1470 (2003) (transfer of obscene materials to minors) and 18 U.S.C. § 2422 (2003) (coercion and enticement). These latter statutes, however, have yet to receive significant or …

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

Scholarly Works

In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

Jurisdictional Theory "Made In Japan": Convergence Of U.S. And Continental European Approaches, Akihiro Hironaka

Vanderbilt Journal of Transnational Law

Recent Japanese cases concerning international jurisdiction illustrate a convergence of two distinct legal approaches to the treatment of jurisdictional issue--a rule-based, inflexible approach in Continental European countries and a standard-based, flexible approach in the United States. Japan's unique framework, as explained in this Article, might provide a useful perspective to solve the difficult question currently imposed on the Hague Conference: How is it possible to achieve comprehensive harmonization of the jurisdictional systems of the world?

A Solution To The Yahoo! Problem? The Ec E-Commerce Directive As A Model For International Cooperation On Internet Choice Of Law, Mark F. Kightlinger

Law Faculty Scholarly Articles

In May 2000, a French court decided that a French law banning the display of Nazi materials for sale applies to an auction website hosted by the California-based company Yahoo! Inc. The following year, at the request of Yahoo! Inc., a U.S. District Court declared that the French judgment was unenforceable in the United States because enforcing it would violate an important public policy-the First Amendment. These two cases have attracted considerable attention because they crystallize a difficult problem. The Internet is global. Every website potentially reaches every home on the planet. Thus, website content or activity that may be …

The United States Dropped The Atomic Bomb Of Article 16 Of The Icc Statute, Mohamed E. Zeidy

Vanderbilt Journal of Transnational Law

This Article discusses the recent adoption of the Security Council Resolution 1422 and its impact on international law. The Author asserts that the United States--a major proponent of Resolution 1422--desires to immunize its leaders and soldiers from the International Criminal Court's jurisdictional powers. The Author begins by describing the drafting history of Article 16 and its legal consequences. Upon highlighting the most significant reasons for opposing Resolution 1422, the Author delineates how the Resolution mirrors the inconsistency with the United Nations Charter and the Law of Treaties. Finally, the Author concludes that Resolution 1422 should be rejected because it violates …

Complementary Agreements And Compulsory Jurisdiction, Bernard H. Oxman

Articles

No abstract provided.

Universal Jurisdiction And U.S. Law, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Autumn Of The Patriarch: The Pinochet Extradition Debacle And Beyond- Human Rights Clauses Compared To Traditional Derivative Protections Such As Double Criminality, Christopher L. Blakesley

Scholarly Works

This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, …

Jurisdiction, Definition Of Crimes, And Triggering Mechanisms, Christopher L. Blakesley

Scholarly Works

The opportunity to create an international court that provides fair, equitable, and efficient justice is rare and important. It requires expertise in comparative and international law. Problems are serious, however. Failure to address the formidable problems could cause the Court to run a risk of failure that could be disastrous for international law, for the victims of the horrors that have occurred and that will occur, and for the world. Failure could come in at least two forms: (1) the Court could merely be a conduit for retribution after a pro-forma kangaroo court or (2) it will not have sufficient …

Extra-Statutory Discovery Requirements: Violating The Twin Purposes Of 28 U.S.C. Section 1782, Christopher W. Sanzone

Vanderbilt Journal of Transnational Law

This Note analyzes Section 1782 of United States Code Chapter 28 and its role in the realm of international judicial assistance. The twin aims of Section 1782 are: (1) to provide efficient means of assistance to participants in foreign litigation, and (2) to encourage foreign countries by example to provide similar assistance to U.S. litigants in court. This Note posits that these goals are violated when a district court, considering a request for documents, imposes a threshold, extra-statutory requirement that the material requested be discoverable in the foreign jurisdiction where the litigation is pending.

After analyzing the legislative history of …

Professor Lowenfeld Responds, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Professor Silberman is as usual gracious in acknowledging my writings in various formats, and my efforts to restore conflict of laws to its place as a branch of international law, a place it has occupied in most of the world outside the United States, and occupied here as well in the view of Story and others who wrote before the balkanization of American law in the latter part of the nineteenth century. We have no disagreements on the value of the comparative method in teaching conflict of laws, civil procedure, or international litigation.

This brief response is addressed only to …

International Abductions, Low Intensity Conflicts, And State Sovereignty: A Moral Inquiry, Fernando R. Tesón

Scholarly Publications

What are the moral principles bearing on operations such as an international abduction? International abductions are part of a larger category of international acts referred to as "low-intensity" operations. Can these acts be morally justified in time of peace? Can one nation, for example, rightfully claim that abductions of persons who are suspected of horrendous crimes by agents of another country violate the first country's sovereignty? Does the interest of the other country in bringing such persons to trial outweigh that sovereignty claim? If not, what interest of the second country could possibly justify the abduction? In any case, are …

Obstacles To The Creation Of A Permanent War Crimes Tribunal, Christopher L. Blakesley

Scholarly Works

Individual liability for war crimes is difficult to enforce and is unlikely to be accepted uniformly by states.

Individual criminal responsibility is the cornerstone of any international war crimes tribunal. Nuremberg Principle I provides that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” Acts by heads of state or other government officials, even if committed in an official capacity, may not constitute an immunity defense to or mitigate criminality. These officials, therefore, could also be held responsible for offenses committed pursuant to their orders. Additionally, liability for criminal …

The Scattered Remains Of Sovereign Immunity For Foreign States After Republic Of Argentina V. Weltover,Inc., Sarah K. Schano

Vanderbilt Journal of Transnational Law

The globalization of the United States economy in the latter half of the twentieth century has fostered greater interaction between the United States and foreign states and their instrumentalities. As a result, the likelihood of legal disputes arising between United States entities and foreign states has increased. Traditionally, foreign states have been immune from suit in United States courts. However, the Foreign Sovereign Immunities Act (FSIA), enacted in 1976, specifies instances in which United States courts may deny immunity to foreign states and exercise jurisdiction over them. Under one provision of the FSIA, a foreign state may forfeit its immunity …

International Law Principles Governing The Extraterritorial Application Of Criminal Law, Christopher L. Blakesley

Scholarly Works

In this piece Professor Blakesley provides remarks on the differences and similarities between Germany and the United States on international principles of jurisdiction over extraterritorial crime.

Bringing Meaning To Interest Balancing In Transnational Litigation, Spencer W. Waller

Vanderbilt Journal of Transnational Law

This Article contends that the current state of the debate over the balancing of interests in the extraterritorial application of United States law is outmoded and in need of serious reexamination. Most commentators and scholars continue to focus on the area of jurisdiction to prescribe, the acceptability of the effects test, and the development of lists of United States and foreign interests to be balanced by a United States court before exercising jurisdiction.

Professor Waller contends that this debate is no longer productive. Extraterritoriality, with some limitations for the interests of other states, is an accepted feature of United States …

Major Contemporary Issues In Extradition Law, Christopher L. Blakesley

Scholarly Works

In this piece Professor Blakesley provides remarks on high crimes in international law, and the ability to extradite state and high government officials for committing them.

Book Review, Michael C. Doland

Vanderbilt Journal of Transnational Law

The book is divided into two parts. The first part addresses those subjects that the Foreign Sovereign Immunities Act covers in detail, including the definition of foreign states and foreign government-owned corporations, judicial competence, jurisdiction, immunity, service of process, venue, and execution of judgments. The second part addresses those subjects that the Act covers in a cursory fashion, including burden of proof, rights of discovery, available remedies, and jury trials. In addition, the book treats those topics that received virtually no discussion under the Foreign Sovereign Immunities Act but that are essential to its understanding and enforcement, including the act …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Alien Tort Statute Grants Federal Court Subject Matter Jurisdiction Over Foreign Sovereign for Tort Committed in Clear Violation of International Law and Foreign Sovereign Immunities Act is not Exclusive Jurisdictional Grant Over Sovereign-- Amerada Hess Shipping Corp. v. Argentina Republic 830 F.2d 421 (2nd Cir. 1987)

Peace And The World Court: A Comment On The Paramilitary Activities Case, Robert F. Turner

Vanderbilt Journal of Transnational Law

One of the most painful experiences of my government service occurred on January 18, 1985, when as Acting Assistant Secretary of State for Legislative and Intergovernmental Affairs I was called on to sign letters informing Congress of the President's decision "not to participate further in the case brought by Nicaragua before the International Court of Justice." I felt deeply that the United States approach was mistaken--not so much on legal as on political grounds'--and in advocating my views I pushed strongly against the proper limits of legitimate dissent within the bureaucracy.

Having defended the Court against speculative criticism from lawyers …

Book Note, Covey T. Oliver

Vanderbilt Journal of Transnational Law

Students of international law in the United States have long desired a textbook to accompany the use of one or another of the "case-materials-problems" study books used in their courses. They do not yet have such a text,' but now they can find substantial degrees of security, guidance, and intellectual encouragement in a veritable gem of a Nutshell. Professors Buergenthal and Maier have written a remarkably accurate and insightful book on international law, almost as if they had engraved it on a small gold tablet. It is, as a work, outstanding in the West Publishing Company Nutshell series.

Sovereign Immunity In Perspective, Stefan A. Riesenfeld

Vanderbilt Journal of Transnational Law

The doctrine of the immunity of foreign governments from the adjudicatory and enforcement jurisdiction of national courts is rooted in two bases of international law, the notion of sovereignty and the notion of the equality of sovereigns. There is no need to rehearse the historical growth of these foundations of the modern international community. Suffice it to say that E.D. Dickinson's celebrated study, The Equality of States in International Law, furnishes a detailed account of the evolution of these notions.

Although historically the recognition of the jurisdictional immunities of foreign states may have been intertwined with the recognition of the …

Recent Development--U.S. Legislation To Prosecute Terrorists: Antiterrorism Or Legalized Kidnapping?, Catherine C. Fisher

Vanderbilt Journal of Transnational Law

This Recent Development examines the jurisdictional bases for the proposed extraterritorial extension of The Terrorist Prosecution Act to crimes that do not occur within the territory of the United States and to persons who are not United States citizens. The historical basis for allowing the prosecution of persons who have been forcibly brought into the court's jurisdiction and constitutional due process concerns that accompany such enforcement means are also detailed. Also discussed is the potential conflict between the Act and United States foreign relations law, particularly with respect to the possible forceful intrusion by the United States upon another state's …

A Conceptual Framework For Extradition And Jurisdiction Over Extraterritorial Crime, Christopher L. Blakesley

Scholarly Works

International law is the language by which nations assert and attempt to resolve competing legal interests. As with any other language, if the definitions of essential concepts become muddled, it is difficult to communicate. The traditional bases of jurisdiction over extraterritorial crime are essential concepts in the language of international law. The decision to grant or deny extradition, for example, often depends on whether the interested nation recognizes the basis of jurisdiction asserted by another. Confusion over the traditional bases of jurisdiction therefore risks disagreement over and denial of extradition.

United States courts have recently expanded the traditional bases of …